Madras High Court
M/S.Sarthak Investment And ... vs Anil Agarwal on 3 February, 2023
Crl.R.C.No.1442 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2023
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
Crl.R.C.No.1442 of 2017
1. M/s.Sarthak Investment and Finance Pvt., Ltd.,
Rep.by its Director
Rakesh Kumar Gupta,
M/aged about58years,
S/o.M.L.Guptha (late)
No.29A, 1st Floor, HAUZ KHAS,
New Delhi-110 016.
2. Rakesh Kumar Gupta
... Petitioners
Vs.
Anil Agarwal,
Sole Proprietor of
M/s.Agarwal Steels, being rep. by its
Power of Attorney Holder
N.Nityaanandam,
No.71, Sembedess Street, Chennai-1.
... Respondent
Criminal Revision filed under Sections 397 and 401 Cr.P.C praying to call
for the records on the file of the learned XVIII Additional Sessions Judge,
Chennai in Crl.A.No.300/2016 dated 30.10.2017 and confirming the
judgement passed in C.C.No.9047/2007 on the file of the Learned
Metropolitan Magistrate, Fast Track Court IV, George Town, Chennai-1 dated
18.11.2016 and set aside the judgement dated 30.10.2017.
1/8
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1442 of 2017
For Petitioners : Mr.S.Senthilvel
For Respondent : Ms.V.Dhanalakshmi
Legal Aid counsel
***
ORDER
This Criminal Revision case has been preferred challenging the
judgment of the learned XVIII Additional Sessions Judge, Chennai dated
30.10.2017 made in Crl.A.No.300 of 2016.
2. The petitioners are the accused 1 & 2 against whom the
respondent/complainant has filed a complaint under Section 138 of The
Negotiable Instruments Act for dishonour of cheque. The first petitioner is a
Company for which the second petitioner/2nd accused is the Director. The
complainant is a proprietary concern by name M/s.Agarwal Steels. The
accused 1 & 2 had purchased goods from the complainant's Company on
credit basis. The complainant had supplied goods for a value of Rs.2,49,840/-
through invoice vide invoice No.3059/06-07 and towards the part payment of
the said bill, the first accused had issued a cheque for Rs.2,25,000/- dated
26.12.2006 in favour of the complainant. When the said cheque was
presented for collection on 09.03.2007, the said cheque was returned for the
reason “Insufficient funds”. After complying the legal mandates, the
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Crl.R.C.No.1442 of 2017
complaint was filed. Subsequent to that, taking cognisance of the case, trial
was conducted.
3. On the side of the respondent/complainant, complainant himself was
examined as PW1 and 9 documents were marked as Exs.P1 to P9. On the side
of the petitioners/accused, no witness was examined and no document was
marked. After the conclusion of trial and considering the materials available
on record, the learned Trial Judge found the accused 1 & 2 guilty for the
offence under Section 138 of Negotiable Instruments Act, and convicted the
2nd accused and sentenced him to undergo 6 months Simple Imprisonment and
the accused 1 & 2 were imposed with the compensation of Rs.4,50,000/- to be
payable under Section 357(3) Cr.P.C within one month. The appeal preferred
by the accused challenging the above judgement in C.A.No.300 of 2016
before the learned XVIII Additional Sessions Judge, Chennai was also
dismissed on 30.10.2017. Aggrieved over that, the present Revision has been
preferred by the accused before this Court.
4. Heard the learned counsel for the petitioners and the learned counsel
for the respondent. Perused the entire materials available on record.
5. The learned counsel for the petitioners submitted that the mandates of
Section 138 (b) has not been complied and the respondent has not produced
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Crl.R.C.No.1442 of 2017
any proof to show that notice has been served upon the petitioners; the
evidence was not properly appreciated by the Courts below; there is no
material produced to show that the petitioners had purchased goods and
towards discharge of the sum, the impugned cheque has been issued; the
respondent in his capacity as Power Agent has filed this complaint and the
same itself is not maintainable.
6. The learned counsel for the respondent submitted that once the
petitioner admits the execution of the cheque, the initial presumption under
Section 138 of Negotiable Instruments Act goes in favour of the respondent in
whose favour the cheque was issued; the 2nd petitioner did not enter into the
box to rebut the initial presumption and with the evidence available on record
the initial presumption has become the conclusive proof and thus the Courts
below have rightly found the accused guilty.
7. The respondent is a proprietary concern and the 1st petitioner is a
Company. The very case of the respondent is that the first petitioner-
Company had purchased goods from the respondent through invoice
No.3059/06-07 on credit basis. The said invoice has been produced as Ex.P2.
The goods have been supplied by the respondent-concern and the same has
been rightly represented by its Proprietor and Power Agent, who is the
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Crl.R.C.No.1442 of 2017
respondent herein. Once the execution of the cheque is not denied, it goes
without saying that the initial presumption under Section 138 of Negotiable
Instruments Act would go in favour of the holder of the cheque i.e., the
respondent herein. But in this case, the respondent not only enjoys the benefit
of presumption but he has also produced the invoice through which, the 1st
petitioner-Company had purchased goods from the respondent.
8. Even though the petitioner has stated that he did not receive notice,
that was not the submission of the petitioner throughout the trial and even
before the Appellate Court. Even in the grounds filed, it has not been stated
that he did not receive notice. If the petitioner wantonly refuses and manages
to return the notice sent to the petitioners to their correct address, that will not
come to their rescue. The mandate of Section 138(b) is deemed to have got
complied once the respondent sent the legal notice to the correct address of
the petitioners through Registered post. So the returned notice with postal
cover has also been produced as Ex.P8. If the petitioners' specific stand is that
the cheque was not issued for the alleged transaction involved in the invoice,
he ought to have adduced rebuttal evidence to disprove the same. The
petitioners, who have not chosen to send any reply, did not come to the
witness box also to subject themselves for cross-examination, but they have
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Crl.R.C.No.1442 of 2017
chosen to take a different stand as though the complainant has not complied
the mandate of sending legal notice. The learned trial Judge and the Appellate
Court have rightly appreciated the facts and applied the law and found the
accused guilty. In my view, the judgement dated 30.10.2017 passed by the
learned XVIII Additional Sessions Judge, Chennai in Crl.A.No.300/2016 does
not require any interference.
9. However, taking into consideration of the submission made by the
petitioners to reduce the compensation, this Court is of the view that the 1st
and 2nd accused shall jointly and severally pay a compensation to a sum
equivalent to the cheque amount.
10. In view of the above, this Criminal Revision Case is partly allowed
and the judgement dated 30.10.2017 made in Crl.A.No.300 of 2016 passed by
the learned XVIII Additional Sessions Judge, Chennai is hereby modified to
the effect that the 1st and 2nd accused shall jointly and severally pay the
compensation to a sum equivalent to the cheque amount. The sentence
imposed on the 2nd accused shall remain unaltered.
03.02.2023
Index: Yes/No
Speaking / Non Speaking Order
Neutral Citation : Yes/No.
kmi
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1442 of 2017
To
1.The XVIII Additional Sessions Judge,
Chennai.
2.The Metropolitan Magistrate,
Fast Track Court IV,
George Town, Chennai-1.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1442 of 2017
R.N.MANJULA, J
kmi
Crl.R.C.No.1442 of 2017
03.02.2023
https://www.mhc.tn.gov.in/judis
