Madras High Court
M/S.Nissi Packages vs M/S.Sastha Paper Mills (P) Ltd on 7 August, 2019
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.R.C.Nos.354 and 355 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 19.09.2018
Pronounced on : 07.08.2019
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.Nos.354 and 355 of 2013
1. M/s.Nissi Packages,
Rep. by its Managing Partner,
R.Kumaresan.
2. K.Kumaresan, S/o Muthusamy,
Managing Partner, M/s.Nissi Packages,
No.1/31-2, Sanamavou Village & Post,
Rayakottai Rd, Hosur Taluk,
Krishnagiri District. ... Petitioners in R.C.354/2013
1. M/s.Elshadai Packages
Rep. by its Authorized Signatory,
R.Kumaresan (1st Accused),
S/o.Muthusamy, aged 52 years,
(Appellant in Cr.A.45/2012)
2. K.Hari Krishnan (2nd Accused)
S/o.K.Kumaresan, aged 22 years,
Prop: M/s.Elshadai Packages,
(Appellant in Cr.A.46/2012)
No.1/31-2, Sanamavou Village & Post,
Rayakottai Road, Hosur Taluk,
Krishnagiri District. ... Petitioners in R.C.355/2013
vs.
M/s.Sastha Paper Mills (P) Ltd.,
Rep. by its G.P.Agent K.N.Myilvaganan,
S/o.K.Natrajan, aged 57 years,
Safety Food Compound,
Gudisangapillai Village,
Onnalwadi Post, Hosur Taluk,
Krishnagiri District. ... Respondent in both the Revisions
1
http://www.judis.nic.in
Crl.R.C.Nos.354 and 355 of 2013
Prayer in Crl.R.C.No.354/2013: The Criminal Revision Case has
been filed under Section 397 r/w 401 of Cr.P.C, to call for the records
relating to the judgment dated 07.12.2012 made in C.A.No.44 of 2012
on the file of the learned Principal District and Sessions Judge,
Krishnagiri filed against the order of the learned Judicial Magistrate,
Fast Track Court, Hosur, in S.T.C.No.393 of 2011 dated 10.02.2012
and set aside the same.
Prayer in Crl.R.C.No.355/2013: The Criminal Revision Case has
been filed under Section 397 r/w 401 of Cr.P.C, to set aside the order
of conviction dated 07.12.2012 made in C.A.No.45 & 46 of 2012 on
the file of the learned Principal District and Sessions Judge, Krishnagiri
filed against the order of the learned Judicial Magistrate, Fast Track
Court, Hosur, in S.T.C.No.171 of 2011 dated 11.05.2012.
For Petitioners : Mr.J.Jaseem Mohamed
in both the RCs
For Respondent : Mr.Akshai Sajin Kumar
for Ms.Srividya - in both the RCs
COMMON ORDER
These criminal revisions have been filed against the concurrent judgment of conviction made by both the Courts below for the offence under Section 138 of Negotiable Instruments Act (for brevity 'NI Act').
2 The petitioners are accused and respondent is complainant in both the revision cases. The respondent filed two private complaints under Section 200 of Cr.P.C. against the petitioners for the offence under Section 138 of Negotiable Instruments Act, before the learned Judicial Magistrate (Fast Track Court), Erode, which were taken on file 2 http://www.judis.nic.in Crl.R.C.Nos.354 and 355 of 2013 in S.T.C.No.393 & 171 of 2011 respectively. The learned Magistrate, after trial, found the petitioners/accused guilty for the offence under Section 138 of NI Act and hence convicted and sentenced them to undergo simple imprisonment for a period of one year and to pay fine of Rs.2,73,830/- and Rs.1,36,000/- respectively, in default, to undergo simple imprisonment for a period of two months for each default. Aggrieved by the judgments of conviction, the petitioners in both the revisions preferred appeals and there also they have lost their case and judgment of conviction recorded by the trial Court was confirmed. Assailing both the judgments of conviction, the accused are before this Court with the present criminal revision cases.
3 The learned counsel appearing for the petitioners in both the revisions would submit that there was money transactions between the petitioners and the respondent in connection with their business and the petitioners issued the subject cheques to the respondent for collateral purpose. The petitioners used to purchase goods from the respondent Company under the Bank Guarantee Scheme (Letter of credit) by placing order for the goods. After receipt of the goods and on submission of the letter of receipts of goods to the petitioners/accused, the Tamilnadu Mercantile Bank Ltd., releases cash to the respondent/complainant and the appellant in turn pays the said 3 http://www.judis.nic.in Crl.R.C.Nos.354 and 355 of 2013 amount to the Tamilnadu Mercantile Bank Ltd., within the stipulated time. The subject cheques were issued towards security for the above purchase under Letter of Credit as stated above. Both the Courts below had only taken the document filed by the respondent/ complainant, which are invoices and the petitioners specifically denied the seal and signature found on the same. To prove the said defence, the petitioners had also filed Exs.D1 and D2. At any time, the petitioners had not received the goods said to have been supplied by the respondent/complainant and the subject cheques were not issued towards payment for the same. Further since, there was proceedings under Securitisation & Reconstruction of Security Interest Act, 2002 against the petitioners' Company, they could not reply for the notice sent by the respondent/complainant. But, the petitioners/accused had rebutted the presumption under Section 118 and 139 of NI Act, which favours the respondent/complainant, by producing Exs.D1 & D2. Both the Courts below failed to consider the defence taken by the petitioners/accused and believed the documents filed by the respondent/complainant and erroneously convicted the petitioners, which warrants interference.
4 The learned counsel appearing for the respondent/ complainant submitted that the petitioners/accused and the 4 http://www.judis.nic.in Crl.R.C.Nos.354 and 355 of 2013 respondent/complainant was having business transaction over a period of three years and petitioners purchased craft paper from the respondent on credit basis. For the purchase of the said materials, on outstanding balance, the petitioners issued the subject cheques and when the cheques were presented for collection, they were returned as “exceeds arrangements”. Therefore the respondent issued legal notices, for which, the petitioners did not send any reply and hence the respondent instituted cases against the petitioners. The respondent produced invoices which were marked as Exs.P24 to 29 and further the petitioners have admitted execution of cheques and signatures found on the same. Therefore, the respondent, being a complainant has proved its case, and hence presumption under Section 118 and 139 of NI Act would come into play and it is for the accused to rebut the same. Even though, petitioners produced Ex.D1 and D2, seal of the respondent firm, it is of the year 2009, subsequent to the relevant period i.e. issuance of cheques and hence the same could not be acceptable. Both the Courts below had rightly appreciated the evidence and convicted the petitioners in both the cases, which does not call for any interference.
5 Heard the learned counsel appearing on either side and perused the original records.
5 http://www.judis.nic.in Crl.R.C.Nos.354 and 355 of 2013 6 The petitioners filed these revisions against the concurrent judgments of conviction made by both the Courts below. The petitioners/accused admitted execution of cheques and signatures found on the same . It was also admitted that there was transaction in connection with their business. Under these circumstances, presumption under Section 118 and 139 of NI Act would come into play, which favours the complainant, holder of the cheque. No doubt, the said presumption is rebuttable presumption. The petitioners need not come into witness box and produce a strong piece of proof to rebut the presumption, they can rebut the presumption through preponderance of probability or through cross examining the witnesses. In this case, on reading of the entire materials placed on record, it reveal that the petitioners/accused taken a defence that the subject cheques were issued towards security for the business transaction with the respondent and they also produced Exs.D1 and D2 countering the documents produced by the respondent/ complainant Exs.P24 to 29. It is seen that Exs.D1 and D2 are of the year 2009, but Exs.P24 to 29 are prior to 2009 i.e. 2007. Except producing the seal, that too for the year of 2009, the petitioners did not produce any document to prove his contention. Therefore, the 6 http://www.judis.nic.in Crl.R.C.Nos.354 and 355 of 2013 petitioners/accused has failed to rebut the presumption drawn in favour of the respondent/complainant.
7 The lower appellate Court, being a final Court of fact fining, has re-appreciated entire evidence and confirmed the judgment of conviction recorded by the Trial Court. This Court, while exercising revisional jurisdiction, cannot re-appreciate entire evidence and substitute its own views on the findings given by the Courts below, unless there exists perversity in appreciating the evidence. This Court does not find any perversity in the judgments of both the Courts below and there is no merit and substance in the revision case.
8 In the result, these criminal revision cases stand dismissed. Trial Court is directed to secure the custody of the petitioners/accused in both the cases to undergo remaining period of sentence, if any.
07.08.2019 Index: Yes/No Speaking order/Non-speaking order cgi To
1. The Principal District and Sessions Judge, Krishnagiri.
2. The Judicial Magistrate, Fast Track Court, Hosur. 7 http://www.judis.nic.in Crl.R.C.Nos.354 and 355 of 2013 P.VELMURUGAN,J.
cgi Pre-Delivery Order in Crl.R.C.Nos.354 and 355 of 2013 07.08.2019 8 http://www.judis.nic.in