C.Rajasekaran vs K.Ravindran
2022 Latest Caselaw 16277 Mad

                                                                                   CRL.R.C.No.377 of 2018

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 13.10.2022

                                                           CORAM

                             THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                                    Crl.R.C.No.377 of 2018

                     C.Rajasekaran                                                   ... Petitioner

                                                               Vs.

                     K.Ravindran                                                     ... Respondent

                     PRAYER: Criminal Revision case has been filed under Section 397 r/w
                     401 of Cr.P.C to set aside the order passed by the learned XVIII
                     Additional Sessions Judge, Chennai in C.A.No.212 of 2014 dated
                     07.09.2016 confirming the conviction and sentence imposed by the
                     learned         Metropolitan    Magistrate,     FTC-II,   Egmore,   Chennai      in
                     C.C.No.3030 of 2011 dated 31.07.2014.
                                        For Petitioner     :       Mr.G.Rajesh
                                        For Respondent     :       Mr.S.Ganesh Kumar
                                                           ORDER

This revision is arising out of judgement dated 07.09.2016 passed

in C.A.No.212 of 2014 on the file of the learned XVIII Additional

Sessions Judge, Chennai, thereby confirming judgements passed by the

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learned Metropolitan Magistrate, Fast Track Court-II, Egmore, Chennai,

in C.C.No.3030 of 2011 dated 31.07.2014, thereby convicting the

petitioner for the offence punishable under Section 138 of Negotiable

Instruments Act, (herein after called as "the NI Act").

2. The petitioner is an accused in the complaint lodged by the

respondent. According to the respondent, the petitioner borrowed a sum

of Rs.18,00,000/- and in order to repay the same, the petitioner issued a

cheque and the same was presented for collection. However, it was

returned dishonored as unpaid with an endorsement of payment stopped

by the drawer. Immediately, after causing statutory notice, the respondent

lodged complaint for the offence under Section 138 of the NI Act.

3. On the side of the respondent, he examined P.W.1 & P.W.2

and also marked documents as Ex.P.1 to Ex.P.8. On the side of the

petitioner, no one was examined. However, he marked documents as

Ex.D.1 to Ex.D.3. On a perusal of oral and documentary evidence, the

trial Court found the petitioner guilty and sentenced him to undergo one

year simple imprisonment and to pay compensation of Rs.18,00,000/-

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under Section 357(3) of Cr.P.C., in default to undergo further

imprisonment of three months. Aggrieved by the same, the petitioner

preferred an appeal and the same was also dismissed by confirming the

judgment of the trial Court, as against which the present revision has

been filed.

4. The learned counsel appearing for the petitioner submitted

that the alleged cheque which was marked as Ex.P.2 was stolen by the

respondent on 28.04.2010. In fact, on the same day the complaint was

filed before the Inspector of Police, Orleanpet Police Station, and the

petitioner was issued with C.S.R.No.34153 of 2010. However, the said

complaint was not properly enquired and no FIR has been registered.

Hence, the petitioner lodged private complaint and thereafter FIR has

been registered in Crime No.226 of 2012 for the offences under Sections

147, 148, 150, 323, 324, 294, 447, 392, 506(ii) r/w 149 of IPC as against

the accused persons and the investigation is still pending.

5. The respondent examined his Power of Attorney as P.W.1

and he himself examined as P.W.2. During the trial, P.W.2 categorically

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admitted the lodgment of complaint for the occurrence took place on

28.04.2010. He further submitted that the petitioner as well as the

respondent and another were partners of M/s.Seventh Sense Broadcasting

Network Pvt. Ltd., Yali Marine Pvt. Ltd and Accanthus Pharma Pvt Ltd.,

and the said three business were registered under the Companies Act.

While being so, the respondent and one Nilavan wanted to become

directors of those companies by investing some amount and accordingly,

they made application before the Registrar of Company.

5.1. At that juncture, when the proceedings were pending before

the Registrar of Company, the respondent and the said Nilavan who were

working in abroad came to Puducherry and demanded to settle their

share, since they wanted to resign from the said business for their

personal reasons. At that time, they trespass into the house of the

petitioner and they stolen the cheque and other valuables. Therefore,

Ex.P.2 was issued for no consideration.

5.2. He further submitted that in fact, in the complaint, the

respondent had taken stand that the petitioner borrowed the entire

amount of Rs.18,00,000/- and in order to repay the said amount, he

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executed Ex.P.2. Whereas in the complaint lodged by P.W.1, who is the

power agent of the respondent alleged that a sum of Rs.18,00,000/- was

given towards purchase of land in their favour. After receipt of the entire

money, the petitioner failed to purchase any land. Therefore, they lodged

complaint before the Inspector of Police, DCB, Cuddalore and the said

complaint was enquired and subsequently closed. Therefore, in both

places, they were taken different stand and Ex.P.2 was not at all issued

for legally enforceable debt. Unfortunately, the Courts below without

considering the facts and circumstances mechanically convicted the

petitioner for the offence punishable under Section 138 of the NI Act. He

further submitted that except the relationship of hostile, the petitioner is

no way connected with any transaction as alleged by the respondent and

there was no liability on the part of the petitioner to issue the alleged

cheque. Hence, he prayed for acquittal of the petitioner.

6. Heard, Mr.G.Rajesh, learned counsel appearing for the

petitioner and Mr.S.Ganesh Kumar, learned counsel appearing for the

respondent.

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7. On a perusal of records revealed that according to the

respondent, the petitioner borrowed a sum of Rs.18,00,000/- and

executed Ex.P.2 When it was presented for collection, the same was

returned with endorsement payment stopped. Therefore, he caused legal

notice and lodged the complaint for the offence under Section 138 of the

NI Act. Though, the petitioner replied by the reply notice, which was

marked as Ex.P.7, subsequent to the counter claim, the petitioner failed to

marked any piece of evidence before the trial Court.

8. The specific contention raised by the learned counsel

appearing for the petitioner is that Ex.P.2 was stolen by the respondent on

28.04.2010 and on the same day he lodged complaint and after filing of

private complaint, FIR was registered in Crime No226 of 2012 of the fie

of the Inspector of Police, Orleanpet Police Station. However, no

document was produced before the trial Court to substantiate the said

contention.

9. It is true that, the petitioner lodged complaint on 28.04.2010

and he was also issued C.S.R.No.34153 of 2010 on the same day by the

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Inspector of Police, Orleanpet Police Station. However on registration of

FIR, detailed enquiry was conducted and found that no such occurrence

was taken place, since Ex.P.2 was issued in the month of March, 2010

dated 25.10.2010. Thereafter, the respondent went to Singapore along

with his partner Nilavan. In the mean time, the petitioner cooked up a

story and lodged complaint that the respondent and another trespassed

into his house and stolen the Ex.P.2. After detailed enquiry, the said FIR

was closed as mistake of fact.

10. In fact, on the closure report, the learned concerned Judicial

Magistrate issued referred charge sheet to the petitioner and even after

receipt of the same, the petitioner did not appear before that trial Court as

such, the learned Magistrate accepted the closure report filed in Crime

No.226 of 2012. It is also evident from the cross examination of P.W.2, in

which he categorically deposed that the cheque was issued in the month

of March, 2010 dated 25.10.2010.

11. Totally, the petitioner borrowed a sum of Rs.18,00,000/-.

Though, in the complaint lodged by P.W.1 viz., the power agent of the

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respondent alleged that the respondent paid the said sum of

Rs.18,00,000/- to purchase property in their favour and subsequently, the

petitioner failed to purchase any property and also refused to return the

amount, the respondent lodged the present compliant under Section 138

of the NI Act. Therefore, the discrepancies would not affect the case of the

respondent, since the petitioner never denied the signature found in the

cheque.

12. Further, the case of the petitioner also disproved by the

Police authority that cheque was never stolen by the respondent.

Therefore, Ex.P.2 was duly issued by the petitioner and same was present

for collection. Further, the petitioner did not even choose to mark the

complaint dated 28.04.2010 and the FIR registered in Crime No.226 of

2012 before the trial Court, because after registration of the said FIR, the

Investigation Officer conducted detailed enquiry and closed the FIR as

mistake of fact. Though, the petitioner cross-examined P.W.2 with regard

to lodgment of complaint by him, he did not mark the complaint as well

as the FIR before the trial Court.

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13. Further Ex.P.2 returned with endorsement stop payment

given by the drawer of the cheque. The stop payment instruction was

given by the petitioner, without the knowledge of the respondent.

Therefore, the offence under Section 138 of NI Act, clearly attracts as

against the petitioner. It is also seen that while suspending the sentence of

the petitioner, this Court imposed condition that the petitioner shall

deposit 1/3 of the cheque amount before the trial Court. However, the

petitioner did not comply with the said condition so far.

14. If at all the petitioner wants to disprove the case of the

respondent, he ought to have been examined himself as witness.

However, he failed to examine himself as one of the witness. Therefore,

the Courts below rightly convicted the petitioner for the offence under

Section 138 of NI Act and this Court finds no infirmity or illegality in the

order passed by the Courts below.

15. Accordingly, the Criminal Revision stands dismissed. The

judgments of conviction and sentence passed by the Courts below are

hereby confirmed. The trial Court is directed to take steps to secure the

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petitioner for the purpose of sentencing him to undergo the conviction. It

is also directed that the period of sentence already undergone by the

petitioner, if any, shall be given set off, as required under Section 428

Cr.P.C.

13.10.2022

Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order

rts

https://www.mhc.tn.gov.in/judis CRL.R.C.No.377 of 2018

To

1. The XVIII Additional Sessions Judge, Chennai.

2. The Metropolitan Magistrate, FTC-II, Egmore, Chennai

https://www.mhc.tn.gov.in/judis CRL.R.C.No.377 of 2018

G.K.ILANTHIRAIYAN, J

rts

Crl.R.C.No.377 of 2018

13.10.2022

https://www.mhc.tn.gov.in/judis