Madras High Court

A.R.Rajendran vs N.Jagadesh Chandran on 2 March, 2023

                                                                                    Crl.R.C.No.1468 of 2017

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED: 02.03.2023

                                                             CORAM:

                            THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

                                                     Crl.R.C.No.1468 of 2017

                     A.R.Rajendran                                                     ... Petitioner

                                                                Vs.

                     N.Jagadesh Chandran                                              ... Respondent

                     Prayer: The Criminal Revision Case filed under Section 397 r/w. 401 of
                     Cr.P.C. to set aside the conviction imposed in the Judgment dated
                     26.07.2017 made in C.A.No.28 of 2017 on the file of the First Additional
                     District and Sessions Court, Erode confirming the conviction imposed in the
                     Judgment dated 02.01.2017 made in STC No.380 of 2013 on the file of the
                     learned Judicial Magistrate, Fast Track Court No.1, Erode by allowing this
                     Criminal Revision Petition.


                                        For Petitioner         : Mr.N.Manokaran

                                        For Respondent         : Mr.M.Vignesh for
                                                                 Mr.C.S.Saravanan

                                                            ORDER

This Criminal Revision Case has been filed against the Judgment and

Order passed in Crl.A.No.28 of 2017 by the I Additional District and

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sessions Judge, Erode, dated 26.07.2017, confirming the Judgment and

order passed by the Judicial Magistrate (FTC) No.1, Erode in S.T.C.No.380

of 2013 dated 02.01.2017, convicting the petitioner for the offence under

Section 138 of the Negotiable Instruments Act and sentencing him to

undergo six months Simple Imprisonment and to pay compensation of a sum

of Rs.5,74,500/- under section 357 (3) of Cr.P.C.

2. The respondent/complainant filed a private complaint by stating

that he was doing fire wood business and the petitioner used to purchase fire

wood on credit basis. In the course of the business transaction, the petitioner

had to settle under various credits totalling a sum of Rs.5,74,500/-. In

discharging all his liabilities, the petitioner had issued 4 post dated cheques

(marked as Ex.P1 series.

3. The further case of the respondent is that these cheques were

deposited and it was returned with an endorsement “funds insufficient”.

Hence, the respondent issued a statutory notice (Ex.P3). The said notice

was received and acknowledged by the petitioner (Ex.P4). Since the

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petitioner neither issued a reply notice nor repaid the cheque amount, the

private complaint came to be filed by the respondent.

4. The trial Court on appreciation of the oral and documentary

evidence, came to a conclusion that the legal presumption under Section 139

of the Negotiable Instruments Act, must go in favour of the respondent and

that the petitioner failed to rebut the presumption. Accordingly, the

petitioner was convicted and sentenced by the trial Court.

5. Aggrieved by the same, the petitioner filed a Criminal Appeal and

the same was taken on file in Crl.A.No.28 of 2017. The appellate Court re-

appreciated the evidence and considered the findings of the trial Court and

found that there is no ground to interfere with the Judgment of the trial

Court and accordingly, the Criminal Appeal was dismissed by Judgment and

order dated 26.07.2017. Aggrieved by the same, this Criminal Revision Case

has been filed before this Court.

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6. Heard Mr.N.Manokaran, learned counsel for the petitioner and

Mr.M.Vignesh, learned counsel appearing for Mr.C.S.Saravanan, for

respondent.

7. The main ground that was urged by the learned counsel for the

petitioner is that the petitioner had a business transaction only with one

Gopal and the cheques were given to the said Gopal as security. The

petitioner also repaid the amount and inspite of the same, the said Gopal

retained the cheques and it is only these cheques which were misused by the

respondent.

8. The learned counsel further submitted that the petitioner did not

have any business transaction with the respondent and hence there is no

question of any legally enforceable debt or liability towards which the

cheques were issued. The further submission that was urged by the learned

counsel for the petitioner is that all the cheques were blank cheques and it

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was filled up by the respondent on his own and both the Courts below did

not properly appreciate all these grounds that were taken by the petitioner.

9. Per contra, the learned counsel for the respondent submitted that

the respondent had clearly established the business transaction and the

amount that is payable by the petitioner by marking Ex.P5 series. The

learned counsel further submitted that it is only towards the credit, post

dated cheques were issued by the petitioner and the same got dishonoured

when it was presented for collection. The learned counsel further submitted

that both the Courts below have properly appreciated the evidence and there

is no perversity in the findings and there is no ground to interfere with the

same and accordingly the learned counsel sought for dismissal of the

Criminal Revision Case.

10. This Court has carefully considered the submissions made on

either side and the materials available on record.

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11. The petitioner had taken a very specific defence to the effect that

he had transaction with one Gopal and the cheques were given as security

only towards those transaction. If that is the specific stand taken by the

petitioner, the said Gopal ought to have been examined before the trial

Court. However, the petitioner failed to examine the said Gopal and hence

the defence taken by the petitioner was merely ipse dixit without any

supporting materials.

12. The respondent had established the business transaction which

resulted in the liability on the part of the petitioner by marking Ex.P5 series.

Even assuming that blank cheques were given, Section 20 of the Negotiable

Instruments Act will come into play and the principle of inchoate instrument

has been extended even to cheques and the law has been settled through

various reported Judgments.

13. The business transaction took place between the petitioner and the

respondent and towards the resultant liability, the cheques have been issued

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and it has been established by the respondent and hence the legal

presumption under Section 139 of the Negotiable Instruments Act has to

necessarily lean in favour of the respondent. The petitioner was not able to

rebut the presumption even on the test of preponderance of probabilities.

14. Both the Courts below have properly appreciated the evidence and

have come to the correct conclusions and this Court does not find any

illegality or perversity warranting interference by this Court in exercise of its

revisional jurisdiction.

15. In the light of the above discussions, this Court does not find any

ground to interfere with the conviction and sentence imposed by the trial

Court and as confirmed by the appellate Court and the same is hereby

confirmed.

16. This Court enquired the learned counsel for the respondent as to

whether the respondent is willing to receive the cheque amount of

Rs.5,74,500/-. The learned counsel for the respondent fairly submitted if the

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entire cheque amount is paid to the respondent, the respondent will not have

any objection to compound the offence.

17. In the result, this Criminal Revision Case is disposed of in the

following manner:

(a) the petitioner had deposited a sum of Rs.1,50,000/- pursuant to the

condition imposed while the sentence was suspended by this Court

pending this Criminal Revision Case in Crl.M.P.Nos.14541 and

14542 of 2017 by an order dated 22.11.2017. If this amount is taken

into consideration, the petitioner has to pay/deposit the balance

amount of Rs.4,24,500/-. The petitioner is directed to deposit the sum

of Rs.4,24,500/- (Rupees Four lakhs twenty four thousand five

hundred only) on or before 17.04.2023 before the trial Court;

(b) if the petitioner deposits the amount as directed in Clause (a), the

offence will be compounded and order of conviction and sentence

passed by both the Courts below will stand set aside;

will be left open to the respondent to file a Memo before the trial Court and

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he shall be permitted to withdraw the entire amount viz., Rs.5,74,500/-

deposited by the petitioner before the trial Court;

(d) if the petitioner fails to comply with the direction in Clause (a), the

petitioner shall surrender on 18.04.2023 and the trial Court shall

confine the petitioner to prison to undergo the sentence; and

(e) if the petitioner fails to surrender as provided in Clause (d), the trial

Court shall take immediate steps to secure the petitioner and to make

him undergo the sentence imposed against him.

02.03.2023 Index: Yes/No Speaking order/Non speaking order vum

Index : Yes / No Speaking order / Non speaking order