Madras High Court
Selvaraj vs Rajendran on 4 September, 2023
Crl.R.C. No.1282 of 2023 & Crl. M.P. No.10456 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.09.2023
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
Crl.R.C.No. 1282 of 2023 &
Crl.M.P. No.10456 of 2023
Selvaraj ...Petitioner
Vs.
Rajendran ...Respondent
Prayer : Criminal Revision Case filed under Section 397(1) r/w 401
Cr.P.C. against the Judgment dated 15.02.2022 in C.A. No.34/2021
passed by the Principal Sessions Judge, Villupuram, confirming the
Judgment dated 08.10.2021 in STC No.422 of 2020 passed by the
Judicial Magistrate-I, Villupuram.
For Petitioner : Mr. R. Rajprasanna
For Respondent : Mr.V.S.Sivasundaram
ORDER
The revision petitioner, the accused in STC No.422/2020 on
the file of the Judicial Magistrate I, Villupuram, and the appellant in
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C.A.No.34/2021 on the file of the Principal Sessions Judge, Villupuram,
has filed the present criminal revision. The accused was convicted for an
offence punishable under Section 138 of the Negotiable Instruments Act
(NI Act) and sentenced to undergo simple imprisonment for one year and
also to pay a sum of Rs.15,000/- towards compensation within two
months from the date of the order, i.e, 08.10.2021, by the learned Judicial
Magistrate I, Villupuram. On an appeal by the accused, the said
conviction and sentence was confirmed by the Principal Sessions Judge,
Villupuram, vide judgment and order dated 15.02.2022.
2. The brief facts of the case of the complainant are as follows:
i. The complainant is a whole sale cement merchant in Villupuram
while the accused is a retailer running a proprietorship concern in
the name and style of Poovayee Amman Agency in Kallakuruchi.
ii. During the course of business transaction between the complainant
and the accused, the accused has to pay a sum of Rs.15,02,140/-
till the year 2018 and in order to discharge the said liability, the
accused issued a cheque (Ex.P.2) dated 14.09.2020 for a sum of
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Crl.R.C. No.1282 of 2023 & Crl. M.P. No.10456 of 2023
Rs.15,00,000/- drawn on City Union Bank, Kallakuruchi Branch.
iii. When the complainant presented the cheque for realisation through
his banker, viz., Tamil Nadu Mercantile Bank, Villupuram Branch,
it was returned for the reason "Exceeds Arrangements", as is seen
from the cheque return memo (Ex.P3).
iv. Thereafter, the complainant issued a statutory notice dated
24.09.2020 (Ex.P4) to the accused. The accused, though received
the said notice, as is evidenced by the postal acknowledgment card
(Ex.P5), neither came forward to make good the amount nor sent
any reply.
v. Therefore, the complainant filed a private complaint under Section
200Cr.P.C against the accused for the offence punishable under
Section 138 of NI Act before the Judicial Magistrate I, Villupuram.
vi. The trial court, on receipt of the complaint took cognizance of the
offence after recording the sworn statement of the complainant and
issued summons to the accused under Section 204 Cr.P.C. On
appearance of the accused, copies of records were furnished to him
under Section 207 Cr.P.C and the accused was also questioned
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with regard to the substance of accusation made against him.
Since the accused pleaded not guilty, the case was posted for trial.
vii.The complainant examined himself as P.W.1 and the accused cross
examined him. Thereafter the accused was questioned under
Section 313(1)(b) Cr.P.C. with regard to the incriminating
circumstances appearing in evidence against him, for which the
accused denied of having committed any offence. However, the
accused did not adduce any oral/documentary evidence on his side.
viii.The learned trial court judge, after analysing the evidence on
record, found the accused guilty of the offence punishable under
Section 138 of NI Act and convicted and sentenced him as stated
above on the following grounds:
1) The complainant (P.W.1) had proved that he had business
transaction with the accused and during the course of
transaction the accused was liable to pay a sum of
Rs.15,02,140/-, for which he issued a cheque (Ex.P2).
2) The accused did not issue any reply to the notice sent by the
complainant.
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Crl.R.C. No.1282 of 2023 & Crl. M.P. No.10456 of 2023
3) Mere suggestion to P.W. 1 during the course of cross
examination that the cheque was issued for security purpose
cannot be accepted. Moreover the accused had not disputed his
signature on the cheque.
ix. Aggrieved over the same, the present revision petitioner/accused
filed an appeal before the Principal Sessions Court, Villupuram.
The learned Principal Sessions Court, Villupuram, dismissed the
said appeal vide her judgment dated 15.02.2022 by confirming the
judgment of the trial court on the following grounds:
1) Though it is true that the accused need not get into witness
box to rebut the presumption under Section 139 of NI Act, mere
suggestion to P.W.1, that the impugned cheque in question was
issued only for security purpose, during the course of cross
examination cannot absolve the liability of the accused in the
absence of any evidence.
2) The accused had not denied his liability by issuing a reply
notice and he cross examined P.W.1 only after he was
questioned under 313(1) Cr.P.C by way of filing a petition
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under Section 311 Cr.P.C.
3) The complainant had proved that there is an existing legally
enforceable debt and the accused had not rebutted the
presumption under Section 139 of NI Act by adducing any
acceptable evidence.
x. Aggrieved over the same, the present Criminal Revision is filed by
the revision petitioner/accused.
3. Mr. R. Rajprasanna, learned counsel for the revision
petitioner contended that the complainant did not adduce any Account
Books maintained during the course of business to show that there is a
legally enforceable debt as against the accused and that the accused by
way of questioning this, had successfully rebutted the presumption under
Section 139 of NI Act. In support of his contentions, he relied on the
following decisions.
i. A.S. Duraisami Chettiar Sons vs. S. Rathnaswami Gounder
reported in AIR 1992 Mad 132.
ii. Basalingappa Vs. Mudibasappa reported in (2019) 5 SCC 418
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iii. Dr.K.K. Soni vs. Shri Mukesh Kumar reported in 2013 (2) DCR
He also contended that as per Section 3 of the Indian Evidence Act, a fact
is said to be proved when, after considering the matters before it, the
Court either believes it to exist, or considers its existence so probable
that a prudent man ought, under the circumstances of the particular case,
to act upon the supposition that it exists.
4. Per contra Mr.V.S.Sivasundaram, learned counsel for the
respondent contended that the present revision petitioner had filed the
Criminal Revision against the concurrent findings of facts by both the
courts below and that both the courts properly analysed the evidence on
record, convicted and sentenced the accused and thus no interference is
called for by this court.
5. At the outset it may be observed that the revision
petitioner/accused did not deny the fact that he had business transactions
with the complainant. His only contention is that the cheque was issued
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for security purpose to the complainant and that the said cheque was
misused by the complainant. According to him, the complainant had not
proved the legally enforceable debt as against him by adducing Books of
Accounts. At this juncture it is relevant to point out that the accused has
not issued any reply notice to the statutory notice (Ex.P4) issued by the
complainant. It is not the case of the accused that he did not receive the
notice issued by the complainant. A perusal of the postal
acknowledgment card (Ex.P5) clearly shows that the accused was
actually in receipt of the statutory notice (Ex.P4). The contention of the
accused that the impugned cheque was given only as a security to the
complainant, had not been substantiated by way of adducing acceptable
evidence and this aspect has been gone into by both the courts below. It
is appropriate to note that this Court while exercising its revisional
jurisdiction under Section 397 Cr.P.C cannot act as a second appellate
court and thus cannot interfere with the findings of facts recorded by
both the courts below.
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Crl.R.C. No.1282 of 2023 & Crl. M.P. No.10456 of 2023
6. Now the contention of the counsel for the revision petitioner
is that the complainant has not adduced his Account Books to show the
existence of liability. It is clear that a bare denial of existence of debt
would not serve any purpose to the accused and something which is
probable has to be brought on record for getting the burden of proof
shifted to the complainant. To disprove the presumptions, the accused
should bring on record such facts and circumstances, upon consideration
of which, the court may either believe that the consideration and debt did
not exist or their non existence was so probable that the prudent man
would under the circumstances of the case, act upon the plea that they did
not exist. It is settled law that where the fact of signature on the cheque
is acknowledged, a presumption has to be raised that the cheque
pertained to a legally enforceable debt or liability, however, this
presumption is of a rebuttal nature and the onus is then on the accused to
raise a probable defence.
7. The contention of the learned counsel for the revision
petitioner is that the accused had rebutted the presumption by way of
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cross examining P.W.1. However, as already observed the accused had
admitted that he had business transactions with the complainant and
during the course of said business transaction, he had issued a cheque to
the complainant.
8. The decision in A.S. Duraisami Chettiar Sons vs.
S.Rathnaswami Gounder (cited supra) may not apply to the facts of the
present case as the said case was a civil suit based on Hundi. The
defendant in the said suit had filed a written statement contending that
the hundi was not supported by consideration. In fact the defendant took
summons even to the Auditor of the plaintiff's company. In such
circumstances it was held that an adverse inference has to be drawn
against the plaintiff for non production of Account Books. The facts of
the present case are totally different as in the instant case, the accused
has not denied his liability by issuing a reply notice to the accused and he
did not also examine himself.
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9. Similarly the decision in Basalingappa Vs. Mudibasappa
(cited supra) would not apply to the facts of the present case because in
the said decision it was made clear that the bare denial of the existence of
debt without sufficient proof cannot be construed that the accused had
rebutted the presumption under Section 139 of NI Act.
10. In the decision in Dr.K.K. Soni vs. Shri Mukesh Kumar
(cited supra), the accused was able to prove that there was no legally
enforceable debt as against him. In the said decision, the case of the
complainant was that he was running a nursing home for 30 years and the
accused, purporting to sell his house, entered into an agreement with the
complainant for which a sum of Rs.3,00,000/- was paid to the accused in
three instalments. But later on, it was revealed that there was some loan
on the house to be purchased by the complainant and the complainant
therefore rescinded the contract. In such circumstances the question
whether the agreement was actually executed and if it was executed
whether it was supported by consideration were all relevant facts which
should be proved only by the complainant in order to establish the factum
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of legally enforceable debt. The facts of the present case are entirely
different and therefore this decision also would not be of any help to the
present revision petitioner.
11. Both the courts below had actually analysed the evidence
on record threadbare and had come to a conclusion that the accused is
guilty of the offence under Section 138 of NI Act and I do not see any
reason to interfere with the same.
12. As regards the quantum of punishment, both the courts
below had sentenced the accused to undergo simple imprisonment for a
period of one year, which cannot be said to be disproportionate to the
offence committed by the accused.
13. In the result,
i. the Criminal Revision Case is dismissed. Consequently connected
miscellaneous petition is closed.
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Crl.R.C. No.1282 of 2023 & Crl. M.P. No.10456 of 2023
ii. the Judgment dated 15.02.2022 in C.A. No.34/2021 passed by the
Principal Sessions Judge, Villupuram, and the Judgment dated
08.10.2021 in STC No.422 of 2020 passed by the Judicial
Magistrate-I, Villupuram, are confirmed.
iii. The petitioner is directed to surrender before the Judicial
Magistrate-I, Villupuram, within 15 days from the date of receipt
of a copy of this order, failing which, the trial court judge is
directed to secure the presence of the accused for serving the
sentence imposed on him.
04.09.2023
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
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Crl.R.C. No.1282 of 2023 & Crl. M.P. No.10456 of 2023
R. HEMALATHA, J.
bga
To
1. Judicial Magistrate-I, Villupuram
2. Principal Sessions Judge, Villupuram.
Crl.R.C.No. 1282 of 2023 &
Crl.M.P. No.10456 of 2023
04.09.2023
https://www.mhc.tn.gov.in/judis
