Madras High Court
B. Vengateswaran vs U. Thenappan on 17 April, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.R.C.No.1330 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 17.04.2025
CORAM :
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Revision No. 1330 of 2019
and
Crl.M.P. No. 17872 of 2019
---
B. Vengateswaran .. Petitioner
Versus
U. Thenappan,
Prop. of Ragavendra Enterprises,
No. 41/52, K.K. Road,
Venkatapuram, Ambattur,
Chennai – 600 053. .. Respondent
Criminal Revision is filed under Section 397 and 401 of Cr.P.C to set
aside the order dated 30.11.2017 passed in S.T.C. No. 252 of 2016 on the file
of the learned Judicial Magistrate, Fast Track Court, Magisterial level at
Ambattur confirmed in the Judgment dated 20.09.2019 passed in Crl.A. No. 4
of 2018 on the file of the learned I Additional District and Sessions Judge,
Tiruvallur.
For Petitioner : Mr. A.R. Nixon
For Respondent : Mr. Karthick
for M/s. AL.Gandhimathi
1/18
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Crl.R.C.No.1330 of 2019
ORDER
This Criminal Revision is filed to set aside the judgment dated
20.09.2019 passed in C.A.No.4 of 2018 on the file of the learned I Additional
District and Sessions Judge, Tiruvallur modifying the order dated 30.11.2017
passed in S.T.C.No.252 of 2016 on the file of the Judicial Magistrate, Fast
Track Court, Magisterial level at Ambattur.
2. The brief facts, which are necessary for the disposal of this
Criminal Revision, are as follows:-
2.1. As per the complaint filed by the Respondent/Complainant, the
Complainant is engaged in the business of selling electronic goods in the name
and style of M/s. Ragavendra Enterprises, having his showroom at No.41/52,
K.K. Road, Venkatapuram, Ambattur, Chennai. According to the
Complainant, the Revision Petitioner/Accused is his close friend for more than
15 years. It was stated that the Revision Petitioner/Accused is engaged in the
contractual business with T.I. Cycles of India, Ambattur. During March 2011,
the Revision Petitioner/Accused represented to the Complainant that the
payment bills were not cleared by T.I. Cycles Company and for clearance of
the bills, they are expecting gifts such as LCD Television, Air Conditioners
etc., Therefore, the Revision Petitioner/Accused requested the Complainant to
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supply those items on credit basis. Accordingly, during May 2011, the
Respondent/Complainant supplied those goods. Similar supplies were effected
as and when requested by the Revision Petitioner/Accused until June 2012 to
the total value of Rs.49,50,600/-. When the Complainant demanded payment,
during October 2012, the Revision Petitioner/Accused stated that he will make
the payment during November 2012. Accordingly, to discharge his liability,
the Revision Petitioner/Accused issued two cheques dated 01.11.2012 for
Rs.30,00,000/- and another cheque dated 26.11.2012 for Rs.19,50,600/- drawn
on United Bank of India, Mount Road Branch. On 26.11.2012, when the
Respondent/Complainant presented the cheques with his bankers Syndicate
Bank, Ambattur, the same was returned unpaid with an endorsement “funds
insufficient” and it was communicated to the Respondent/Complainant on
28.11.2012. Therefore, on 30.11.2012, the Respondent/Complainant sent a
notice to the Revision Petitioner/Accused calling upon him to pay the cheque
amount. On receipt of the notice, the Revision Petitioner/Accused issued a
reply notice dated 13.12.2012 with false allegations. Therefore, the
Respondent/Complainant had filed the complaint under Section 138 of The
Negotiable Instruments Act, 1881.
2.2. After receipt of the complaint, the Complainant/Respondent
herein was examined on oath and his sworn statement was recorded.
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Thereafter, summons were issued to the Accused for his appearance. On
appearance of the Accused, copies were furnished to him. When he was
questioned, he pleaded not guilty and claimed to be tried. Therefore, trial was
ordered. During trial, the Respondent/Complainant examined himself as P.W-
1 and marked Ex.P-1 to Ex.P-8. On behalf of the Revision Petitioner/Accused
no witness was examined, but eight documents were marked as Ex.D-1 to
Ex.D-8.
2.3. On assessment of evidence, the Trial Court, by the Judgment
dated 30.11.2017 concluded that the cheques were issued for a legally
enforceable debt and liability by the Revision Petitioner/Accused. It was also
held that the initial presumption raised by the Respondent/Complainant was
not rebutted by the Revision Petitioner/Accused. Accordingly, the trial Court
allowed the Complaint filed by the Complainant and convicted the Revision
Petitioner/Accused for the offence under Section 138 of The Negotiable
Instruments Act, 1881 and sentenced him to undergo 8 months simple
imprisonment, besides directed to pay Rs.49,50,600/- being the cheque
amount, in default, to undergo two months simple imprisonment.
2.4. Aggrieved by the judgment of conviction, the Accused preferred
Criminal Appeal No. 4 of 2018 before the learned I Additional District and
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Sessions Judge, Tiruvallur which was dismissed on 20.09.2019
2.5. Challenging the dismissal of the Appeal, the Appellant in
Criminal Appeal No. 4 of 2018 on the file of the learned I Additional District
and Sessions Judge, Tiruvallur had filed this Criminal Revision.
3. Mr. A.R. Nixon, learned Counsel for the Revision Petitioner
submitted that the Revision Petitioner/Accused had been purchasing materials
for his shop/show room and the Respondent/Complainant had been supplying
the materials. In the course of transaction, the outstanding has accrued to the
tune of Rs.1,90,00,000/- and the Revision Petitioner/Accused settled
Rs.90,00,000/- and an amount of Rs.1,00,00,000/- was pending. At this stage,
the Complainant preferred a Complainant before the Police. On enquiry, the
Police referred the same to the learned Judicial Magistrate, Ambattur by filing
R.C.S as it is a Civil dispute. Subsequently, cheques which were given by the
Revision Petitioner/Accused towards surety has been filled up by the
Respondent/Complainant to file the instant complaint under Section 138 of The
Negotiable Instruments Act, 1881.
4. The learned Counsel for the Revision Petitioner also submitted
that when statutory notice was issued by the Complainant, the Revision
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Petitioner sent a reply and stoutly denied the contents of the statutory notice.
In the reply notice, it was specifically stated that there is no liability on the part
of the Revision Petitioner to the Respondent. Inspite of the same, the complaint
was taken on file by the learned Judicial Magistrate, Fast Track Court
(Magisterial level) Ambattur.
5. In support of his contentions, the learned Counsel for the Revision
Petitioner relied on the following decisions:-
5.1. In the case of Krishna Janardhan Bhat v. Dattatraya G.Hegde
reported in 2008 STPL 2464 SC, the Honourable Supreme Court had held as
follows:
“21. The proviso appended to the said section provides for
compliance of legal requirements before a complaint petition can be
acted upon by a court of law. Section 139 of the Act merely raises a
presumption in regard to the second aspect of the matter. Existence of
legally recoverable debt is not a matter of presumption under Section
139 of the Act. It merely raises a presumption in favour of a holder of
the cheque that the same has been issued for discharge of any debt or
other liability.”
5.2. In Techi Doya vs. State of Arunachal Pradesh and another
reported in II (2016) CCR 229 (Gau.), particularly in para 21, it is held as
follows:
“21. It is a settled law that existence of debtor other liabilities
has to be proved in the first instance by the Complainant and thereafter
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the burden of proving to the contrary shifts on the accused.”
5.3. In HMT Watches Ltd vs. M.A.Abida and Others reported in
MANU/SC/0296/2015, it was held that “debt or other liability” means a
legally enforceable debt or other liability.
5.4. In the case of Niranjan Kaur vs. M/s.New Delhi Hotels Ltd
reported in AIR 1988 DELHI 332, it was held thus:-
“When a party in possession of best evidence which would throw
light on the issue in controversy withholds it, Court ought to draw an
adverse inference against him notwithstanding that onus of proof does
not lie on him, and such party cannot rely on the abstract doctrine of
onus of proof or on the fact that he was not called upon to produce it.”
5.5. In the case of Smt. Gangabai v. Smt. Chhabubai reported in AIR
1982 Supreme Court 20, it was held thus:-
“...the sub-section is not attracted when the case of a party is
that the transaction recorded in the document was never intended to be
acted upon at all between the parties and that the document is a sham.
Such a question arises when the party asserts that there was a different
transaction altogether and what is recorded in the document was
intended to be of no consequence whatever...
The bar imposed by sub-sec(1) of Section 92 applies only when
a party seeks to rely upon the document embodying the terms of the
transaction. In that event, the law declares that the nature and intent of
the transaction must be gathered from the terms of the document itself
and no evidence of any oral agreement or statement can be admitted as
between the parties to such document for the purpose of contradicting
or modifying its terms. The sub-section is not attracted when the case
of a party is that the transaction recorded in the document was never
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intended to be acted upon at all between the parties and that the
document is a sham”.
5.6. In the case of Muthammal (died) and another v. The State of
Tamil Nadu reported in 2006-3-L.W.361, it is held as follows:
“If a party, who is having records in his possession withholds
the same which will throw light on the facts in issue, then the court is
entitled to draw adverse inference against such party.”
5.7. In the case of K.Prakasam v. P.K.Surenderan reported in 2007
STPL 19605 SC, it was held as follows
“12. The Act raises two presumptions; firstly, in regard to the
passing of consideration as contained in Section 1 18(a) therein and,
secondly, a presumption that the holder of cheque receiving the same
of the nature referred to in Section 139 discharged in whole or in part
any debt or other liability. Presumptions both under Sections 1 18(a)
and 139 are rebuttable in nature. Having regard to the definition of
terms proved and disproved as contained in Section 3 of the Evidence
Act as also the nature of the said burden upon the prosecution vis-a-vis
an accused it is not necessary that the accused must step into the
witness box to discharge the burden of proof in terms of the
aforementioned provision.”
5.8. In the case of Mrs. M. Mallika v. Mr. Kasi Pillai in S.A.No.740
of 2015 in para 18 it was held as follows:-
“18. The material alteration is visible to the naked eye and the
very fact that the amount which is the basis for the claim had been
written in two different inks, raises a strong suspicion regarding the
circumstances surrounding the execution of the promissory note. It
also gives rise to the doubt whether the digit 3 had been subsequently
appended after the defendant had signed the promissory note. This
would render the document void as against the plaintiff/appellant
herein.”
6. By placing reliance on the above decisions, it was submitted by
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the learned Counsel for the Revision Petitioner/Accused that by issuing reply
notice, the initial presumption raised by the Complainant has been successfully
rebutted. Further, the Revision Petitioner/Accused had marked documents to
disprove the fact that the cheque was not issued for a legally enforceable debt
and liability. However, the Courts below over looked the above and recorded a
conviction against the Revision Petitioner/Accused. Therefore, the learned
Counsel for the Revision Petitioner/Accused prayed for allowing the Criminal
Revision as prayed for.
7. Per contra, Mr. Karthick, learned Counsel for the Respondent
submits that the cheque was issued for a legally enforceable debt. The
relationship between the Complainant and the Accused was dealer and agent.
The Accused used the electrical and electronic goods supplied by the
Complainant for being disbursed to V.V.I.P’s as bribe. In any event, the
Accused had not denied the signature in the cheque. The Revision Petition
preferred by the Accused has no merit as the trial Court as well as the
Appellate Court had on appreciation of evidence had rejected the defense of the
Accused. Both trial Court as well as the Appellate Court had arrived at the
same conclusion that the Accused had committed the offence under 138 of
Negotiable Instruments Act, 1881.
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8. The learned Counsel for the Respondent also submitted that
earlier, the Respondent/Complainant had given Police compliant against the
Revision Petitioner/Accused based on which the case in Crime No. 2029 of
2012 was registered for the offences punishable under sections 420 and 506(2)
of I.P.C. But except registering the complaint, no further action was taken.
Therefore, the Respondent/Complainant filed Crl.OP No. 29885 of 2015 before
this Court. When the said case was taken up for hearing, the Inspector of
Police, T-1 Ambattur Police Station had given instruction to the State Counsel
who made a submission before this Court that the case in Crime No.2029 of
2012 was closed as mistake of fact. However, the copy of the closure report
was not furnished to the Respondent/Complainant. When the Complainant
approached the learned Judicial Magistrate with an application dated
18.08.2014 and sought for certified copy of the documents in Crime No.2029
of 2012, the application was returned on the ground that no closure report had
been filed before the learned Judicial Magistrate, Ambattur. This is evident that
the Inspector of Police did not even file the closure report before the learned
Judicial Magistrate, Ambattur but represented before this Court that the case in
Crime No. 2029 of 2012 was closed as mistake of fact. This exposes the
conduct of the Accused in subverting the process of law.
9. The learned Counsel for the Respondent/Complainant also
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submitted that the documents marked before the trial Court by the Revision
Petitioner/Accused will not establish the Preponderance of Probabilities in his
favour. On perusal of the documents marked through cross examination of
P.W-1 through Ex.D-1 to Ex.D-7, it will be clear that the Revision
Petitioner/Accused is only attempting to find ways to wriggle out of his
liability without actually paying the amount. The Revision Petitioner/Accused
issued a reply notice stating that he does not have any liability with the
Complainant and directed the Complainant to return all the cheques. The
Complainant parted with electrical and electronic goods but he had not paid the
amount thereof when demanded. Here, the contract between the Complainant
and the Accused is oral contract but for having supplied the goods, bills are
available and they were filed as documents. Ex.P-8 is the carbon copy of the
series of bills. The learned Additional District Judge, Fast Track Court,
Tiruvallur in the Judgment had clearly discussed the liability and the evidence
before the trial Court under Ex.P-7 and Ex.P-8. The Accused failed to raise
probable defence. The transaction between Complainant and Accused alone is
available for consideration by the learned Magistrate. Whether the Accused
procured the devices to influence persons in power with whom he has to get
bills for the contract undertaken by him is not a consideration either for the
Complainant or for the Court. The Accused cannot wriggle out of this case
stating that the Complainant attempted to enforce an illegal contract. As a
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dealer in electrical goods, the Complainant is well within his rights to enforce
the contract for purchase of electrical and electronic goods by the Accused.
The bills marked as Ex.P-7 and Ex.P-8 would clearly prove the nature of
contract between the Complainant and the Accused.
10. The learned Counsel for the Respondent/Complainant submitted
that the Judgment relied on by the Counsel for the Revision Petitioner/Accused
in S.A.No.740 of 2015 will not help the Revision Petitioner/Accused. The
Complainant is within his powers to fill up the cheques as per the reported
ruling of the Honourable Supreme Court in K. Bhaskaran v. Sankaran
Vaidhyan Balan and another reported in (1999) 7 Supreme Court Cases 510.
The holder in due course is given the power to fill it according to the liability
between the drawer of the cheque and the holder of the cheque. Therefore, it is
an enforceable contract in the normal human conduct. Therefore, the Accused
cannot take advantage of the ruling in S.A.No.740 of 2015. The defence of the
Revision Petitioner/Accused was rightly rejected by the learned Judicial
Magistrate, Fast Track Court (Magisterial level-2), Ambattur and it was
confirmed by the Appellate Judge. The learned Counsel for the
Respondent/Complainant therefore prayed for dismissal of this Criminal
Revision.
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Point for Consideration:
Whether the concurrent finding of fact recorded by the
learned Judicial Magistrate, Fast Track Court (Magisterial
level) Ambattur in S.T.C.No.252 of 2016, dated 30.11.2017 and
confirmed in appeal by the learned I Additional District and
Sessions Judge, Thiruvallur in Criminal Appeal No. 04 of 2018,
dated 20.09.2019 are to be set aside?
11. Heard Mr. A.R. Nixon, learned Counsel for the Revision
Petitioner and Mr. Karthick, learned Counsel for the Respondent. Perused the
materials available before the trial Court including judgment of the learned
Judicial Magistrate and the documents under Ex.P-1 to Ex.P-8 and Ex.D-1 to
Ex.D-8.
12. On perusal of the Judgment, the learned Judicial Magistrate had
properly analysed the evidence in the light of the provisions of Section 118 and
Section 139 of the Negotiable Instruments Act, 1881. The learned Judicial
Magistrate relied on the ruling cited by the learned Counsel for the Accused in
2013 1 DCR 98 Madras to contend that the Accused need not enter the witness
box. Such defence was rejected by holding that the Accused had not rebutted
the initial presumption raised by the Complainant. Therefore, the learned
Judicial Magistrate, Fast Track Court (Magisterial level), Ambattur had on
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proper assessment of evidence convicted the Accused based on Sections 118
and 139 of the Negotiable instruments Act, 1881.
13. The Accused had not denied his signature in the cheques and
admitted having handed over cheque leaves duly signed as could be evident
from Ex.P-6 and Ex.D-7. When a strong presumption has been raised by the
Respondent/Complainant, the burden is on the Accused to rebut such
presumption through material evidence to the satisfaction of the Court. The
Appellate Judge had on assessment of evidence under Ex.D-1 to Ex.D-7
concluded that the claim of the Accused that VAT Tax was not paid by the
Complainant to the authorities will not help him to wriggle out of his liability.
It is a separate action to be initiated by the authorities, if VAT Tax was not
paid. The non-payment of VAT Tax by the Complainant will not in any way
help the Revision Petitioner/Accused to disprove the case projected against
him. Similarly, the closure of the case in Crime No. 2029 of 2012 before the
Ambattur Police for the offence under Sections 420 and 506 (ii) of the IPC
cannot help the Revision Petitioner/Accused to come clean from the rigors of
the complaint under Section 138 of Negotiable Instruments Act, 1881 or to
question the maintainability of a private complaint under Section 138 of the
Negotiable Instruments Act, 1881 dealt with by the learned I Additional
District and Sessions Judge. This was clearly discussed by the Appellate Court
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in para 11 of the Judgment. Taking note of the documentary evidence
available and the non-examination of the Revision Petitioner/Accused as a
witness, this Court is of the view that the Revision Petitioner/Accused failed to
probablise his case and the presumption raised by the Respondent/Complainant
had not been rebutted in a manner required under law. In such circumstances,
the conviction and sentence passed by the Courts below are legally acceptable
over which this Court does not find any reason to interfere. Further, this Court,
in exercise of Revisional Power can interfere with the Judgment of the Courts
below only if they are perverse and based on irrelevant consideration. In this
case, this Court finds that the Judgment of the Courts below are based on
evidence made available and therefore, the exercise of revisional power by this
Court is not warranted.
14. In view of the above discussion, the point for consideration is
answered in favour of the Respondent/Complainant and against the Revision
Petitioner/Accused. The concurrent finding of fact recorded by the learned
Judicial Magistrate, Fast Track Court (Magisterial level) Ambattur in
S.T.C.No.252 of 2016, dated 30.11.2017 and confirmed in appeal by the
learned I Additional District and Sessions Judge, Thiruvallur in Criminal
Appeal No. 04 of 2018, dated 20.09.2019 are found proper which does not
warrant any interference by this Court.
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In the result, this Criminal Revision is dismissed. The Judgment dated
30.11.2017 passed in S.T.C. No. 252 of 2016 on the file of the learned Judicial
Magistrate, Fast Track Court (Magisterial level) at Ambattur confirming the
Judgment dated 20.09.2019 passed in Crl.A. No. 4 of 2018 on the file of the
learned I Additional District and Sessions Judge, Tiruvallur is confirmed.
Consequently, connected miscellaneous petition is closed.
The learned Judicial Magistrate, Fast Track Court (Magisterial level)
Ambattur is directed to issue warrant to the Accused through the jurisdictional
Police to secure him and to undergo imprisonment as per the judgment of
conviction recorded in S.T.C.No.252 of 2016. The Complainant is within his
power to seek recovery of the amount either by filing execution petition before
the competent Civil Court to enforce the judgment of compensation or before
the learned Judicial Magistrate for the same as per law including attachment of
the properties of the Accused both movable and immovable.
17.04.2025
shl
Index : Yes/No
Internet : Yes/No
Speaking/Non-speaking order
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To
1. The Judicial Magistrate.
Fast Track Court (Magisterial level),
Ambattur.
2. The I Additional District and Sessions Judge
Tiruvallur.
3. The Section Officer
Criminal Section
High Court of Madras.
SATHI KUMAR SUKUMARA KURUP, J
shl
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Order made in
17.04.2025
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