Madras High Court
K.Ananda Babu vs M.Ananda Prabakar on 19 June, 2023
Crl.A.No.310 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 19.06.2023
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.A.No.310 of 2020
K.Ananda Babu .. Appellant
Vs.
M.Ananda Prabakar ..Respondent
PRAYER : Criminal Appeal has been filed under sections 378 of
Criminal Procedure Code to set aside the judgment passed in C.C.No.04
of 2016 dated 17.02.2020 on the file of the learned Judicial Magistrate,
Arakkonam, Ranipet District and consequently thereby allow this
Criminal Appeal.
For Appellant : Mr.B.Sundarapandiyan
For Respondent : Mr.K.P.Suresh kumar
JUDGMENT
This Criminal Appeal is filed by the victim/complainant
aggrieved by the dismissal of the private complaint by the trial Court.
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Crl.A.No.310 of 2020
2. The complaint is regarding issuance of cheque for
Rs.10,94,000/- in favour of the complainant by the accused towards
discharge of part sale consideration of the property owned by the
complainant. While the said cheque dated 21.05.2014 drawn on HDFC
bank, Vellore for a sum of Rs.10,94,000/- was presented for collection on
26.05.2014, but returned with the endorsement “Insufficient of Funds”.
The complainant has caused notice dated 03.06.2014 to the accused
through registered post. The accused has refused to receive the notice.
Thereafter, the complaint has been filed before the Judicial Magistrate,
Arakkonam, Ranipet District and taken on file in C.C.No.04 of 2016.
3. The complainant has mounted the witness box subjected
himself for examination as PW.1. He had marked the subject cheque
[Ex.P1], Certified copy of the registered Power of Attorney executed by
him in favour of the accused in respect of the immovable property
situated at Vellore [Ex.P2], the Cheque deposit chellan [Ex.P3],
Intimation memo [Ex.P4], his notice to the accused [Ex.P5] and
Unclaimed envelop from the accused [Ex.P6]. In defence the accused has
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Crl.A.No.310 of 2020
mounted the witness box and one Ekambaram, attestor of the receipt
marked as Ex.D2, was examined. The two documents on the side of the
defence namely Ex.D1 and Ex.D2 were shown to the complainant, while
he was in the witness box and confronted. The complainant at the first
sight of Ex.D1 admitted the signature found in it, but later, he has
categorically denied his signature found in Ex.D2.
4. While the case of the complainant is the subject cheque is
part sale consideration payable to him by the accused, the defence taken
by the accused is that there was an agreement between him and the
complainant regarding the property, but within the time prescribed in the
agreement, the accused was not able to pay the full sale consideration.
Therefore, the subject cheque for Rs.10,94,000/- given to the complainant
with promise that he will pay the balance sale consideration and get back
the cheque. Accordingly, on 06.03.2013, the balance sale consideration
was paid in cash and the Power of Attorney deed [Ex.D2] got registered.
In acknowledgment of the receipt of the balance sale consideration in
cash, the complainant gave an undertaking that the cheque received for s
sum of Rs.10,94,000/- will be returned. Though the accused had
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Crl.A.No.310 of 2020
completed the contract by paying entire sale consideration, the
complainant misusing the cheque given earlier, retained it even after
receiving the full sale consideration and presented for collection
5. The trial Court had accepted the case of the accused
believing Ex.D2 and consequently dismissed the complaint. In the appeal
filed by the victim/complainant, it is specifically stated that Ex.D1 and
Ex.D2 are not genuine documents executed by the complainant. DW.2,
who claims to be a witness for Ex.D1 and Ex.D2, is a land broker and an
interested witness. When the execution of these two documents denied,
the trial Court ought to have sent the documents to the forensic
department for comparison. The accused, who had custody and produced
ought to have proved the execution of the document, which he has failed.
Having admitted the signature found in the cheque and the due payable
on the date of cheque, neither testimony of the accused nor his friend
Egambaram or the forged document marked as Ex.D1 and Ex.D2 will
probabilise the case of the accused. Therefore, the trial Court judgment is
bound to be reversed.
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Crl.A.No.310 of 2020
6. This Court, after giving consideration to the rival
submissions and the earlier order of this Court dated 19.11.2022
requesting the Forensic Department to compare the admitted signature of
the complainant with the signature found in Ex.D2 and in response of the
Forensic Department vide his letter dated 01.12.2020 expressing
difficulty in comparing the signatures found in the document which is in
the custody of the Court and judgments cited, suggesting the Court has to
appoint an Advocate Commissioner to take the disputed document and
the admitted signature to the forensic laboratory for comparison by the
experts.
7. It is appropriate to pass the following order:
In this case, the accused admits the issuance of cheque, he
relies upon Ex.D2 purported to have been executed by the complainant to
establish that the sum mentioned in cheque been paid in cash to the
complainant. However, the very execution of Ex.D2 is denied by the
complainant. Unless and until the genuineness of the signature found in
the document is tested by an expert, the plea of the accused cannot be
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Crl.A.No.310 of 2020
taken as rebuttal of the presumption even by preponderance of
probability. Therefore, the order of the trial Court is set aside and the
matter is remanded back to the trial Court to afford opportunity to the
parties to prove the veracity of Ex.D1 and Ex.D2, which was introduced
at the time of cross examination of PW.1 and not whispered by the
accused at the earliest point of time, when he was given opportunity
through statutory notice and thereafter, the trial Court to arrive at
conclusion based on the evidence.
8. In the result, this Criminal Appeal is allowed. Trial Court
judgment is set aside. The matter is remanded back for fresh trial. The
trial Court to dispose of the case preferably within a period of four
months from the date of receipt of a copy of this judgment.
19.06.2023
Internet : Yes/No
Index: Yes/No
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Crl.A.No.310 of 2020
To
The Judicial Magistrate, Arakkonam, Ranipet District.
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Crl.A.No.310 of 2020
Dr.G.JAYACHANDRAN, J.
rpl
Crl.A.No.310 of 2020
19.06.2023
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