Madras High Court
Maharishi Arulgnana Jothi vs Rajavelu on 26 September, 2024
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.No.261 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.09.2024
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.261 of 2024
Maharishi Arulgnana Jothi,
Sabathareshi Asharam by its Administrative Director,
No.6/38, Thrichy Road, Kuppan Palayam,
Vasanthapuram,
N.Puthu patty post,
Namakkal District. ... Petitioner
Vs.
Rajavelu ... Respondent
PRAYER: Criminal Revision Petition filed under Section 397 r/w 401 of
Cr.P.C, to set aside the order dated 20.09.2023 made in C.A.No.23 of 2021
on the file of the Principal District and Sessions Judge, Thiruvarur
confirming the conviction and sentence dated 26.11.2021 made in
STC.No.36 of 2015 on the file of the Fast Track Judicial Magistrate.
For Petitioner : Mr.K.S.Karthik Raja
For Respondent : Mr.K.Selvaraj
ORDER
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The petitioner was convicted by the learned Fast Track Judicial
Magistrate, Thiruthuraipoondi (Trial Court) vide judgment, dated 26.11.2021
in S.T.C.No.36 of 2015 and sentenced to undergo one year Simple
Imprisonment and to pay a sum of Rs.25,00,000/- as compensation to the
respondent/complainant in default to undergo two months Simple
Imprisonment for offence under Section 138 of the Negotiable Instruments
Act, 1881. Challenging the same, the petitioner preferred an appeal before
the learned Principal District and Sessions Judge, Thiruvarur (Lower
Appellate Court) in Crl.A.No.23 of 2021 and the same was dismissed on
20.09.2023 confirming the judgment of the Trial Court. Aggrieved over the
same, the present criminal revision case is filed.
2.The Brief facts of the case is that the petitioner/accused,
Administrative Director of Sabathareshi Asharam, Kuppanpalayam,
Namakkal District is known to the respondent/complainant. The petitioner
received Rs.20,00,000/- from the respondent on 30.08.2013 on assurance
that he would execute a sale deed for the property in survey No.232-9A/1
situated at Veedukatti village, Theevammapuram Taluk belonging to one
Balasubramaniyam. The petitioner is his power agent. The petitioner
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showing the registered power of attorney in document No.171 of 2009, the
petitioner convinced the respondent. Earlier, the respondent sold a property
in survey No.80/2 of 11,250 sq.ft on 28.09.2013 for sale consideration of
Rs.23,00,000/-. From that amount, the respondent handed over
Rs.20,00,000/- to the petitioner. Further, agreement entered by the petitioner
with the respondent that in the event of unable to execute the sale deed for
any reason, the amount would be returned to the respondent. The petitioner
handed over the cheque, dated 23.01.2014 (Ex.P1) for Rs.20,00,000/- drawn
on ICICI Bank to the respondent. When the cheque (Ex.P1) presented for
encashment, the same was returned for the reason 'Insufficient Funds' with a
memo (Ex.P3), dated 31.01.2014. Thereafter, statutory notice (Ex.P4)
issued on 17.02.2014 to the petitioner. The statutory notice could not be
served for the reason the petitioner was not available in the address
mentioned and the complaint was filed before the Trial Court. During trial,
the respondent/complainant examined himself as PW1 and marked eight
documents as Exs.P1 to P8. Ex.P6 is the power of attorney, Ex.P7 is the sale
deed and Ex.P8 is the sale agreement. On the side of the petitioner/accused,
DW1 and DW2, Assisant Managers of ICICI Bank and Indian Overseas
Bank examined and Exs.D1 to D3 marked. On conclusion of trial, the Trial
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Court convicted the petitioner as stated above. The Lower Appellate Court
confirmed the conviction.
3.The learned counsel for the petitioner submitted that the Courts
below failed to note the fact that the statutory notice (Ex.P4) returned as not
claimed and there was no proper service of notice. In the complaint, there is
no plea by the respondent that the notice was taken to the correct address
and thereafter, notice returned, hence it cannot be taken as deemed service.
In the complaint and evidence of the respondent, there is no whisper how the
respondent gave such huge amount of Rs.20,00,000/- to the petitioner and
how he had resource to give such huge amount. The burden of proof that the
cheque (Ex.P1) was issued in discharge of the legally enforceable debt not
proved by the respondent. The petitioner is only a power agent of
Balasubramaniam is proved by Ex.P6, hence the petitioner cannot be made
liable for non fulfilment of the sale agreement. An unregistered sale
agreement (Ex.P8) is only a photostat copy and not proved in the manner
known to law. The photostat copy of the document and the certified copy of
the documents marked without following the principles laid down in
Sections 65 and 66 of the Indian Evidence Act, 1872. Hence, the Trial Court
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relying upon Exs.P6 to P8 in convicting the petitioner is not proper.
4.The learned counsel further submitted that the mandatory notice as
well as Court summons not served to the petitioner in the address
mentioned. The petitioner filed a petition under Section 91 Cr.P.C seeking
production of document by the respondent to show the source of income but
the same was dismissed by the Trial Court. The petitioner agitated the same
before this Court in Crl.O.P.No.12762 of 2017 and this Court by order, dated
08.07.2019 observed adverse inference can be drawn under Section 114 of
the Indian Evidence Act, 1872. Thereafter only, the respondent filed a
petition and marked Exs.P7 and P8. Though the same was objected by the
petitioner, the same was not considered by the Trial Court. Hence, the
foundational facts not proved. The specific case of the petitioner is that the
respondent is not known to him and the cheque (Ex.P1) was given to one
Bhavani towards mortgage of the property which came in the hands of the
respondent. The respondent filled up the cheque (Ex.P1), misused the same
and filed the complaint before the Trial Court. The Assistant Managers of
the ICICI Bank and Indian Overseas Bank examined as DW1 and DW2 and
statement of accounts for the period 2012-14 marked as Exs.D2 & D3. The
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total transaction is only around Rs.2,00,000/- and the available balance is
only Rs.2,253/- during the relevant period. He further submitted that the
petitioner is not shown as Managing Trustee of Sabathareshi Asharam and
the petitioner probablized his defence. But the Courts below gave a finding
that the petitioner to disprove the case ought to have entered into the witness
box. Hence, he prays to set aside the conviction and acquitted him of all
charges.
5.The learned counsel for the respondent/complainant submitted that
though the complaint filed in the year 2015, the petitioner successfully
dragged the progress of trial for more than six years, with great difficulty,
the Trial Court concluded the trial and passed the judgment in the year 2021.
During trial, the respondent examined himself as PW1 and marked eight
documents Exs.P1 to P8. Ex.P1 is the cheque, Exs.P2 & P3 are the Bank
Return Memos, Ex.P4 is the statutory notice sent to the address of the
petitioner. The notice was sent as early as on 17.02.2014 and it was kept
pending for more than fifteen days for want of delivery. The petitioner
deliberately avoided the notice and thereafter only it was returned. To the
known address, the notice was taken. As per the General Clauses Act, notice
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to the known address is sufficient. To substantiate the same, the learned
counsel for the respondent relied on the decision of the Hon'ble Apex Court
in the case of “N.Parameswaran Unni v. G.Kannan and another reported
in (2017) 5 SCC 737”. It is not the case of the petitioner that no such
address exist and the petitioner never used the address shown in Ex.P4. The
only contention of the petitioner is that he was not available in the address
and not aware about the notice. In fact in this case, a registered power of
attorney in document No.171 of 2009 was handed over by the petitioner to
gain confidence to show that the petitioner is the power of attorney of one
Balasubramaniam and the property is very much available and he was
authorized to execute the sale deed. On that promise, the respondent's wife
on 29.08.2013 sold a property and on receipt of the sale consideration of
Rs.23,00,000/-, Rs.20,00,000/- was given to the petitioner as per the sale
agreement, dated 30.08.2013 (Ex.P8). On receiving back Ex.P8, the cheque
(Ex.P1) was issued. This was the consistent stand of the respondent
throughout from the stage of notice, complaint, sworn statement and in his
evidence.
6.He further submitted that the petitioner not denied Exs.P6 to P8, but
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only takes a stand that they are certified and photostat copies. Added to it,
the cheque (Ex.P1) and the signature found in it not denied by the petitioner.
But takes a stand that the said cheque was given to one Bhavani and the
petitioner not taken any steps to examine the said Bhavani. He further takes
a defence that the numerical two found in the date of the cheque and
numerical two found in the amount of Rs.20,00,000/- differs in writing and
the colour of the ink. If that being so, the petitioner ought to have invoked
Section 45 of the Indian Evidence Act, 1872, but not done so. The
contention now raised by the petitioner already raised before the Trial Court
as well as Lower Appellate Court and the same was considered both on legal
and factual aspects. Hence, there is no error or perversity to interfere with
the findings of the Courts below.
7.This Court considered the rival submissions and perused the
materials available on record.
8.The issuance of the cheque (Ex.P1) and the signature in it not
disputed by the petitioner. His only defence is that the cheque was given to
one Bhavani at the time of mortgaging the property. But the said Bhavani
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not examined as witness in this case and no steps taken by the petitioner in
this regard. The other contention of the petitioner is that there is difference
in the numerical two found in the date and the cheque amount. The Courts
below considered this contention and rejected the same. As regards service
of notice, the notice sent to the known address to the respondent. The
address shown in Exs.P6 and P8 and the address of the notice are one and
the same. The notice returned for the reason that the petitioner was not
available. As per Section 27 of the General Clauses Act, it is to be construed
as deemed service. The other contention of the petitioner that the respondent
has got no financial capability and for which he examined DW1 and DW2
and marked Exs.D1 & D2 no way helpful to the petitioner in probabilizing
the defence. Exs.P6 to P8 confirmed that the petitioner acted as power agent
of one Balasubramaniam to sell a property and to deal with the property.
Based on Ex.P6, the petitioner executed the sale agreement (Ex.P8). The
contention made that they are secondary evidence cannot be considered as
primary evidence, is not sustainable. These documents not objected at the
time of marking. Further the case does not rest on these documents (Exs.P6
to P8). It is only an attendant circumstantial fact to support the respondent's
contention. The primary documents are Exs.P1 to P4 which have been
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proved in the manner known to law. Thus, the petitioner's contention
considered both on legal and factual aspects by the Courts below and rightly
dismissed the petitioner's contention and convicted the petitioner.
9.In view of the above, this Court does not find no merits in the
submissions of the learned counsel for the petitioner and this Court is not
inclined to interfere with the well reasoned judgments of the Trial Court,
dated 26.11.2021 in S.T.C.No.36 of 2015 and the Lower Appellate Court,
dated 20.09.2023 in Crl.A.No.23 of 2021. The same are hereby confirmed.
Accordingly, this criminal revision case stands dismissed.
10.The Trial Court is directed to secure the petitioner to undergo the
sentence of imprisonment and ensure payment of compensation imposed in
the judgment, dated 26.11.2021 in S.T.C.No.36 of 2015.
26.09.2024
Index : Yes/No
Speaking Order/Non Speaking Order
Neutral Citation: Yes/No
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To
1.The Principal District and Sessions Judge,
Thiruvarur.
2.The Fast Track Judicial Magistrate,
Thiruthuraipoondi.
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M.NIRMAL KUMAR, J.
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26.09.2024
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