Madras High Court

N. Sundram @ Ramalingam vs P. Rajasekaran on 4 July, 2023

Crl.RC.Nos.1065 & 1066 of 2023 & Crl.M.P. Nos 8508 & 8513 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 04.07.2023

CORAM

THE HONOURABLE MRS. JUSTICE R.HEMALATHA
Crl.RC.Nos.1065 & 1066 of 2023
&
Crl.M.P. Nos 8508 & 8513 of 2023

N. Sundram @ Ramalingam ...Petitioner in both the petitions

vs.

P. Rajasekaran ...Respondent in both the petitions

COMMON PRAYER: Criminal Revision Petitions filed under Section
397 & 401 of Criminal Procedure Code, 1973 praying to call for the
entire records in Crl.A. Nos.64 and 65 of 2021 on the file of the XXII
Additional City Civil Court, Allikulam, Chennai and set aside the order
dated 25.08.2022, confirming the conviction and judgment dated
16.02.2021 in C.C. Nos.713 and 714 of 2016 on the file of the
Metropolitan Magistrate, Fast Track Court V, Saidapet, Chennai.
In both petitions
For Petitioner : M/s. R. Angalaparameswari
For Respondent : Mr. R. Gokul
for Mr. S.L. Sudarsanam

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COMMON ORDER

The present Criminal Revision Petitions are filed against the

judgment dated 25.08.2022 in Crl.A. Nos.64 and 65 of 2021 on the file

of the XXII Additional City Civil Court, Allikulam, Chennai, confirming

judgment dated 16.02.2021 in C.C. Nos.713 and 714 of 2016 on the file

of the Metropolitan Magistrate, Fast Track Court V, Saidapet, Chennai.

2. The respondent/complainant filed two private complaints under

Section 200 Cr.P.C against the revision petitioner for an alleged offence

punishable under Section 138 of the Negotiable Instruments Act

(hereinafter referred to as N.I. Act) in C.C. Nos. 713 and 714 of 2016 on

the file of the Metropolitan Magistrate, Fast Track Court V, Saidapet,

Chennai.

3. The case of the respondent/complainant in nutshell is as follows:

i. The revision petitioner/accused borrowed a sum of Rs.22 lakhs

from the complainant for the purpose of developing his transport

business and also handed over two cheques bearing Nos.126317

and 126318 dated 14.05.2014 (marked as Ex.P1 in the respective

Calender cases) for a sum of Rs.11 lakhs each drawn on ING
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Vysya Bank, Erode Branch

ii. When the cheques were presented by the complainant through his

banker, namely State Bank of India, CTS, Royapettah, on

14.05.2014, both the cheques were returned on 20.05.2014, vide

Return Memo dated 20.05.2014 (Ex.P2) with an endorsement

"Refer to the Drawer".

iii. Thereafter the complainant issued a legal notice dated 26.05.2014

(Ex.P3).

iv. Though the revision petitioner/accused received the said notice on

02.06.2014, he did not come forward to make good the payment

due under both the cheques and therefore, the complainant filed a

private complaint under Section 200 Cr.P.C., against the revision

petitioner/accused under Section 138 of N.I. Act.

4. The trial court after summoning the accused, furnished the

copies of records under Section 207 Cr.P.C and also questioned him.

Since the accused denied the offence, the case was posted for trial.

5. In the trial court, the complainant examined himself and marked

Ex.P1 to Ex.P4 in both the Calender cases. The circumstances appearing
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in evidence against the revision petitioner/accused were put to him and

the revision petitioner denied of having committed any offence. The

revision petitioner/accused examined himself and one another witness.

However, no documentary evidence was adduced on his side.

6. The learned Metropolitan Magistrate, Fast Track Court-V,

Saidapet, after considering the evidence adduced on both sides, vide his

order dated 16.02.2021, convicted the present revision petitioner for the

offence punishable under Section 138 of N.I. Act and sentenced him to

undergo simple imprisonment for a period of six months and also to pay

twice the cheque amount towards compensation under Section 357(3)

Cr.P.C. to the complainant and in default to pay the said amount, to

undergo simple imprisonment for a period of six months. It was further

held that both the sentences shall run concurrently,

7. Aggrieved over the said judgment passed by the trial court judge,

the revision petitioner/accused filed Criminal Appeals in C.A. Nos 64

and 65 of 2021 before the XXII Additional City Civil Court, Allikulam,

Chennai. The learned XXII Additional Judge, City Civil Court,

Allikulam, Chennai, after analysing the oral and documentary evidence
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adduced on both sides confirmed the findings of the trial court with

regard to the conviction. However, the sentence of imprisonment of 6

months imposed against the accused was set aside and the revision

petitioner/accused was directed to pay a fine of Rs.11,00,000/- in each

appeal (total sum of Rs.22,00,000/- covering both the cheques amount)

and in default to pay the said amount, to undergo Simple Imprisonment

for a period of 3 months.

8. Now the present Criminal Revision Petition is filed by the

accused.

9. Mr. R. Angalaparameswari, learned counsel for the Revision

Petitioner contended that the accused did not borrow any amount from

the complainant and that the cheques which were handed over by the

revision petitioner were with regard to some other transaction and that

the complainant had misused the same for the purpose of filing the

present case. According to her, the present cheques were handed over

way back in the year 2008 and that the complainant did not have

wherewithal to finance Rs.22,00,000/- to the revision petitioner/acused

and that the both the courts below did not take these aspects into
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consideration.

10. Per contra, Mr. R. Gokul, learned counsel for the respondent

contended that both the courts below after analysing the documentary

evidence and also the defence taken by the revision petitioner/accused,

had held that the accused is guilty of the offence under Section 138 of the

N.I. Act.

11. At the outset it may be observed that the revision

petitioner/accused did not deny his signature on the cheques and

therefore the presumption under Sections 118 and 139 of the N.I. Act

holds good. It is trite law that the defence of the accused is based on

preponderance of probalilities of the case and not beyond any reasonable

doubt. In the instant case, the revision petitioner/accused did not adduce

any acceptable evidence to substantiate his contention that he did not

receive any amount from the complainant. In fact Section 139 of the N.I.

Act puts burden on the accused to prove his defence. The first appellate

court in paragraph Nos.33, 34, 35, 40, 41 and 42 had observed thus.

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"33. In order to create doubt in the complainant's
claims regarding existence of a legally enforceable debt, the
accused has adopted primarily three fold defences, that the
alleged loan amount being unaccounted cash of the
complainant cannot be recovered i.e. source of fund could
not be explained by the complainant; that no loan was
advanced by the complainant to accused persons; and no
liability of the accused persons towards complainant existed
on the date on which impugned cheque was issued.

34. The learned counsel for the accused submitted that the
loan amount given by the complainant allegedly to the
accused is his unaccounted cash, and, therefore, cannot be
recovered under a complaint filed under Section 138 of the
Act. To support his proposition, learned counsel for the
accused further submitted that advancing a loan amount of
more than 20,000/- in cash is not permissible as per the
provisions enshrined in Section 269 SS of Income Tax Act,
1961 (hereinafter referred as "ITA"). He argued that since,
the instant alleged loan transaction involved a sum of
Rs.22,00,000/-, therefore, it would be considered as illegal
loan which cannot be recovered in a complaint filed under
Section 138 of the Act.

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35. Before examining the aforesaid objections raised by the
accused, it is prudent to discuss the relevant provisions and
case laws on this aspect. Section 269 SS of the ITA
prohibits any person from taking or accepting from any
other person a loan, deposit or other specified sum of more
than Rs.20,000/- in cash. It reads as under.
No person shall take or accept from any other person
(herein referred to as the depositor), any loan or deposit
or any specified sum, otherwise than by an account payee
cheque or account payee bank draft or use of electronic
clearing system through a bank account (or through such
other electronic mode as may be prescribed, if,--
(a) the amount of such loan or deposit or specified sum
or the aggregate amount of such loan, deposit and
specified sum; or
(b) on the date of taking or accepting such loan or
deposit or specified sum, any loan or deposit or specified
sum taken or accepted earlier by such person from the
depositor is remaining unpaid (whether repayment has
fallen due or not), the amount or the aggregate amount
remaining unpaid; or
(c) the amount or the aggregate amount referred to in
clause
(d) together with the amount or the aggregate amount
referred to in clause (b), is twenty thousand rupees or
more".

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---

40. Now coming to the next contention that the loan transaction is not disclosed in income tax return of the complainant would amount to unaccounted income, and, therefore, could not be recovered under Section 138 of the Act. Admittedly the accused has not sent a reply notice for the statutory notice sent by the complainant, which fact is revealed from the cross examination of D.W.1 dated 11.12.2020. It is admitted by P.W.1 that the amount given to the accused was a hand loan. This fact is also admitted by P.W.1 in his cross examination. The said portion of the cross examination reiterated herein. "ehd; ifkhw;whf nfhLj;jjhf jhd; tof;if mikj;Js;Nsd; vd;why; rhpjhd;" It is also admitted by P.W.1 in his cross examination that only because the accused borrowed the same sum towards hand loan, he did not demand interest. It is true that P.W.1 also admits that he has not specifically mentioned the date of borrowal by the accused in his complaint. On perusal of the sworn statement and the initial questioning of the accused, the accused was put to clear knowledge about the date of borrowal. The same forms part of the records. It is true that it is the duty of the complainant to mention the correct particulars about the date, time and place of borrowing. In the present case, the complainant has clearly stated in his sworn statement and

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evidence the date of borrowal. The learned counsel for the accused in his written arguments came up with a case that the complainant has in his proof affidavit stated that the accused borrowed hand loan on 12.05.2014. However on perusal of the proof affidavit of the complainant, no where it was mentioned so. However, it has been clearly stated in the sworn statement based on which the initial questioning was put to the accused. Therefore, the accused cannot take a defence that he has not been put to notice about the same. The learned trial court clearly discussed the same and finally came to a considered opinion.

41. Further the appellant/accused has very well by way of suggestion put to P.W.1 in cross examination admitted that the present transaction details have been shown in the income tax returns. The portion of the cross examination is extracted hereunder. "Ke;ija ghpth;j;jidfis vdJ tUkhd thp fzf;fpy; fhz;gpf;fhj ehd; nfhLf;fhj gzj;jpiz nfhLj;jjhf fhz;gpg;gjw;f;fhf ,e;j tof;F njhifia kl;Lk; vdJ tUkhd thp fhz;gpj;Js;Nsd; vd;W nrhd;dhy; rhp my;y"

42. Therefore it is crystal clear that the accused has admitted the same and also is well aware of the fact that the complainant has revealed the same in his income tax statement. Though the accused let in evidence to show that there existed no legally enforceable debt and put up a

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defence by disputing the handwriting under which the entries are made in Ex.P1 cheque, when once the signature of the cheques are admitted it is presumed that the accused has given authority to the complainant to fill up the same. It is true that on a perusal of the entries that seen in Ex.P1 cheque, it can be seen that the pen and ink used for putting the signature and other details are not one and the same. But as the accused admitted his signatures in the cheque, the accused is not entitled to take such a defence. The accused came forward stating that he has repaid the sum borrowed from the complainant during the year 2007. However, no material documents were produced to establish the same. In this regard the learned trial court considered the evidence of the accused that he used to borrow fromm the complainant many times and also used to repay the same. The learned trial judge found that the accused has not established as to whethr the said payments alleged to have been made by him pertains to the present transaction. The learned trial judge also considered the evidence of D.W.2 namely Rangasamy who came forward to depose that he lent a sum of Rs.5 lakhs to the accused to pay the complainant. The learned trial judge noted that D.W.1 has not spoken anything about the fact in whose presence he gave the said amount though it is suggested in P.W.1 cross that the said amount along with another four lakhs were given in the presence of Sandeeveran, Rajakrishnan,

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himself and Mani. Further D.W.2 also has not stated whether the acused gave the same to the complainant. Therefore on evaluation of the entire evidence, this court finds the version of the complainant is so probable and the contention of the accused is improbable and difficult to believe. The accused has not been successful in raising a probable defence.

12. The first appellate court had, by a well considered and well

written order, found the revision petitioner/accused guilty of the offence

under Section 138 of the N.I. Act and all the observations are perfectly

in order and I do not find any reason to interfere with the same.

13. In the result,

i. both the Criminal Revision Petitions are dismissed. No costs.

Consequently, connected Criminal Miscellaneous Petitions are

dismissed.

ii. The judgment in Crl.A. Nos.64 and 65 of 2021 dated 25.08.2022 on the file of the XXII Additional City Civil Court, Allikulam, Chennai, is confirmed.

iii. The judgment dated 16.02.2021 in C.C. Nos.713 and 714 of 2016 on the file of the Metropolitan Magistrate, Fast Track Court V, Saidapet, Chennai, is confirmed with regard to the conviction.

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However, the sentence of imprisonment of 6 months imposed against the accused is set aside and modified as per the first appellate court's judgment.

04.07.2023

bga Index : yes/no Speaking /Non speaking Order

1. The XXII Additional City Civil Court, Allikulam, Chennai.

2. The Metropolitan Magistrate, Fast Track Court V, Saidapet, Chennai.

3. The Section Officer, Criminal Section, High Court, Madras

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Crl.RC.Nos.1065 & 1066 of 2023 & Crl.M.P. Nos 8508 & 8513 of 2023

R.HEMALATHA, J.

bga