Madras High Court
Rajasekar vs Mugundaramanujam on 22 June, 2023
Crl.R.C.No.468 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.06.2023
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.468 of 2020
Rajasekar .. Petitioner
Vs.
Mugundaramanujam ..Respondent
PRAYER : Criminal Revision Case has been filed under sections 397
read with 401 of Criminal Procedure Code to set aside the conviction
imposed in the judgment dated 19.08.2019 made in C.A.No.124 of 2018
on the file of the II Additional District & Sessions Judge, Thiruvallur at
Poonamallee confirming the conviction imposed in judgment dated
04.07.2018 made in C.C.No.28 of 2018 on the file of the Judicial
Magistrate, Fast Track Court (Magistrial Level), Ambattur sentencing the
accused to undergo 7 months Simple Imprisonment and directed to pay
compensation of Rs.14,00,000/- compensation under Section 357(3)
Cr.P.C, within two months from the date of the judgment and default of
the said payment the accused shall undergo further period one month
1/15
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Crl.R.C.No.468 of 2020
Simple Imprisonment for offence under Section 138 of N.I.Act by
allowing this Criminal Revision Case.
For Petitioner : M/s.R.Thirumoorthy
For Respondent : Mr.K.Sankaran
ORDER
This Criminal Revision Case is filed by the accused who had
suffered judgment of conviction in the private complaint initiated under
Section 138 of Negotiable Instruments Act.
2. The brief facts in the private complaint filed by
Mugundaramanujam is that on the representation made by Rajasekar and
his associate T.A.Selvam that they are the agreement holder of the
property situated at Ambattur Oragadam Co-operative Building Society's
Colony, comprised in Survey Nos.476/2 and 4483/1 of Thirumullaivoyal
village, he advanced Rs.40,00,000/- to them. Later he found that, the
documents produced by them were forged documents and by deceit, they
have received Rs.40,00,000/-. On his repeated demand to refund the
money. Rajasekar (the revision petitioner herein) had returned
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Crl.R.C.No.468 of 2020
Rs.13,00,000/- via fund transfer by RTGS and subsequently issued four
post dated cheques bearing Nos.542921, 542923, 542924 and 542925
drawn on Indian Bank, Thirumullaivoyal branch for Rs.4,00,000/-,
Rs.3,50,000/-, Rs.3,50,000/- and Rs.3,00,000/- respectively. His associate
T.A.Selvam returned Rs.1,00,000/- by cheque bearing No.474140 and for
the balance he gave two post dated cheques dated 21.11.2017 and
24.11.2017 bearing Nos.474149 & 471148 drawn on Corporation Bank,
Ambattur branch for Rs.6,50,000/- and Rs.5,00,000/- respectively.
3. According to the complainant, the four cheques given by the
revision petitioner and two cheques given by his associate T.A.Selvam,
on presentation bounced. Hence, he has initiated the private complaints
against the revision petitioner as well as T.A.Selvam. The case against
T.A.Selvam ended in conviction. Appeal preferred by T.A.Selvam was
dismissed confirming the trial Court judgment. Thereafter, the said
T.A.Selvam preferred Crl.R.C.No.469 of 2020. Pending disposal of the
said revision petition, T.A.Selvam settled the dispute with the
complainant by paying the cheque amount. Recording the same, this
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Crl.R.C.No.468 of 2020
Court has disposed the revision petition in Crl.R.C.No.469 of 2020 on
08.06.2023.
4. As far as the four cheques, which are the subject matter of
the present revision petition, the trial Court had disbelieved the plea of
the accused that he owe no debt payable to the complainant. The four
cheques were obtained from him with the help of police when he was
called to the police station for enquiry.
5. The appeal preferred by the accused before the Sessions
Court came to be dismissed for non prosecution, since the appellant did
not appear on the date of calling and there was no representation on his
behalf. The lower appellate Court had recorded that despite repeated
directions, the appellant had failed to appear and therefore, the appeal is
liable to be dismissed for default and non prosecution of case.
6. The learned counsel appearing for the revision
petitioner/accused raised two grounds, apart from alleging the
deprivation of the right of appeal by the lower appellate Court.
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Crl.R.C.No.468 of 2020
7. Before adverting to the plea that the dismissal of the appeal
for non prosecution is deprivation of right of appeal. This Court wish to
take for consideration the other defence raised by the accused.
8. According to the learned counsel for the revision petitioner,
the complaint is bereft of details about the receipt of Rs.40,00,000/-
jointly by the revision petitioner, (Rajasekar) and his associate,
T.A.Selvam. The complaint does not disclose in whose favour the cheque
bearing 021021 dated 27.01.2016 was drawn and realised as part sale
consideration of Rs.20,00,000/-. The complainant had not produced
documents regarding the payment of Rs.40,00,000/- to the accused and
T.A.Selvam. A vague and bald allegations in the complaint that, in all
totally, the accused along with T.A.Selvam jointly received
Rs.40,00,000/- from the complainant towards part consideration of sale
agreement dated 28.12.2015 has been erroneously accepted by the trial
Court without sufficient proof and supporting documents.
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Crl.R.C.No.468 of 2020
9. Further, the learned counsel for the revision petitioner
submitted that the four cheques, which is the subject matter of the
complaint marked as Ex.P2 series, were obtained by force in the presence
of the police. PW.1, the complainant Mugundaramanujam in the cross
examination has admitted that he gave a police complaint and the
accused was called for enquiry. Therefore, the accused has probabilised
the fact that these cheques were obtained under threat and no due existed
for the complainant to legally enforce against the accused.
10. According to the learned counsel for the revision petitioner,
while the trial Court had failed to properly appreciate the defence, which
has been proved by preponderance of probability, the lower appellate
Court had not deprived opportunity to the appellant to prove his
innocence.
11. Heard the learned counsel for the revision petitioner and
perused the records.
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Crl.R.C.No.468 of 2020
12. The specific case of the complainant is that the revision
petitioner, by name Rajasekar along with one T.A.Selvam entered into
agreement with him on 28.12.2015 and received jointly Rs.40,00,000/-.
Having found that the title deed of the property for which these two
persons claimed as Power of Attorney holders is not genuine, he
requested the revision petitioner and his associate T.A.Selvam to return
the money, they received as advance. After repaying a sum of
Rs.14,00,000/-, for the balance of Rs.26,00,000/- four cheques were
given by this revision petitioner totally for the sum of Rs.14,00,000/- and
his associate T.A.Selvam has given two cheques for a sum of
Rs.11,50,000/-. In the complaint, it is specifically stated that this revision
petitioner has transferred Rs.13,00,000/- by RTGS into the account of the
complainant and the associate T.A.Selvam has paid Rs.1,00,000/- by
cheque. It is noted that T.A.Selvam, the associate of this revision
petitioner had admitted the issuance of cheques for Rs.11,50,000/- and
had paid the money pending disposal of the revision petition. In sofar as
the revision petitioner, Rajasekar is concerned he claims that the cheques
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Crl.R.C.No.468 of 2020
were obtained from him under threat in the police station for which, the
learned counsel for the revision petitioner relies upon the suggestion put
to PW.1 in the cross examination.
13. The perusal of the testimony of PW.1 indicates that the said
suggestion been denied by PW.1. Except this suggestion, there is no
other evidence to fortify the defence taken by the accused. In fact for the
statutory notice dated 11.12.2017, which has been received by the
accused, he had remained silent and had not replied for it. In sofar as the
defence taken by the accused, it is ony the suggestion put to the accused
and nothing more. When the said suggestion been denied by the
complainant, it does not take the accused case anywhere near
preponderance of probability.
14. The learned counsel for the revision petitioner states that the
complaint is bereft of details, which cannot be countenanced in the light
of the fact that the accused had repaid Rs.13,00,000/- through RTGS to
the complainant admits he had issued four cheques, which are marked as
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Crl.R.C.No.468 of 2020
Ex.P2 series, for a total sum of Rs.13,00,000/-. He has not discharged the
burden of presumption regarding the four cheques. His defence that it
was obtained under threat, is not corroborated.
15. For the question regarding the sale agreement of a property,
which had no clear title and receipt of advance Rs.40,00,000/- based on
Power of Attorney, there is no explanation or denial except the complaint
is bereft of detail how much and when paid and whom it was paid. When
the accused had candidly admitted the execution of Ex.P1 and the recital
found in it. The marked document which form part of evidence provides
the details. Further pursuant to the cancellation of the agreement, the
revision petitioner has repaid Rs.13,00,000/- and his associate repaid
Rs.1,00,000/-. For the balance, the four cheques totally for
Rs.14,00,000/- given by the revision petitioner and his associate has
given two cheques for Rs.11,50,000/-.
16. Therefore, the conduct of the revision petitioner repaying
Rs.13,00,000/- through bank and issuance of four cheques for total sum
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Crl.R.C.No.468 of 2020
of Rs.14,00,000/- coupled with recital found in Ex.P1 clearly establishes
the fact that pursuant to the sale agreement marked as Ex.P1, a sum of
Rs.40,00,000/- has been received by this revision petitioner and his
associate T.A.Selvam. Later on, they have agreed to repay the money
received. On the part of the T.A.Selvam, he has paid Rs.1,00,000/-
through the bank and issued two cheques for Rs.6,50,000/- and
Rs.5,00,000/- totally Rs.11.50,000/- and though he had not honoured the
cheques, but repaid it during the pendency of his revision petition and
got the offence compounded.
17. As far as this revision petitioner is concerned, his consistent
stand is that, there is no enforceable due payable to the complainant and
the cheques were obtained from him under threat with the help of police.
This defence the accused ought to have taken soon after the receipt of
statutory notice and ought to have substantiate through direct or
circumstantial evidence in the course of trial. Without an iota of evidence
believe that the cheques were extorted from him under threat is farfetch.
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Crl.R.C.No.468 of 2020
18. Adverting to the plea that the revision petitioner was
deprived of right of appeal, this Court on perusal the record finds
otherwise. The trial Court had passed the judgment on 04.07.2018,
convicting the revision petitioner/accused Rajasekar for the offence
under Section 138 of Negotiable Instruments Act and sentenced him to
undergo 7 months Simple Imprisonment and directed to pay the cheque
amount of Rs.40,00,000/- as compensation, in default he was sentenced
to undergo one month Simple Imprisonment. On the same day, the
sentence was suspended, since he has expressed his intent to prefer
appeal. Thereafter, he had preferred appeal before the II Additional
District and Sessions Judge, Thiruvallur at Poonamallee and same was
taken on file as C.A.No.124 of 2018.
19. After filing the appeal, the appellant had not appeared before
the lower appellate Court either in person or though his counsel inspite
of repeated direction. The learned Sessions Judge in his order had
specifically recorded that despite repeated directions, the appellant had
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Crl.R.C.No.468 of 2020
not appeared and therefore, he dismiss the appeal for default and non
prosecution.
20. Against this order, revision petition filed and at the time of
admission, this Court suspended the sentence on condition that the
revision petitioner should deposit a sum of Rs.3,00,000/- in the account
of C.C.No.28 of 2018 at the time of producing the surety and shall
deposit remaining Rs.1,50,000/- within a period of two months. The
revision petitioner had deposited Rs.3,00,000/- at the time of producing
surety, but he had not paid the remaining Rs.1,50,000/- within a period of
two months and till date the money is not paid.
21. The above conduct of the revision petitioner goes to show
that having got order of suspending the sentence and after preferring the
appeal he had not attended the Court despite repeated adjournments and
directions. No doubt, the accused has a right of appeal, but Court cannot
wait for him in finitely for his appearance in person or through counsel to
put forth his case. The State fund need not to misutilise by engaging legal
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Crl.R.C.No.468 of 2020
aid counsel for the appellant/accused in a private complaint arising under
Section 138 of Negotiable Instruments Act. Having suffered conviction
by the judgment of the trial Court and given the privilege of suspension
of sentence, the accused cannot go incognito expect Court should not
dispose his appeal in his absence.
22. The dismissal of the revision petition for non prosecution
without considering the merit is an error but not an irregularity, when the
appellant before the lower appellate Court failed to turn up despite
direction.
23. The learned counsel for the revision petitioner/accused has
placed all his submissions which has been extracted above. The
opportunity which not been availed by the accused before the lower
appellate Court has now been granted and availed by the accused before
this Court. Hence no prejudice is caused to him by dismissal of the
appeal for non prosecution by the lower appellate Court.
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Crl.R.C.No.468 of 2020
24. In this case, the accused had been provided with opportunity
to prefer an appeal, recording his intent to prefer appeal and the trial
Court has suspended the sentence. The accused had infact preferred
appeal and had the privilege of enjoying the suspension of sentence till
the matter got disposed. Nothing prevented him to appear before the
Court in person or through counsel and place his submissions. Having
deprived himself the opportunity, he can not blame the Court that it has
not given opportunity to put forth his case.
25. With the above observations, this Criminal Revision Case is
dismissed as devoid of merits.
22.06.2023
Internet : Yes/No
Index: Yes/No
rpl
To
1.The II Additional District & Sessions Judge,
Thiruvallur at Poonamallee.
2. The Judicial Magistrate, Fast Track Court(Magistrial Level),
Ambattur.
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Crl.R.C.No.468 of 2020
Dr.G.JAYACHANDRAN, J.
rpl
Crl.R.C.No.468 of 2020
22.06.2023
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