Sheela Thomas vs Molly Joseph
2023 Latest Caselaw 4105 Mad

                                                                                Crl.R.C.No.219 of 2020



                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      Dated : 12.04.2023

                                                          CORAM :

                                  THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN

                                                 Crl.R.C.No.219 of 2020

                     Sheela Thomas                                                    .. Petitioner

                                                              Vs.

                     Molly Joseph                                                    ..Respondent

                     PRAYER : Criminal Revision Case has been filed under sections 397
                     read with 401 of Criminal Procedure Code to call for the records in
                     Crl.A.No.617 of 2018 on the file of the learned XVIII Additional Sessions
                     Judge, Chennai and examine the same and to set aside the judgment
                     pronounced on 16.10.2019 in Crl.A.No.617 of 2018 uploading and
                     confirming the judgment of conviction passed on 30.10.2018 in
                     C.C.No.58 of 2011 by the learned Metropolitan Magistrate, Fast Track
                     Court II, Egmore at Allikulam, Chennai.


                                     For Petitioner       :     Mr.R.Karthik

                                     For Respondent       :     Mr.S.Prasanna




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                                                                                Crl.R.C.No.219 of 2020



                                                         ORDER

This Criminal Revision Case is preferred by the accused who is

convicted by the Trial Court for issuing a cheque for Rs.22,00,000/-

without balance and failed to honour the same.

2. The Trial Court while holding the accused/revision petitioner

guilty of offence under Section 138 of N.I.Act, sentenced her to undergo

one year Simple Imprisonment and pay double the cheque amount i.e.,

Rs.44,00,000/- within a period of one month as compensation, failing

which, to undergo 3 months Simple Imprisonment.

3. Being aggrieved by the judgment of conviction and sentence

passed in C.C.No.58 of 2011 by the learned Metropolitan Magistrate,

Fast Track Court-II, Egmore, Chennai. Appeal was preferred before the

learned XVIII Additional Sessions Judge, Chennai in Crl.A.No.617 of

2018, which came to be dismissed on 16.10.2019, confirming the

judgment of conviction and sentence passed by the Trial Court. Hence the

present Criminal Revision Case.

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4. The brief facts leading to this revision is that the appellant

herein had money transaction with the complainant and her husband. In

the course of their transaction, there was over due of Rs.22 lakhs and the

Revision petitioner failed to pay the said money. Meanwhile, the husband

of the complainant died. In the said circumstances, the complainant,

when demanded money payable to her deceased husband, Revision

Petitioner refused and threatened the complainant. Therefore, the

complainant gave a complaint to the Deputy Superintendent of Police,

Payyannur, Kannur, Kerala. Thereafter, the revision petitioner has given a

letter acknowledging debt of Rs.22 lakhs since 30.03.2009 with an

undertaking that she will pay a sum of Rs.22 lakhs with interest within 6

months period. Subsequently, the subject cheque dated 07.08.2010 for

Rs.22 lakhs has been issued by the accused/revision petitioner. But when

it was presented for collection, it got returned with a memo “Fund

Insufficient”. Thereafter, the complainant has caused statutory notice to

the Revision Petitioner intimating about the dishonour of the cheque. The

said notice dated 13.09.2010 was received by the accused on 17.09.2010.

The accused has given a reply dated 27.09.2010 denying the liability and

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also stated that there is no amount due and payable to the complainant. In

the reply notice, it is stated that when the husband of the complainant

was alive, he as a member of the Trust “Dpaul School” from Kerala, sold

a portion of land and got Rs.42 lakhs during the month of March 2009.

The said money was not accounted and the unaccounted money was

received by the husband of the complainant. Out of this, Rs.22 lakhs was

entrusted to the accused and in turn four blank cheques were obtained. As

directed by the husband of the complainant, Rs.22 lakhs was

invested/spent and Rs.5 lakhs was donated to the Mananthavadi Diocese.

After the demise of Joseph/the husband of the complainant, dispute

regarding the right of late Joseph alienating the trust property arose and

in the said context, the complainant came to the residence of the accused

with Goondas and threatened to kill her and as a consequence now the

subject cheque given in blank has been falsely converted and presented

for collection.

5. Stating that the said reply is false a complaint under Section

138 of Negotiable Instruments Act was filed and the same has been taken

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on file by the learned V Metropolitan Magistrate, Egmore, Chennai.

6. Before the Trial Court, the complainant has mounted the

witness box and has marked Exhibits 1 to 6. The accused has not chosen

to let in evidence. However, the complainant, who has filed the proof

affidavit in lieu of chief examination has been cross examined at length on

05.09.2013, 07.11.2013, 04.09.2014 and 01.11.2014. Thereafter, re

examination of witnesses was done on 06.03.2017, for that, cross

examination was done on 01.07.2017. Thus, the complainant who

mounted in the witness box and gave his chief examination on

13.10.2011 was subjected to cross examination starting from 05.09.2013

and the examination completed only on 01.07.2017.

7. This Court bound to place on record the above detail because

the extensive cross examination of PW.1 was read over during the

argument by the Revision Petitioner/accused to emphasis that the accused

though not let in positive evidence on her side, but her incise cross

examination of PW.1 had discharged the onus and shifted the burden on

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the complainant to prove the subject cheque was issued for enforceable

liability.

8. While the case of the complainant is that during the life time

of her husband, the accused borrowed Rs.22 lakhs and to discharge the

debts he gave the subject cheque marked as Ex.P2. On presentation for

collection, it was returned for “Insufficient fund” as per Ex.P3.

Therefore, the accused is liable to be prosecuted under Section 138 of

N.I.Act.

9. The specific defence taken by the accused in the course of

cross examination of PW.1 and her reply is that the money she received

from the husband of the complainant is an unaccounted money, that

money was invested as per the direction of the complainant's husband

during his life time. The money which was entrusted by Joseph, the

husband of the complainant (deceased) is the sale proceeds of the trust

property and subsequently there was dispute between one of the Trustees

Valasamma and the complainant regarding alienation of the trust

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property. The subject cheque was obtained using force involving rowdy

elements. In the reply notice the accused has stated this and in the cross

examination of PW.1 has projected that Ex.P1 agreement executed by the

accused acknowledging the debt and promising to repay the debt of Rs.22

lakhs within 6 months was obtained by force in the office of the Deputy

Superintendent of Police, Kannur. The case diary pertaining to the

complaint given by the accused before the Deputy Superintendent of

Police, Kannur has been obtained under RTI and marked as Ex.P6.

10. The sum and substance of arguments placed by the learned

counsel for the Revision Petitioner is that (i) Complainant is not the

holder of the cheque (ii) the debt not proved (iii) the money given by the

complainant to the accused is an unaccounted money. Therefore, the

cheque issued to repay the said money cannot be termed as a cheque

issued for an enforceable debt.

11. The Courts below had rejected these points for the reason

that the execution of the cheque is admitted by the accused and the

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money transaction of Rs.22 lakhs also admitted by way of reply is

marked as Ex.P5. While so, Ex.P1-the acknowledgement letter also

admits that the receipt of Rs.22 lakhs from the husband of the

complainant and the cheque was given to the complainant after the

demise of her husband. No doubt in the complaint as well as in the sworn

statement, it is not so expressly stated how the money transaction took

place. But the fact remains that the accused admits the subject cheque

Ex.P2 was issued by the accused for the money received by her from

Joseph, the husband of the complainant.

12. Though the learned counsel for the Revision Petitioner

contended that the complainant is not the holder of the cheque, while

looking at the definition of holder of the cheque as defined under the

Negotiable Instrument Act, the cheque drawn in the name of the

complainant falls within the definition of holder of the cheque. Further, it

is not the case of the accused that the cheque was not given to the

complainant. It is the case by way of suggestion to the complainant is that

the cheque was obtained in the police station along with Ex.P1. Even

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assuming that there was some enquiry in the police station and the parties

have arrived at an understanding that the money of Rs.22 lakhs will be

paid within 6 months and executed Ex.P1 and pursuant to the agreement,

cheque for Rs.22 lakhs was given, then that fact ought to have been part

of reply notice Ex.P5. However, this Court finds the said fact

conspicuously absent in the reply notice.

13. Furthermore, the accused is not an uneducated person. She is

a lawyer by profession and she cannot claim that the cheque was obtained

by force in the police station. If it is so, PW.1 should have atleast brought

to the notice of the law enforcing agency soon after the threat ceased. So

this Court finds that the defence taken by the accused that Ex.P1 and

Ex.P6 were obtained by coercion and force are unbelievable.

14. Now coming to the other points raised by the learned counsel

for the Revision Petitioner that a sum of Rs.22 lakhs was received by the

accused only from the husband of the complainant and since the said

money is unaccounted money, she is not liable to repay it does not carry

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any merit. Having admitted that the receipt of money whether it is

accounted or unaccounted money does not matter for taking cognizance

under Section 138 of N.I.Act, only the genuineness of the drawal of the

cheque and whether the cheque given to discharge the liability alone

matters. Admission in the examination of PW.1, that her husband has no

source of income and he was not assessed under income tax or the

transaction not reflected in the income tax return all falls to grounds.

Since if any unaccounted money maintained or kept by the complainant,

it is for the Income Tax Authority to take necessary steps. The person

who has borrowed money on received the money cannot decline to repay

the money on the account that the money is ill-gotten money.

15. Having admitted that she has received Rs.22 lakhs from the

husband of the complainant, the accused ought to have proved that the

money received from Late Joseph been repaid or returned as per the

instructions of Joseph. There is no evidence to substantiate the plea of

discharge. When there is no evidence to presume that the money

admittedly received been repaid, the presumption under the N.I.Act

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squarely falls in favour of the complainant who has come out with the

specific case that the accused owed Rs.22 lakhs to her husband and after

the demise of her husband, the money demanded and for which the

accused gave the subject cheque Ex.P1. The said fact are substantially

admitted by the accused in her acknowledgement in the letter marked as

Ex.P1 and reply notice marked as Ex.P5. Therefore, this Court finds no

error in the findings of the Courts below both facts and law. Hence there

is no requirement to interfere with the finding of the Courts below while

exercising power of this Court under Section 397 r/w. 401 Cr.P.C.

Accordingly, this Criminal Revision Case is dismissed.

16. The learned counsel for the Revision Petitioner submitted

that at the time of admission of the revision petition the revision petitioner

sought for suspension of sentence. As a precondition for suspension of

sentence, this Court directed the Revision Petitioner to deposit a sum of

Rs.5 lakhs in the C.C.No.88 of 2011 account. A1 also gave an

undertaking that if sufficient time is granted she will settle the disputed

amount and compound the offence, but due to her inability to mobilise

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the funds, she was not able to comply with the condition. Already Non

Bailable Warrant issued and in these circumstances, she prayed that the

compensation amount may be reduced.

17. Taking note of the financial incapacity of the revision

petitioner, this Court having given due consideration to the request to

modify the sentence and compensation, pass the following order:-

The accused/revision petitioner herein found guilty of offence under

Section 138 of N.I.Act she is sentenced to undergo one year Simple

Imprisonment and pay a compensation of Rs.22 lakhs being the cheque

amount instead of twice the cheque amount as ordered by the Trial Court

and confirmed by the lower Appellate Court. The compensation amount

of Rs.22 lakhs shall be paid within a period of one month, failing which,

she shall undergo further period of 3 months Simple Imprisonment.

18. With the above modification, this Criminal Revision Case is

partly allowed.

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12.04.2023

Internet : Yes/No Index: Yes/No

rpl

To

1.The XVIII Additional Sessions Judge, Chennai.

2.The Metropolitan Magistrate, Fast Track Court II, Egmore, Allikulam, Chennai.

Dr.G.JAYACHANDRAN, J.

rpl

https://www.mhc.tn.gov.in/judis Crl.R.C.No.219 of 2020

Crl.R.C.No.219 of 2020

12.04.2023

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