Madras High Court
P. Anil Kumar vs Kochappan Thomas on 2 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.R.C.No.487 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.06.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Revision Case No.487 of 2019
---
P. Anil Kumar
Son of M.K. Purushothaman
Door No.21, Shanmuga Veethi
K.K. Pudur
Coimbatore – 641 038 .. Petitioner
Versus
Kochappan Thomas
represented by Power Agent
Mr. C.L. Joseph
No.87, Perumal Kovil Street
Marudur
Ramanadhapuram .. Respondent
Criminal Revision Case is filed under Section 397 r/w.401 of Cr.P.C to
set aside the judgment passed in Crl. A. No. 507 of 2018 dated 27.04.2019 on
the file of the learned I Additional District and Sessions Judge, Coimbatore in
reversing the order of acquittal dated 24.09.2018 passed in C.C. No. 14 of
2014 on the file of the Fast Track Magistrate-I, Coimbatore.
For Petitioner : Mr. Deepan Uday
For Respondent : No appearance
ORDER
The Criminal Revision Case is filed to set aside the judgment passed in
Crl. A. No.507 of 2018 dated 27.04.2019 on the file of the learned I
Additional District and Sessions Judge, Coimbatore in reversing the order of
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acquittal dated 24.09.2018 passed in C.C. No. 14 of 2014 on the file of the
Fast Track Magistrate-I, Coimbatore.
2. For adjudication of this Criminal Revision, certain basic facts
which are essential, are delineated hereunder.
3. The Complainant-Respondent has filed the aforesaid C.C. No. 14
of 2014 contending that he lend a sum of Rs.70,00,000/- to M/s. Exide
Industrial Distributors. Subsequently, the partners of the firm, in order to
settle the loan amount in part to the Complainant-Respondent, with interest,
executed a Memorandum of Understanding. The Accused, in order to
discharge his loan amount in part issued the cheque dated 14.03.2013 for
Rs.30,00,000/-. When the cheque was presented for collection it was
dishonoured on the reason 'payment stopped by the drawer'. When it was
informed, the Accused requested time and to present the cheque during June
2013. Accordingly, the cheque was presented for encashment on 10.06.2013
but it was once again dishonoured for the reason 'payment stopped by the
drawer'. Therefore, on 05.07.2013, the Complainant issued a statutory notice
for which a reply dated 25.07.2013. In the reply, the Accused had admitted the
execution of the Memorandum of Understanding as well as the debt owed to
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the Complainant. In such circumstances, the Complainant-Respondent has
filed the instant complaint in C.C. No. 14 of 2014 under Section 138 of The
Negotiable Instruments Act through his power of attorney agent.
4. Originally, the complaint was filed before the learned Judicial
Magistrate-III, Coimbatore. The sworn statement of the Power of Attorney
Agent of the Complainant and the documents filed by him were perused by the
learned Judicial Magistrate-III, Coimbatore and having satisfied that the
offence under Section 138 of Negotiable Instruments Act, 1881, is made out,
the learned Judicial Magistrate-III, Coimbatore had taken cognizance of the
offence and taken the complaint on file as C.C. No. 453 of 2013.
Subsequently, after constitution of Fast Track Court to exclusively deal with
cases under Section 138 of Negotiable Instruments Act, 1881, the C.C. No.
453 of 2013 was transferred to the Court of the learned Judicial Magistrate –
Fast Track Court-I and re-numbered as C.C.No.14 of 2014. After re-
numbering the complaint, summons were issued to the Accused and he
appeared before the Trial Court.
5. On appearance of the Accused, copies of the documents filed by
the Complainant were furnished to him as required under Section 207 of the
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Code of Criminal Procedure and the Accused was questioned. The Accused
denied the charges and claimed to tried. Therefore, trial was ordered. The
Power of Attorney Agent of the Complainant C.L. Joseph examined himself as
P.W-1 and the Complainant was examined as P.W-2. Ex.P-1 to Ex.P-5 were
marked as documents. Ex.P-1 is the copy of the Power of Agent deed dated
19.08.2013. Ex.P-2 is the cheque dated 14.03.2013 for Rs.30,00,000/- bearing
Cheque No.109685 drawn on HSBC Bank Limited, Race Course Branch,
Coimbatore. Ex.P-3 is the written memo dated 10.06.2013. Ex.P-4 is the
statutory notice issued by the Complainant on 05.07.2013. Ex.P-5 is the postal
acknowledgment card. Ex.P-6 is the reply notice dated 25.07.2013. P.W-1 and
P.W-2 were cross examined on behalf of the Accused. After closing of the
evidence of the Complainant, the Accused was examined under Section 313
Cr.P.C. The Accused denied the incriminating evidence against him and
disputed the claim of the Complainant regarding issuance of cheque for
Rs.30,00,000/-.
6. After completion of the proceedings under Section 313 of the
Code of Criminal Procedure, one Mr. M.N. Rao was examined as D.W-1. The
Accused was examined as D.W-2. Ex.D-1 to Ex.D-8 were marked. Ex.D-1 is
the stop payment letter dated 04.03.2013 issued for cheque No.109685. Ex.D-
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2 is the copy of Memorandum of Understanding dated 09.11.2013. Ex.D-3 is
the copy of the legal notice dated 08.03.2013. Ex.D-4 is the reply notice dated
28.03.2013. Ex.D-5 is the copy of the legal notice dated 07.08.2013 along with
postal receipt. Ex.D-6 is the postal acknowledgment card. Ex.D-7 is the stop
payment letter dated 04.03.2013 for cheque No.109686. Ex.D-8 is the stop
payment letter dated 0403.2013 for cheque No.109684.
7. After completion of evidence and after hearing the arguments of
the learned Counsel for the Complainant and the learned Counsel for the
Accused, on appreciation of evidence, the learned Judicial Magistrate, Fast
Track Court–I, (Magisterial Level) Coimbatore dismissed the complaint and
acquitted the Accused as per judgment dated 24.09.2018 passed in C.C.No.14
of 2014.
8. Aggrieved, the Complainant had preferred Criminal Appeal
No.507 of 2018 before the Appellate Court questioning the correctness of the
order of acquittal. The Criminal Appeal was made over by the learned
Principal Sessions Judge, Coimbatore to the Court of the learned I Additional
District and Sessions Judge, Coimbatore. After hearing the arguments of both
the Appellant/Complainant and the Respondent/Accused, the learned I
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Additional District and Sessions Judge, Coimbatore on re-appreciation of
evidence had convicted the Accused for the offence under Section 138 of
Negotiable Instruments Act, 1881.
9. Questioning the correctness of the Judgment dated 27.04.2019
passed in Criminal Appeal No. 507 of 2018, the Accused had preferred this
Criminal Revision.
10. Mr. Deepan Udhay, learned Counsel for the Revision Petitioner
contended that the Revision Petitioner along with two others had formed a
partnership firm. Subsequently, there was dispute between them. Therefore, a
Memorandum of Understanding has been entered into between them.Earlier,
the Partnership firm had borrowed a sum of Rs.70,00,000/- as loan from the
Complainant. At that time, the Accused was not a partner of the firm. As per
the Memorandum of Understanding between them, Mr. Saseendran was
removed as Partner and in his place, the Accused was inducted. On the date of
inducting the Accused as a partner, the liability of the said Saseendran was
only Rs.10,00,000/-. The Revision Petitioner as Partner was also bound to
discharge his liability only to the tune of Rs.10,00,000/- and he had already
issued cheque for the same. While so, no more liability could be fastened on
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the Accused by the Complainant.
11. Further it is the submission of the learned Counsel for the
Revision Petitioner that two other cheques of the Revision Petitioner were
misplaced. Therefore, he had issued notice to his Bank not to advance the
amount mentioned in the cheque. The Complainant in this case had issued
statutory notice regarding the liability of the Partnership firm, which was
disputed by the Accused. Still, the Complainant proceeded with filing of the
Complaint before the learned Judicial Magistrate, Fast Track Court-I,
Magisterial level, Coimbatore. The Complainant examined himself as P.W-1
and documents were marked. The Accused also let in evidence that he had
repaid the loan amount. Notwithstanding the same, the Appellate Court
reversed the well considered judgment of acquittal passed by the trial court.
12. It is the submission of the learned Counsel for the Revision
Petitioner that even though the liability of the Petitioner herein, as newly
inducted partner, is limited to Rs.10,00,000/-, the cheque was misused by the
Complainant to file this case. Whereas the other Partners of the firm had not
been proceeded with any case. Therefore, the judgment of acquittal recorded
by the learned Judicial Magistrate No.III, Coimbatore is to be restored.
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13. The learned Counsel for the Revision Petitioner relied on the
following reported decisions of the Honourable Supreme Court in support of
his contentions.
i) Subhash Chand v. State (Delhi Administration) in Criminal
ii) Anss Rajashekar v. Augustus Jeba Ananth in Criminal Appeal
Nos. 95-96 of 2019
14. By pointing out the above decisions, it is contended by the learned
counsel that as against an order of acquittal recorded by the Trial Court, a
Criminal Appeal alone has to be preferred before this Court and the Appeal
filed before the Appellate Court itself is not maintainable.
15. Even though notice was issued to the Respondent/Complainant
and a counsel also entered appearance, when the Revision Case is taken up for
hearing, there was no representation for the Respondent.
Point for consideration:
Whether the judgment of conviction recorded by the learned I
Additional District and Sessions Judge in Criminal Appeal No.
507 of 2018 dated 27.04.2019 is to be set aside as perverse
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warranting interference by this Court?
16. Heard the learned Counsel for the Revision Petitioner. Perused
the materials placed on record.
17. Perused the judgment of the learned Judicial Magistrate, Fast
Track Court-I, Magisterial level in Coimbatore in C.C. No. 14 of 2014 dated
24.09.2018. Perused the judgment of the learned I Additional District and
Sessions Judge, Coimbatore in Criminal Appeal No.507 of 2018 dated
27.04.2019. Perused the documents under Ex.P-1 to Ex.P-6 and Ex.D-1 to
Ex.D-8.
18. The dispute is with regard to the amount to be settled by the
Accused while entering as a partner in the partnership firm in the place of the
outgoing Partner Mr. P.P. Saseendran. His only claim is that he needs to pay
only Rs.10,44,462/- and not Rs.30,00,000/- as claimed by the
Respondent/Complainant. In other words, the outgoing partner is liable to pay
Rs.10,44,462/- and when he was inducted in his place, his liability cannot be
over and above Rs.10,44,462/-. Even otherwise, the cheques in question have
not been issued by him for a legally enforceable debt or liability and therefore,
the complaint under Section 138 of The Negotiable Instruments Act is not
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maintainable. It is also contended that as per the Memorandum of
Understanding, the partners are not sharing the liabilities and income equally.
They share it at the ratio of 25:75. However, the claim of the Complainant is
that he had filed a private complaint for bouncing of cheque issued by the
Accused for Rs.30,00,000/-. In reply to the statutory notice of the
Complainant, the Accused had disputed the claim of Rs.30,00,000/-. As per
the reply notice he is bound to pay the loan availed by the outgoing partner
and the claim for payment of Rs.30 lakhs is not legally sustainable. For the
entire loan of the partnership firm, none of the partners could be forced to
settle the dues.
19. On perusal of Ex.D-3 it is clearly stated that the Complainant,
who is also a party to the Memorandum of Understanding, had not followed
the terms and conditions of the Memorandum of Understanding which forced
the Accused to issue stop payment. The partnership firm was also issued the
copy of the Ex.D-3, notice, thereby restraining them from presenting the
cheque. While assessing the evidence of the Complainant, it is found that the
Complainant had not marked the Memorandum of Understanding reached
between the partners of the firm M/s. Exide Industrial Distributors (EID). The
Accused had disputed the claim of the Complainant that he issued cheque for
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Rs.30,00,000/- to the Complainant.
20. It is the contention of the learned Counsel for the Accused that the
loan of Rs.70,00,000/- availed by the partnership firm should be proportionate
to all the partners. Whereas the attempt of the Complainant to present the
cheque for Rs.30,00,000/- or to collect a sum of Rs.30 lakhs is untenable.
Therefore, the Accused had issued a notice calling upon his Bank not to honor
the cheque Nos.109684, 109685 and 109686.
21. On perusal of the judgment of the learned Judicial Magistrate Fast
Track Court-I Coimbatore it is found that the learned Judicial Magistrate had
discussed the evidence available through P.W-1 and P.W-2, D.W-1 and
D.W2. The learned Judicial Magistrate, Fast Track Court had observed that the
signature in the cheque is not disputed and a presumption shall be drawn
against the Accused that it is he who has issued the cheque. The initial
presumption available under Section 139 of the Negotiable Instrument Act is
therefore in favour of the Complainant. After the Complainant evidence was
closed, the Accused had entered into witness box and examined himself as
D.W-2. The claim of the Accused is that he did not borrow Rs.30,00,000/- and
he had not issued cheque in question for discharging any debtor liability as
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alleged by the Complainant. The Brother in law of the Accused was a partner
in EID along with two other persons namely Allen Xavier and Roy P.Thomas
and they are having their respective shares. Mr. Roy P.Thomas and Allen
Xavier are friends. The loan of Rs.70,00,000/- availed by EID is admitted by
all the partners. The Memorandum of Understanding under Ex.D-2 is also
admitted. Out of the liability of Rs.70,00,000/-, a sum of Rs.20,44,000/- was
paid to the brother in law of the Accused P.P. Saseendran and the said amount
was received by Accused on behalf of his brother in law. As per the
Memorandum of Understanding, the partners agreed to repay their drawings to
EID and out of Rs.20,44,000/- Joy P.Thomas agreed to pay a sum of
Rs.10,00,000/- to EID. In order to discharge the remaining amount
Rs.10,44,462/- the Accused issued his cheque No.109686 drawn on HSBC
Bank, Coimbatore. After issuing the cheque, the partners had not followed the
terms and conditions in the Memorandum of Understanding and thereby
dispute arose between the partners of EID. Hence, the Accused given stop
payment letter to his Bank on 04.03.2013. The Accused issued this cheque
only to discharge the amount of Rs.10,44,462/- to EID. The claim of the
Accused is that he had not at all issued the cheque to the Complainant. In this
situation, how the Complainant obtained the cheque No.109685 and availed
the cheque amount of Rs.30,00,000/- is not at all known to the Accused. It is
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an admitted position that the Complainant lent the amount of Rs.70,00,000/- to
EID and Accused issued cheque bearing No.109686 to EID. However, the
Complainant failed to explain about the possession of Cheque in question for
Rs.30,00,000/-.
22. Even the Complainant failed to mention the date of loan and
explain the rate of interest charged for Rs.70,00,000/-. Further the
Complainant failed to explain as to whether he had taken steps against other
partners to recover the remaining amount. It appears that only as against the
Accused, who was newly inducted into the partnership, proceedings under
Section 138 of The Act have been initiated and not as against the other
partners. Hence, the Accused cannot be called upon to discharge the loan of
Rs.30,00,000/- to the Complainant. The amount claimed in cheque in question
is not legally enforcible by law. Hence, the complaint filed by the Complainant
is liable to be dismissed.
23. On perusal of the records, it reveals that the Complainant and
Accused are known persons and the Complainant lent Rs.70,00,000/- whereas
the Accused is not at all a partner at the time when the amount was paid.
However, the Accused received the amount of Rs.20,44,000/- for his brother in
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law and it is acknowledged by the Accused under Ex.D-2. The execution of
Memorandum of Understanding is not disputed by none of the partners. As per
Ex.D-2, the Accused is liable to pay the amount of Rs.20,44,000/- out of
which Roy P.Thomas agreed to pay the sum of Rs.10,00,000/-. In order to
discharge the remaining amount, Accused issued the cheque bearing
No.109686 to EID and this is not disputed by the Accused. However, the
cheque in question was not at all issued to the EID and it is not at all
mentioned in Ex.D-2. It raise a serious doubt as to how the possession of
cheque in question had gone to the Complainant. The cheque in question is
not issued by the Accused and therefore, he gave a letter to his bank to stop
payment. The Accused gave stop payment letter for cheque bearing No.109686
and cheques bearing Nos.109684 and 109685.
24. The Complainant failed to explain the rate of interest and failed to
bifurcate the principal and interest payable by the Accused. It is the settled
principle of law that the Accused need not prove the case beyond reasonable
doubt. It is enough if he clears the doubt in the mind of the Court. It is not the
case of the Complainant that the Accused issued cheque to EID. The
Complainant collected the cheque from the EID and filed it. Therefore, the
learned Judicial Magistrate arrived at a correct conclusion that the
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Complainant had not explained the circumstances which prompted the
Accused to allegedly issue the cheques. Hence, the trial court reversed the
burden upon the Complainant to explain about the existing liability between
the parties. The Complainant is least bothered to prove the reverse policy laid
by him. Therefore, the Trial Court came to question that the defense raised by
the Accused creates doubt regarding the existing liability, until the
contradiction is proved. It is presumed that the cheque in question was issued
for legal enforceable debt or liability unless and otherwise the contrary is
proved. The initial burden is on the Complainant to prove his case beyond
reasonable doubt. In this case, the Complainant did not bother to prove the
burden cast upon him. In such circumstances, the defense raised by the
Accused is probable and acceptable. Therefore, the learned Judicial
Magistrate, Fast Track Court-I Magisterial level dismissed the complaint and
acquitted the Accused.
25. On Appeal, the learned I Additional District and Sessions Judge,
on re-appreciation of evidence held as follows:
14. KiwaPll; hsuplk; M/s. Exide Industrial Distributors
epWtdk; U/ 70.00.000/- fld; bgw;Wf;bfhz;Ls;sJ vd;gJ
vjpupahy; xg;g[f;bfhs;sg;gl;l epiyapy; nkw;go epWtdj;jpw;F
KiwaPll; hsu; U/ 70.00.000/- fldhf bfhLj;jhu; vd;gij
fhl;lf;Toa Mtzj;ij KiwaPll; hsu; jhf;fy; bra;a ntz;oa
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mtrpak; ,y;iy/ vjpupahy; xg;g[f;bfhs;sg;gl;l r';fjpia
KiwaPll; hsu; epUgpf;f ntz;oa fl;lhak; ,y;iy/ mt;thW jhd;
tUk; khz;ig brd;id cau;ePjpkd;w Kd;jPu;g;gpy; nfhol;L
fhl;lg;gl;Ls;sJ/
15. tHf;F vjpupahy; jhf;fy; bra;ag;gl;l v/k/rh/M2
g[upe;Jzu;t[ xg;ge;jk; gf;fk; 5y; M/s. Exide Industrial
Distributors epWtdj;jpd; xt;bthU g';FjhuUk; kw;Wk; vjpupa[k;
vt;tst[ bjhif mtutu; g';Ff;F KiwaPll; hsUf;F bfhLf;f
ntz;Lk; vd Fwpg;gpl;L brhy;yg;glhj epiyapy; ,J Fwpj;J
k/rh/M4 rl;l mwptpg;gpYk; KiwaPlo; Yk; k/rh/M/1. 2 d;
rhl;rpfspd; thf;FKyj;jpYk; Fwpg;gplL ; brhy;y ntz;oa
mtrpak; ,y;iy/ mnj nghy; fld; bjhiff;F tl;o vt;tst[
vd;gJ Fwpj;J KiwaPl;oYk;. k/rh/M4 rl;l mwptpg;gpYk;
Twg;glhjjhy; k/rh/M2 fhnrhiy rl;lg;go jPu;f;fg;gl ntz;oa
flDf;fhf bfhLf;fg;gltpy;iy vd Kot[ bra;a ,ayhJ/ mnj
nghy; k/rh/M2 fhnrhiy vg;nghJ v';F itj;J KiwaPll; hsu;
trk; vjpup bfhLj;jhu; vd;gJ k/rh/M4 mwptpg;gpYk;
KiwaPlo; Yk; Twg;glhjJ KiwaPll; hsupd; fl;rpia ghjpg;gila
bra;ahJ/ rpy mw;gkhd fhuz';fis brhy;yp tHf;F
Fw;wj;jpypUe;J vjpup jg;gpf;f KoahJ/ rl;l mDkhdj;ij
kWjypf;f mw;g fhuz';fis nghJkhdjhf mikahJ khw;W
Kiwahtz rl;lj;jpy; bfhLf;fg;gl;l statutory presumption
KiwaPll; hsUf;F rhjfkhf ,Uf;ff;Toa tYthd
mDkhd';fs; MFk;/ mtw;iw kWjypg;gJ vd;gJ
rhj;jpaf;TWfspd; nkk;gl;l epiyapy; (Preponderance of
Probabilities) ,Uf;f ntz;Lk;/ rl;l epiy ,t;thW ,Uf;fpd;w
nghJ rpy mw;g fhuz';fis Kd; itj;J rl;l mDkhd';fs;
kWjypf;fg;gl;ljhf tprhuiz ePjpkd;wk; Kot[ bra;jJ
jtwhdjhFk;/
26. The reasoning of the learned I Additional District and Sessions
Judge is found unacceptable considering the fact that the Accused was
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inducted as partner of the firm EID just prior to the execution of Memorandum
of Understanding. The Memorandum of Understanding agreed between the
parties had not been marked on the side of the Complainant. While so, the
marking of such document under Ex.D-2 indicates the contention raised by the
Accused as his defense is found acceptable. The reason for the Complainant
for not marking the Memorandum of Understanding as Exhibit indicates or
gives hint that he had wantonly avoided or withheld material information
without marking the most important document which fixes liability of the
Accused in the place of his brother in law P.P. Saseendran. When the
Memorandum of Understanding had not stated about the share of each of the
partners towards liability of the partnership firm EID, it is found unnatural.
The conduct of the Complainant in not marking the Memorandum of
Understanding itself gives an indication that he had not stated the fact fairly.
Merely because the Accused signed the cheque and had not disputed the
cheque and it gives a presumption to the Court under 118 and 139 of
Negotiable Instrument Act, it will not help the Complainant in this case. As
per the averments in the Complaint, it is a partnership firm which had availed
the loan. Each of the partners agreed to settle the loan of the partnership firm.
If that be so, the liability is to be shared equally or according to the income
derived by each of the partners. Their share is to be settled towards loan in
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equal proportion. In such circumstances, the Complainant seeking to recover
the money of Rs.30,00,000/- from P.P. Saseendran or his brother in law Anil
Kumar through the cheque issued by Anil Kumar for Rs.10,00,000/- and odd
which had been misused as Rs.30,00,000/- by the Complainant is found
unacceptable.
27. The learned I Additional District and Sessions Judge in the
judgment impugned in this Criminal Revision, observed that when the cheque
had been issued by the Accused and the signature of the cheque is not disputed
by the Accused then the presumption is to be drawn against him for the
amount arrived in the Memorandum of Understanding. Instead, the
Complainant had filled up the cheque for Rs.30,00,000/- and presented it.
Such an observation cannot be countenanced especially when there are
inconsistency in the evidence of the Complainant regarding the liability based
on the Memorandum of Understanding. Whereas the Accused had let in
evidence and marked Memorandum of Understanding as Ex.D-2 during trial
which indicates that the claim of the Accused is fair. The learned I Additional
District and Sessions Judge, Coimbatore misdirected himself and reversed the
finding of the learned Judicial Magistrate, Fast Track Court-I, Coimbatore,
which requires to be interfered with by this Court.
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28. The Appellate Court has all the powers of trial Court except
recording the evidence and observing the demenour of the witnesses. If the
Trial Judge had arrived at a conclusion, on Appeal or revision by the learned
Appellate Judge, the learned Appellate Judge can re-assess the evidence. On
the same set of evidence, on re-assessment of evidence, if the learned
Appellate Judge arrived at a conclusion which is just opposite to the finding
recorded by the learned trial Judge, the Appellate Judge shall disturb the
finding of the trial Judge. However, the trial Judge had always got the
advantage of observing the demenour of witnesses which is not available for
the Appellate Court. Therefore, the reversal of the finding by the learned I
Additional District and Sessions Judge, in Criminal Appeal is found perverse.
When there is dispute between the partners of the firm, EID without marking
Memorandum of Understanding, the attempt of the Complainant to seek relief
against the Accused in C.C.No.14 of 2014 is unacceptable.
29. The Accused shall let in rebuttal evidence but it is not always
necessary for the Accused himself to let in evidence. He can probabilise the
defense by weakening the case of the Complainant. as per Section 139 of the
Negotiable Instruments Act. By probablizing the defense, the reverse burden is
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on the Complainant to disprove the claim of the Accused but such reverse
burden had not been satisfactorily discharged by the Complainant in this case.
While so, the Accused is entitled to acquittal as per the ruling of the
Honourable Supreme Court in the case of Rangappa vs. Sri Mohan reported
in (2010) 11 SCC 441.
30. In this case, the Accused was able to discharge the burden of
rebuttal evidence under Section 139 through Ex.D-1 to Ex.D-8. Therefore, as
per reported decision in the case of Rangappa vs. Sri Mohan, the burden
shifts towards Complainant to disprove the case of the Accused. The
Complainant had not discharged the burden to disprove the rebuttal evidence
of the Accused. Therefore, the conviction recorded by the learned I Additional
District and Sessions Judge, Coimbatore reversing the judgment of acquittal is
perverse.
31. As per the amended Section 378 of Cr.P.C. the Appeal against
judgment of acquittal is not maintainable before the Court of Sessions. Such
appeal ought to have been filed before this Court and with the leave of this
Court, the appeal ought to have been filed. Therefore, the entertaining of
Appeal by the learned Sessions Judge, itself is not maintainable. On this
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ground also, the judgment of the learned I Additional District and Sessions
Judge in reversing the judgment of acquittal by the learned I Additional
District and Sessions Judge, Coimbatore is liable to be set aside. Therefore,
this revision has to be treated as Appeal and this Court shall consider the
judgment of acquittal and confirm the same, as the Complainant has not
proved the liability of one of the partners for paying the entire dues.
32. The loan was Rs.70,00,000/- which is proportionately 25% for the
partner P.P. Saseendran and 25% for the other partner Roy Thomas and 50%
for Allen Xavier. As per the partnership deed, the assets and liabilities shall be
shared as 25:25:50 instead, out of Rs.70,00,000/-, Rs.30,00,000/- cheque was
misused for the liability against the Accused inspite of the understanding
reached as per the Memorandum of Understanding. The Memorandum of
Understanding was not at all marked on the side of the Complainant before the
trial Court. The Complainant entered the witness box as P.W-2 and the Power
of Attorney agent, who filed the complaint on behalf of the Principal/PW2,
examined himself as P.W-1. After cross examination when he did not answer
the questions put to him in cross examination stating that he does not have the
knowledge of those transactions, the original Complainant came forward by
filing affidavit. In cases of this nature, actually, the original Complainant
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himself ought to have entered the witness box first. The complaint can be
instituted by the Power of Attorney Agent, but the original Complainant, who
has knowledge of the facts of the case alone, is competent witness and after
letting in evidence through Power of Attorney agent he is estopped from
entering witness box. Therefore, deposition of the Complainant, as PW2, also
has to be rejected. The learned Judicial Magistrate, Fast Track Court-I
Coimbatore had on proper reasoning rejected the evidence of the Complainant
and acquitted the Accused. The learned I Additional District and Sessions
Judge, had only on presumption under Section 139 convicted the Accused and
reversed the judgment of acquittal which is found perverse and is to be set
aside.
33. On perusal of the copies of the original records, it is found that
the original Complainant Kochappan Thomas had himself examined as P.W-2
and not as original P.W-1. Only when P.W-1 Joseph was unable to answer the
suggestions of the learned Counsel for the Accused regarding the details of the
transaction involving the Principal Kochappan Thomas and the Accused Anil
Kumar, he had stepped into the witness box. It is against the accepted
principle. The Complainant can lodge a complaint through power of attorney
agent but for deposing as a competent witness, the personal knowledge of the
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original Complainant is a requirement under the Indian Evidence Act. The
best evidence available to the parties in dispute had to be placed before the
Court. The attempt of the original Complainant to avoid the witness box gives
a presumption to the Court that the Complainant has something to hide from
the Court. When he had realized that examination of P.W-1, Power of
Attorney Agent Joseph cannot help him in securing a conviction against the
Accused, he had taken the risk of entering the witness box as P.W-2. When
the original Complainant was examined as P.W-2, he had admitted in cross
examination that the brother in law of the Accused, Saseendran alone is the
partner of EID and Accused is not the partner of EID. Also he had admitted
that Allen Xavier is a partner of EID along with Saseendran. One Roy Thomas
is also a partner along with Saseendran and Allen Xavier. He had admitted
that he had not mentioned the date on which the amount of Rs.70,00,000/- was
lent to the partnership firm in his legal notice and in the complaint. Also he
had admitted that he had not produced any document to prove that he had lent
Rs.70,00,000/- to the partnership firm before this Court. Also he had admitted
in his cross examination that the quantum to repaid by each of the partners
were not mentioned in the legal notice. Thus, it is not known as to how the
amount of Rs.30,00,000/- was fixed on the Accused Anil Kumar out of the
liability of partnership firm - EID for Rs.70,00,000/-. It is also not known as
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to how the quantum was fixed on the sole Accused in this Complaint Anil
Kumar for Rs.30,00,000/-. It was not mentioned in the notice or in the
complaint. It is also not known as to how the cheque from the Accused
reached the hands of the Complainant and even this was also not mentioned in
the complaint or in the statutory notice. PW2 admitted that he was not aware
of the notice issued against Allen Thomas by the Accused Anil Kumar in the
month of March 2013. The suggestion of the learned Counsel for the Accused
that he knew the details of the notice sent by the Accused to Allen Xavier who
claims ignorance wantonly, was denied by him. When there was Memorandum
of Understanding executed between the partners Allen Xavier, Saseendran and
Roy Thomas, there is no necessity for Anil Kumar to issue cheque for
Rs.30,00,000/- was denied by him. The suggestion that the Accused owed
Rs.10,44,462/- as per the Memorandum of Understanding and not
Rs.30,00,000 was also denied by him. The suggestion of the learned Counsel
for the Accused that the Accused does not owe any enforceable liability to the
Complainant was also denied by him in his cross examination. The
Complainant as P.W-2 claimed ignorance that the Accused had issued stop
payment to his bank regarding the cheque No.109684. The copy of the
Memorandum of Understanding was also not placed by the Complainant to
show the bona fide. Therefore, the Court has to draw adverse inference
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regarding the claim of the Complainant that the Accused had issued cheque on
behalf of his brother in law in continuation of the Memorandum of
Understanding reached between the partners of the firm, EID. To prove such
claim, the Complainant has to mark that particular document - Memorandum
of Understanding, which document was marked on the side of the Accused as
Ex.D-2. Thus, without any document proof the claim of the Complainant
regarding prior liability against Anil Kumar, the Accused in C.C.No.453 of
2013 cannot be accepted. When the Complainant relies on Memorandum of
Understanding, he is duty bound to mark it as a document to invoke Section
138 of the Negotiable Instruments Act against the Accused who is not a
partner of EID, partnership firm. In such cases, merely a cheque was signed
and issued it will help the Complainant to invoke Section 138 of the
Negotiable Instruments Act to record conviction against the Accused. Even
though, the cheque was not filled up and signed by the Accused, how the
Accused owes Rs.30,00,000/- has to be explained by the Complainant both in
his statutory notice as well as in the complaint. The complaint is bereft of such
details. For the liability of the partnership firm for Rs.70,00,000/- which they
owe to the Complainant, the Complainant seeking Rs.30,00,000/- from one
the Accused, who is the brother in law of erstwhile Partner Saseendran. As per
the claim of one of the partners, Memorandum of Understanding reached
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between the partners Saseendran, Allen Xavier and Roy Thomas. Saseendran
and Roy Thomas owe 25% of the assets and liabilities of the firm. Allen
Xavier owes 50 % of the assets and liabilities of the partnership firm and
Allen Xavier was the long time School friend of the Complainant right from
his school days. For the liability of the partnership firm for Rs.70,00,000/-
fixing the quantum of Rs.30,00,000/- on the head and shoulders of Accused is
not proper without any acceptable reasons or without any cogent reasons to be
placed before the Court of law. Just because a unfilled duly signed cheque was
issued to the partners, which was utilized or exploited by the Complainant will
not help the Complainant to secure conviction against the Accused. When the
Accused sensed that his cheque would be exploited either by Allen Xavier or
his friend, he had alerted his bank by issuing a letter for stop payment which
cannot be faulted. The Complainant as well as the Accused are aware of the
consequences of issuing unfilled duly signed cheques. As per the Accused,
the Complainant herein is not the holder in due course. It was issued to the
partnership firm in tune with the Memorandum of Understanding signed
between the partners under Ex.D-2, whereas the Complaint had been filed by
the Accused suppressing Ex.D-2/Memorandum of Understanding . Therefore,
the Complainant has not approached the Court with clean hands. The relevant
portion of Memorandum of Understanding are as follows:-
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5) Though Saseendran has already resigned from
“AARBEE” by executing a deed of retirement for the purpose of
banking operation, This retirement is only for some technical
purpose and it is agreed that this retirement will be effective only
if all the amount due as capital and profits to Saseendran as a
partner is paid by Mr.Roy. As a financial and functional
representative of Mr.Saseendran all the amounts due shall be
settled to Mr. Anil.
6) Mr.”ROY” has pledged his immovable property for
securing the bank loan obtained by the firm “EID” and this
property has to be released.
7) To overcome the present crisis in EID, the parties here
to has to repay their drawing to EID which shall be used only as
per the clauses of this MoU before 20th November 2010.
a. Mr. Allen Xavier Rs.18,35,154/-
b. Mr. Anil Rs.20,44,462/-
c. Mr.Roy Thomas Rs. 9,68,353/-
8) Mr.Roy Thomas will pay Rs.10,00,000/- out of the
amounts payable to Mr.Anil under clause No.5 to M/s. EID on
behalf of Mr.Anil, which EID will receive as a repayment of
Drawings of Mr.Anil and the Balance Rs.10,44,462/- will be paid
by Mr.Anil to EID. The parties of this MoU has issued the
following cheques for the above referred payments.
8 a) Cheque No.591135 drawn on the South Indian Bank,
Trichy road Branch, Coimbatore (Bank account of Mr.
Allen) for Rs.18,35,154/-
b) Cheque No.339028 drawn on State Bank of India, R.S.
Puram Branch, Coimbatore 641002 (Bank account of
Mr.Roy Thomas) for Rs.19,68,353/-
c) Cheque No.109686 drawn on HSBC Bank, Coimbatore
Branch, Coimbatore Branch, Coimbatore (Bank Account of
Mr.Anil Kumar) for Rs.10,444,62/-
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9) EID has subscribed to a chit for a value of
approximately for Rs.20,00,000/- and it was decided to take the
prize money of this chit in the month of December 2010.
10) Mr. Sunny Thomas has given a loan of Rs.70,00,000/-
to EID which to be repaid along with the Interest. All the
partners including Mr.Anil agrees that they are responsible to
repay this loan along with interest before 25.12.2010.
11) All the monies received by EID under Clause No.7, 8
and 9 shall be used to settled the loan with interest of Mr.Sunny
Thomas and the Bank loan with interest (to the extent possible)
12) Once all the obligations of this agreement is
completed then EID will be closed or run as per the decisions of
the parties to this agreement.
13) This agreement embodies the entire understanding of
the parties as to its subject matter and shall not be amended
except in writing executed by both parties.
14) All disputes, questions of differences etc arising in
relation to this agreement shall be refereed to a single arbitrator
Mr.P.Mahendran, Chartered Accountant, S/o. N. Perumalswamy,
1533, Trichy Road, Coimbatore in accordance with and subject
to the provisions of the Indian Arbitration and Reconciliation Act
and the arbitration proceedings shall be held in Coimbatore.
The Arbitration award will be completely binding on the parties
of this agreement.
15) Notices and other communications under the
agreement shall be in writing addressed as indicated in the
description of parties above and the communication shall be in
registered post with acknowledgment.
34. The Accused had issued notice dated 08.03.2013 to Allen Xavier
indicating that
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2. the cheque No.109686 in A/c No.115060576-006 to
M/s.Exide Industrial Distributors as per the MoU between
P.P.Saseendran 2) Allen Xavier 3) Roy Thomas 4) Anil Kumar
dated 09.11.2010.
3. Since you did not show any account to Mr.Saseendran,
since you have violated the MoU. My client was forced to stop
payment of the above cheque on 04.03.2013 with the Bank.
4. Under the above circumstances, you are hereby called
upon not to present the cheque for collection. You are adviced to
present the cheque only after the account settlement between you
all as per the MoU dated 09.11.2010 please take notice
accordingly.”
35. The copy of the notice was served on the Inspector of Police
(Crime), B-7, Police Station Pulyakulam, Coimbatore, Assistant Commissioner
of Police (East) Singanallur, Coimbatore, Deputy Commissioner of Police
(Crime), Coimbatore City, Commissioner of Police, Commissioner City,
Director General of Police, Dr.Radhakrishnan Road, Mylapore, Chennai,
Hon'ble Chief Minister Grievance Cell, St.George Fort, Chennai. For the
Notice dated 08.03.2013, Allen Xavier had issued reply on 28.03.2013 through
Advocate Mr.R.Kanagaraj, where Allen Xavier disputed the claim directing
the Accused Anil Kumar to meet the Auditor/Chartered Accountant. In
continuation of the same, Anil Kumar had issued notice dated 07.08.2013 to
Mr.P.Mahendran, Chartered Accountant regarding the difference of opinion in
the Partnership firm and the cheque issued by Accused in cheque No.109686
drawn on HSBC Bank, for the sum of Rs.10,44,462/- handed over to
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Mahendran, Chartered Accountant. It was also agreed that the cheque shall be
used after the firm is able to finalise the accounts while producing profit and
loss, Balance sheet etc. Till date no such steps have been taken by the firm,
therefore directed the Chartered Accountant to return the cheque bearing
No.109686. Instead Kochappan Thomas had proceeded with the complaint and
issued statutory notice as though Accused owed Rs.30,00,000/- . Since he had
suppressed the Memorandum of Understanding regarding the dispute between
the partners in EID partnership firm, the Court has to necessarily draw adverse
inference against the Complainant. Merely the Accused had signed the cheque
and issued it, it will not help the Complainant to raise a presumption against
the Accused. As per the notice issued by the Accused under Ex.D-3, Ex.D-4
and Ex.D-5 it indicates that there is no liability. The Accused had discharged
the burden of proving the rebuttal evidence under Section 139 of the
Negotiable Instruments Act. Therefore, the learned Judicial Magistrate had
recorded acquittal against he Accused. The learned III Additional District and
Sessions Judge had failed to appreciate the evidence, in the light of the
document under Ex.D-1 to Ex.D-8 and merely on the basis of the presumption
under Section 139 of the Negotiable Instruments Act, reversed the finding of
acquittal and thereby recorded the finding of guilt against the Accused which
is found perverse.
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36. Since it is judgment of acquittal, the Appeal against the acquittal
had to be preferred only before the High Court and not before the Sessions
Court. Therefore, the learned I Additional District and Sessions Judge taking
up the Appeal for consideration itself is an illegality. The Appeal itself was not
maintainable. The Accused had preferred this Criminal Revision under
Section 397 r/w. 401 of Cr.P.C. Therefore, this Court has to exercise the power
of revision under Section 401 of Cr.P.C to re-assess the evidence.
Accordingly, this Court had call for records and perused the records and found
that the appreciation of evidence was proper by the learned Judicial
Magistrate, Fast Track Court-I, Coimbatore in C.C.No.14 of 2014 whereas the
learned Sessions Judge, without jurisdiction considered the argument of the
learned Counsel for the Complainant/Appellant and reversed the finding of the
learned Judicial Magistrate, Fast Track Court-I, Magisterial level, Coimbatore.
Also, it is against the principles regarding re-appreciation of evidence by the
Appellate Judge. The Appellate Court shall appreciate the judgment of
acquittal with caution. It shall not reverse the finding of acquittal without
proper assessment of evidence. Even with the same set of evidence, the
learned Appellate Judge arrived at the different conclusion but it shall not trust
its conclusion on the finding of the trial Judge. As per the decision of the
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Honourable Supreme Court judgment, as against acquittal recorded in a private
complaint, an Appeal lies only to the High Court and this was not considered
by the learned Sessions Judge. Therefore, this Court exercising the powers of
revision under Section 401 of Cr.P.C treated this revision as Appeal, perused
the original records and re-assessed the evidence on the same set of evidence.
On re-assessing the evidence, it is found that the Complainant had not
approached the Court with clean hands. He has, with ulterior motive, filed the
complaint through his Power of Attorney and allowing his Power of Attorney
to let in evidence on his behalf which is also against the reported decision of
the Honourable Supreme Court.
37. In the light of the above discussion, the point for consideration is
answered against the Complainant and in favour of the Accused. The
judgment dated 27.04.2019 passed in Crl. A. No. 507 of 2018 on the file of the
learned I Additional District and Sessions Judge, Coimbatore is found perverse
and is to be set aside.
In the result, this Criminal Revision Case is allowed. The judgment
dated 27.04.2019 passed in Crl. A. No. 507 of 2018 on the file of the learned I
Additional District and Sessions Judge, Coimbatore is set aside. The
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Judgment of acquittal dated 24.09.2018 passed in C.C. No. 14 of 2014 on the
file of the Fast Track Magistrate-I, Coimbatore is restored.
02.06.2025
shl
Index : Yes/No
Internet : Yes/No
Speaking/Non-speaking order
Neutral Citation : Yes/No
To
1. I Additional District and Sessions Court,
Coimbatore
2. The Fast Track Magistrate-I, Coimbatore.
3. The Section Officer,
Criminal Section,
High Court Madras.
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SATHI KUMAR SUKUMARA KURUP, J
shl
Order made in
02.06.2025
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