Madras High Court
M/S.M.P.Shantex Pvt Ltd vs M/S.Sri Chem on 7 March, 2023
Crl.R.C.Nos.963 and 964 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.03.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Crl.R.C.Nos.963 and 964 of 2017
1.M/s.M.P.Shantex Pvt Ltd
Rep.by its Managing Director
P.Umashankar, 48 years
S/o Palanisamy
S.F.No.145/1A/1A, Parapalayam Road
Near Amman Koil, Mannarai (PO)
Tiruppur – 641 607.
2.P.Umashankar 48 years, S/o Palanisamy,
Managing Director
S.F.No.145/1A/1A, Parapalayam Road
Near Amman Koil, Mannarai (PO)
Tiruppur – 641 607.
3.S.Umamaheswari, 49 years
W/o Sekar, Director of M.P.Shantex Pvt Ltd.,
S.F.No.145/1A/1A, Parapalayam Road
Near Amman Koil, Mannarai (PO)
Tiruppur – 641 607. ... Petitioners in both
Crl.Revision Cases
vs.
M/s.Sri Chem
Rep.by its Partner S.Senguttuvan
No.25, Veerabathra Street II
Sakthi Road, Erode-3.
By his Power of Attorney Holder/
Manager, M.Sundaralingam, 63 years
S/o A.V.Marimuthu, 85/2k, A.S.Nagar
3rd Street, Erode-3. ... Respondent in both
Crl.Revision Cases
https://www.mhc.tn.gov.in/judis
Page No.1 of 11
Crl.R.C.Nos.963 and 964 of 2017
Prayer in Crl.R.C.No.963 of 2017 : Criminal Revision filed under Sections 397 r/w
401 of the Code of Criminal Procedure to set aside the judgment passed in Criminal
Appeal C.A.No.30 of 2017 dated 28.06.2017 by the II Additional District Sessions Court,
Erode confirming the judgment passed in S.T.C.No.89 of 2016 dated 04.01.2017 passed
by the Judicial Magistrate Fast Track No.1, Erode.
Prayer in Crl.R.C.No.964 of 2017 : Criminal Revision filed under Sections 397 r/w
401 of the Code of Criminal Procedure to set aside the judgment passed in Criminal
Appeal C.A.No.31 of 2017 dated 28.06.2017 by the II Additional District Sessions Court,
Erode confirming the judgment passed in S.T.C.No.233 of 2016 dated 04.01.2017
passed by the Judicial Magistrate Fast Track No.1, Erode.
In Both Crl.R.Cs
For Petitioners 2 and 3 : M/s.Nithyaesh and Vaibhav
for Mr.Anirudh A.Sriram
For Respondent : Mr.S.Ashok Kumar, Senior Counsel
for M/s.I.C.Vasudevan
ORDER
These Criminal Revision Cases have been filed against the judgment and order
passed by the II Additional District and Sessions Court, Erode in Crl.A.No.30 of 2017
and 31 of 2017 dated 28.06.2017, confirming the judgment and order passed by the
Judicial Magistrate, Fast Track Court-I, Erode in S.T.C.No.89 of 2016 and 233 of 2016
dated 04.01.2017, convicting and sentencing the petitioners for offence under Section
138 of the Negotiable Instruments Act.
2. The respondent filed private complaints against the petitioners on the ground
that they had business transactions with the petitioners on credit basis and on account
of various credit purchases made by the petitioners, cheques (five cheques in each
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Crl.R.C.Nos.963 and 964 of 2017
case) were issued towards discharge of the liability. In S.T.C.No.89 of 2016 the total
amount covered by the five cheques was to the tune of Rs.41,18,799/- and in
S.T.C.No.233 of 2016 the total amount covered by the five cheques was to the tune of
Rs.45,63,401/-. The further case of the respondent was that when the cheques were
presented for collection on 15.07.2013 through City Union Bank, Erode branch, some
cheques were returned with endorsement “Funds insufficient” and some cheques were
returned with endorsement “Payment stopped by the drawer”. In view of this
development, the respondent issued notice to the petitioners calling upon the
petitioners to pay the amount covered by the cheques. The notice was received by the
petitioners and since neither a reply was given nor the amounts covered under the
cheques were paid, the respondent proceeded to file private complaints against the
petitioners for offence under Section 138 of the Negotiable Instruments Act.
3. The Trial Court conducted separate trials in both the complaints. Insofar as
S.T.C.No.89 of 2016 is concerned, P.W.1 to P.W.3 were examined on the side of the
respondent and they marked Ex.P1 to Ex.P27. On the side of the petitioners D.W.1 to
D.W.3 were examined and Ex.D1 to D4 were marked. Insofar as the S.T.C.No.233 of
2016 is concerned, the respondent examined P.W.1 to P.W.3 and marked Ex.P1 to P30.
The petitioners examined D.W.1 to D.W.3 and marked Ex.D1 to D4. When the
incriminating evidence collected in the course of trial was put to the petitioners, they
denied the same as false.
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Crl.R.C.Nos.963 and 964 of 2017
4. The Trial Court, on considering the facts and circumstances of the case and
on appreciation of oral and documentary evidence came to the conclusion that the
respondent has made out a case and that the legal presumption under Section 139 of
the Negotiable Instruments Act must go in favour of the respondent and further the
petitioners have not rebutted the said legal presumption and accordingly, the
petitioners were convicted and sentenced by the Trial Court. Insofar as S.T.C.No.89 of
2016 is concerned, all the petitioners were convicted and petitioners 2 and 3 were
sentenced to undergo three months simple imprisonment and they were directed to
jointly or severally pay a total compensation amount of Rs.41,18,799/- which is
equivalent to the amount covered under the cheques. Insofar as S.T.C.No.233 of 2016
is concerned, all the petitioners were convicted and petitioners 2 and 3 were sentenced
to undergo nine months simple imprisonment and to jointly or severally pay a total
compensation amount of Rs.45,63,401/- which is equivalent to the total amount
covered under the five cheques.
5. Aggrieved by the above judgment passed by the Trial Court, Criminal Appeal
Nos.30 and 31 of 2017 were filed and it was heard by the II Additional District and
Sessions Court, Erode and the appellate Court confirmed the judgment and order
passed by the Trial Court. Aggrieved by the same, these Criminal Revision Cases have
been filed before this Court.
6. Heard Mr.Nithyaesh learned counsel for the petitioners and Mr.S.Ashok Kumar,
learned Senior Counsel for the respondents.
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Crl.R.C.Nos.963 and 964 of 2017
7. The learned counsel for the petitioners attacked the judgment and order
passed by both the Courts below on various grounds. The first ground of attack made
by the learned counsel for the petitioners is that the respondent failed to produce the
entire statement of accounts and they have not produced the delivery notes or invoices
or purchase orders and in short, they have not established the liability towards which
the cheques were allegedly issued by the petitioners. It was further submitted that the
respondent had improved their case after the completion of the entire evidence by
filing an application under Section 311 of Criminal Procedure Code and thereby they
plugged the hole in the evidence. In spite of the same, it was contended that the
respondent did not make out a case by establishing the liability on the part of the
petitioners even as per the evidence that was produced before the Court. The learned
counsel for the petitioners also questioned the very admissibility of Ex.P13 and P19
which were the statement of accounts that was produced by the respondent to
establish the liability on the ground that the same was not accompanied by certificate
under Section 65B(4) of the Indian Evidence Act.
8. Learned counsel for the petitioners further contended that the petitioners and
the respondent were having a running account for a long period of time and since
goods used to be purchased on credit basis, the cheques were given as security and
the same has been misused by the respondent. To substantiate the same, learned
counsel for the petitioners pointed out to the serial numbers of the cheques and also
the fact that different inks were used to fill up the cheques. Learned counsel for the
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Crl.R.C.Nos.963 and 964 of 2017
petitioners questioned the very tenability of the notice issued before instituting the
private complaint on the ground that the partnership firm was not represented by any
partner and hence the notice itself is non est in the eye of law.
9. Learned counsel for the petitioners also pointed out to the various findings of
the Trial Court to establish that the same suffers from perversity. The learned counsel
questioned the maintainability of the complaint as against A3 since the averments in
the complaint does not satisfy the requirements under Section 141 of the Negotiable
Instruments Act.
10. Per contra, the learned Senior Counsel appearing on behalf of the
respondent submitted that each and every ground that was taken by the petitioners
was answered by the Trial Court and was confirmed by the appellate Court and those
findings do not suffer from any perversity which warrants interference of this Court in
exercise of its revisional jurisdiction. The learned Senior Counsel submitted that the
scope of interference in the revision is very limited and the petitioners cannot be
allowed to canvass these petitions like an appeal and it was contended that this Court
cannot once again re-appreciate the evidence available on record. The learned Senior
Counsel pointed out to each and every one of the finding of the Trial Court and justified
as to how those findings are supported by the available evidence and as to how they
do not suffer from any perversity. In view of the same, the learned Senior Counsel
appearing on behalf of the respondent sought for dismissal of these criminal revision
cases.
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Crl.R.C.Nos.963 and 964 of 2017
11. This Court has carefully considered the submissions made on either side and
the materials available on record. This Court has also carefully gone through the
findings rendered by both the Courts.
12. On an overall appreciation of the materials available on record and on
carefully considering the submissions made on either side, this Court is satisfied that
the facts of the present case requires proper appreciation of evidence both oral and
documentary. On going through the judgment of the appellate Court, it is stated at
Para 6 of the judgment that the petitioners were given sufficient opportunity and in
spite of the same, they neither made their oral submissions nor submitted any written
arguments and hence the appellate Court had the advantage of hearing only the
counsel who appeared on the side of the respondent and the evidence that was
recorded by the Trial Court and the appellate Court also had the advantage of
appreciating the findings rendered by the Trial Court.
13. On carefully going through the judgment passed by the appellate Court it is
seen that the appellate Court has not dealt with the main issues that have been raised
on the side of the petitioners. The appellate Court has merely confirmed the judgment
of the Trial Court by rendering some casual findings. This mode was adopted by the
appellate Court probably because there was no effective representation on the side of
the petitioners.
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Crl.R.C.Nos.963 and 964 of 2017
14. In the considered view of this Court, each and every ground that was raised
by the learned counsel for the petitioners requires appreciation of evidence. Even
though the learned counsel for the petitioners was pointing out to the perversity
regarding the findings of the Trial Court, it was done only after referring to the relevant
oral / documentary evidence that is available on record. Hence, even to test the
ground of perversity, this Court has to go into the oral and documentary evidence that
is available on record. This Court feels that the scope of appreciation of evidence in a
revision is very limited and the revisional jurisdiction is exercised only to test whether
the findings rendered by both the Courts suffers from any perversity. Re-appreciation
of evidence is not permissible while exercising revisional jurisdiction. However, in the
case of an appeal, it is in the nature of continuation of the original proceedings and the
appellate Court has been given wide powers to re-appreciate the entire evidence and
render its findings. Hence, there is a sea of difference in the exercise of of jurisdiction
between an appellate Court and a Court exercising its revisional jurisdiction.
15. Taking into consideration the various grounds that were raised by the
learned counsel for the petitioners and after considering the response made by the
learned Senior Counsel for those grounds raised by the petitioners, this Court is
convinced that the matter has to be remanded back to the file of the appellate Court.
This is in view of the fact that the contentions raised on either side requires re-
appreciation of evidence. Many of the grounds that have been raised by the
petitioners in these Criminal Revision Cases have not even been considered by the
appellate Court. This Court does not want to blame the appellate Court on this count
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Crl.R.C.Nos.963 and 964 of 2017
because the appellate Court did not have the advantage of hearing the petitioners who
were the appellants before the appellate Court. This Court elaborately heard the
learned counsel appearing on either side and this Court also had the advantage of
going through the evidence available on record. However, this Court does not want to
render any finding on any of the issues raised before this Court since this Court is
intending to remand the matter back to the file of the appellate Court. If any findings
are rendered, it will have a bearing when the appellate Court deals with the same issue
after remand.
16. In the light of the above discussion, the judgment and order passed by the
II Additional District and Sessions Court, Erode in Criminal Appeal Nos.30 and 31 of
2017 dated 28.06.2017 are hereby set aside and the matter is remanded back to the
II Additional District and Sessions Court, Erode. The appellate Court is directed to hear
the appeal afresh on merits and deal with the issues raised by either side after
appreciation of evidence and pass final judgment in the appeals on or before
30.06.2023. The appeal shall be heard with the available evidence since both the
sides have exhaustively let in oral and documentary evidence. Therefore, there will be
no scope for letting in any additional evidence and the appellate Court shall ensure that
no time is wasted in this regard. Learned counsel for the petitioners gave an
assurance that the petitioners will cooperate for the disposal of the appeals within the
time frame fixed by this Court and the petitioners will be effectively represented before
the appellate Court. The entire original records have been sent to this Court. In view
of the fact that the matter is remanded back to the file of the appellate Court, registry
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Crl.R.C.Nos.963 and 964 of 2017
is directed to immediately send back the entire original records to the II Additional
District and Sessions Court, Erode.
17. When these Criminal Revision Cases were entertained by this Court, the
sentence imposed by the Trial Court was suspended by imposing certain conditions and
the petitioners were directed to execute bail bonds with two sureties. It is brought to
the notice of this Court that the petitioners have complied with the conditions imposed
by this Court and they have also executed bail bonds with two sureties. The
suspension of sentence that was granted by this Court shall continue till the appeals
are finally disposed of by the II Additional District and Sessions Court, Erode within the
time frame fixed by this Court.
18. These Criminal Revision Cases are accordingly allowed in the above terms.
07.03.2023
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
KST
Note : Issue order copy on 09.03.2023
To
1.The II Additional District and Sessions Court, Erode.
2.The Judicial Magistrate, Fast Track Court No.1, Erode.
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Crl.R.C.Nos.963 and 964 of 2017
N. ANAND VENKATESH, J.
KST
Crl.R.C.Nos.963 and 964 of 2017
07.03.2023
https://www.mhc.tn.gov.in/judis
