Madras High Court
K.Saravana Prabu vs P.Krishnakumar on 17 May, 2017
Author: V.Bharathidasan
Bench: V.Bharathidasan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 24.04.2017
Judgment Pronounced on : 17.05.2017
CORAM
THE HONOURABLE MR. JUSTICE V.BHARATHIDASAN
Crl.R.C.No.14 of 2016
and
Crl.M.P.Nos.98 and 99 of 2016
K.Saravana Prabu ... Petitioner
vs
P.Krishnakumar ... Respondent
Criminal Revision Case filed under section 397 r/w 401 of the Code of Criminal Procedure, to set aside the conviction and sentence imposed on the petitioner by the Principal District Court, Dharmapuri in C.A.No.40 of 2013 dated 22.12.2015 confirming the Judgment passed by the learned Judicial Magistrate No.I, Dharmapuri in C.C.No.87 of 2013 dated 19.11.2013 by allowing the criminal revision case.
For Petitioner : Mr.C.Munusamy
For Respondent : Mr.S.Sathiaseelan
O R D E R
The petitioner is an accused in C.C.No.87 of 2013 on the file of the learned Judicial Magistrate No.I, Dharmapuri. The respondent/complainant filed a private complaint against the petitioner for an offence under Section 138 of Negotiable Instrument Act. The Trial Court, convicted the petitioner/accused and sentencing him to undergo one year simple imprisonment and directed to pay the cheque amount of Rs.9,50,000/- as compensation under Section 357(3) Cr.P.C., and in default of payment of compensation amount, the accused is directed to undergo simple imprisonment for a period of six months. Challenging the above said conviction and sentence, the petitioner filed an appeal in C.A.No.40 of 2013 on the file of the Principal District Court, Dharmapuri. The lower appellate Court dismissed the criminal appeal by confirming the conviction and sentenced imposed by the trial Court. Now, Challenging the same, the present criminal revision case has been filed.
2. The case of the respondent/complainant is as follows:-
The petitioner/accused borrowed a sum of Rs.9,50,000/- as hand loan from the complainant for his family expenses and for developing his business. In order to discharge the above said loan amount, the petitioner/accused issued a cheque, bearing No.515386 for Rs.9,50,000/- drawn on ICICI Bank, Dharmapuri Branch. When the complainant presented the cheque for collection with his bank, State Bank of India, Dharmapuri Branch on 26.03.2005 and the same was returned due to insufficiency funds in the petitioner's account. Thereafter, the respondent/complainant issued a legal notice on 08.10.2005 and the petitioner has received the same, but he failed to comply with the notice and did not pay the amount. Hence, the petitioner committed an offence punishable under Section 138 of Negotiable Instrument Act and filed the above private complaint. In order to prove his case, the respondent/complainant examined himself as P.W.1 and marked four documents. Ex.P1 is the cheque issued by the petitioner. Ex.P2 is the memo issued by the State Bank of India, Dharmapuri. Ex.P3 is the Statutory notice issued by the complainant and Ex.P4 is the acknowledgment card.
3. When the above incriminating materials were put to the petitioner/accused, he denied the same as false and the petitioner examined himself as D.W.1 and he has marked 8 documents to prove his defence. According to the petitioner/accused, the respondent/complainant is running a finance company in the name of Sri Krishna Finance. In the year, 2002, the petitioner borrowed a sum of Rs.2,25,000/- from the respondent. At that time, he has given 5 blank cheques to the respondent. Thereafter, he repaid the above loan amount with interest to the tune of Rs.7,28,000/-. On 16.05.2003 the respondent withdraw a sum of Rs.48,000/- from the petitioner's Bank account and on 08.07.2003 another sum of Rs.22,000/- was withdrawn from the petitioner's account through a cheque. Thereafter, on 22.05.2004, the petitioner mortgaged his house property in Bank of India, Dharmapuri at the instigation of the respondent/complainant and at that time, he opened an account in Bank of India, Dharmapuri Branch and given 20 blank cheques to the respondent and using the same, the respondent withdraw a sum of Rs.3,90,000/- in the name of one A.Murugan and another sum of Rs.1,00,000/- on 18.05.2004 in the name of one K.Sankar. Subsequently, using the cheque given by the petitioner in the year 2002, the present complaint has been filed. Apart from that since the respondent has demanded more interest, the petitioner has given a complaint against the respondent herein before the District Crime Branch, Dharmapuri on 30.11.2007 and based on that complaint, a crime was registered against the respondent for the offence under Section 420 IPC and Section 4 of Tamil Nadu Prohibition of Charging Exorbitant Interest Act.
4. In order to prove his case, the petitioner marked the complaint given by him against the respondent as Ex.D1 and the First Information Report was marked as Ex.D2. Notice sent by the respondent after the above complaint was marked as Ex.D3. The copy of account chit issued by the petitioner was marked as Ex.D4. Statement of Account issued by ICICI Bank was marked as Ex.D5. A letter issued by the Bank of India regarding statement of account as Ex.D6. Another letter issued by the Bank of India as Ex.D7, and the xerox copy of the cheque bearing Nos.498388 and 498389 in the name of one Sankar and Murugan was marked as Ex.D8.
5. Considering the above materials, the trial Court convicted the petitioner/accused as stated in first paragraph of this judgment. The appeal filed by the petitioner against the said conviction and sentence was also dismissed by the lower appellate Court and confirmed the conviction and sentence. Now, Challenging the same, the present criminal revision case has been filed.
6. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent and perused the materials available on record.
7. The learned counsel appearing for the petitioner would submit that the respondent/complainant failed to prove that there is a legally enforceable debt and the petitioner borrowed a sum of Rs.9,50,000/- from the respondent. The blank cheques given by the petitioner in the year 2002, has been misused by the respondent and using the same the present complaint has been filed. Even though, there is an initial presumption on the petitioner, the petitioner rebutted the presumption by placing Ex.D5, Ex.B.6, the statements of account of the petitioner in ICICI Bank, wherein the respondent withdraw a sum of Rs.48,000/- on 16.05.2003 using the cheque bearing No.515385 issued by ICICI Bank, and on 17.05.2004 another sum of Rs.3,00,000/ has been withdrawn from the petitioner's account, in the Bank of India, Dharmapuri Branch, in the name of one A.Murugan and on 18.052004 another sum of Rs.1,90,000/- has been withdrawn in the name one K.Sankar, who are the friends of the respondent/complainant. Apart from that the petitioner has given a complaint against the respondent before the District Crime Branch, Dharmapuri and based on that a crime was registered against the respondent, which was marked as Exs.D1 and D2. From the above materials, the petitioner raised a probable defence which creates a doubt regarding the existence of a legally recoverable debt from the petitioner and he has rebutted the statutory presumption. But, the respondent did not produce any evidence to show that there is a legally recoverable debt and the petitioner has borrowed the amount from him. The Courts below, without considering the above, has convicted the petitioner on the ground that the petitioner failed to rebut the initial presumption. Hence, he sought for allowing the criminal revision case. In support of his contention, the learned counsel appearing for the petitioner relied upon the following Judgments:-
1) N.Sivasamy Vs. United Sun Associates, Rep. by its Partner R.K.Vasu and other reported in 2015 SCC Online Mad 8292.
2. M/s.Veera Constructions, rep. by its Managing Director and Others Vs. R.Karthick reported in CDJ 2015 MHC 4628.
3. V.Mangalavathi Vs. M.Ganesamorrthy reported in CDJ 2016 MHC 374.
4. V.M.Ravi Chellamuthu Vs. K.Logu @ Loganathan reported in CDJ 2016 MHC 1418.
5. M/s.Surana & Surana Vs. Kamal Babbar reported in CDJ 2016 MHC 545.
8. Per contra, the learned counsel appearing for the respondent would contend that once the petitioner has admitted the cheque, there is a initial presumption against him that the cheque has been issued to discharge a legally enforceable debt and the petitioner failed to discharge the initial burden. Ex.D5 the statement of account filed by the petitioner is not at all admissible in evidence as authenticity of statement of account issued by the ICICI Bank was not proved. Apart from that even though the petitioner claims to have given 5 cheques in the year,2002, he has not proved that the said cheque was misused by the respondent by any acceptable evidence. Since the petitioner has failed to rebut the initial presumption under Section 139 of the Negotiable Instrument Act, the Courts below on considering all the materials, convicted the petitioner, there is no illegality and perversity in the judgment of the Courts below, and he sought for dismissal of the criminal revision case. In support of his contention, the learned counsel appearing for the respondent relied upon the following Judgments:-
1) Vijay Vs. Laxman and another reported in 2013(1)MWN(Cr.) DCC 161 (SC).
2. Y.Sreelatha @ Roja Vs.Mukanchand Bothra reported in 2002 SCC Online Mad 30.
3. P.Pandiyarajan Vs. Sri.Parkunan reported in 2015 SCC Online Mad 156.
4. Lekh Raj Sharma Vs. Yash Pal Gupta reported in 2015 SCC Oline Del 10074.
5. Krishna P.Marajkar Vs.Joe Ferrao and another reported in 2013 SCC Online Bom 862.
6. Rangappa Vs. Sri Mohan reported in 2010(11) SCC 441.
9. I have considered the rival submissions.
10. It is the specific case of the respondent/complainant that, the petitioner has borrowed a sum of Rs.9,50,000/- as hand loan for his family expenses and for developing his business, and in order to discharge the said loan, the petitioner issues a cheque bearing No.515386, drawn on ICICI Bank, Dharmapuri Branch and when the same was presented before the drawee bank, the same was returned due to insufficiency funds. The petitioner/accused did not dispute the signature found in the cheque. But, his specific defence was that he has borrowed a sum of Rs.2,25,000/- from the respondent between June to December,2002 and at the time of receiving the above loan amount, he has given 5 blank cheques. Subsequently, he has repaid the loan amount with interest to the tune of Rs.7,28,000/- on various dates. Now using one of the cheques issued in the year 2002, the present complaint has been filed.
11. Since the petitioner admitted the issuance of cheque, there is a presumption under Section 139 of the Negotiable Instrument Act, that the cheque has been issued for discharging a legally enforceable debt. But, the above presumption is a rebuttable presumption and for rebutting the presumption the standard of proof is that of preponderance of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the burden shifts on the complainant to prove that there is a legally enforceable debt. Now the question is whether the petitioner/accused has rebutted the presumption mandated under Section 139 of Negotiable Instrument with any probable defence.
12. It is a case of the petitioner/accused that he never borrowed Rs.9,50,000/- as alleged by the respondent. But, he has borrowed a sum of Rs.2,25,000/- in the year,2002, at that time he has given five blank cheques to the respondent. Subsequently, he has repaid the above said amount with interest to the tune of Rs.7,28,000/- and in order to discharge the said loan amount, he has mortgaged his property in Bank of India, Dharmapuri Branch. At that time he had issued 20 blank cheques to the respondent and using the above cheque, the respondent withdrawn a sum of Rs.3,00,000/- on 17.05.2004, in the name of one A.Murugan and copy of the cheque issued by him was also marked as Ex.D7, and another sum of Rs.1,90,000/- withdrawn on 18.05.2004, in the name of one K.Sankar and the copy of the cheque was marked as Ex.D8, the statement of account issued by the Bank of India, Dharmapuri, was marked as Ex.D6. Apart from that the petitioner also marked the summary statement of accounts issued by the ICICI Bank as Ex.D5. From the above statement of accounts, it could be seen that on 16.05.2003, the respondent, namely,P.Krishnakumar, withdraw a sum of Rs.48,000/- by using the cheque bearing No.515385. It is pertinent to mention here that the present cheque in dispute is bearing No.515386 drawn on the same ICICI Bank, alleged to have been issued in the year 2005. Apart from that the petitioner said to have given a complaint against the respondent before the District Crime Branch, Dharmapuri for the offence under Section 420 IPC and Section 4 of Tamil Nadu Prohibition of Charging Exorbitant Interest Act alleging that the petitioner only borrowed a sum of Rs.2,25,000/- from the respondent and he has repaid the same with interest to the tune of Rs.7,28,000/- and despite the payment, the respondent has demanded more interest from the petitioner. The above said complaint and the first information report were marked as Exs.D1 and D2. Hence, from the above materials, the petitioner has raised a probable defence which creates doubt whether the respondent advanced a hand loan of Rs.9.5 lakhs in the year 2005. In view of the same, the initial presumption mandated under Section 139 of the Act on the petitioner has been rebutted and the burden shifted on the respondent/complainant to prove that there is a legally enforceable debt against the petitioner.
13. Since the initial presumption on the petitioner was rebutted by a probable defence, now, we have to consider whether the respondent/complainant has proved that there is a legally enforceable liability. Except the oral evidence of the respondent there is no materials available on record to establish that the petitioner has borrowed a sum of Rs.9,50,000/- as a hand loan. Even in the legal notice Ex.P1 issued by the respondent/complainant, the date of borrowal was not mentioned and in the complaint also there is no mention about the date of borrowal. Apart from that it is an admitted case that the respondent is a financier and also having a valid licence, the same has been admitted in the notice issued by him and marked as Ex.D3. In the above circumstances, being a licensed financier, he ought to have maintained an account for advancing finance to third parties, but the respondent did not produce the account book or any voucher or any receipt for payment of huge amount of Rs.9,50,000/-. In the absence of production of any such materials, only an adverse inference could be drawn against the respondent. In the above circumstances, in the absence of any evidence to prove the existence of a legally enforceable debt or liability, the petitioner cannot be found guilty for the offence under Section 138 of the Negotiable Instrument Act.
14. So far as the objection regarding the admissibility of Ex.D5 and D6 is concerned, the objection regarding admissibility of the document ought to be raised before such document is admitted in evidence before the trial Court. But, the petitioner did not raise any objection regarding the admissibility of the document, but only contended that the entries in Ex.D5 was not proved by acceptable evidence. The trial Court also considered the above objection and held that the above documents were not proved by evidence. Since the admissibility of the document was not raised at the time of marking the documents in evidence, it is not open to the petitioner to raise the admissibility at this stage. The Hon'ble Supreme Court, in R.V.E.VENKATACHALA GOUNDER Vs. ARULMIGHU VISWESARARSWAMI & V.M.TEMPLE AND ANOTHER reported in 2003 (8) SCC 752, considered the scope of objection regarding the admissibility of the document in evidence, has held as follows:-
"The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular."
In view of the same, it is not open to the petitioner to raise any objection regarding the admissibility of the above document at this stage.
15. So far as the Judgment relied upon by the learned counsel appearing for the respondent/complainant in RANGAPPA Vs. SRI MOHAN reported in 2010(11) SCC 441, the Hon'ble Supreme Court has held that the presumption mandated Section 139 of the Negotiable Instrument Act, including the existence of a legally enforceable debt or liability and further it has been held that the accused to rebut the presumption under Section 139 of the Negotiable Instrument Act, the standard of proof for doing so is that of preponderance of probabilities, the accused can raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, and the Hon'ble Supreme Court has held as follows:-
In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own. The above judgment is only helping to the petitioner and no way helpful to the respondent case.
16. Another judgment relied on by the counsel for the respondent in VIJAY Vs. LAXMAN AND ANOTHER reported in 2013(1)MWN(Cr.) DCC 161 (SC), is relates to the presumption under Section 139 of the Negotiable Instrument Act. In the instant case, it has been held that the petitioner has rebutted the presumption by a probable defence. Hence, the above judgment also not helping the respondent. The other Judgments relied upon the learned counsel appearing for the respondent are relating to the advancement of loan amount not reflected in the income tax returns, which is not the issue in the instant case. Hence, the above judgments are not applicable to the instant case.
17. Considering the above facts and circumstances of the case, I am of the considered view that the petitioner has rebutted the presumption under Section 139 of the Negotiable Instrument Act by raising a probable defence which creates a doubt about the existence of a legally enforceable debt or liability. On the other hand, the respondent failed to prove the existence of the legally enforceable debt by acceptable evidence, both the Courts below without considering the case in a proper perspective, has convicted the petitioner. In the above circumstances, the judgment of the Courts below are liable to be set aside. and the petitioner is entitled for acquittal.
18. In the result, the criminal revision case is allowed. The conviction and sentence imposed on the petitioner by the Principal District Court, Dharmapuri in C.A.No.40 of 2013 dated 22.12.2015 confirming the Judgment passed by the learned Judicial Magistrate No.I, Dharmapuri in C.C.No.87 of 2013 dated 19.11.2013 is hereby set aside and the petitioner is entitled for acquittal and bail bond, if any, executed by him shall stand cancelled and the fine amount paid by him is ordered to be refunded forthwith. Consequently, connected M.P. is closed.
17.05.2017 rrg To The Judicial Magistrate No.I, Dharmapuri.
V.BHARATHIDASAN.J rrg Pre-Delivery Order in Crl.R.C.No.14 of 2016 17.05.2017 http://www.judis.nic.in