Madras High Court
Rupa Kanaiya vs N.Rajesh on 26 October, 2022
Crl.R.C.No.170 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.10.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C.No.170 of 2018
1. Rupa Kanaiya
The Proprietrix,
M/s. Arpan Exports,
No.18, Thiruvengada Nagar,
Kandanchavadi,
Old Mahaballipuram Road,
Chennai-600 096.
2. Paresh Kanaiya ... Petitioners
Vs.
N.Rajesh,
Proprietor,
M/s.Rajesh Associates,
Represented by its Power Agent, H.Nemichand,
No.75, New No.11, Nainiappa Naicken Street,
Chennai-600 003. ... Respondent
PRAYER: Criminal Revision case has been filed under Section 397 r/w
401 of Cr.P.C to allow the Criminal Revision Petition and set aside the
Judgment of Conviction imposed in C.A.No.32 of 2014 on the file of the
V Additional Sessions Judge, Chennai dated 31.10.2017 confirming the
Judgment in C.C.No.5433 of 2004 on the file of the Metropolitan
Magistrate/Fast Track Court No.IV, George Town, Chennai dated
Page 1 of 9
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.170 of 2018
30.01.2014.
For Petitioners : Mr.C.K.M.Appaji
For Respondent : Mr.C.Parthiban
ORDER
This Criminal Revision case has been filed challenging the
Judgment passed in C.A.No.32 of 2014 on the file of the V Additional
Sessions Judge, Chennai dated 31.10.2017 thereby confirmed the order
passed in C.C.No.5433 of 2004 on the file of the Metropolitan
Magistrate/Fast Track Court No.IV, George Town, Chennai dated
30.01.2014.
2. The revision petitioners are accused in the complaint lodged by
the respondent for the offence punishable under Section 138 of
Negotiable Instruments Act. The crux of the complaint is that on
08.10.2002, the petitioners borrowed a sum of Rs.15,00,000/- to develop
the export business. As requested by the petitioners, the respondent had
lend a loan by way of two cheques dated 08.10.2002 of a sum of
Rs.10,00,000/- and Rs.50,000/- drawn on ABN-AMRO Bank. It was duly
en-cashed by the petitioners, who promised to repay the said loan with
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.170 of 2018
interest at the rate of 15%. They also executed two promissory notes in
favour of the respondent herein. However, the petitioners failed to return
the amount and as such the respondent caused notice on 15.09.2003.
After repeated request by the respondent, the petitioners issued three
cheques for a sum of Rs.5,00,000/- each. All the cheques, when presented
for collection, were returned for the reason the account maintained by the
petitioners are attached from the order of Provident Fund Commissioner
and refer to Drawer. Therefore, the respondent caused statutory notice on
15.04.2004 and lodged a complaint.
3. On the side of the respondent, he was examined as P.W.1
and marked Exs.P.1 to P.10. On the side of the petitioners, no one was
examined and no document was marked. On a perusal of oral and
documentary evidences, the Trial Court found the petitioners guilty for
the offence punishable under Section 138 of Negotiable Instruments Act
and sentenced them to undergo two years imprisonment, each and also
awarded them compensation of the cheque amount jointly. Aggrieved by
the same, the petitioners preferred an appeal and the same was dismissed,
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.170 of 2018
confirming the order passed by the Trial Court. Hence, this revision.
4. The learned counsel for the petitioners submitted that the
respondent failed to establish the case beyond any reasonable doubt to
prove his case. The petitioners never received any mandatory notice and
as such there was no cause of action to lodge a complaint for the offence
punishable under Section 138 of Negotiable Instruments Act. The copy of
the Acknowledgment cards were marked as Exs.P8 and P9 and they are
inadmissible in evidence. He further submitted that the second petitioner
is only a Mandate holder and as such the complaint is not maintainable as
against him, to punish him for the offence under Section 138 of
Negotiable Instruments Act. The cheques were returned dishonoured for
the reason that the account was attached by the Provident Fund
Commissioner. To attract the offence under Section 138 of Negotiable
Instruments Act, the cheques should have been returned for insufficient
funds or improper arrangement. Therefore, the endorsement of the
account which is attached would not attract the offence under Section
138 of Negotiable Instruments Act.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.170 of 2018
5. A perusal of records revealed that the first petitioner is a
Proprietrix of Arpan Exports. The second petitioner is the Mandate
Holder of the said Arpan Exports. The second petitioner is authorised to
operate the account owned by the first accused. The petitioners issued
cheques in favour of the respondent for the amount borrowed by them
after knowing very well that their account was already attached by the
Provident Fund Commissioner. Therefore, the endorsement made by their
banker clearly attracts the offence punishable under Section 138 of
Negotiable Instruments Act.
6. In this regard, it is relevant to extract the provisions under
Section 138 of Negotiable Instruments Act.
“138. Dishonour of cheque for insufficiency, etc., of funds in
the account.—Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any amount of
money to another person from out of that account for the discharge,
in whole or in part, of any debt or other liability, is returned by the
bank unpaid, either because of the amount of money standing to the
credit of that account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that account by an
agreement made with that bank, such person shall be deemed to
have committed an offence and shall, without prejudice to any other
provision of this Act, be punished with imprisonment for 8 [a term
which may be extended to two years’], or with fine which may extend
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.170 of 2018
to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply
unless—
(a) the cheque has been presented to the bank within a period
of six months from the date on which it is drawn or within the period
of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the
case may be, makes a demand for the payment of the said amount of
money by giving a notice; in writing, to the drawer of the cheque, 9
[within thirty days] of the receipt of information by him from the bank
regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the
said amount of money to the payee or, as the case may be, to the
holder in due course of the cheque, within fifteen days of the receipt of
the said notice.
Explanation.—For the purposes of this section, “debt of other
liability” means a legally enforceable debt or other liability”
7. Admittedly, Exs.P2 to P4 were issued for legally enforceable
debt in favour of the respondent. All the cheques were returned by the
bank unpaid. Therefore, the respondent clearly fulfilled the basic
requirement under Section 138 of Negotiable Instruments Act. The reason
stated by the petitioners' bank is clearly attracted for the offence
punishable under Section 138 of Negotiable Instruments Act for returning
the cheque dishonoured.
8. The first petitioner is the Proprietrix of Arpan Exports. The
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.170 of 2018
second petitioner is the Mandate Holder of the said Arpan Exports and he
is authorized to run the Proprietrix concern including to operate the
account of the first petitioner herein. Therefore, the respondent rightly
filed a complaint for the offence punishable under Section 138 of
Negotiable Instruments Act as against the Proprietrix and the mandate
holder, who signed the cheque. It is not the case of the petitioners that
without the consent of the first petitioner, the second petitioner issued
cheques. In order to repay the loan which was borrowed by both the
accused, they issued cheques in favour of the respondent. Insofar as
Exs.P8 and P9 are concerned, the petitioners duly received the statutory
notices issued by the respondent and the copy of the acknowledgments
were marked as Exs.P8 and P9. The original acknowledgments were
already filed before this Court in C.S.No.781 of 2004 filed by the
respondent herein. Therefore, it cannot be said that Exs.P8 and P9 is
inadmissible evidence. Hence, the respondent proved his case in terms of
Sections 118 and 139 of Negotiable Instruments Act. Though, the said
presumption is rebuttable in nature, it is the burden of the petitioners to
rebut the said presumption. However, in order to rebut the said
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.170 of 2018
presumption, the petitioners neither produced any oral nor marked any
documentary evidence. In fact, nothing was elicited from P.W.1 to rebut
the presumption.
9. Therefore, both the Courts below rightly found the petitioners
guilty for the offence punishable under Section 138 of Negotiable
Instruments Act and this Court finds no infirmity or illegality in the
orders passed by the Courts below and this revision is liable to be
dismissed.
10. Accordingly, this Criminal Revision case stands dismissed.
26.10.2022
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
mn
To
1. The V Additional Sessions Judge, Chennai.
2. The Metropolitan Magistrate/Fast Track Court No.IV, George Town,
Chennai.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.170 of 2018
G.K.ILANTHIRAIYAN, J
mn
Crl.R.C.No.170 of 2018
26.10.2022
https://www.mhc.tn.gov.in/judis
