Madras High Court
V.Subramani vs / on 17 November, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.R.C.No.1027 of 2017
and
Crl.M.P.Nos.9670 to 9672 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :11.11.2022
Pronounced on :17.11.2022
Coram:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.1027 of 2017
and
Crl.M.P.Nos.9670 to 9672 of 2017
V.Subramani .. Petitioner
/versus/
M.Arivazhagan(deceased)
2.A.Buvaneswari
3.M.A.Varun Jayakanth
(Amended as per order in
Crl.M.P.No.10411/2021 in
Crl.R.C.No.1027 of 2017
dated 08.11.2021) .. Respondents
Page No.1/18
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1027 of 2017
and
Crl.M.P.Nos.9670 to 9672 of 2017
Prayer: Criminal Revision Case has been filed under Sections 397 and
401 of Code of Criminal Procedure, 1973 to set aside the order passed in
Criminal Appeal No.160 of 2016, dated 01.07.2017 on the file of II
Additional District Judge, Erode in confirming the order passed in
S.T.C.No.552 of 2015, dated 11.08.2016 on the file of the Judicial
Magistrate, Erode.
For Petitioner :Mr.V.Raghavachari
For Respondents :Mr.C.Emalias for
Mr.V.R.Appaswamee
-----
ORDER
The revision petitioner is the accused in S.T.C.No.552/2015 on the file of the learned Judicial Magistrate, Fast Track Court.No.1, Erode. The private complaint filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881 (in short “NI Act”), ended in conviction. The trial Court sentenced the accused to undergo 6 months Simple Imprisonment and to pay a fine of Rs.5,000/-, in default, 15 days Simple Page No.2/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 Imprisonment. The accused preferred an Appeal in Crl.A.No.160 of 2016 against the conviction and sentence imposed by the trial Court but, the same was dismissed by the Lower Appellate Court. Hence, this Criminal Revision Case is filed.
2. The gist of the complaint:
In the month of May, 2010, the accused offered to sell his land and entered into a sale agreement with the complainant and received a sum of Rs.1,15,00,000/-as advance. Later, the complainant came to know that the accused have no valid title to convey the property, which he agreed to sell. On fraudulent representation, the accused executed sale agreement and received the money. Finally, when the complainant pressed for settlement of the due, the accused started giving life threat to the complainant. In this regard, a complaint was lodged with the Superintendent of Police, Erode. The accused knowing about the complaint pending against him came for settlement and agreed to pay the dues in instalments. Accordingly, for three Page No.3/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 months the accused paid Rs.5 lakhs each to the complainant. For the balance amount, the accused gave two cheques bearing Nos:800809 and 800810 dated 15/11/2012 drawn on the ICICI Bank, Erode Branch for Rs.50,00,000/- each (Rupees fifty lakhs only). On presentation of these two cheques for collection, they bounced back with an endorsement “payment stopped by the drawer”. Statutory Notice dated 12/12/2012 was caused to the accused informing about the return of the cheques and was called upon to pay the cheques amount or to face the consequence. The accused received the notice on 18/12/2012. Since the accused failed to respond to the statutory notice within 15 days, the complaint was filed on 30/01/2013 before the learned Judicial Magistrate (Fast Track Court No.1), Thiruchengodu and assigned S.T.C.No:76/2013. Later, the case was transferred to the learned Judicial Magistrate (Fast Track Court No.1), Erode and renumbered as S.T.C.No.552/2015.
Page No.4/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017
3. Evidence laid:
The complainant in order to prove his complaint, marshalled 3 witnesses as PW-2 to PW-4, after he being examined as PW-1. Ex.P-1 to Ex.P-15 were marked on the side of the complainant. These 15 documents spoken through the witnesses reflect the content of the complaint that the two cheques each for Rs.50 lakhs marked as Ex.P-1 and Ex.P-2 returned on presentation on account of payment stopped by drawer. The corresponding memo from the accused bank are marked as Ex.P-3 and Ex.P-4. The instruction of the accused to his bank for stop payment are marked as Ex.P-10 and Ex.P-11. The statutory notice marked as Ex.P-5. The fact that based on the complaint given to the Deputy Superintendent of Police and the District Crimine Branch, Erode District, on 26/12/2012 the accused and his partner Palanisamy admitting the issuance of two cheques each for Rs.50 lakhs gave an undertaking that the money received from the complainant been paid to one A.S.Angammal, on recovery of the money from Page No.5/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 Angammal, they have no objection, he is paying the money to the complainant. Further, Ex.P-12 and Ex.P-13 indicate that on the complaint given against the accused and Palanisamy alleging cheating and fraud case in Cr.No.03/2013 registered by the District Crime Branch, Erode and the petitioner herein filed anticipatory bail petitions.
4. In defence, the accused was examined as DW-1. He relies on 10 exhibits, which were marked as Ex.D-1 to Ex.D-10. The accused, in defence to rebut the statutory presumption, deposed that he is carrying on textile, agriculture and also real estate businesses. Under Ex.D1, on 22/03/2010, he entered into an agreement with one Angammal for purchase of her 23 acres of land. On the same day, she entered into similar agreement with one Palanisamy for the rest of 23 acres. They both were not able to pay the balance sale consideration for these two agreements within the time mentioned in the sale agreement. So, Angammal caused notice to him and Palanisamy through her Lawyer. The said notice is Ex.D-2. The Page No.6/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 complainant in fact entered into sale agreement only with Palanisamy and paid advance of Rs.1,15,00,000/- only to Palanisamy. When the complainant demanded the money back from Palanisamy, he told the complainant that he has given the money to Angammal the owner of the land. In this connection, he was called to the District Crime Branch, Erode on 11/08/2012 and enquired. During the enquiry, Palanisamy was also present. Based on the notice issued by Angammal to him and Palanisamy, the complainant alleged that for the money received by Palanisamy, the accused is also liable. Under threat in the police station and out of fear, he gave cash of Rs.5 lakhs and two cheques for Rs.50 lakhs each to get released from the District Crime Branch Office. Palanisamy twice gave Rs.5 lakhs each to the complainant by cash and the same been endorsed in the back of the sale agreement entered between the complainant and the said Palanisamy. He thereafter instructed his bank to stop payment of these two cheques. Again he was called by the Police from the District Crime Branch office on 24/11/2012. Fearing arrest, he filed petition for anticipatory bail Page No.7/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 before the High Court and got Anticipatory bail which is marked as Ex.D3. He gave complaint to Human Rights Commission, Police High Officials and High Court. Based on his complaint, a criminal case was registered against the complainant in Cr.No:03/2013 by the District Crime Branch, Erode on 22/01/2013. The FIR copy marked as Ex.D-10. It is contended by the accused that he has not received any money from the complainant. The cheques were received from him at the District Crime Brach Office under threat. The criminal complaint regarding the extortion of the cheques under threat is pending against the complainant. Hence, the complaint is unsustainable, since the cheques were not issued by him for discharge of liability.
5. The trial Court considering the case of the complainant and the defence taken by the accused, on referring Ex.P-14, the letter of the accused signed along with Palanisamy admitting that he and Palanisamy are partners and the admission that he and his partner has entered into agreement with Page No.8/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 Angammal for purchase of her property measuring 23 acres each. He has also admitted that they received Rs.1,15,00,000/- from the complainant in connection with the sale of Angammal's property. This letter dated 26/12/2012 is contrary to his earlier complaint dated 24/11/2012 marked as Ex.P-15. Referring Ex.P-11 dated 25/10/2012 the instruction letter given by the accused to stop payment of the two cheques, the trial Court has pointed that if these cheques were obtained under threat in the District Crime Branch office, the said reason would have been mentioned in the letter instructing ‘stop payment’. The endorsement for payment of Rs.5 lakhs by the accused on the back of the agreement entered between Palanisamy and the complainant is admitted by the accused, so if there is no privity of contract between him and the complainant, there is no necessity to admit that he and Palanisamy are partners and he will repay the money received once Angammal refunds the money to them. If the accused and the complainant are strangers, then in his notice through lawyer, the accused could not have narrated the agreement entered between Palanisamy and the Page No.9/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 complainant dated 01/05/2010. The accused and Palanisamy together had entered into agreement with Angammal. They both had received joint notice Ex.D-2 from Angammal. The accused admits that Palanisamy is his partner in the real estate business. He admits that Palanisamy received Rs.1,15,00,000/- from the complainant for sale of 23 acres of land which belongs to Angammal. He also admits, he gave Rs.5 lakhs in cash to the complainant and these two subject cheques for Rs.50 lakhs each to repay the money received by Palanisamy.
6. Regarding the allegation that the cheques were obtained at the District Crime Branch Office under threat, the trial Court has observed, that the accused claims that the subject cheques were obtained from him on 11/08/2012 under threat. In his letter to the bank to stop payment which is marked as Ex.P-10 and Ex. P-11 dated 25/10/2012 he has not mentioned that he instruct stop payment of these cheques, since it was obtained from him under threat. For the first time, in his advocate notice dated 24/11/2012, Page No.10/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 mentioned about the threat. However, the claim of the accused that these cheques were obtained under force and threat on 11/08/2012 at the District Crime Branch office is not substantiated by adequate evidence by naming the police officer, who forced him to give the cheques and cash to leave the District Crime Branch Office. He has not even examined any witness that he was called to the District Crime Branch Office on 11/08/2012 and confined till late night. The belated plea that the cheques were obtained under force and threat, so disbelieved.
7. The Lower Appellate Court, after appreciating the evidence held that, the accused is not denying the signatures in the cheques. He admits the complainant and his partner Palanisamy entered into an agreement and in the said agreement, he has made endorsement of payment of Rs.5 lakhs. He admits that the subject post dated cheques were given to the complainant on 11/08/2012 but for more than three months, he did not protest that the cheques were obtained under threat. Only after the Page No.11/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 presentation of the cheques and its return, fearing criminal prosecution under Section 138 of the Negotiable Instruments Act, 1881 had started building defence that the cheques were obtained by force and threat. Therefore, upheld the judgment of the trial Court.
8. In the revision, the plea that cheques were not given for enforceable debt and the cheques were obtained under threat is reiterated. To buttress his submission, the following judgements are cited:-
1.Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay reported in [AIR 1961 SC 1316];
2.M.S.Narayana Menon Alias Mani v. State of Kerala and another reported in [(2006) 6 SCC 39];
3.Krishna Janardhan Bhat v. Dattatraya G.Jegde reported in [(2008) 4 SCC 54];
4.Rangappa v. Sri Mohan reported in [(2010) 11 SCC 441]; and
5.Rajendran v. N.Radhakrishnan reported in [2013(1) MWN (Cr.) DCC 85 (Mad.)] Page No.12/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017
9. The learned counsel for the revision petitioner referring the above judgments of Hon'ble Supreme Court pleaded that, the complainant had not disclosed the true facts and withheld the facts relevant to decide the complaint, hence the presumption against the accused gets rebutted. The non-disclosure of entire details about the agreement with Palanisamy by the complainant is sufficient to rebut the presumption of liability. The onus of proof on the accused is not as heavy as prosecution, in this case the complainant has not proved the fundamental fact that he paid Rs.1 crore 15 lakhs to the accused. While so, the Courts below erred in drawing presumption under Section 139 of the NI Act against the accused.
10. The revision petitioner has not denied the fact that the complainant paid Rs.1,15,00,000/- for the purchase of the land stood in the name of Angammal. He admits that he and Palanisamy are partners and entered into sale agreement with Angammal on 22/03/2010. He also admits Page No.13/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 that Angammal caused notice to him and Palanisamy for not completing their part of contract, as per the agreement. Besides deposing about these facts, the accused has also marked the copy of the agreement with Angammal as Ex.D-1 and the notice received from her as Ex.D-2. Also from the exhibits Ex.P12 and Ex.P13, it appears that this complainant had lodged a criminal complaint against the revision petitioner and his partner Palanisamy for cheating him.
11. From the deposition of the accused and the documents Ex.P-14 and Ex.P-15 marked through DW-1 during cross examination, it is made clear that the subject cheques marked as Ex.P-1 and Ex.P-2 were given to refund the money advanced by the complainant in connection with purchase of the Angammal property. Though in Ex.P-15 dated 24/11/2012, it is alleged by the accused that those cheques were obtained under threat from him on 11/08/2012, this plea raised for the first time after lapse of 3 months. Ex.P-15 is the notice of the revision petitioner sent through his lawyer to the Page No.14/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 complainant as well to Palanisamy. Further, a copy of this notice is marked to Chief Minister, DGP, West Zone, SP–Erode, Chairman, Human Rights Commission and Chief Justice of High Court, Madras. But then, the revision petitioner, after receiving the statutory notice Ex.P-5 on 18/12/2012 and expected to give his reply or pay the cheque amount had remained silent and not responded to the statutory notice. Therefore, the trial Court as well as the Lower Appellate Court has rightly held the accused guilty of offence under Section 138 of NI Act.
12. This Court finds no suppression of facts by the complainant. The accused, after admitting that he was partner of Palanisamy in the real estate business and privy to the transaction with Angammal property and having admitted that he and Palanisamy together were dealing with Angammal and the complainant paid Rs.1,15,00,000/- as advance in respect of the property which they entered into agreement with Angammal and the cheques were given by him while he was called to the District Crime Page No.15/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 Branch office for enquiry and admit that he instructed his bank to stop payment, the plea that those cheques were obtained under threat for no liability of him is an afterthought and not probablised through evidence. The content of Ex.P-15 notice dated 24/11/2012 is contrary to the joint letter Ex.P-14 by the revision petition and his partner Palanisamy given to the DSP, DCB Erode subsequently on 26/12/2012. Hence, the revision petition deserves to be dismissed as devoid of merits.
13. In the result, this Criminal Revision Case is dismissed. Consequently, connected Miscellaneous Petitions are closed.
17.11.2022 Index:yes/no speaking order/non speaking order ari Page No.16/18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 To :
1.The Judicial Magistrate, Erode.
2.The II Additional District Judge, Erode.
Page No.17/18
https://www.mhc.tn.gov.in/judis Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 DR.G.JAYACHANDRAN,J.
ari Delivery Order made in Crl.R.C.No.1027 of 2017 and Crl.M.P.Nos.9670 to 9672 of 2017 17.11.2022 Page No.18/18 https://www.mhc.tn.gov.in/judis