Madras High Court
S. Saravanan @ Saravanan ... vs R. Manivannan @ Manivannan Raman on 29 January, 2015
Author: P.N. Prakash
Bench: P.N. Prakash
Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 21.08.2019
DELIVERED ON: 12.09.2019
CORAM:
THE HON'BLE MR. JUSTICE P.N. PRAKASH
Crl.R.C. No.96 of 2018 & Crl.M.P. Nos.9690 and 9692 of 2019
S. Saravanan @ Saravanan Sakthinarayanan Petitioner
vs.
R. Manivannan @ Manivannan Raman Respondent
Criminal Revision filed under Section 397 r/w Section 401 Cr.P.C.,
seeking to call for the records relating to C.C. No.101 of 2013 and set aside
the judgment and order dated 29.01.2015 passed therein by the Judicial
Magistrate (Fast Track Magisterial level), Alandur, which is confirmed by the
Principal District and Sessions Judge, Kanchipuram at Chengalpet in Crl.A.
No.9 of 2015 vide judgment and order dated 03.08.2017.
For petitioner Mr. B. Harikrishnan
For respondent Mrs. G. Pramila
ORDER
For the sake of convenience, the petitioner and the respondent will be referred to as accused and complainant respectively.
2 The facts in brief, leading to the institution of this criminal revision, are as under:
http://www.judis.nic.in 1/10 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 2.1 It is the case of the complainant that the accused is the Proprietor of Arke Designs and is into construction business; the accused is his close friend; the accused wanted a hand loan of Rs.25 lakhs for developing his business and so, the complainant gave a sum of Rs.24 lakhs, which, the accused promised to return with interest; when the accused neither paid the interest nor any amount towards the principal, the complainant started demanding repayment of the loan; the accused issued three cheques, viz., cheque bearing no.038268 dated 10.01.2013 for Rs.2 lakhs, cheque bearing no.038269 dated 10.02.2013 for Rs.2 lakhs (Ex.P.1) and cheque bearing no.038291 dated 21.04.2013 for Rs.20 lakhs (Ex.P.2), all the three cheques having been drawn on IDBI Bank, Sholinganallur Branch; on the instructions of the accused, the complainant presented two cheques, viz., cheque bearing no.038269 dated 10.02.2013 (Ex.P.1) for Rs.2 lakhs and cheque bearing no.038291 dated 21.04.2013 for Rs.20 lakhs on 09.04.2013 and 26.04.2013, respectively, with his bank, viz., HDFC Bank, Trichy Road Branch, Coimbatore;
both the cheques were returned unpaid with the endorsement “insufficient funds” vide IDBI Bank return memo dated 10.04.2013 (Ex.P.3), which was communicated to the complainant vide HDFC bank memo dated 27.04.2013 (Ex.P.4); the complainant issued a statutory demand notice dated 09.05.2013 (Ex.P.5), which was received by the accused on 10.05.2013 vide acknowledgment card (Ex.P.6); since the accused did not comply with the demand, the complainant initiated a prosecution in C.C. No.101 of 2013 before the Judicial Magistrate (Fast Track Court), Alandur under Section 138 of the Negotiable Instruments Act, 1881 (“the NI Act” for short) against the accused.
2.2 On the appearance of the accused, when he was questioned under Section 251 Cr.P.C., he denied the accusation. The complainant examined himself http://www.judis.nic.in 2/10 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 as P.W.1 and marked Exs.P.1 to P.7. In the cross-examination of the complainant, Exs.D.1 to D.4 were marked.
2.3 When the accused was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him, he simply denied the same and did not come forward with any explanation at all. No witness was examined on his side.
2.4 After considering the evidence on record and on hearing either side, the Trial Court, vide judgment and order dated 29.07.2015 in C.C. No.101 of 2013, convicted the accused of the offence under Section 138 of the NI Act and sentenced him to undergo three months rigorous imprisonment and pay a compensation of Rs.22 lakhs (being the cheque amount) to the complainant.
3 Challenging the conviction and sentence, the accused preferred Crl.A. No.9 of 2015, which has been dismissed by the Principal Sessions Court, Kancheepuram at Chengleput on 03.08.2017.
4 Calling into question the legality and validity of the concurrent findings of the two Courts below, the accused has preferred the present criminal revision under Section 397 read with Section 401 Cr.P.C.
5 Heard Mr. B. Harikrishnan, learned counsel for the accused and Mrs.G. Pramila, learned counsel for the complainant. http://www.judis.nic.in 3/10 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 6 Before adverting to the rival submissions, it may be necessary to state here that, a three Judge Bench of the Supreme Court in Girish Kumar Suneja Vs. C.B.I.1, has held that revisional jurisdiction is a discretionary one and can be exercised only if the High Court finds that there is an error apparent on the face of the record. For better appreciation, the relevant portion of the said judgment is extracted hereunder :
“27. Our conclusion on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court but that entitlement can be taken away and in any event, the High Court is under no obligation to entertain a revision petition - such a petition can be rejected at the threshold. If the High Court is inclined to accept the revision petition it can do so only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. As we see it, there appear to be only two such eventualities of a revisable order and in any case only one such eventuality is before us. Consequently the result of paragraph 10 of the order passed by this Court is that the entitlement of the appellants to file a revision petition in the High Court is taken away and thereby the High Court is deprived of exercising its extraordinary discretionary power available under Section 397 Cr.P.C.”
7 Further, while exercising revisional powers under Section 397 r/w 401 Cr.P.C., this Court is required to find out, if there is any illegality or impropriety in the findings of the trial Court and the appellate Court warranting interference and it is not open to this Court to exercise the revisional power as a second appellate forum. In this context, it is profitable to allude to the following paragraphs in the judgment of the Supreme Court in State of Maharashtra Vs Jagmohan Singh Kuldip Singh Anand and Others, etc.2 :
1 (2017) 14 SCC 809 2 (2004) 7 SCC 659 http://www.judis.nic.in 4/10 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 “22.The revisional court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, “for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court”.
It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.
(emphasis supplied)
23.On this aspect, it is sufficient to refer to and rely on the decision of this Court in Duli Chand v. Delhi Admn.[(1975) 4 SCC 649 :
1975 SCC (Cri) 663 : AIR 1975 SC 1960] in which it is observed thus:
(SCC p. 651, para 5) “The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of http://www.judis.nic.in 5/10 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse.”
8. This legal principle has been reiterated very recently by the Supreme Court in Bir Singh Vs Mukesh Kumar3, wherein, the Supreme Court formulated the following question of law :
“(i) whether a Revisional Court can, in exercise of its discretionary jurisdiction, interfere with an order of conviction in the absence of any jurisdictional error or error of law“ The answer of the Supreme Court to the aforesaid question is as under :
“19.It is well settled that in exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.
20.As held by this Court in Southern Sales & Services v.
Sauermilch Design and Handels GmbH [(2008) 14 SCC 457], it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is therefore, in the negative.“ (emphasis supplied) 9 Mr. Harikrishnan, learned counsel for the accused submitted that the presumption under Section 139 of the NI Act cannot be drawn in this case, because, the complainant had failed to prove the debt. He further contended that the complainant, in the cross-examination, has admitted that the accused had sent the cheque by courier to his (complainant's) father-in-law's house in Madurai and that the cheque was collected by one Balu, friend of the complainant and was 3 (2019) 4 SCC 197 http://www.judis.nic.in 6/10 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 presented in HDFC Bank at Coimbatore, which shows that all is not well in the transaction between the parties. It is his further contention that the cheque was given only as security and that the complainant has admitted that he has more cheques with him.
10 Per contra, Mrs. Pramila, learned counsel for the complainant refuted the contentions put forth by the learned counsel for the accused.
11 This Court gave its anxious thought to the rival submissions. 12 This Court carefully perused the evidence of the complainant. The complainant was cross-examined on 04.09.2013, 21.08.2014 and 09.10.2014 extensively by the accused. But, the defence was not able to make any dent in his testimony. In the cross-examination, the complainant has admitted that he is a qualified Engineer and is working abroad and is an NRI. He has further stated that when he was in India, the accused was his room mate and the accused is also a Civil Engineer by profession. The defence has questioned the complainant about the engineering drawings he had made for various clients and about the deficiency in those drawings which has no relevance to the dispute at hand. He has also stated that prior to this loan transaction, the accused had borrowed small amounts from him earlier and had promptly returned them. To a specific question as to whether he had obtained any document from the accused as security for the loan transaction, the complainant has stated that he had not and that he transferred the loan amounts by RTGS on 21.09.2011, 22.09.2011 and 27.02.2012 to the account of the accused and to prove which, he has marked his bank statement as Ex.P.7. Therefore, what was not said by the complainant in the chief- http://www.judis.nic.in 7/10 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 examination was successfully obtained by the defence in the cross-examination. When the complainant was asked as to whether he has the cheque dated 10.02.2013, the complainant has replied in the affirmative and on the next hearing date, he has brought that cheque also and the same was marked in the cross- examination as Ex.D.1. The accused had not denied his signature in the cheques and their issuance to the complainant. It was not even suggested to the complainant that the cheque was given as security. The complainant has admitted that there was exchange of email between him and the accused and the hard copy of one email that was sent by the complainant to the accused was marked as Ex.D.4 which seals the case of the accused. The said email is extracted below:
“Saravanan, This is just to make a clear understanding among all involved.
I don't need instalment cheques for every 2 lakhs. However, for every month, if you want to pay as an installment, you can deposit directly to my bank account.
In any case, you should send me the cheque for total amount INR 21.1 lakhs if you are planning to clear the amount before 10th of January 2013. I NEED THIS AS A FULL FLEDGED COMMITMENT. However, it you want to make the full payment later, you can adjust the amount according to the date you are very sure you will make it.
Balu will come to Chennai to collect this cheque next week. I will not accept instalment through the cheques. Hope this makes it clear. Please don't take decision by yourself and create confusion intentionally to everyone in this loop.
Regards.” 13 Further, the complainant has stated in the cross-examination that his father-in-law is an aged person and therefore, he had requested his friend Balu to collect the cheque sent by the accused from his (complainant's) father-in-law's house and present in the bank. The name of Balu figures in Ex.D.4. A reading of http://www.judis.nic.in 8/10 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 Ex.D.4 shows that the complainant was ready to settle the whole matter for Rs.21.10 lakhs, if the amount is given before January 2013. Whereas, interestingly, the impugned cheques which have been issued by the accused are dated in the month of February 2013.
14 Thus, on a conspectus of the facts obtaining in this case, it is seen that the accused has failed to rebut the presumption under Section 139 of the NI Act even by preponderance of probability. In Rangappa vs. Sri Mohan4, the Supreme Court has held that the presumption under Section 139 of the NI Act can be rebutted by the accused by preponderance of probability and not by proof beyond reasonable doubt.
15 In the light of the aforesaid, this Court does not find any infirmity or perversity in the findings of the two Courts below warranting interference.
16 In the result, this criminal revision stands dismissed. Connected Crl.M.P. No.9690 of 2019 stands closed. The Trial Court is directed to take steps to secure the accused and commit him to prison to undergo the period of sentence.
Coming to Crl.M.P. No.9692 of 2019, it is seen that the accused has deposited a sum of Rs.5 lakhs in the Trial Court. This amount and any other amount that has been deposited by the accused either in the Trial Court or in the Appellate Court shall be paid to the complainant. Crl.M.P. No.9692 of 2019 stands ordered accordingly.
12.09.2019 cad 4 2010 (4) CTC 118] http://www.judis.nic.in 9/10 Crl.R.C. No.28 of 2016 & Crl.A. Nos. 89 & 143 of 2018 P.N. PRAKASH, J.
cad To 1 The Judicial Magistrate (Fast Track Magisterial level) Alandur 2 The Principal District and Sessions Judge Kanchipuram at Chengalpet 3 The Public Prosecutor High Court of Madras Chennai 600 104 4 The Deputy Registrar Criminal Side with a direction to transmit the High Court of Madras original records to the Trial Court, Chennai 600 104 forthwith Crl.R.C. No.96 of 2018 12.09.2019 http://www.judis.nic.in 10/10