Madras High Court
Gunasekaran vs Dhandapani on 22 November, 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On: 16.12.2020
Pronounced On: 19.01.2021
CORAM
THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN
Crl. R.C.No.12 of 2018
and
Crl.M.P.Nos.44 and 45 of 2018
Gunasekaran .. Petitioner
Vs.
Dhandapani .. Respondent
Prayer: This Criminal Revision petition is filed U/s 397 and 401 of Cr.P.C to
call for the records pertaining to the Judgment dated 22.11.2017 passed in
C.A.No. 47 of 2017 by the III Additional District Sessions Judge, Coimbatore
confirming the Judgment dated 16.02.2017 passed in C.C.No. 318 of 2014 by
the Judicial Magistrate, Fast Track Court at Magisterial Level - II, Coimbatore
and set aside the same.
For Petitioner : Mr.C.D. Sugumar
For Respondent : Mr. N. Elayaraja
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ORDER
This Criminal Revision case has been filed challenging the Judgment of
the learned III additional District and Sessions Judge Coimbatore in C.A.No.
47 of 2017 which confirmed the Judgment passed by the learned Judicial
Magistrate Fast Track Court at Magisterial Level - II, Coimbatore in
C.C.No.318 of 2014.
2.The respondent filed a complaint u/s 138 of Negotiable Instruments
Act against the petitioner, alleging that the petitioner issued a cheque for
Rs.10,00,000/- bearing No.864936 dated 28.02.2014 drawn on South Indian
Bank, Coimbatore which was given for discharging his liability arose out of
business transaction. The respondent presented the cheque for collection to
Syndicate Bank, Coimbatore on 01.03.2014 and it was returned on 04.03.2014
with and endorsement "funds Insufficient". The respondent issued a legal
notice to the petitioner on 08.03.2014 demanding payment of cheque amount
of Rs.10,00,000/- within 15 days from the date of receipt of the notice. The
petitioner received the notice on 11.03.2014. Even after receiving the notice,
the petitioner had neither paid the cheque amount nor caused any reply.
Therefore,this case was filed.
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3. After the accused entered appearance he was questioned with
regard to the substance of the accusations alleged against him and the accused
denied the accusations and demanded trial. During the trial P.Ws.1 to 3 had
been examined and Exs.P.1 to Ex.P.8 were marked. The respondent was
examined as P.W.1 and no documentary evidence was produced on the side of
the petitioner. On considering the oral and documentary evidence produced
before the trial court, the learned Judicial Magistrate Fast Track Court at
Magisterial Level - II, Coimbatore found the petitioner guilty u/s 138 of
Negotiable Instruments Act and convicted and sentenced him to undergo one
year simple imprisonment and to pay a fine of Rs.10,000/- in default to pay
the fine amount to undergo 2 months simple imprisonment. Against the said
Judgment the petitioner preferred a criminal appeal No.47 of 2017 on the file
of III Additional District and Sessions Judge, Coimbatore. The learned Judge
found no reason to interfere with the Judgment of the learned Judicial
Magistrate Fast Track Court at Magisterial Level - II, Coimbatore and
confirmed the Judgment by dismissing the appeal. Against the dismissal of the
criminal appeal the petitioner has come up with this criminal revision case.
4. The learned counsel for the petitioner submitted that the cheque in
question was issued to the respondent before 2009 and it was given to
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respondent in 2009 as a security for earlier loan transaction. Evidence of
P.W.3 Manager proves that the cheque was issued in the year 2009. CTS
Cheque was introduced in the year 2012- 2013 and the petitioner was using
CTS cheques during the relevant period. Therefore, the cheque could not have
been issued by the petitioner to the respondent in 2014. As already stated that
the cheque which was given in 2009 as a security for a earlier transaction is
used for filing this case. The respondent has not produced any materials to
show that there was a legally enforceable debt or liability existing and towards
the discharge of that legally enforceable debt or liability, this cheque had been
given. The details of business transaction are not stated in the complaint. The
respondent is not an income tax assesse. No materials produced to show that
the respondent was in possession of liquid cash of Rs.10,00,000/- at the time
of alleged business transaction. However, the learned counsel for the
petitioner submitted that the courts below have not considered these aspects in
proper perspective and wrongly convicted the petitioner accused and
sentenced him to imprisonment. Therefore, the learned counsel for the
petitioner prayed for setting aside the Judgment of the courts below and for
acquitting the case.
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5. Per contra, the learned counsel for the respondent submitted that the
petitioner had taken destructively contradictory plea in projecting his case.
When sending Ex.P.5 reply notice he said that he did not know, the
respondent, his name and his occupation. He claimed that he did not know
anything about the cheque concerned in the legal notice. It was also stated that
the legal notice was issued with an aim to cheat the petitioner. In fact the
respondent was warned of legal action for using forged documents. However,
in a petition filed u/s 239 of Cr.P.C for discharging the petitioner from this
case, the petitioner claimed that he and the respondent knew each other well
and had been involved in business transaction for several years with him. The
respondent said to have used the cheque of the petitioner with or without the
knowledge of the petitioner for the business transaction. Now, the petitioner
and respondent are not doing any business and the cheque which was taken
by the respondent on a different occasion is used for filing this case after
filing up the details. It is also submitted by the learned counsel for the
respondent that even during the examination before the Court, the petitioner
admitted the business transaction with the respondent. Assuming without
admitting the petitioner had issued the cheque without filing up the details, it
is open to the respondent to fill up the details and present it for collection. The
contradictory stand taken by the petitioner and evidence produced in this case
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clearly establishes that there was business transaction between the petitioner
and the respondent in purchase of gold and in that business transaction the
cheque in question was issued for discharging the liability of the petitioner
without sufficient funds. The learned counsel for the respondent submitted
that the courts below had properly appreciated the evidence and rightly
convicted and sentenced the petitioner and prayed for confirming the
Judgments of the Courts below and for dismissing this criminal revision case.
6. The point for consideration in this case are
1. Whether the courts below have not considered the aspects raised by
the learned counsel for the petitioner, while deciding the case against the
petitioner.
2. Whether the Judgment of the Courts below suffers from any illegality
or impropriety incorrectness in convicting and sentencing the appellant u/s
138 of Negotiable Instruments Act.
7. It is seen from the oral and documentary evidence produced in this
case that the petitioner did not deny the cheque and the dispute the signature
in the cheque, rather he admitted that Ex.P.1 cheque belong to him and it has
his signature. It is seen from the evidence of P.W.2, the Manager of Syndicate
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Bank in which the respondent has account, that the cheque in question was
presented for collection on 01.03.2014 and it was returned on 04.03.2014 for
the reason that there was no sufficient funds. He produced account statement
of the respondent as Ex.P.7. P.W.3 is the manager of South Indian Bank in
which the petitioner has his account. He admitted Ex.P.1 Cheque was issued
to the petitioner Gunasekaran and he produced the accounts statements of the
petitioner from 02.07.2009 to 02.07.2014 as Ex.P8. As on 04.03.2014 the
petitioner had only a sum of Rs.13/- in his account. Thus, it is clear from the
evidence of P.Ws 1 to 3 and Exs.P1, P2, P7 and P8 that Ex.P1 cheque was
issued by the petitioner and when this cheque was presented for collection,
there was only a sum of Rs.13 /- available in his account as on 04. 03 .2014
and therefore, the cheque was returned for the reason that there was no
sufficient funds. The perusal of the Judgment of the Courts below show that it
is not as though the contentions now raised by the learned counsel for the
petitioner was not considered by the courts below but, they had been
elaborately discussed.
8.Though it is not clearly stated in the complaint as to the reason for the
petitioner to borrow Rs.10,00,000/- it was said during the course of evidence
in the form of proof affidavit, the petitioner requested the respondent on
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16.02.2014 to lend a sum of Rs.10,00,000/- towards his business needs. On
20.02.2014 the respondent paid the petitioner a sum of Rs.10,00,000/- and for
discharging that debt the cheque was issued on 28.02.2014. This case is more
or less confirmity with the averments made in the complaint.
9. However, when it comes to the case of the petitioner/accused he had
taken diametrically opposite position with regard to this case. Admittedly, he
received Ex.P.3 notice. Served acknowledgment card is produced as Ex.P.4.
In Ex.P.5 reply notice it was specifically alleged that the petitioner did not
know the respondent and his business. It was further alleged that the petitioner
did not know anything about the cheque transaction and the cheque was used
for cheating the petitioner. The petitioner warned the respondent that action
will be taken for using the forged document against him. It is clear from the
reply notice that the petitioner had taken a definite stand that he did not know
who the respondent was; what was his business and forged document is used
for cheating the petitioner.
10. The petitioner had filed a petition u/s 239 of Cr.P.C before the trial
court for discharging him from this case. Curiously he had taken altogether a
different stand in this petition. He now said in the discharge petition that he
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knew the respondent very well; they are acquaintance; they have business
transactions between them for several years. Now they are not doing any
business. The cheque was taken from the petitioner and used for filing this
case. Even when the petitioner and the respondent were doing business, the
respondent used petitioner's cheque for business transactions with or without
the knowledge of the petitioner on several occasions. Ex.P.5 petitioner's
notice categorically stated that he did not know the respondent and in Ex.P.6
petition he stated that he knew the respondent very well and they had been
involved in business transactions for several years. This is a destructive plea,
which shows that the petitioner is not speaking truth and he is lying about his
relationship with the respondent.
11. During the course of his evidence, petitioner had spoken about the
nature of business he had with the respondent. He stated that he was a gold
smith and the respondent was in the business of selling gold. The petitioner
used to buy gold from the respondent when he was doing his gold business
from 2006 to 2009. After 2009 there was no transaction between the petitioner
and the respondent. He knew only to sign in the cheque and he did not know
how to write. The cheque given to the respondent is misused to file the case.
However, it is seen from his evidence that he admitted what he has stated in
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Ex.P.5 notice. He further stated that he did not give any complaint to the
police with regard to the taking of his cheque and misuse by the respondent.
He admitted that he did not inform his bank about the respondent taking his
cheque. He admitted that he did not give any advertisement through news
papers with regard to the respondent taking his cheque. When he was asked as
to whether he had stated in the discharge petition that the respondent had used
his cheque for several transactions with or without knowledge, he replied that
he did not remember.
12. Entire analysis of the evidence of the petitioner shows that he has
not come to court with clean hands. It is also clearly demonstrated before the
court that he was speaking falsehood by taking contradictory position. But,
one thing is clear from the own evidence of the petitioner that he was a gold
smith and the respondent was selling gold and he used to buy gold from the
respondent. It establishes the fact, the respondent is a man of sufficient means
and that petitioner borrowed a sum of Rs.10,00,000/- from the respondent in
gold business cannot be considered as out of ordinary. Though the respondent
was cross examined by the petitioner nothing incriminating was elicited from
him, rather the gold business between the petitioner and the respondent was
established through the suggestions made with regard to the gold business. It
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is suggested to the respondent that petitioner and the respondent were engaged
in a real estate business and an empty cheque was given with the signature of
the petitioner for purchasing land and that cheque is now used for filing this
case. But to substantiate this version of the petitioner no acceptable evidence
is produced by the petitioner.
13. With regard to the claim of the petitioner that from the year 2012,
2013 he was using only CTS cheques and it was not possible for him to issue
the impugned cheque and that the respondent has not been assessed to income
tax, when there is no denial from the petitioner that the cheque presented is his
cheque and the signature in the cheque is his signature, we cannot presume
that the cheque was not issued in 2014. Similarly, when it is admitted by the
petitioner himself that the respondent is engaged in selling gold, it establishes
the fact the respondent is a man possessed of means. Non-filing of income tax
returns, may be a ground for prosecution under income tax, but it is not a
ground for dismissal of this case. Negotiable Instruments Act raises a
presumption that untill the contrary is proved the following presumptions can
been made:
118. presumptions as to negotiable instruments -
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until the contrary is proved, the following presumptions
shall be made :-
(a) of consideration - that every negotiable instrument was
made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed,
negotiated or transferred, was accepted, indorsed,
negotiated or transferred for consideration.
(b) as to date - that every negotiable instruments bearing a
date was made or drawn on such date;
(c) as to time of acceptance - that every accepted bill of
exchange was accepted within a reasonable time after its
date and before its maturity.
(d) as to time of transfer- that every transfer of a
negotiable instruments was made before its maturity;
(e) as to order of indorsements - that the indorsements
appearing upon a negotiable instrument were made in the
order in which they appear thereon;
(f) as to stamp- that a lost promissory note, bill of
exchange or cheque was duly stamped;
(g) that holder is a holder in due course- that the holder of
a negotiable instrument is a holder in due course:
Provided that, where the instrument has been
obtained from its lawful owner, or from any person in
lawful custody thereof, by means of an offence of fraud, or
has been obtained from the maker or acceptor thereof by
means of an offence or fraud, or for unlawful
consideration, the burden of proving that the holder is a
holder in due course lies upon him.
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There is a presumption under Section 139 of Negotiable Instruments Act:
It shall be presumed, unless the contrary is proved, that
the holder of a cheque received the cheque, of the nature
referred to in section 138, for the discharge, in whole or
in part, of any debt or other liability.
14. It is seen from the oral and documentary evidences and also the
provisions of Sections 118 and 139 that there is a presumption in favour of the
holder of the cheque that it was issued to discharge a debt or his liability. The
respondent has sufficiently proved through oral and documentary evidence
that the cheque in question was issued for discharging the debt of the
petitioner. Therefore, this Court comes to the conclusion, that the respondent
has proved the case against the petitioner about borrowal of a sum of
Rs.10,00,000/- and issuance of the cheque in question for discharging the
debt without sufficient funds and therefore he is liable to be convicted under
section 138 of Negotiable Instruments Act.
15. The Courts below had rightly found the accused guilty u/s 138 of
Negotiable Instruments and convicted him and imposed suitable sentence.
This Court finds no reason to interfere with the Judgment of the Courts below.
Accordingly the judgment of the learned III additional and sessions Judge in
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Crl.A.No.47 of 2017 confirming the Judgment of learned Judicial Magistrate,
Magisterial level, Coimbatore in C.C.No.3 of 2014 is confirmed and this
criminal revision petition is dismissed. Consequently, the connected
miscellaneous petitions are closed. The learned trial Judge is directed to issue
warrant against the petitioner for undergoing the sentence.
19.01.2021
smn
Index : Yes /No
Internet : Yes/No
Speaking order/ Non Speaking order
To
1. The III Additional District Sessions Judge, Coimbatore
2. The Judicial Magistrate, Fast Track Court
at Magisterial Level - II, Coimbatore
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G.CHANDRASEKHARAN,J.
smn Crl. R.C.No.12 of 2018 and Crl.M.P.Nos.44 and 45 of 2018 19.01.2021 https://www.mhc.tn.gov.in/judis/ Page 15 of 15