Madras High Court
M.Sivabagyam vs Thara Devi (Died) on 3 September, 2024
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.No.1857 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 26.03.2024
PRONOUNCED ON : 3.09.2024
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.1857 of 2023 and
Crl.M.P.Nos.17468 & 17472 of 2023
M.Sivabagyam ... Petitioner
Vs.
Thara Devi (Died),
W/o.Ramesh Kumar,
D.No.25/27, Workshop Street,
Rajdhani Towers,
Khaderpet, Tirupur 641 601.
1.Ramesh Kumar,
S/o.Dhanraj,
Proprietor of M/s.Cotton Gallery,
D.No.25/27, Workshop Street,
Rajdhani Towers,
Khaderpet, Tirupur 641 601. ... Respondent
PRAYER: Criminal Revision Petition filed under Section 397 r/w 401 of
Criminal Procedure Code, to call for the records and set aside the conviction
of the petitioner imposed by the judgment dated 19.09.2022 in C.C.No.301
of 2015 by the learned Judicial Magistrate (Fast Track) Court, Tiruppur as
confirmed by the judgment, dated 06.10.2023 in C.A.No.139 of 2022 passed
by the learned 1st Additional District Sessions Court, Thirupur.
For Petitioner : Mr.S.M.Muralidharan
Page No.1 of 11
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1857 of 2023
For Respondent : Mr.P.Navaneetha Krishnan
ORDER
The petitioner was convicted by the learned Judicial Magistrate, Fast
Track Court, Tiruppur (Trial Court) vide judgment, dated 19.09.2022 in
C.C.No.301 of 2015 for offence under Section 138 of the Negotiable
Instruments Act, 1881 (In short 'The Act') and sentenced to undergo Simple
Imprisonment for a period of six months and to pay compensation of
Rs.20,00,000/- to the respondent, in default to undergo Simple
Imprisonment for one month. Challenging the same, the petitioner filed an
appeal before the I Additional District and Sessions Judge, Tiruppur (Lower
Appellate Court) in Crl.A.No.139 of 2022 and the same was dismissed on
06.10.2023 confirming the judgment of the trial Court. Aggrieved over the
same, the present criminal revision case is filed.
2.Gist of the case is that the complainant viz., Mrs.Thara Devi (Died)
is the Authorized person of M/s.Cottons Gallery, a Proprietorship concern
and to prosecute the petitioner. After filing the complaint, Mrs.Thara Devi
passed away, hence her husband Ramesh Kumar, Proprietor of M/s.Cotton
Gallery substituted and continued the prosecution against the petitioner.
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M/s.Cottons Gallery is in the wholesale business of manufacturing and
dealing with textile clothes. For urgent and family requirement, the
petitioner requested loan of Rs.20,00,000/- from the respondent. The
respondent gave loan of Rs.20,00,000/- to the petitioner on various
occasions through Bank from 19.08.2011 to 10.10.2011 with interest at the
rate of 12% per annum and the petitioner executed promissory note (Ex.P1).
When the respondent demanded repayment of the loan, the petitioner in
discharge of principal amount liability, issued cheque, dated 20.05.2013
(Ex.P2) drawn on ICICI Bank, Tiruppur Branch. When the said cheque
presented for encashment, the same was returned with an endorsement
'Account Closed' vide bank return memo, dated 02.06.2013 (Ex.P3).
Thereafter, statutory notice (Ex.P4), dated 26.07.2013 issued to the
petitioner. The petitioner received the same on 27.07.2013. Ex.P5 is the
postal acknowledgement card. The petitioner with false allegations sent a
reply (Ex.P6), dated 10.08.2013. The respondent produced the GST
Registration Certificate, dated 14.12.2016 (Ex.P7), the statement of bank
account for the period from 01.04.2011 to 31.03.2012 (Ex.P8), the bank
statement (Ex.P9) to confirm the payment of Rs.20,00,000/- to the petitioner
and Income Tax Returns (Ex.P10).
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3.During trial, the respondent examined himself as PW1 and marked
ten documents Exs.P1 to P10. On the side of the petitioner/defence, no
witness examined and no document marked. On conclusion of trial, the trial
Court convicted the petitioner as stated above.
4.The learned counsel for the petitioner submitted that the respondent
is running indigenous chit in which the petitioner and her husband were
subscribers and they were successful bidders. During the chit transaction,
promissory note (Ex.P1) was obtained by the respondent wherein lot of
corrections made. He further submitted that in this case, statement of bank
account for the period from 01.04.2011 to 31.03.2012 (Ex.P8), the bank
statement (Ex.P9) to confirm the payment of Rs.20,00,000/- to the petitioner
and Income Tax Returns (Ex.P10) not properly certified by the concerned
authorities. The cheque (Ex.P2) is a Non-CTS Cheque which was received
during chit transaction in the year 2010, hence the case projected by the
respondent falls flat. The entire case projected that from the month of
August 2011 to December 2011, entire loan amount received by the
petitioner. In discharge of the same, a cheque (Ex.P2) dated 20.05.2013
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issued. In the chit transaction, Non-CTS security cheque received by the
respondent. During the year 2010, Non-CTS cheque withdrew from
circulation, hence the respondent's contention is not sustainable. The Courts
below failed to consider the same. On the other hand convicted the
petitioner for the simple reason that the petitioner not disputed the signature
in the cheque invoking Section 139 of the Act. According to the petitioner,
the respondent has got no means or resources to lend such huge amount as
loan. Being a lady the petitioner is being harassed and cornered using a stale
security cheque which was earlier given during chit transaction. The chit
already completed and there is no liability or due in the chit. Without any
liability, the security cheque misused by the respondent.
5.The learned counsel for the petitioner relied on the citations of the
Hon'ble Apex Court in the cases of “M/s.Kumar Exports versus
M/s.Sharma Carpets reported in (2009) 2 SCC 513” and “John K.Abraham
versus Simon C.Abraham & Another reported in (2014) 2 SCC 236” for the
point that burden was heavily upon the complainant in a 138 Case to
demonstrate the funds advanced to the accused and issuance of the cheque in
support of the said payment was true. Further for the point that to disprove
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the presumption the accused has an option to prove the non-existence of
consideration and debt or liability either by letting in evidence or by way of
cross examination coupled with the reply to the statutory notice. Making the
above submissions and replying on the decisions, the learned counsel for the
petitioner prays for setting aside the judgments of the Courts below.
6.The learned counsel for the respondent/complainant submitted that
the petitioner is suffering two concurrent findings of the Trial Court and the
Lower Appellate Court. The points raised by the petitioner herein were
earlier raised before the Courts below and the Courts below found the
petitioner's contention unsustainable. The petitioner not disputed the
issuance of cheque and signature available in it. The only contention is that
the cheque which was given for a chit transaction, misused. The petitioner
failed to produce any document or to examine any subscribers to the chit to
prove the fact that the petitioner was a subscriber to the chit and the cheque
issued in course of chit transaction. He further submitted that the petitioner
disputed the statement of bank account for the period from 01.04.2011 to
31.03.2012 (Ex.P8), the bank statement (Ex.P9) to confirm the payment of
Rs.20,00,000/- to the petitioner and Income Tax Returns (Ex.P10). The
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respondent categorically stated in the evidence that the respondent is ready
to produce the ledger corresponding to the statements (Exs.P8 & P9). The
petitioner failed to further pursue the cross examination in this regard by
summoning the ledgers. Ex.P9 is the statement of bank account to confirm
the amount debited from the respondent's bank account and credited to the
petitioner's bank account. No bank official summoned to contradict this
statement. Ex.P10 is the Income Tax Returns filed with the Income Tax
statement which is disputed except for raising a plea of non-availability of
Auditor's signature. These facts dealt in detail by the Courts below. With
regard to the petitioner's contention that the petitioner has got no resources
also falsified by the trial Court by looking into the statement of accounts and
Income Tax Returns (Exs.P9 & P10). Hence, the petitioner's contention
relying upon the above two judgments is not applicable to the facts and
circumstances of the present case.
7.In support of his submissions, the learned counsel for the respondent
relied on the judgment of the Hon'ble Apex Court in the case of “P.Rasiya
versus Abdul Nazer and another reported in 2022 SCC OnLine SC 1131”
wherein it had held that the presumption under Section 139 of the Act is a
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statutory presumption and once it is presumed that the cheque is issued in
whole or in part of any debt or other liability it is for the accused to ignore
the contrary. Further held that it should not be lost sight of while exercising
revisional jurisdiction in dealing with concurrent findings recorded by
Courts below. Making the above submissions and replying on the decision,
the learned counsel for the respondent prays for dismissal of the revision.
8.Considering the submissions and on perusal of the materials, it is
seen that the petitioner is suffering two concurrent findings of the Trial
Court as well as the Lower Appellate Court. The petitioner's main
contention is that there are corrections in the promissory note (Ex.P1) in
many places which were not authenticated and initialled. Ex.P1 is a printed
promissory note. The words which are not required are normally struck out.
The petitioner not disputed the execution and signature in the promissory
note (Ex.P1). This case is a 138 Case primarily rest on the cheque (Ex.P2).
The signature in the cheque and issuance of the cheque not disputed. Hence,
Sections 118 and 139 of the Act comes into play.
9.The defence of the petitioner is that the cheque is a Non-CTS
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cheque which was withdrawn from circulation from the year 2010 but the
cheque (Ex.P1) is dated 20.05.2013, hence the security cheque misused. To
substantiate this fact, the petitioner not examined any bank officials or
produce any materials. It is to be noted that the Non-CTS cheque was
withdrawn but for the existing cheques and the Non-CTS was in circulation
till the fresh cheques issued as per guidelines of the Reserve Bank of India.
In this case, the cheque (Ex.P2) returned for the reason 'Account Closed' as
could be seen from the return memo (Ex.P3). The respondent crediting the
amount to the petitioner's bank account is proved by Exs.P8 & P9 and
further confirmed by Ex.P10. There is no reason to doubt these documents.
Hence, the petitioner failed to dislodge the statutory presumption and unable
to probablize his defence. These facts were considered by both the Courts
below by detailed judgments.
10.In view of the above, this Court does not find any illegality or
infirmity in the judgment, dated 19.09.2022 in C.C.No.301 of 2015 passed
by the learned Judicial Magistrate, Fast Track Court, Tiruppur and in the
judgment, dated 06.10.2023 in Crl.A.No.139 of 2022 passed by the learned I
Additional District and Sessions Judge, Tiruppur and the same are
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confirmed. Accordingly, the criminal revision case stands dismissed.
Consequently, the connected criminal miscellaneous petitions are closed.
3.09.2024
Neutral Citation : Yes/No
Speaking Order/Non Speaking Order
Index : Yes/No
Internet : Yes
vv2
To
1.The I Additional District and Sessions Judge,
Tiruppur.
2.The Judicial Magistrate,
Fast Track Court, Tiruppur.
https://www.mhc.tn.gov.in/judis
M.NIRMAL KUMAR, J.
vv2
PRE-DELIVERY ORDER IN
3.09.2024
https://www.mhc.tn.gov.in/judis
