Madras High Court
N.Gopalakrishnan vs S.Jeyavel on 30 March, 2023
2023:MHC:1592
Crl.R.C.No.663 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.03.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Crl.R.C.No.663 of 2019
N.Gopalakrishnan
S/o.Navaneethan
M/s.Sahithya Enterprises
No.1276-D, Periyakaruppan Street
Kamarajapuram Colony
Near SCI Church
Sivakasi 626 189. ... Accused/Appellant/Revision Petitioner
vs.
S.Chandra Mohan (died)
S.Jeyavel
S/o.Shanmugam,
Proprietor of
Sri Sai Baba Waste Paper Company ...Complainant Respondent/Respondent
(Amended as per Order in Crl.RC.No.663/2019
dt.27.06.2022)
Criminal Revision filed under Sections 397 and 401 of the Code of Criminal
Procedure, to set aside the judgment dated 27.04.2019 in C.A.No.477 of 2018, on the
file of the III Additional Sessions Judge, Chennai and the judgment of conviction and
sentence dated 20.07.2018 in C.C.No.6825 of 2015, on the file of the Metropolitan
Magistrate, Fast Track Court No.II, Egmore, Chennai.
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Crl.R.C.No.663 of 2019
For Petitioner Mr.D.Shivakumaran
For Respondent Mr.A.Balasingh Ramanujam
Mr.M.Manimaran
ORDER
This Civil Revision Case has been filed against the judgment and order passed
by the III Additional Sessions Judge, Chennai in C.A.No.477 of 2018, dated 27.04.2019,
dismissing the appeal and confirming the judgment and order passed by the learned
Magistrate, Fast Track Court-II, Egmore, Chennai in C.C.No.6825 of 2015, dated
20.07.2018, convicting the petitioner for offence u/s.138 of the Negotiable Instruments
Act, 1881 and sentencing him to undergo one year simple imprisonment and to pay a
fine of Rs.10,80,000/- as compensation and in default to undergo three months simple
imprisonment.
2.The complaint was originally filed by Sri Sai Baba Waste Paper Company,
represented by its Power of Attorney Agent Mr.S.Chandra Mohan. The complaint was
filed on the ground that the complainant was a dealer in supplying raw materials,
waste papers and waste gunny and in the course of business, materials were supplied
to one Mr.K.P.Ravindran, who is the Managing Director of J.R. Papers Private Limited. In
the said transaction, there was an outstanding amount of a sum of Rs.5,40,000/- due
and payable by the said Mr.K.P.Ravindran. It is further alleged in the complaint that the
petitioner, who is a friend of Mr.K.P.Ravindran, came forward to settle the amount due
and payable by Mr.K.P.Ravindran. In continuation of the same, the petitioner issued a
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Crl.R.C.No.663 of 2019
cheque dated 05.08.2010, for a sum of Rs.5,40,000/- in favour of the complainant.
When this cheque was presented for collection, the same was returned as “funds
insufficient” and it was intimated to the complainant by return memo dated
02.02.2011.
3.The complainant issued a legal notice dated 26.02.2011, calling upon the
petitioner to pay the cheque amount within a period of 15 days and this notice was
received by the petitioner on 02.03.2011. Inspite of receipt of the notice, the petitioner
neither gave a reply nor repaid back the cheque amount. The same resulted in filing
the criminal complaint against the accused/petitioner for offence u/s.138 of the
Negotiable Instruments Act, 1881.
4.On the side of the complainant, Power of Attorney Agent was examined as
PW.1 and Ex.P.1 to Ex.P.5 were marked. The incriminating evidence that was collected
during the course of trial was put to the petitioner and he denied the same as false.
5.The Trial Court on considering the facts and circumstances of the case and on
appreciation of the evidence, came to a conclusion that the legal presumption u/s.139
of the Negotiable Instruments Act, 1881 must lean in favour of the complainant and
that the same was not rebutted by the petitioner and accordingly, the petitioner was
convicted and sentenced for offence u/s.138 of the Negotiable Instruments Act, 1881.
The same was subsequently confirmed by the Appellate Court and aggrieved by the
same, the present criminal revision case has been filed before this Court.
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6.Heard Mr.D.Shivakumaran, learned counsel for the petitioner and
Mr.A.Balasingh Ramanujam, learned counsel for the respondent.
7.During the pendency of this criminal revision case, the Power of Attorney
Agent Mr.S.Chandra Mohan, expired and in his place Mr.S.Jeyavel, who is the Proprietor
of Sri Sai Baba Waste Paper Company, was substituted and he is prosecuting this case.
8.This Court has carefully considered the submissions made on either side and
the materials available on record.
9.The admitted case of the complainant is that Sri Sai Baba Waste Paper
Company had a business transaction with one Mr.K.P.Ravindran and the said
Mr.K.P.Ravindran had an outstanding amount of Rs.5,40,000/- payable to the said
entity. This liability of Mr.K.P.Ravindran was taken over by the petitioner and
accordingly, the subject cheque for a sum of Rs.5,40,000/-, was issued by the
petitioner. On carefully going through the cheque which was marked as Ex.P.2, it is
seen that the cheque has not been drawn either in favour of Sri Sai Baba Waste Paper
Company or in favour of Mr.S.Jeyavel, who claims to be the Proprietor of this entity.
The cheque marked as Ex.P.2 shows that it was drawn in favour of Mr.S.Chandra
Mohan. Admittedly, the said Mr.S.Chandra Mohan, is neither the payee nor the holder
in due course of the cheque. He is the Power of Attorney Agent of the said Sri Sai
Baba Waste Paper Company represented by its Proprietor Mr.S.Jeyavel. Hence, the very
maintainability of the complaint by Sri Sai Baba Waste Paper Company, is under
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Crl.R.C.No.663 of 2019
question. Unfortunately, this fundamental issue has not been looked into by both the
Courts below.
10.The next issue to be gone into is, the liability, according to the complainant,
is that of one Mr.K.P.Ravindran, who is the Managing Director of J.R.Papers Pvt.Ltd.,
and whereas, the cheque was drawn by the petitioner towards the said liability. There
is no dispute with regard to the fact that the liability of one person can be taken over
by another person and the law on this issue is too well settled. The petitioner has
taken a very specific defence that he had an independent transaction with the said
Mr.K.P.Ravindran and had issued the cheque to him and the said cheque has been
misused by the complainant. For this purpose, it will be necessary to take note of the
deposition of PW.1 and DW.1.
11.When PW.1 was cross examined, he had deposed as follows:
“vjphpa[ld; xd;whf nrhh;eJ
; k; ehd; bjhHpy; bra;Js;nsd;/ ehd;
brhy;Yk; kpy;Yf;F vjphp nt!;l; ngg;gh; nghl;Ls;shh;/ mjd; K:yk; v';fSf;Fs;
tpahghuj; bjhlh;g[k; ,Ue;jJ/ me;j tpahghuj; bjhlh;g[ rk;ke;jkhf vjphp
vdf;F ghf;fp vJ[t[k; juntz;o cs;sjh vd;why; juntz;oaJ cs;sJ/ me;j
ghf;fpj; bjhif bjhlh;ghd fzf;Ffs; vija[k; ,e;j tHf;fpy; jhf;fy;
bra;atpy;iy/
vjphpf;Fk; rha;ghgh nt!;l; ngg;gh; kpy;ypy; chpikahsh; utPej; puDf;Fk;
ve;j tpahghuj; bjhlh;g[k; ,y;iy vd;Wk; mjdhy; jhd; me;j tpahghuj;
bjhlh;ig cWjpg;gLj;j ve;j Mtz';fisa[k; ,e;j tHf;fpy; jhf;fy;
bra;atpy;iy vd;Wk; brhd;dhy; rhpay;y/ utPej; pud; xU brhj;J
Kog;gjw;fhf vjphpaplk; bgw;w g{h;j;jp bra;ag;glhj ifbaGj;J kl;Lk;
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Crl.R.C.No.663 of 2019
nghlg;gl;l fhnrhiyia jtwhf gad;gLj;jp. Vd; K:yk; ,t;tHf;if jhf;fy;
bra;Js;shh; vd;why; rhpay;y/ vdf;F gth; bfhLj;j b$antYf;Fk;.
utPej; puDf;Fk; vd;d bjhlh;g[ vd;why; rha;ghgh nt!;l; ngg;gh; fk;bgdpapd;
chpikahsh;jhd; b$anty;/ me;j epWtdj;jpy; ,Ue;Jjhd; utPej; pud;
chpikahshuhf ,Uf;Fk; b$/Mh;/ngg;gh; kpy;ypw;F U:/5.40.000-? f;F giHa
ngg;gh;fis rg;is bra;njhk;/ tHf;F fhnrhiyapy; rhfpj;ah vz;lh;gpiur!;
vd;w epWtdj;jpd; bgaiuf; Fwpg;gpl;L vjphp ifbaGj;jpl;Ls;shh; vd;why;
rhpjhd;/ vdf;nfh. Vdf;F mjpfhuk; bfhLj;j egUf;nfh vjphp rl;lg;goahf
brYj;jntz;oa bjhif vJt[k; ,y;iy vd;why; rhpay;y/ mjdhy;jhd; mJ
rk;ke;jg;gl;l gpy;fnsh. fzf;Ffnsh vJt[k; jhf;fy; bra;ag;gltpy;iy vd;why;
rhpay;y/ ,t;tHf;if jhf;fy; bra;ant vdf;F chpikapy;iy vd;why; rhpay;y/
vjphp rl;lg;goahd fld; vJt[k; brYj;jntz;oaJ ,y;yhj epiyapy; vdf;F
gphpt[ 138 khw;WKiw Mtzr; rl;lj;jpd; fPH; ghpfhuk; bgw chpikapy;iy
vd;why; rhpay;y/ vdf;F jug;gl;;l th/rh/M/1 gth; gj;jpuKk; rl;lg;go
bry;yj;jf;fjy;y vd;why; rhpay;y/ Mfnt ,t;tHf;fif js;Sgo
bra;antz;Lbkd;why; rhpay;y/ utPej; puid vdJ jug;g[ rhl;rpahf tprhhpf;f
nghfpnwhkh vd;why; ,y;iy/”
12.The relevant portions in the deposition of DW.1 is as follows:
“ehd; ,t;tHf;fpd; vjphp/ g[fhh;jhuiu vdf;F ahbud;nw bjhpahJ/
mtUf;Fk; vdf;Fk; ve;j bfhLf;fy; th';fYk; fpilahJ/ tpahghu bjhlh;g[k;
fpilahJ/ ehd; utPej; ud; vd;gtUf;F brhj;J th';FtJ bjhlh;ghf
U:/5.40.000-?f;F fhnrhiy xd;W bfhLj;njd;/ g{h;jj; p bra;J bfhLj;njd;/
bjhifia kl;Lk;jhd; g{h;jj; p bra;J ifbaGj;J nghl;L bfhLj;jpUe;njd;/
njjpiaa[k; gzk; bgWgthpd; bgaiua[k; kl;Lk; g{h;jj; p bra;ahky;
bfhLj;jpUe;njd;/ me;j fhnrhiyjhd; ,t;tHf;F rk;ke;jg;gl;l fhnrhiy/
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Crl.R.C.No.663 of 2019
utPej; pudpd; kpy;Yf;F ehd; nt!;l; ngg;gh; rg;is bra;J te;jjhy;
tpahghu hPjpapy; mtiu vdf;F bjhpa[k;/ mth; vdJ gf;fj;J tPl;Lf;fhuh;
vd;why; rhpjh;d/ utPej; pudpd; tPl;od; mUnf mtuJ mYtyfKk; cs;sJ/
me;j mYtyfj;jpy; itj;Jjhd; tHf;F fhnrhiyia mthplk; bfhlj;njd;/
mtuJ tPl;lUnf mtUf;F brhe;jkhd fhypkid xd;W cs;sJ/ mjid
vdf;F tpw;gid bra;tjhf Twp mjw;fhfj;jjhd; ehd; mf;fhnrhiyia
bfhLj;njd;/ me;j ,lj;ij th';Ftjw;F vGj;JK:yk; xg;ge;jk; vJt[k;
vGjpf;bfhs;stpy;iy/ tha;bkhHp xg;ge;jk;jhd; me;j ,lk; utPej; pudpd;
bgahpy;jhd; cs;sJ vd;W utPej; pud; Twpdhh;/ mjid ehd; ek;gpndd;/
cz;ikapy; mth; bgahpy; cs;sjh vd;gjw;fhd Mtzk; vija[k; ehd;
ghh;ff; tpy;iy/ mjid ek;gpjhd; ehd; bgah; vGjhky; ek;gpf;ifapd;nghpy;
fhnrhiy bfhLj;njd;/ 6 khj;jpy; me;j brhj;ij vGjpj; jUtjhf
utPej; pud; Twpdhh;/”
13.It is clear from the above that the petitioner had specifically come up with
two stands in the course of cross examination. The first stand is that the petitioner had
an independent transaction with Sri Sai Baba Waste Paper Company and it was
admitted by PW.1 that in the said transaction, there was an amount due and payable by
the petitioner. This admission made by PW.1 becomes significant since from the
cheque which was marked as Ex.P.2, it is seen that the cheque has been issued by the
petitioner in his capacity as the Proprietor of Sahithya Enterprises.
14.The second stand that has been taken by the petitioner is that he had an
independent transaction with the said Mr.K.P.Ravindran and the cheque was given to
the said Mr.K.P.Ravindran and that cheque has been misused in the present case.
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Crl.R.C.No.663 of 2019
15.It is true that the presumption u/s.139 of the Negotiable Instruments Act,
1881, is in favour of the complainant. The Larger Bench of the Hon'ble Apex Court in
Rangappa .v. Sri Mohan reported in 2010 4 CTC 118 has held that the legally
enforceable debt or liability is also under presumption u/s.139 of the Negotiable
Instruments, Act, 1881 and the same has to be rebutted by the accused. Insofar as
the rebuttal is concerned, the standard that is adopted is the test of preponderance of
probabilities. In view of the same, the accused need not even enter into the witness
box or examine any witness on his side and such rebuttal can take place even during
the course of cross examination of the complainant.
16.By applying the above settled position of law, it is seen in this case that the
petitioner has rebutted the presumption u/s.139 of the Negotiable Instruments Act,
1881, while establishing that there was an independent business transaction with the
complainant and that he had an independent transaction with the said Mr.K.P.Ravindran
also and the said cheque was given to Mr.K.P.Ravindran towards that transaction.
These facts becomes very material since the case of the complainant is that the
petitioner issued the cheque towards the liability of the said Mr.K.P.Ravindran. Once the
petitioner had taken such a defence, the burden shifted to the complainant and the
complainant must have either produced material before the Court to establish the
transaction between the complainant and the said Mr.K.P.Ravindran or the simple
method could have been adopted was to have called Mr.K.P.Ravindran into the witness
box and examined him. If this had been done by the complainant, the burden would
have again shifted back to the petitioner. Unfortunately, the complainant neither
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Crl.R.C.No.663 of 2019
produced any material to establish their transaction with Mr.K.P.Ravindran nor was
Mr.K.P.Ravindran examined as a witness in this case.
17.This Court had an occasion to deal with the effect of non-examination of vital
witness to establish the existence of legally enforceable debt and it was held that such
non-examination resulted in the burden which shifted to the complainant not being
discharged. Useful reference can be made to Mohan .v Viswanathan reported in
2018 (2) LW(Crl)424 .
18.There is yet another issue that has been put against the petitioner in this
case and that is the fact that the petitioner did not give a reply notice to the statutory
notice that was issued by the complainant. The non issuance of a reply notice need not
result in an adverse interference taken against an accused person in every case and it
will depend upon the facts and circumstances of each case. This Court had an occasion
to deal with this issue in P. Gnanambigai .v. S. Krishnasamy and Ors. reported in
2011 1 LW (Crl)366 and it was held has follows:
11.Only in this legal matrix the facts of the present case is to be
necessarily appreciated. It is true that the Petitioner raised the defence to
the effect that the cheque in question is issued not in the circumstances
as alleged in the complaint but under different circumstances only after
the proceedings under Section 138 is initiated such defence is for the first
time raised by way of suggestion to PW1 in the course of his cross
examination. The Petitioner has neither sent any reply to that effect to the
statutory notice issued by the complainant nor he entered into the witness
box and deposed so. As far as his failure to reply the statutory notice, the
same is sought to be highlighted on the side of the complainant by relying
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upon the judgment of our Supreme Court reported in 2010 (4) CTC 118
and judgment of our High Court reported in 2006 (1) L.W. 433 in K.P.
Chinnasamy V.T.B. Kennedy. It is true that in both the cases, the Supreme
Court and our High Court have in the given circumstances attached
serious importance to the failure on the part of the accused to reply to the
statutory notice and drew adverse inference against the accused.
However, whether despite of such failure in the instant case the accused is
able to rebut the presumption invoked in this case or not is to be
necessarily considered only in the light of the other materials already
brought on record as pointed out by the accused in support of his
defence.
19.The non issuance of the reply notice in the present case does not completely
destroy the defence taken by the petitioner since the petitioner has rebutted the legal
presumption u/s.139 of the Negotiable Instruments Act, 1881. Hence, the non
issuance of the reply notice cannot be considered to be fatal to the case of the
petitioner.
20.In the considered view of this Court, the judgment and order passed by both
the Courts below suffers from manifest illegality, perversity and infirmity and the same
deserves to be interfered by this Court in exercise of its revisional jurisdiction. Both the
Courts below did not properly appreciate the fundamental issue with regard to the
maintainability of the complaint itself and also the fact that the petitioner had rebutted
the presumption effectively and that the complainant failed to discharge the onus that
was caused upon them. Accordingly, the judgment and order passed by both the
Courts below are hereby set aside.
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21.In the result, this Criminal Revision Case stands allowed. During the
pendency of this criminal revision case, the sentence was suspended by this Court by
an order dated 15.07.2019, and the petitioner was directed to deposit a sum of
Rs.3,00,000/- before the Trial Court. Accordingly, this amount was also deposited.
Since the criminal revision case is allowed in favour of the petitioner, it is left open to
the petitioner to file an appropriate memo before the Trial Court and seek for the
withdrawal of the amount and the trial Court shall allow the memo and permit the
petitioner to withdraw the amount.
30.03.2023
Index : Yes
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes
KP
To
1.III Additional Sessions Judge,
Chennai.
2.Metropolitan Magistrate,
Fast Track Court No.II,
Egmore, Chennai.
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Crl.R.C.No.663 of 2019
N. ANAND VENKATESH, J.
KP
Crl.R.C.No.663 of 2019
30.03.2023
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