Madras High Court
S. Sudhakar vs P. Sekar on 8 October, 2018
Author: P.N. Prakash
Bench: P.N. Prakash
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 10.06.2019
DELIVERED ON: 04.07.2019
CORAM:
THE HON'BLE MR. JUSTICE P.N. PRAKASH
CRL.R.C.No.368 of 2019 Crl.M.P. Nos.5448, 5450 & 5451 of 2019
S. Sudhakar Petitioner
vs.
P. Sekar Respondent
Criminal Revision filed under Section 397 read with Section 401
Cr.P.C. seeking to set aside the judgment of conviction and sentence dated
08.10.2018 passed by the VI Additional Judge, City Civil Court, Chennai in
Crl.A. No.62 of 2017 confirming the judgment of conviction and sentence
dated 01.03.2017 passed by the Metropolitan Magistrate (Fast Track Court)
No.IV, George Town, Chennai – 1 in C.C. No.861 of 2015.
For petitioner Mr. S. Nagarajan
For respondent Mr.T.N. Lakshmi Narasimhan
ORDER
This criminal revision has been filed seeking to set aside the judgment of conviction and sentence dated 08.10.2018 passed by the VI Additional Judge, City Civil Court, Chennai in Crl.A. No.62 of 2017, confirming the judgment of conviction and sentence dated 01.03.2017 passed by the Metropolitan Magistrate (Fast Track Court) No.IV, George Town, Chennai – 1 in C.C. No.861 of 2015.
http://www.judis.nic.in 2 2 For the sake of convenience, the petitioner and the respondent are referred to as the accused and complainant respectively.
3 It is the case of the complainant that he retired from the Port Trust, Chennai and while he was in employment, the father of the accused late Subramaniam was his colleague and thus, he got acquainted with the family of the accused; the accused and his mother Ajantha were into chit business and the complainant joined the scheme and made payments to the accused from time to time, which aggregated to Rs.8 lakhs; even after the savings period was over, the accused did not return any amount to the complainant and hence, when the complainant demanded return of the amount, the accused issued a cheque bearing no.311851 dated 10.06.2015 drawn on State Bank of India, Jawahar Nagar Branch (Ex.P.1) in favour of the complainant; the complainant presented the cheque (Ex.P.1) in his account with Indian Overseas Bank, Royapuram Branch; but, the cheque (Ex.P.1) was returned unpaid with the endorsement “payment stopped by the drawer”; this fact was intimated to the complainant vide return memo dated 19.06.2015 (Ex.P.2); the complainant issued a statutory notice dated 16.07.2015 (Ex.P.3), which was received by the accused on 17.07.2015 vide acknowledgment card (Ex.P.4), for which, the accused issued reply notice (Ex.P.5) disputing the transaction; therefore, the complainant initiated prosecution in C.C. No.861 of 2015 before the Metropolitan Magistrate (Fast Track Court) No.IV, George Town, Chennai under Section 138 of the http://www.judis.nic.in 3 Negotiable Instruments Act, 1881 (for brevity “the NI Act”) against the accused.
4 On receipt of notice, the accused entered appearance and contested the case. The complainant examined himself as P.W.1 and marked five exhibits. When the accused was questioned under Section 313 Cr.P.C. about the incriminating circumstances appearing against him, he denied the same. The accused examined himself as D.W.1 and marked two exhibits.
5 After hearing the learned counsel for the complainant and considering the evidence on record, the Trial Court, by judgment dated 01.03.2017 in C.C. No.861 of 2015, convicted the accused under Section 138 of the NI Act and sentenced him to undergo six months simple imprisonment and to pay compensation of Rs.8 lakhs, in default to undergo two months simple imprisonment. The Trial Court suspended the sentence under Section 389(3) Cr.P.C.
6 Challenging the conviction and sentence, the accused preferred Crl.A. No.62 of 2017 which was heard by the VI Additional Judge (City Civil Court), Chennai. After obtaining suspension of sentence and bail, neither the accused nor his counsel appeared before the Sessions Court to prosecute the appeal. Therefore, the Sessions Court went through the records and heard the learned counsel for the complainant and dismissed http://www.judis.nic.in 4 the appeal on 08.10.2018, challenging which, the accused is before this Court.
7 Heard Mr. S. Nagarajan, learned counsel for the accused and Mr. T.N. Lakshmi Narasimhan, learned counsel for the complainant.
8 The learned counsel for the accused submitted that the Sessions Court has passed an ex parte judgment without hearing the accused and ergo, the judgment of the Sessions Court deserves to be set aside.
9 However, on a reading of the judgment of the Sessions Court, it is seen that it has not merely dismissed the appeal for default, but, has pored over the records and has passed a detailed judgment assigning reasons for dismissing the appeal. Further, in K.S. Panduranga vs. State of Karnataka1, the Supreme Court has held that in a criminal case, even if the appellant or his counsel does not diligently prosecute the case, it is open to the Court to go through the records and pass appropriate orders. In fact, Section 386 Cr.P.C. very clearly states “After perusing such record and hearing the appellant or his pleader, if he appears.........”. This means that it is not necessary for the appellate Court to indefinitely wait for the counsel for the appellant to present the case. Therefore, this Court does not find any infirmity in the procedure adopted by the Sessions Court in going through the records and deciding the case. (emphasis added) http://www.judis.nic.in 1 (2013) 3 SCC 721 5 10 The learned counsel for the accused submitted that both the Courts below had failed to appreciate the fact that the debt was not established by the complainant through legal evidence. He also contended that both the Courts have failed to appreciate the evidence of the accused who examined himself as D.W.1 and marked Ex.D.1, which is a notice that was sent by the mother of the accused to the wife of the complainant, wherein, it is stated that the cheque was obtained under coercion with the help of police.
11 Per contra, the learned counsel for the complainant refuted the contentions.
12 This Court gave its anxious consideration to the rival submissions.
13 Before adverting to the rival submissions, it may be necessary to state here that, 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 http://www.judis.nic.in 6 in State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and Others, etc.2:
“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 fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse.” 14 This Court perused the evidence of the complainant (P.W.1) and the accused (D.W.1). The complainant (P.W.1) has filed a proof affidavit, wherein, he has delineated the circumstances under which he had joined the scheme floated by the accused and had given upto Rs.8 lakhs. It is stated in the proof affidavit that the accused had issued a cheque for a sum http://www.judis.nic.in 2 (2004)7 SCC 659 7 of Rs.8 lakhs and that the same was presented by the complainant which was returned unpaid for the reason “account closed”. The complainant has further stated in the proof affidavit that he issued statutory notice, for which, the accused gave a reply notice and both were marked as Exs.P.3 and P.5 respectively.
15 In the cross-examination of the complainant, he has stated that he knows the accused and his family and that he does not know whether the accused is registered with the authorities for conducting finance business. He has further stated that whenever he makes payments, the accused would give receipt in a piece of paper and that he is ready and willing to produce those paper slips. He has also admitted that he had given police complaint against the accused and his mother, but, the police directed him to approach the Court for redressal. He has accepted that his son-in-law Dr. Veeramani negotiated with the accused and his mother for amicably settling the dispute. However, he has denied the suggestion that Dr. Veeramani threatened the accused and obtained the cheque. He has further denied knowledge about the notice dated 26.03.2015 that Ajantha, the mother of the accused, had sent to his (complainant's) wife. It was suggested to him that he had no means to make payments to the accused, which suggestion, he denied and has stated that he earns income of around Rs.5 lakhs to Rs.6 lakhs per year and that he is also an income tax assessee.
http://www.judis.nic.in 8 16 The accused who examined himself as D.W.1 has stated that his mother Ajantha floated a chit in which, she owed a sum of Rs.2 lakhs to Murali Ammal, the complainant's wife; he was not connected with that chit transaction; the complainant called him and his mother to the clinic of his son-in-law Dr. Veeramani and obtained a promissory note and the impugned cheque under threat; his mother (mother of the accused) issued a notice dated 26.03.2015 (Ex.D1) to Murali Ammal narrating these facts and hence, he had no other option, but, to give a letter to the bank for stopping the payment.
17 In the cross-examination, the accused (D.W.1) has admitted that he went along with his mother to the clinic of Dr. Veeramani, but, stated that he does not remember the date. It may be relevant to state here that even in the chief-examination of the accused, he has not stated the date on which he went to the clinic of Dr. Veeramani with his mother and gave the impugned cheque. It is seen that in the notice (Ex.D.1) that was issued by Ajantha, the mother of the accused, to Murali Ammal, the wife of the complainant, there is no allegation that either the complainant or Dr.Veeramani, son-in-law of the complainant, threatened them with police help. Even if the defence theory is accepted, it appears that the accused and his mother have gone to the clinic of Dr. Veeramani and had given the impugned cheque.
http://www.judis.nic.in 9 18 As stated above, the complainant has admitted in the cross- examination that he gave a complaint to the police earlier, but, the police refused to take any action and advised him to approach the Court for redressal. It is not the case of the accused that the complainant obtained the impugned cheque with the help of the police. The accused has not denied that he had issued the cheque. His only contention was that the impugned cheque was obtained by Dr. Veeramani in his clinic. As alluded to above, the accused has not even stated the date on which, he was called by Dr. Veeramani to his clinic and the impugned cheque obtained. Of course, the complainant has denied that the cheque was obtained by coercion. Both the Courts below have held that the accused had failed to discharge the burden under Section 139 of the NI Act even by preponderance of probability. This Court has no reasons to come to a different conclusion.
In the result, this criminal revision is dismissed. The Trial Court is directed to secure the accused and commit him to prison to undergo the period of sentence. Connected Crl.M.Ps. are closed.
04.07.2019 cad http://www.judis.nic.in 10 P.N. PRAKASH, J.
cad To 1 The VI Additional Judge City Civil Court Chennai 2 The Metropolitan Magistrate (Fast Track Court) No.IV George Town, Chennai – 1 3 The Public Prosecutor High Court of Madras Chennai 600 104 Crl.R.C. No.368 of 2019 04.07.2019 http://www.judis.nic.in