Madras High Court
S.P.R.Dhamodharan vs R.Ramasamy on 25 October, 2024
CRL.R.C.(MD).No.733 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 02.08.2024
Pronounced On : 25.10.2024
CORAM
THE HONOURABLE MR. JUSTICE K.K.RAMAKRISHNAN
Crl.R.C.(MD).No.733 of 2024
and
C.M.P.(MD).Nos.7756 & 7757 of 2024
S.P.R.Dhamodharan ... Petitioner
Vs.
R.Ramasamy ... Respondent
PRAYER: This Criminal Revision Case is filed under Sections 397 r/w
401 of the Criminal Procedure Code, to call for the entire records
pertaining to the judgment rendered by the I Additional District and
Sessions Judge, Thoothukudi in C.A.No.119 of 2017 vide judgment dated
29.08.2019 filed as against the acquittal judgment passed by the learned
Fast Track Court, (Magisterial Level), Kovilpatti, Thoothukudi in C.C.No.
172 of 2012 vide judgment dated 27.12.2012 and set aside the same and
thereby acquit the petitioner from the charge levelled in the said case.
For Petitioner : Mr.R.Anand
For Respondent : Mr.R.Pon Karthikeyan
1/13
https://www.mhc.tn.gov.in/judis
CRL.R.C.(MD).No.733 of 2024
ORDER
The accused in C.C.No.172 of 2012 on the file of the learned
Judicial Magistrate Fast Track Court, Kovilpatti, has filed this revision
case, challenging the conviction and sentence imposed against him under
Section 138 of NI Act, to undergo 6 months of simple imprisonment and
directed to pay the cheque amount of Rs.10,00,000/- as a compensation, in
Crl.A.No.119 of 2017 on the file of the I Additional District and Sessions
Court, Thoothukudi.
2. The respondent/complainant has filed the complaint under Section
138 r/w142 of the NI Act, against the revision petitioner with the allegation
that the petitioner borrowed a sum of Rs.10,00,000/- in the first week of
June 2008 for the purpose of his business development with a promise to
repay the said amount within a period of six months. Thereafter, he has not
paid the amount and hence, the respondent insisted to make the repayment.
Therefore, the petitioner issued a cheque dated 20.03.2009 for the value of
Rs.10,00,000/- to discharge his debt. The same was dishonoured due to
insufficient fund in the account of the petitioner. Therefore, he issued the
legal notice on 31.08.2009 and the same was received by the petitioner on
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02.09.2009. The petitioner sent a reply and disputed the issuance of cheque
and his liability. Therefore, the respondent filed the complaint and the
same was taken on file in C.C.No.172 of 2012. Summon was issued to the
petitioner and on his appearance, copies were served in compliance with
207 of Cr.P.C., and charges were framed and he pleaded not guilty and he
stood for trial.
3. To prove the case, the respondent examined himself as P.W.1 and
marked Ex.P1 to Ex.P6. Thereafter, the petitioner was questioned under
Section 313 Cr.P.C., by putting the incriminating materials available
against him. The petitioner denied the same as false and on his side, he
examined Inspector of Police as R.W.1 and filed the documents Ex.C1 and
Ex.C2.
4. The learned trial Judge after considering the entire circumstances
of the case and evidence, acquitted the petitioner. Aggrieved over the same,
the respondent preferred the appeal in C.A.No.119 of 2017 before the
I Additional District and Sessions Court, Thoothukudi, and the learned
Appellant Judge was allowed the appeal and passed conviction and
sentence of imprisonment of six months and directed to pay the
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compensation of Rs.10,00,000/- as stated above, through the impugned
judgment dated 29.08.2019. Challenging the same, the petitioner has filed
this criminal revision case before this Court.
5. The learned counsel for the petitioner submitted that the District
Court has no jurisdiction to entertain the appeal against acquittal in view of
the Hon'ble Full Bench Judgment reported in (2020 )4 CTC 1. Therefore,
the impugned judgment is liable to be set aside.
5.1.The learned counsel for the petitioner submitted that the learned
appellant Judge has not followed the any of the parameters laid down by
the Hon'ble Supreme Court which are to be followed in the case of the
appeal against the acquittal.
5.2.The learned counsel for the petitioner submitted that the learned
trial Judge has considered that police complaint laid prior to the alleged
date of the issuance of the cheque with specific allegation that the
respondent forcibly had taken the blank cheque from the petitioner. The
said complaint was enquired by R.W.1/Inspector of Police and found that
there was no issuance of cheque. Further, it is unbelievable to give loan of
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Rs.10,00,000/- without obtaining any document. It is also not stated in the
income tax return of the respondent. The above facts were considered by
the learned trial Judge and specifically has held that the issuance of cheque
to discharge the legally enforceable debt is not established. The said
finding of the learned trial Judge was not properly considered by the
learned appellant Judge and only on the basis of the issuance of cheque
and admission of the signature in the cheque, the learned Appellate Judge
has convicted the petitioner. It is well settled principle that in the case of
the appeal against acquittal, the first Appellate Court has no jurisdiction to
interfere with the acquittal judgment when two views are possible on the
evidence on record. In this case, on the basis of the evidence of R.W.1 and
the other circumstances, there was a possible view that the amount was not
received by the petitioner. Therefore, the learned first Appellate Judge has
committed error in convicting the petitioner by reversing the well
considered acquittal judgment of the learned trial Judge.
6.The learned counsel for the respondent submitted that the
petitioner has not raised any jurisdictional issue before the learned
Appellate Judge regarding the maintainability of the appeal against
acquittal and the judgment of the Hon'ble Full Bench was delivered on
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04.03.2020. Before that earlier Full Bench Judgment of this Court reported
in (2016) 4 CTC 119 was on field and hence, the learned first appellate
judge has correctly entertained the appeal and there was no jurisdictional
error.
6.1.The learned counsel for the respondent further submitted that it
is the case of the petitioner that both the petitioner and the respondent are
the close friends. Therefore, the amount was given to the petitioner herein
on the ground of trust upon him without obtaining any document and the
same cannot be taken against the complainant when the petitioner has not
made any complaint with the allegation that the respondent forcibly taken
the blank cheques from the petitioner. Apart from that the inspector of
police specifically admitted that the original complaint filed under Section
156(3) of Cr.P.C., and forwarded by the learned Judicial Magistrate was
not available. In the absence of the original complaint, no truthfulness is
attached with the present complaint. Therefore, the evidence of inspector
of police is to be rejected holding that he was not a trustworthy witness.
Even in the complaint and during the course of the proceedings, the
petitioner never disputed the cheque and the signature. Therefore, in all
aspect, the legal presumption under Section 139 of NI Act, would arise and
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the petitioner has not dispelled the same in the manner known to law. Mere
examination of the inspector of police, without production of the original
complaint is not sufficient to dispel the legal presumption arise under
Section 139 of NI Act. Once the signature in the cheque was admitted, the
petitioner is duty bound to disprove the complainant's case and the cheque
was not supported with the legal consideration. Mere non submission of
the income tax return is not a ground to disbelieve the case of the
complainant, when he specifically deposed that he gave the amount to the
petitioner and the petitioner's cheque was in the custody of the respondent.
Once, the original cheque was in the custody of the respondent, the
presumption under Section 114(e) of the Indian Evidence Act, is available
and the case of the petitioner that there was no relationship is not to be
accepted. In all circumstances, the learned appellate Judge was correctly
reversed the judgment of the learned trial Judge and convicted the
petitioner.
7.This Court considered the rival submissions made by the learned
counsel appearing on either side and perused the materials available on
record.
https://www.mhc.tn.gov.in/judis
8.The contention of the learned counsel for the appellant that the
learned I Additional District and Sessions Judge, Thoothukudi, has no
jurisdiction cannot be accepted. Earlier as per the Hon'ble Full Bench
judgment of this Court reported in 2016 4 CTC 119 Ganapathy Vs. N.
Senthilvel, this Court both in administrative side and the judicial side
directed every complainant to file the appeal before the District Court.
Therefore, the appeal had been filed before the District Court and the
judgment was delivered on 29.08.2019. The subsequent Hon'ble Full
Bench judgment heavily relied by the petitioner was delivered on
04.03.2020. In the said judgment of the Hon'ble Full Bench in paragraph
No.51 it is stated as follows:
51.Even though, we hold S.Ganapathi (Supra)
as judgment perincuriam, the consequence of this
judgment which has resulted orders being passed and
which has become final/acted upon by the parties,
can never be allowed to be re-opened.
In view of the above direction, this Court is unable to accept the argument
of the learned counsel for the petitioner that the impugned judgment is
invalid on the account of the lack of jurisdiction.
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9. From the evidence on record, and the argument of the learned
counsel for the petitioner, it is undisputed fact that both the petitioner and
respondent are close friends and they are acquainted with each other for
many years. According to the petitioner, he had not received any amount
from the respondent and his specific case in the reply notice is that the
respondent illegally trespassed into the petitioner's house and committed
theft of the blank cheque. The respondent is a money lender and he has the
habit of receiving the exorbitant interest and he is not only politically
influential person and also muscle men to run his business of money
lending. The respondent without any liability has taken the cheques from
the petitioner under threat and coercion. But, the cross examination of the
petitioner is otherwise. R.W.1/Inspector of the Police was examined. He
produced the records Ex.C1 and Ex.C.2. In his chief examination itself he
stated that he did not know whose signature was found in the complaint
marked. The author of Ex.C1 and Ex.C2 was not examined. From Ex.C1
and Ex.C2 it is clear that there was some other allegation that has taken
place between Sankaran and Kannan and other person. The said complaint
was said to have been given by the respondent. Further, the said complaint
was not original and the specific evidence is the original was not available.
Further evidence is that R.W.1 has no knowledge subordinate officer who
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signed the document under Ex.C1. Therefore, the entire discussion on the
basis of the above said document by the learned trial Judge is erroneous
one. It is the specific case of the petitioner that he made a petition under
section 156(3) of Cr.P.C., and the same was forwarded. But, according to
R.W.1, the same was not available in the station and marked Ex.C2 is not
the original and the same was not found with the seal of Court. Therefore,
the said document is inadmissible and the same is not correctly relied by
the learned Appellate Judge.
10. The finding of the learned trial Judge that the case of the
respondent is unbelievable as no document was obtained for handing over
the money of Rs.10,00,000/-, cannot be accepted for the reason that both
the petitioner and the respondent are close friends and the amount was
handed over on trust upon friendship. The said fact was properly analysed
by the learned Appellate Judge and decided against the petitioner.
11. The non-submission of the income tax return for the amount on
the side of the respondent is not sufficient to dispel the presumption arose
under Section 139 of the NI Act. It is the case of the petitioner that the
cheque was illegally taken from the custody of the petitioner in forcible
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manner but he has not made any complaint and also not taken any steps to
inform the bank officials for stopping payment citing the said reason. The
said facts were properly considered by the learned appellate Judge.
12. In view of the above discussion and in the absence of any
evidence that the respondent forcibly taken the cheque from the custody of
the petitioner, the admission of the signature in the cheque clearly proves
that the cheque was issued for the discharge of the debt amount mentioned
therein. There was no legally valid contra evidence adduced on the side of
the petitioner to dispel the presumption and also no material circumstances
were elicited during the course of the cross examination of the respondent
and hence, there was no circumstances to dispel the presumption under
Section 139 of NI Act, and therefore, the learned Appellant Judge has
correctly reversed the acquittal judgment passed by the learned trial Judge
and passed the conviction and this Court finds no perversity in the finding
of the learned appellate judge in reversing the acquittal judgment.
Therefore, this Court finds no merits in the revision.
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13. Accordingly, the Criminal Revision Case stands dismissed and
the judgment passed by the learned I Additional District and Sessions
Judge, Thoothukudi in C.A.No.119 of 2017 dated 29.08.2019 is hereby
confirmed. Consequently, connected miscellaneous petitions are closed.
25.10.2024
Index : Yes / No
Internet : Yes / No
sbn
To
1. The Judicial Magistrate,
Fast Track Court(Magisterial level),
Kovilpatti.
2.The I Additional District and Sessions Court,
Thoothukudi.
https://www.mhc.tn.gov.in/judis
K.K.RAMAKRISHNAN,J
sbn
and
C.M.P.(MD).Nos.7756 & 7757 of 2024
25.10.2024
https://www.mhc.tn.gov.in/judis
