Madras High Court
M/S. J.K. Steel Corporation vs N. Eswaramoorthy (Deceased) on 17 April, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.R.C.No.975 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 17.04.2025
CORAM :
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Revision Case No.975 of 2020
---
Jagatheeswaran
M/s. J.K. Steel Corporation
Rep by its Proprietor
P. Jegathishvaran,
No.10, Balaji Nagar,
Muruga Nagar Street,
Sundarapuram,
Coimbatore - 24 .. Petitioners
Versus
N. Eswaramoorthy (deceased)
substituted by his wife
E. Rathika Rani (Female 44 years)
Wife of Late. N. Eswaramoorthy,
Door No.19/2, Andal Nagar Extension,
Uppilipalayam Post,
Coimbatore – 641 018. .. Respondent
Criminal Revision is filed under Sections 397 and 401 of Code of
Criminal Procedure against the Judgment dated 04.01.2020 made in Criminal
Appeal No. 47 of 2018 on the file of the III Additional District and Sessions
Judge, Coimbatore confirming the Judgment dated 21.12.2017 made in C.C.
No. 141 of 2013 on the file of the Judicial Magistrate, Fast Track Court-II
(Magisterial Level), Coimbatore.
For Petitioners : Mr. V. Elangovan
For Respondent : Mr. P. Nagarajan
ORDER
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This Criminal Revision is filed against the Judgment dated 04.01.2020
made in Criminal Appeal No. 47 of 2018 on the file of the learned III
Additional District and Sessions Judge, Coimbatore confirming the Judgment
of conviction dated 21.12.2017 made in C.C. No. 141 of 2013 on the file of the
learned Judicial Magistrate, Fast Track Court-II (Magisterial Level),
Coimbatore.
2. The brief facts, which are necessary for the disposal of this
Criminal Revision, are as follows:-
2.1. Originally, the deceased complainant had filed the Complaint in
C.C. No. 141 of 2013 under Section 138 of the Negotiable Instruments Act,
1881 against the Revision Petitioners/Accused herein. As per the said
complaint, the Revision Petitioner/first Accused borrowed a sum of
Rs.15,00,000/- from the deceased Complainant for his business purpose on
25.02.2010 and agreed to repay the said amount on demand. However, inspite
of repeated requests, the Revision Petitioner/first Accused did not repay the
amount. After persistent demands, the Revision Petitioner/first Accused
issued a cheque No. 890801 for Rs.15,00,000/- drawn on Indian Overseas
Bank, Kurichi Branch, Coimbatore. When the cheque was presented for
collection by the deceased-Complainant, the cheque was returned with an
intimation “exceeds arrangement” on 24.07.2010. When it was intimated to the
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Revision Petitioner/first Accused, he requested the deceased-Complainant to
re-present the cheque during the month of September, 2010. Accordingly,
when the cheque was presented for collection on 02.09.2010, it was once again
returned for the reason “insufficient fund”. Therefore, on 13.09.2010, the
deceased-Complainant sent a notice calling upon the Revision
Petitioners/Accused to pay the cheque amount. Even though the notice was
received, the Revision Petitioners did not pay the cheque amount or issued any
reply to the notice dated 13.09.2010. Therefore, the complaint was filed by the
deceased-Complainant invoking Section 138 of The Negotiable Instruments
Act, 1881.
2.2. The complaint filed by the deceased Complainant was taken on
file and his sworn statement was recorded. Thereafter, summons were issued
to the Accused and he was questioned regarding the averments made in the
complaint. However, the Revision Petitioners/Accused denied the averments
and therefore, trial was conducted. During the trial, the Complainant was
examined as P.W-1 by filing proof affidavit. Along with the proof affidavit, he
had marked seven documents as Ex.P-1 to Ex.P-7. After closure of the
complainant side evidence, the Revision Petitioner-first Accused was
questioned under Section 313 (1) (b) of the Code of Criminal Procedure
regarding the incriminating evidence available against him. The Revision
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Petitioner-first Accused denied the said evidence as false and claimed to
examine evidence. Accordingly, one Selvaraj and Raviraj wre examined as
D.W-1 and D.W-2. The Revision Petitioner-first Accused was examined as
D.W-3.
2.3. During the pendency of C.C.No. 141 of 2013, the original
Complainant died on 13.10.2014 and therefore, his wife was substituted and
she prosecuted the complaint filed by her husband. As the Complainant died
after his examination in chief by way of proof affidavit was recorded, he could
not be cross-examined.
2.4. The learned Judicial Magistrate, Fast Track Court No.II
(Magisterial Level), Coimbatore, on analysing the oral and documentary
evidence, concluded that the cheque was duly signed and tendered by the
Revision Petitioner/first Accused. Further, the Revision Petitioners/Accused
did not issue a reply to the statutory notice dated 13.09.2010. The initial
presumption raised by the deceased Complainant had not been rebutted by the
Revision Petitioners/Accused. Therefore, it was held that the cheque in
question was issued for a legally enforceable debt and liability. Accordingly,
the learned Judicial Magistrate, Fast Track Court No.II (Magisterial Level),
Coimbatore held that the Revision Petitioners/Accused are guilty of the offence
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punishable under Section 138 of the Negotiable Instruments Act, 1881 and
sentenced the first Accused to undergo one year simple imprisonment and to
pay the cheque amount of Rs.15,00,000/- as compensation within one month,
in default, to undergo three months simple imprisonment.
2.5. Aggrieved by the Judgment of conviction dated 21.12.2017, the
Revision Petitioners/Accused have preferred an Appeal in Criminal Appeal No.
47 of 2018 before the III Additional District and Sessions Judge, Coimbatore.
The Appellate Court, by Judgment dated 04.01.2020 dismissed the Appeal and
confirmed the Judgment of conviction and sentence passed by the Trial Court.
2.6. Challenging the Judgment dated 21.12.2017 of the learned Judicial
Magistrate, Fast Track Court at Magisterial Level-II, Coimbatore, which was
confirmed by Judgment dated 04.01.2020 passed in Criminal Appeal No. 47 of
2018 on the file of the III Additional District and Sessions Judge, Coimbatore,
the Revision Petitioners are before this Court with this Criminal Revision.
3. Thiru. V. Elangovan, learned Counsel for the Revision Petitioners
submitted the private complaint under 138 of Negotiable Instrument Act, 1881
was filed by the husband of the Respondent herein, as Complainant. Pending
trial, after letting in evidence as P.W-1, before cross examination, the original
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Complainant died on 13.10.2014 and the wife of the Complainant was
substituted to prosecute the case. It was held by the Courts below that the
presumption raised by the Complainant was not rebutted by the Accused.
However, the Courts below failed to note that the first Accused himself
examined as D.W-3 along with two other witnesses as D.W-1 and D.W-2.
Through the examination of defence witnesses, it was clearly brought out in the
Complaint, the source of income of the Complainant is not at all stated. The
complaint is also bereft of any particulars as to how the sum of Rs.15,00,000/-
was paid, either by cash or any other instrument. In fact, on receipt of the
statutory notice from the Complainant, the Accused had sent reply notice.
However, even the issuance of reply notice was not mentioned in the
complaint. The complaint was filed by projecting as though the Accused, on
receipt of the notice, did not issue any reply. On the other hand, a reply notice
was issued on behalf of the Accused and it was suppressed in the complaint.
The reply notice was also marked as Ex.P-7 before the Trial Court wherein it
was stated that the Accused have borrowed only Rs.2,00,000/- from the
deceased Complainant in the year 2009 and at the time of borrowing the
amount, the Accused issued 5 cheques duly signed without filling the date or
amount. Similarly, the Accused also issued signed promissory notes to the
original Complainant but they were misused by the original Complainant to file
the instant complaint. Thus, it is submitted by the learned Counsel for the
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Revision Petitioners/Accused that by issuing the reply notice dated 12.10.2010,
Ex.P-7, the Accused have successfully rebutted the initial presumption raised
by the deceased Complainant which was not properly considered by the Courts
below. The learned Counsel for the Revision Petitioners/Accused also invited
the attention of this Court to the content of the reply notice dated 12.10.2010,
which reads as follows:-
“3. ckJ fl;rpf;fhuuplkpUe;J 25/02/2010 k; njjp
U/15.00.000 fldhf bgwtpy;iy vd;Wk;. me;jf;flid
jPu;g;gjw;fhf 13/07/2010 k; njjpapl;L Fwpr;rp fpis ,e;jpad;
Xtu;rP!; t';fp fhnrhiy vJYk; bfhLf;ftpy;iy vd;Wk; mij
t';fpapy; brYj;jp bjhif bgw;Wf;bfhs;SkhW Twpajhf
brhy;ypapUg;gJ cz;ikf;F khwhd r';fjpahFk;/
4/ ckJ fl;rpf;fhuuplkpUe;J vdJ fl;rpf;fhuu;fs; 2009 k;
tUlj;jpy; U2.00.000 (Ugha; ,uz;L ,yl;rk;) fldhf
bgw;Wf;bfhz;L mjw;F Mjuthf njjp/ bjhif. bgau; g{u;j;jp
bra;ag;glhj 5 fhnrhiyfSk; mnj nghy g{u;j;jp bra;ag;glhj
bjhif vGjg;glhj gpuhkprup nehl;L 5k; vJt[k; vGjg;glhj
Kj;jpiu jhs;fspYk; ghz;l; ngg;gu;fspYk; ifbaGj;J bra;J
bfhLj;jpUe;jhu;/ me;j fld; bjhifia fle;j 2009k; tUl
,Wjpapy; tl;oa[ld; vdJ fl;rpf;fhuu; brYj;jptpl;lhu; vd;Wk;.
flid ckJ fl;rpf;fhuUf;F brYj;jp tpl;L flDf;fhf
bfhLj;jpUe;j Mtz';fis jpUg;gpf;nfl;l bghGJ ckJ
fl;rpfhuu; t';fp yhf;fupy; itj;Js;nsd;. t';fp jpwe;jt[ld;
vLj;J te;J jUfpd;nwd; vd;W Twpaij ek;gp vdJ
fl;rpf;fhuu; nkw;go Mtz';fis jpUg;gp th';fhky; tpl;lhu;
vd;Wk; vdJ fl;rpf;fhuu; bjuptpf;fpd;whu;/ vdJ fl;rpf;fhuu;
ckJ fl;rpf;fhuuplk; gyKiw neupy; nkw;go Mtz';fisj;
jpUg;gpj;jUkhW nfl;Lk; ckJ fl;rpf;fhuu; jpUg;gpj;juhky; fhyk;
flj;jp te;jjhft[k; vdJ fl;rpf;fhuu; bjuptpf;fpd;whu;/
5. ckJ mwptpg;g[ fpilf;fg;bgw;w gpd;du; ckJ
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fl;rpf;fhuiu vdJ fl;rpf;fhuu; mZfp ,J gw;wpf;nfl;l
bghGJk; Mtz';fisj; jpUg;gpf;ju ntz;Lkhdhy; bjhif
U/15.00.000 bfhLj;jhy;jhd; jpUg;gpj; jUntd; vd;W
brhd;djhf vdJ fl;rpf;fhuu; bjuptpf;fpwhu;/
6/ ckJ fl;rpf;fhuuplk; vdJ fl;rpf;fhuu; eP';fs;
mwptpg;gpy; brhy;ypa[s;s fhnrhiyia t';fpapy; brYj;jp gzk;
bgw;Wf;bfhs;s brhy;yt[kpy;iy. mJ gzk; ,y;yhky; jpUk;gp
te;j gpwF kPz;Lk; t';fpapy; brYj;j nfl;Lf;bfhs;st[kpy;iy
vd;W vdJ fl;rpf;fhuu; bjuptpf;fpwhu;/ ckJ fl;rpf;fjhuu; vdJ
flrpf;fhuuplkpUe;J gzk; gwpf;f ntz;Lk; vd;w nehf;fj;jpy;
,t;thW bra;Js;shu; vd;W vdJ fl;rpf;fhuu bjuptpf;fpd;whh;/
vdJ fl;rpf;fhuiu t";rpj;J gzyhgk; bgwntz;Lbkd;gjhy;
ckJ fl;rpf;fhuu; ck;kplk; ,t;thW mwptpg;g[
mDg;gr;brhy;ypa[s;sjhf vdJ fl;rpf;fhuu; bjuptpf;fpd;whu;/ ckJ
mwptpg;gpy; Fw[pg;gpl;Ls;sthW ve;j Fw;wr;braiya[k; vdJ
fl;rpf;fhuu; bra;atpy;iy mjdhy; 138 khw;whtz KiwaPl;L
rl;lg;go ckJ fl;rpf;fhuuhy; eltof;if vLf;f ve;jf;fhuzKk;
,y;iy vd;W vdJ fl;rpf;fhuu; bjuptpf;fpd;whu;/ vdJ
fl;rpf;fhuu; ckJ fl;rpf;fhuUffF ve;e fhnrhiy bfhLj;jjhf
brhy;ypapUg;gJ Vw;Wf;bfhs;sKoahj bgha;ahFk;/ me;j
mtrpaKk; Vw;gltpy;iy.”
4. The learned Counsel for the Revision Petitioners submitted that
the sum of Rs.2,00,000/- borrowed by the Accused have been repaid even in
the year 2009 itself. After repaying the entire Rs.2,00,000/-, the Accused
sought return of the signed unfilled five promissory notes and five blank
cheques, for which, the Complainant informed the Accused that he will hand it
over later, but he failed to do so, in spite of repeated requests. However, by
misusing one of the cheques, the Complainant filed this complaint with false
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averments as though the Accused borrowed Rs.15,00,000/-. According to the
learned Counsel for the Revision Petitioners-Accused, the Complainant has no
wherewithal to lend such huge amount and it was not taken note of by the
Courts below.
5. The learned Counsel for the Revision Petitioners/Accused further
submitted that the Complainant filed proof affidavit to dispense with his
examination in chief and marked documents as Ex.P-1 to Ex.P-7. However,
before he could be cross-examined, he died. In such circumstances, the learned
Judicial Magistrate, Fast Track Court-II (Magisterial level), Coimbatore ought
to have eschewed the evidence of the deceased original Complainant but it was
not done. On the other hand, reliance was on the evidence of the original
Complainant Eswaramoorthy to convict the Revision Petitioners/Accused and
the same is perverse and it has to be set aside.
6. The learned Counsel for the Revision Petitioners further submitted
that on appeal, the learned III Additional District and Sessions Judge,
Coimbatore without taking note of any of the grounds of appeal raised, had
confirmed the judgment of conviction recorded by the learned Judicial
Magistrate, Fast Track Court-II (Magisterial level), Coimbatore.
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7. In support of his contentions, the learned Counsel for the Revision
Petitioners relied on the following rulings:
7.1. In the case of G.R.Usha v. Pushpa reported in 2023 SCC OnLine
Mad 6506 this Court had observed as follows:
“13.In this context, the learned counsel appearing for the
respondent has relied on the judgment of this Court in the case of
V.Ezhilvanan v. R.Pugazhendhi reported in 2023 (2) MWN (Cr.) DCC
20 (Mad.), wherein this Court in paragraph Nos.9 and 13 held as
follows:-
“9. The principle of law is now well settled. Before drawing statutory
presumption under Section 139 of the Negotiable Instruments Act,
1881, the Court should satisfy whether the complainant has placed
details about the foundational fact and evidence to prove it. The
foundational facts are the proximity between the parties, the nature of
transaction leading to liability and the subject cheque given to
discharge that liability. If the complainant prima facie satisfy the Court
providing the above details either in the notice or in the complaint or
through documentary evidence, the statutory presumption
under Section 139 of the Negotiable Instruments Act, 1881 should be
drawn. In the absence of material to substantiate the foundational fact,
presumption under Section 139 of the Negotiable Instruments Act,
1881 cannot be drawn merely because the signature found in the
cheque is that of the accused.
13. The Omission to reply to the statutory notice or the agreement to
settle the dispute pending appeal cannot be taken adverse to the
accused. Whether to reply to the notice or to the suggesting settlement
are the prerogative of the persons accused of any offence. The
responsibility of the complainant under Section 138 of the Negotiable
Instruments Act,1881 to prove the foundational facts cannot be shifted
for these reasons. The Court shall exercise its discretion of drawing the
presumption, if the necessary foundational facts are proved. Without
proof of foundational fact, the Court cannot draw presumption
contemplated under Section 139 of the Negotiable Instruments Act,
1881.”
14.On careful reading of the aforesaid judgment, it is clear that before
drawing statutory presumption under Section 139 of the Negotiable
Instruments Act, 1881, the Court should satisfy whether the
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complainant has placed details about the foundational fact and
evidence to prove it. The foundational facts are the proximity between
the parties, the nature of transaction leading to liability and the subject
cheque given to discharge the liability. In the case on hand also, P.W.1
has not stated anything about the proximity between the appellant and
the respondent and also failed to prove the source of income.
Therefore, in order to draw the statutory presumption under Section
139 of Negotiable Instruments Act, the appellant has not proved the
foundational facts with regard to proximity between the parties and the
transaction. Therefore, as discussed supra and in view of the aforesaid
judgment, this Court is of the opinion that the respondent/complainant
has not proved the case and the trial Court also in its judgment
elaborately discussed about all the aspects and correctly dismissed the
complaint and acquitted the accused. Therefore, there is no infirmity
found in the judgment of the trial Court and thereby, this Court has no
warrant to interfere with the judgment of the trial Court. Hence, the
appeal has no merits and deserves to be dismissed.”
7.2. In the case of Ezhilavan vs. V. Pugazhendhi reported in 2023
SCC OnLine Mad 2685, this Court had observed as follows:-
“11. In the judgment of John K.John ?vs Tom Vargheese and
another reported in [(2007)12 SCC 714] relied by the
respondent/accused and cited supra, the Hon?ble Supreme Court has
observed that,
?Presumption raised in terms of Section 139 of the Act is
rebuttable. If, upon analysis of the evidence brought on record by the
parties, in a fact situation obtaining in the instant case, a finding of
fact has been arrived at by the High Court that the cheques had not
been issued by the respondent in discharge of any debt, in our opinion,
the view of the High Court cannot be said to be perverse warranting
interference by us in exercise of our discretionary jurisdiction under
Article 136 of the Constitution. The High Court was entitled to take
notice of the conduct of the parties. It has been found by the High
Court as of fact that the complainant did not approach the Court with
clean hands. His conduct was not that of a prudent man. Why no
instrument was executed although a huge sum of money was allegedly
paid to the respondent was a relevant question which could be posed in
the matter. It was open to the High Court to draw its own conclusion
therein. Not only had no document been executed, even no interest had
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been charged. It would be absurd to form an opinion that despite
knowing that the respondent was not even in a position to discharge his
burden to pay instalments in respect of the prized amount, an advance
would be made to him and that too even after institution of three civil
suits. The amount advanced even did not carry any interest. If in a
situation of this nature, the High Court has arrived at a finding that the
respondent has discharged his burden of proof cast on him under
Section 139 of the Act, no exception thereto can be taken.?
12. In the case under consideration also, the complainant
though claims, he used to lend money to the accused and collect it with
interest and advanced loan on various dates to the accused, no
instrument for borrowing or discharge of the loan due in part or full
produced. The appellant has failed to place the material facts, which
require to prove money transaction. Except the signed cheque, return
memo, the statutory notice and the Acknowledgment of receipt of the
notice, there is no other evidence to infer, there was transaction
between the accused and the complainant as averred in the complaint
and in PW-1 testimony. When the accused through cross examination
of PW-1 had probablaised his case that the cheque given only to the
brother of the complainant and that been misused. On behalf of the
complainant, no evidence placed before the Court that the cheque was
given to the complainant for discharge of an existing debt.”
8. By placing reliance on the above decisions, the learned Counsel
for the Revision Petitioners/Accused submitted that P.W-1/Complainant died
before cross examination. His wife continued with the prosecution but she was
not examined as Complainant witness. On the other hand, the Accused
examined three witnesses including the first Accused as D.W-3. However, the
evidence of the defence witnesses were rejected by the learned Judicial
Magistrate, Fast Track Court-II (Magisterial level), Coimbatore as well as the
learned III Additional District and Sessions Judge, Coimbatore. The learned
Counsel for the Revision Petitioners/Accused, therefore, submitted that when
the Revision Petitioners/Accused have successfully rebutted the presumption
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raised by the Complainant, the trial Court, as well as the Appellate Court
erroneously held that the original Complainant was not cross-examined by the
Accused. The Courts below did not consider that soon after his examination-
in-chief, the original Complainant died and therefore, there was no occasion for
the Accused to cross-examine him. While so, the Courts below erred in
holding that the original Complainant was not cross-examined by the Revision
Petitioners/Accused. In any event, the Revision Petitioners/Accused
successfully rebutted the initial presumption raised by the original complainant
by issuing a reply notice dated 12.10.2010, Ex.P-7 and by examining three
defence witnesses as D.W-1 to D.W-3. The Courts below, without taking note
of the preponderance of probabilities in favour of the Accused, have
erroneously convicted and sentenced the first Accused. The learned Counsel
therefore prayed for allowing this Criminal Revision by setting aside the
judgments of the Courts below.
9. On the other hand, the learned Counsel for the Respondent
vehemently objected to the line of arguments made by the learned Counsel for
the Revision Petitioners/Accused. It is the contention of the learned Counsel
for the Respondent that the Accused borrowed Rs.15,00,000/- for business
purpose and for repayment of the said amount, issued the cheque. When the
cheque was presented, it was returned with a memo indicating ‘exceeds
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arrangement’. When the same was informed to the first Accused by the
deceased Complainant, he requested to present it after sometime. When the
cheque was presented subsequently on 02.09.2010, it was returned with the
endorsement ‘funds insufficient’. Therefore, the Complainant was forced to
issue a statutory notice. The Accused received the statutory notice and issued a
reply notice disputing the contentions in the statutory notice.
10. Before the trial Court, the deceased Complainant examined
himself as P.W-1 and marked seven documents as Ex.P-1 to Ex.P-7. Ex.P-1 is
the original cheque No.890801 for Rs.15,00,000/- drawn on Indian Overseas
Bank, Kurichi Branch, Coimbatore. Ex.P-2 is the return memo dated
24.07.2010. Ex.P-3 is the return memo along with cheque dated 02.09.2010.
Ex.P-4 is the statutory notice dated 13.09.2010. The notice was sent to the
address of the Accused in his place of business as well as the residential
address. Therefore, two acknowledgments were received and they were
marked as Ex.P-5 and Ex.P-6. Ex.P-7 is the reply notice issued by the
Revision Petitioners/Accused.
11. It is the contention of the learned Counsel for the Respondent/
Complainant that in spite of the deceased Complainant having adduced
evidence and appeared regularly before the learned Judicial Magistrate, Fast
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Track Court-II (Magisterial level), Coimbatore, he was not subjected to cross
examination. The Accused wantonly evaded and protracted the proceedings,
forcing the Complainant to lodge a complaint with the High Court against the
learned Judicial Magistrate, Fast Track Court-II (Magisterial level) for not
disposing the case swiftly and for granting time to the Accused to delay the
trial. The Complainant had also given a complaint against his own Counsel
before the learned Judicial Magistrate, Fast Track Court-II (Magistrate level),
to the Bar Council of Tamil Nadu and Puducherry. On the basis of such
complaint, the Registry of the High Court proceeded with an enquiry.
However, even before initiation of the enquiry or disciplinary proceedings
initiated against the Presiding Officer of the Court or an enquiry by the Bar
Council of Tamil Nadu and Puducherry against the Counsel for the deceased
Complainant, the Complainant died. Subsequent to his death, the Counsel for
the Accused claims that he wanted to eschew the evidence of P.W-1.
However, the learned Judicial Magistrate proceeded with the trial.
12. The learned Counsel for the Respondent/Complainant had cross
examined D.W-1 to D.W-3. From the cross examination, it was found that
they were examined as defence witnesses not on summons by the Accused but
on oral request of the learned Counsel for the Accused. The learned III
Additional District and Sessions Judge had commented upon the conduct of the
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learned Counsel for the Accused in appreciation of evidence and in Paragraph
number 12, the Appellate Court held as follows:
“Moreover the other person named Antony who was also
present at the time, according to Dw1 was not examined by the
Accused. Instead he had examined one Raviraj as Dw2. DW2's version
is that he was invited by the Accused to his godown a month before
Diwali in the year 2009 and at the time the Complainant and Accused
were talking to each other and that the complainant was demanding
interest and the Accused had paid a sum of Rs.50,000/- towards
interest and later, one week after Diwali the Accused requested this
witness also to accompany him to meet the complainant to receive back
the documents from the complainant and on the way they met the
complainant, and that the complainant had informed that he would
handover the documents to the Accused in his godown. During cross
examination this witness has also admitted that he had no knowledge
about the transaction between the complainant and the Accused and he
has also admitted that he came to depose evidence on request by the
Counsel for the Accused and not by the Accused. Therefore, this Court
has conclude that this witness is a tutored and a false witness and his
evidence cannot be relied on. The act of the Counsel on record for the
Accused in creating and tutoring a false witness would amount to
interfering with the administration of Justice an would amount to
professional misconduct.”
13. Thus the learned Appellate Judge, on appreciation of evidence had
stated that the deposition of D.W-1 and D.W-2 would indicate that they are not
bona fide witnesses. The learned Judicial Magistrate, Fast Track Court-II
(Magisterial level), Coimbatore, had also observed that D.W-1 admits in his
cross-examination that he does not know how much money the Accused
borrowed from the Complainant. When the witness is unable to give details of
receipt of money, it only shows that D.W-1 was examined to help the Accused
to wriggle out of the criminal case. Similarly, D.W-2 in his evidence would
depose that one month prior to Diwali 2009, Accused paid Rs.5,50,000/- to the
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Complainant. D.W-2 also deposed that he does not know how much money the
Accused borrowed. Therefore, the evidence of D.W-1 and D.W-2 does not
inspire the confidence of the Court and their deposition may not be true. The
presence of D.W-1 and D.W-2 in the manner narrated by them in their
deposition was not mentioned by the Accused in his reply notice, Ex.P-7. The
learned Judicial Magistrate, Fast Track Court-II (Magisterial level),
Coimbatore had also observed in his discussion of evidence that the Accused,
as D.W-3 deposed that he borrowed Rs.2,00,000/- alone and it was repaid.
However, the deceased Complainant claimed more interest and therefore
Rs.50,000/- was paid in the year 2009 prior to Diwali. Admittedly such facts
were not stated in the reply notice under Ex.P-7. If really the Accused repaid
the amount of Rs.2,00,000/-, the burden of proof is on the Accused. The
Accused failed to probabilize the defence regarding discharge of liability in the
cross-examination. The Accused admits that pending proceedings, he paid
Rs.2,25,000/- to the wife of the Complainant. If really the Accused discharged
the liability due to the original Complainant, there is no necessity for the
Accused to pay any more amount over and above the actual liability.
Therefore, the learned Judicial Magistrate, Fast Track Court-II (Magisterial
level), Coimbatore had observed that the evidence of P.W-1 remains
unchallenged and the Complainant is entitled to rely upon the evidence. Simply
because the Complainant died, the Accused cannot say that the evidence
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already recorded has to be eschewed. The evidence of the deceased
Complainant/P.W-1 is binding on the Accused and it is valid in the eyes of
law. The case of the Complainant is consistent to the liability and issuance of
cheque by the Accused. There is no material or satisfactory evidence to show
that the cheque was misused by the original Complainant. If really the cheque
was misused and the liability was discharged, why the Accused has not
resorted to Police complaint or given “Stop payment” instructions on the
cheque. The conduct of the Accused is not normal. There is absolutely no
evidence to disbelieve the case of the original complainant or any material is
produced to show that there exists no liability. Even during 313 Cr.P.C
questioning the Accused simply denied the evidence of the Complainant as
false and he had not offered any explanation as to how the cheque was placed
in the hands of the Complainant. In the absence of any denial or contradictory
version or any material to infer that the presumption is rebutted by the
Accused, the Court has no other option except to believe that the transaction is
true and the liability was proved in accordance with law. The Complainant had
satisfactorily proved his case and the cheque was issued for the discharge of
legally enforceable debt and liability. The Accused did not probabilize his case
and the initial presumption raised by the original Complainant was not
rebutted. Since the initial burden was not rebutted, the presumption is in favour
of the Complainant. Therefore, the Courts below are right in convicting the
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Accused for the offence punishable under Section 138 of The Negotiable
Instruments Act, 1881.
14. The learned Counsel for the Respondent also invited attention of
this Court to the observations of the learned III Additional District and
Sessions Judge, Coimbatore, on independent assessment of the evidence. From
para 11 to para 14 the Appellate Court had independently analysed and
assessed the evidence to arrived at a conclusion that the deposition of the
original Complainant was not challenged by the Accused by cross-examining
him. The Accused took time and did not cross-examine the original
Complainant for a considerable period of time. After death of the Complainant,
the Accused seeks to eschew the evidence of P.W-1 which cannot be accepted.
The Accused cannot be permitted to take advantage of his own lapses in not
cross-examining the Complainant when the Complainant was readily available.
In any event, this Court can only consider the Revision if there is any lapses
either on the part of the trial Court or on the part of the Appellate Court in their
judgment. Here both the Courts, on independent assessment of evidence,
arrived at a conclusion that the Accused committed the offence under Section
138 of the Negotiable Instrument Act, 1881. Therefore, the learned Counsel for
the Respondent seeks to dismiss this Criminal Revision.
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15. Before concluding the argument, the learned Counsel for the
Respondent invited the attention of this Court to the conduct of the Accused.
He had filed additional typeset wherein he had claimed that the wife of the
Complainant entered into an out of Court settlement with the Accused for
settling the amount for Rs.5,00,000/-. Further, during the pendency of this
Revision Petition, by order dated 20.11.2020, this Court directed the Revision
Petitioners/Accused to pay Rs.3,16,000/-. Subsequently, when the Criminal
Revision was taken up for hearing on 08.08.2022, this Court referred the matter
for mediation but a settlement could not be effected. Thereafter, when this
Criminal Revision is taken up for hearing on 12.10.2023 a new Counsel
appeared on change of vakalat for the Revision Petitioners and sought
extension of time to deposit the amount by filing a fresh Crl. M.P. No. 3866 of
2022 to pay the amount. Thus, three learned Judges of this Court directed the
Revision Petitioners to deposit the amount but he had not complied with the
condition. Therefore, the learned Counsel for the Respondent prayed for
dismissal of the present Criminal Revision.
Point for Consideration:
Whether the Revision Petition filed by the Accused against the
Judgment dated 21.12.2017 passed by the learned Judicial
Magistrate, Fast Track Court-II (Magisterial level), Coimbatore
in C.C.No.141 of 2013 which was confirmed by judgment of the
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learned III Additional District and Sessions Judge, Coimbatore
in Criminal Appeal No.47 of 2018 dated 04.01.2020 are liable to
be set aside as perverse?
16. Heard the learned Counsel for the Revision Petitioners/Accused
and the learned Counsel for the Respondent. Perused the evidence of the
deceased Complainant as P.W-1, documents filed on the side of the deceased
Complainant as Ex.P-1 to Ex.P-7 and the deposition of the defence witnesses
as D.W-1 to D.W-3.
17. On perusal of the judgment it is found that the Complainant
adduced evidence by filing proof affidavit to dispense with his examination in
chief and marked documents as Ex.P-1 to Ex.P-7. After adducing evidence,
the original Complainant was regularly appearing before the trial Court. The
Accused did not cross examine the Complainant. Further, in this case, the
Accused himself brought the witnesses to be examined on his side without
being summoned by the trial Court, which is in violation of professional ethics
and etiquette of the Members of the Bar. When the Complainant as P.W-1 had
adduced evidence and was in attendance before the Court, in violation of the
directions issued by the Honourable Supreme Court in Vinod Kumar v. State
of Punjab [(2015) 1 MLJ (Crl) 288 (SC)], the defence Counsel did not cross
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examine P.W-1. Here it is the typical example of the dilatory tactics employed
by the Accused which is in violation of the reported ruling of the Honourable
Supreme Court in the case of Vinoth Kumar vs. State of Punjab [(2015) 1
MLJ (Crl) 288 (SC)] which had placed responsibility on the trial Judges to
enforce the ruling. Above all, in this case, the deceased Complainant was
forced to give a complaint against the learned Judicial Magistrate for having
accommodated the Counsel for the Accused to examine defence witnesses and
for not cross examining him, when he is available in Court. Unfortunately, the
Complainant died before enquiry was ordered both by the Bar Council of
Tamil Nadu and Puducherry against the defence Counsel as well as by the
High Court against the Presiding Officer.
18. The decisions relied on by the learned Counsel for the Revision
Petitioners/Accused in G.R. Usha v. Pushpa as well as the Ezhilvanan v.
Pugazhendhi are not applicable to the facts of this case. Here, when the
Complainant was available before the Court, the learned Counsel engaged by
the Accused did not cross examine the Complainant. If he had been cross
examined on these points then this rulings will be applicable.
19. In the reply notice under Ex.P-7 it was not stated that the original
Complainant has no wherewithal for advancing the loan of Rs.15,00,000/-. The
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only defence raised in the reply notice by the first Accused is that he had
availed a loan of Rs.2,00,000/- in 2009 and it was repaid in 2009 itself. It was
also stated that at the time of availing loan, he had parted with 5 unfilled signed
cheques and five promissory notes duly signed by the first Accused along with
blank green concur sheets. It was also stated that after repayment of entire loan
amount of Rs.2,00,000/- when the Accused sought the documents back, the
Complainant took time to hand it over to the Accused but never handed over
them. This was discussed at length by the learned Judicial Magistrate in
appreciation of evidence and also by the learned III Additional District and
Sessions Judge while considering the appeal.
20. When the deceased Complainant, after having adduced evidence
and marked documents the Counsel for the Revision Petitioners/Accused took
time to cross-examine P.W-1. This is the attitude of the Accused in trial. The
learned Counsel appearing for the Accused are instructed by the Accused to
delay the trial. Therefore, the Counsel cannot be blamed for taking time. If the
Counsel proceeds with trial, the Accused will engage a different Counsel who
is ready to oblige him or her and thereby the Complainant was not at all cross
examined during his lifetime. In this case, after the death of the Complainant,
the Accused attempted to eschew the evidence of P.W-1 after losing the right
of cross-examination but that cannot be accepted in the light of the reported
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ruling of the Honourable Supreme Court in Vinod Kumar v. state of Punjab
[(2015) 1 MLJ (Crl) 288 (SC)].
21. In criminal trial, the personal knowledge of the case of the witness
is very important. Here the original Complainant filed a complaint based on his
personal knowledge. He had received a cheque from the Accused for
repayment of the loan and he presented the cheque as per the instruction of the
Accused. The transaction with respect to receipt of the disputed cheque is
between the deceased Complainant and the Accused. The law permits the
complaint under Section 138 of The Negotiable Instruments Act to prosecute
the complaint through his or her legal heirs. However, after the death of the
original complainant, when his evidence is eschewed, the wife, if examined,
can only let in evidence which may not be relevant to the case. In such event,
the wife of the deceased Complainant will be branded as incompetent witness
as she may not have personal knowledge about the case. This will enable the
Accused to secure a Judgment of acquittal. This conduct of the Accused cannot
be appreciated. The learned Judicial Magistrate, Fast Track Court-II
(Magisterial level), Coimbatore, had realised the risks involved in this case and
had accordingly not eschewed the evidence of the original complainant as P.W-
1. The conduct of the learned Judicial Magistrate, Fast Track Court-II
(Magisterial level), Coimbatore, is appreciated. Also he had analysed the
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evidence in the totality of the circumstances and arrived at a just conclusion
that the evidence of D.W-1 to D.W-3 is found not inspiring the confidence of
the trial Judge and rejected them.
22. Pending Criminal Revision, the Accused filed a typeset of papers
wherein he claims that there was an amicable settlement of the dispute with the
present Complainant, who is the wife of the original Complainant. It is stated
that she accepted an out of Court settlement for Rs.5,00,000/- on 27.07.2017.
On going through the settlement effected between the first Accused and the
Respondent, it could be inferred that the Accused had employed arm twisting
tactics to get the settlement effected. In the reported decision of this Court in
the case of K.Gopal vs. The State of Tamil Nadu reported in 2005 SCC
Online Mad 466 the husband who extended the loan died. The wife prosecuted
the criminal complaint after the death of her husband. Taking advantage of the
death of the husband, instead of Rs.15,00,000/-, the Accused attempted to
settle the dispute for Rs.5,00,000/- and it was found to be unfair and
unacceptable by this Court.
23. As rightly pointed out by the learned Counsel for the Respondent,
at the time of admission of the Criminal Revision, the Revision
Petitioner/Accused filed Crl. M.P. No. 6800 of 2020 in Crl. R.C. No.975 of
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2020 in which, this Court, by order dated 17.12.2020, directed to deposit
Rs.3,16,000/- before the trial Court but he had not deposited it till 12.10.2023.
24. As rightly pointed by the learned Counsel for the Respondent/
Complainant, the trial Court as well as the Appellate Court, on independent
assessment of evidence, arrived at an irresistible conclusion that the Accused
committed the offence under 138 of Negotiable Instruments Act. Further, this
Court, in exercise of revisional powers, cannot sit as an Appellate Court to
reassess the evidence. The only question for consideration before this Court is
whether the Judgment of the trial Judge as well as Appellate Judge in not
rejecting the evidence of P.W-1, who was not subjected to cross examination is
proper. This Court already observed that the attempt of the Accused in not
cross examining the deceased original Complainant cannot be allowed to be
taken advantage of, thereby derailing the trial. In effect, this Court does not
find any reason to interfere with the orders passed by the Courts below. The
Criminal Revision lacks merits and it is liable to be dismissed.
25. In the light of the above discussion, the point for consideration is
answered in favour of the Respondent/Complainant and against the Revision
Petitioners/Accused. The Judgment dated 04.01.2020 made in Criminal
Appeal No. 47 of 2018 on the file of the III Additional District and Sessions
Judge, Coimbatore confirming the Judgment dated 21.12.2017 made in C.C.
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No. 141 of 2013 on the file of the Judicial Magistrate, Fast Track Court-II
(Magisterial Level), Coimbatore.
In the result, the Criminal Revision is dismissed confirming the
Judgment dated 04.01.2020 made in Criminal Appeal No. 47 of 2018 on the
file of the III Additional District and Sessions Judge, Coimbatore confirming
the Judgment dated 21.12.2017 made in C.C. No. 141 of 2013 on the file of the
Judicial Magistrate, Fast Track Court-II (Magisterial Level), Coimbatore. The
Trial Court is directed to take steps to secure the first Accused/Revision
Petitioner so as to enable him to undergo the period of sentence imposed in the
Judgment of the trial Court in C.C. No. 141 of 2013.
17.04.2025
shl
Index : Yes/No
Internet : Yes/No
Speaking/Non-speaking order
To
1. The III Additional District and Sessions Judge
Coimbatore
2. The Judicial Magistrate,
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Fast Track Court-II (Magisterial Level),
Coimbatore.
3.The Section Officer,
Criminal Section,
High Court Madras.
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SATHI KUMAR SUKUMARA KURUP, J.,
shl
17.04.2025
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