M/S.Sri Maya Trading & vs D.Suresh ... 1St
2023 Latest Caselaw 515 Mad

                                                                    Crl.R.C.Nos.438 to 442 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 10.01.2023

                                                    CORAM:

                                  THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR

                                          CRL.R.C.Nos.438 to 442 of 2017

                  1.M/s.Sri Maya Trading &
                    Trading Solutions India (P) Ltd.,
                    5/8-N, B.D.O. Colony Street, Sulur,
                    Coimbatore - 641 402.

                  2.R.Prabakaran,
                    Chairman of M/s.Sri Maya Trading &
                    Trading Solutions India (P) Ltd.,
                    14/33-B, Pappampatty Main Road,
                    Pallapalayam Post, Sulur,
                    Coimbatore - 641 403.                           ... Petitioners/Accused in
                                                                        all Crl.R.Cs.

                                                     Versus

                  1. D.Suresh                                       ... 1st Respondent in

Crl.R.C.No.438 of 2017

1. M.Rajarathinam ... 1st Respondent in Crl.R.C.No.439 of 2017

1. M.Devaraj ... 1st Respondent in Crl.R.C.No.440 of 2017

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

Crl.R.C.Nos.438 to 442 of 2017

st

1. R.Marusamy ... 1 Respondent in Crl.R.C.No.441 of 2017 st

1. G.Venkatachalam ... 1 Respondent in Crl.R.C.No.442 of 2017

2.State rep. by Public Prosecutor, District Court Campus, nd Coimbatore. ... 2 Respondent in all Crl.R.Cs.

COMMON PRAYER: Criminal Revision Cases filed under Sections 397 and 401 of Cr.P.C. to set aside the judgment and sentence dated 24.01.2017 made in C.A.Nos.106, 105, 104, 103 & 102 of 2015, respectively, on the file of IV Additional District and Sessions Judge, Coimbatore and confirming the judgment and sentence dated 13.04.2015 made in C.C.Nos.324, 323, 322, 321 & 320 of 2013, respectively, on the file of the Judicial Magistrate Fast Track Court at Magisterial Level-II, Coimbatore.

In all Crl.R.Cs.

For Petitioners : Mr.R.Bharath Kumar

For Respondent-1 : Mr.N.Vignesh Legal Aid Counsel For Respondent-2 : Mr.L.Baskaran Government Advocate (Crl. Side)

COMMON ORDER

These Criminal Revision Cases have been filed to set aside the

judgment and sentence dated 24.01.2017 made in C.A.Nos.106, 105, 104,

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Crl.R.C.Nos.438 to 442 of 2017

103 & 102 of 2015, respectively, on the file of IV Additional District and

Sessions Judge, Coimbatore, confirming the judgment and sentence dated

13.04.2015 made in C.C.Nos.324, 323, 322, 321 & 320 of 2013, respectively,

on the file of the Judicial Magistrate Fast Track Court at Magisterial Level-II,

Coimbatore.

2. The petitioners/accused convicted by the Courts below for

offence under Section 138 of Negotiable Instruments Act on the complaint of

the respondent/complainants. The petitioners were convicted in C.C.Nos.324,

323, 322, 321 & 320 of 2013, respectively, by the learned Judicial

Magistrate, Fast Track Court at Magisterial Level-II, Coimbatore by

judgment dated 13.04.2015 sentencing the first petitioner-company to pay a

fine of Rs.2,000/-, in default, the second petitioner/Chairman of A1 company

to undergo two months simple imprisonment. Second petitioner/A-2 is

sentenced to undergo 10 months simple imprisonment and to pay a fine of

Rs.2,000/-. Aggrieved against the same, the petitioners have filed

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Crl.R.C.Nos.438 to 442 of 2017

C.A.Nos.106, 105, 104, 103 & 102 of 2015, respectively, on the file of IV

Additional District and Sessions Judge, Coimbatore. The learned Additional

District and Sessions Judge by judgment dated 24.01.2017, dismissed the

appeal confirming the conviction and sentence of the trial Court, against

which, the present petitions have been filed.

3. For the sake of clarity and brevity, the petitioners and

respondents are referred to as they are referred as per their rank before the

trial Court.

4. The primary ground on which the petitioners assail is that the

first respondent-complainants admitted that they enrolled for training under

the petitioner-company for On-line Trading business and they were placed as

team leader for training group. The complainants canvassed and enrolled

several persons. As regards Crl.R.C.No.438 of 2017 is concerned, the

complainant got enrolled 64 persons for training program to be conducted by

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Crl.R.C.Nos.438 to 442 of 2017

the petitioner-company. Similarly, in Crl.R.C.No.439 of 2017, the

complainant got enrolled 58 persons, in Crl.R.C.No.440 of 2017, the

complainant got enrolled 150 persons, in Crl.R.C.No.441 of 2017, the

complainant got enrolled 130 persons, in Crl.R.C.No.442 of 2017, the

complainant got enrolled 124 persons and they collected a sum of Rs.5,300/-

from each persons as fee for training. The petitioners/accused unable to

provide any training, agreed to return back the amounts collected. Thereafter,

there was an agreement entered between the petitioners and the first

respondent and one another person, namely, Mahesh Kumar. The said

Mahesh Kumar has not filed any case.

5. The brief facts of the case is that the first petitioner is a private

limited company giving training in multilevel marketing for Trading in

commodities, the second petitioner is the Chairman of the company. The

company was in the business for five years. In order to give on-line trading

training, the first respondent/complainant joined A1-company and paid

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Crl.R.C.Nos.438 to 442 of 2017

Rs.5,300/- during the year 2012. The Chairman of the accused-company

nominated the first respondent/complainant as leader to training groups. The

first respondent/complainants were forced to canvas, bring in other persons

and they collected 526 persons in total and made them to pay the money for

training. Each one of them paid Rs.5,300/-. The complainants as group

leaders collected Rs.3,50,000/- in total and handed over to the accused

company. After receiving the amount, the accused Company failed to impart

any training and gave evasive reply. Thereafter, a Memorandum of

Understanding was entered between the second petitioner/A2 and other team

leaders like the first respondents, namely, D.Suresh, M.Rajarathinam,

M.Devaraj, R.Marusamy, C.Mahesh Kumar and G.Venkatachalam. As per

the M.O.U. the accused admitted receiving amounts from the team leaders,

which was collected from various persons and handed over to the

accused/second petitioner, unable to give training agreed to repay the

amounts received. Thereafter in discharge of the said liability the second

petitioner issued cheque to each of the group leaders, proportionate to the

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Crl.R.C.Nos.438 to 442 of 2017

money received from them. When, the cheques were presented, got

dishonoured for the reason “Funds Insufficient”. Thereafter, notice issued

following the statutory conditions and complaint filed.

6. The trial Court examined P.W.1 to P.W.4, marked Exs.P1 to P9.

On the side of the defence, the accused entered the box, examined himself as

D.W.1, marked Exs.D1 and D2. The trial Court on the evidence and materials

found that the petitioners guilty and sentenced them as above.

7. The contention of the petitioner in primarily as follows:

In this case, the agreement marked as Ex.P7. As per Ex.P7-

Agreement, the petitioners said to have given blank cheques, which have

been filled up and cases have been initiated. None of the individual persons,

who paid the money, neither examined nor any proof produced to show that

they authorised the first respondent/complainant to file the case. The

petitioner/accused does not deny his signature but only the liability.

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Crl.R.C.Nos.438 to 442 of 2017

8. The further contention of the petitioners is that the agreement

itself is forged one. There is no liability for the petitioners to pay to the first

respondent-complainants, since there is no legally enforceable debt or

liability. Based on the cheque, no prosecution can be launched against them.

There is no contract between the petitioners and the first respondent-

complainants.

9. The further contention of the petitioners is that none from the

team examined as witness, no evidence produced to show that the members

of the team authorised the first respondent/complainant to lodge the

complaint. There is no privity of contract. Further submitted that in the

Agreement/Ex.P7, though the cheques were referred, the amount due was not

shown. Further, there is a specific clause that the cheques will be used only to

collect the dues. As far as the first respondent/complainant is concerned, he

paid only Rs.5,300/-, hence, he is not entitled to collect it from the

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Crl.R.C.Nos.438 to 442 of 2017

petitioners. He further referring to the judgment of Hon'ble Supremen Court

in the case of Krishna Janardhan Bhat vs. Dattatraya G. Hegde reported in

2008(1) CTC 433, wherein in paragraph 26 it is stated that the question as to

whether the presumption which stood rebutted or not, to be determined

keeping in view the other evidences on record. Further it is not imperative for

the accused to get into the box to discharge the statutory presumption. In this

case, the accused examined himself as D.W.1 and marked defence exhibits.

Both the Courts below failed to consider these aspects, on the contrary

convicted the petitioners.

10. Mr.N.Vignesh, learned Legal Aid Counsel appearing for the

first respondent/complainants submitted that in this case the

petitioner/accused not denied the issuance of cheque and signature. Once it is

not denied, the presumption under Sections 118 and 139 of Negotiable

Instruments Act comes into play. In this case, the petitioners/accused not

taken any steps to dislodge the presumption and failed to probabilise

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Crl.R.C.Nos.438 to 442 of 2017

defence. The petitioner/accused though got into the box, failed to dislodge the

initial presumption. The complainant canvassed and collected money from

several persons, handed over to the accused, who received the same and

failed to give any training. Thereafter unable to give training, agreed to repay

the amount collected, entered into an agreement. The M.O.U.

agreement/Ex.P7 is not denied. Except taking a technical plea, the petitioners

unable to show discharge of liability or probabilise any defence. The initial

presumption being proved. It is for the accused to discharge the presumption.

Though the accused/D.W.1 stated that about 15 persons came as a mob and

taken away the cheques from the custody of the accused, no tangible

evidence produced, the same made only for the purpose of defence. No police

complaint or any pre-emptive notice was issued in this regard. Thus the trial

Court as well as the Lower Appellate Court rightly convicted the

petitioners/accused.

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Crl.R.C.Nos.438 to 442 of 2017

11. Considering the submissions and on a perusal of the material it

is seen that the petitioners not denied the relationship between the

petitioners/accused and the first respondent/complainants. The complainants

have joined the accused company for getting trained and paid a sum of

Rs.5,300/-. The defence of the petitioners/accused is that 526 persons, who

paid the amount of Rs.5,300/- each, one of them not examined as witness and

they have not given any authorisation to the complainants to represent them.

In such circumstances, claiming that the petitioners/accused are liable to pay

to the tune of Rs.3,50,000/-, cannot be countenanced. The petitioner/accused

not denied his signature or issuance of cheque. Hence, Sections 118 and 139

of the Negotiable Instruments Act comes into play. Though the accused

examined himself as D.W.1 and marked documents, he is unable to dislodge

the statutory presumption and failed to probabilise any defence. Apart from

the issuance of cheque, the petitioner/accused liability confirmed by an

agreement/Ex.P7, wherein, he admits that the team leaders of the company

collected money from various persons and in discharge of the said liability he

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Crl.R.C.Nos.438 to 442 of 2017

is issuing the cheque to the team leaders. The cheques got dishonoured, hence

the team leaders have rightly filed the complaint.

12. The team leaders collected money from various persons and

they are responsible to repay team members. The agreement is not denied and

there is no evidence or contra material to show that the liability has been

discharged. Though the petitioners/accused made a feeble attempt to project

that the cheques were forcibly obtained, except his defence statement there is

no other material to corroborate the same.

13. From the above factual matrix, this Court finds that the cheques

were issued to the first respondent/complainants for discharge of the liability

and the petitioners/accused failed to discharge their liability. The trial Court

and Lower Appellate Court rightly convicted the petitioners. In view of the

same, this Court finds no reason to interfere with the finding of the Courts

below.

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Crl.R.C.Nos.438 to 442 of 2017

14. Accordingly, these Criminal Revision cases are dismissed. The

trial Court is directed to issue warrant to secure the petitioners/accused to

undergo the sentence without waiting for the complainants in this case to file

any petition. Since the accused had been convicted and sentence is

confirmed, it is the duty of the Court to ensure that the accused undergo the

sentence.

15. This Court appreciates the strenuous efforts taken by

Mr.N.Vignesh, learned Legal Aid Counsel appearing for the first respondent,

who made thorough preparation and effective submissions.

10.01.2023 Index: Yes/No Internet: Yes/No Speaking order/Non-speaking order rsi

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Crl.R.C.Nos.438 to 442 of 2017

M.NIRMAL KUMAR, J.

rsi

To

1.The IV Additional District and Sessions Judge, Coimbatore.

2.The Judicial Magistrate, Fast Track Court at Magisterial Level-II, Coimbatore.

3.The Public Prosecutor, High Court, Madras.

CRL.R.C.Nos.438 to 442 of 2017

10.01.2023

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