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