Madras High Court
D.Balaji vs P.Selvakumar on 16 March, 2021
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
CRL.R.C.No.494 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 16.03.2021
CORAM :
THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.R.C.No.494 of 2014
D.BALAJI
S/o.Durairaj ... Petitioner
Vs.
P.SELVAKUMAR
S/o.Pandarinathan ... Respondent
Prayer: Revision petition filed under Section 397 r/w 401 of Cr.P.C. to
call for the records on the file of the learned Principal District and
Sessions Judge, Vellore, Vellore District in Crl.A.No.126 of 2012 dated
10.03.2014 against the judgment and sentence passed in C.C.No.166 of
2010 on the file of the learned Judicial Magistrate, Katpadi, Vellore
District dated 05.07.2012 and set aside the judgment dated 10.03.2014.
For Petitioner : Mr.E.Kannadasan
For Respondent : Mr.S.T.Varadharajulu
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CRL.R.C.No.494 of 2014
ORDER
(The cases have been heard through video conference) For the sake of convenience, the petitioner and the respondent will be referred to as accused and complainant respectively.
2.It is a case of the complainant that the accused had approached him on 10.06.2009 and borrowed a sum of Rs.2,00,000/- from him as hand loan and agreed to repay the same whenever demanded by the complainant with interest at the rate of 24% per annum. In order to discharge his liability, the accused had executed a Promissory Note dated 10.06.2009 (Ex.P1) on the same day and from the date of hand loan, the accused neither paid any amount towards the interest nor paid the principal. During the month of June 2010, the complainant approached the accused and made a demand to repay the said amount with interest, whereas the accused instead of repaying the said sum, sought one more month for repayment. Thereafter, the complainant made several attempts to get back his amount and finally during the 1 st week of August, 2010, the accused had issued a cheque bearing No.230371 dated 09.08.2010 for a sum of Rs.2,50,000/- (Ex.P2), drawn 2/14 CRL.R.C.No.494 of 2014 on ICICI Bank Limited, Vellore Branch in favour of the complainant and assured him that the cheque would be honoured on presentation. The complainant believing his words, presented the cheque through his banker viz. Indian Bank, Katpadi on 11.08.2010 and the counter foil is marked as Ex.P3, but the said cheque was returned by the accused banker with an endorsement “Funds insufficient” vide bank return memo dated 13.08.2010 (Ex.P4). Therefore, the complainant issued a statutory demand notice dated 26.08.2010 by registered post (Ex.P5), the certificate of posting receipt dated 27.08.2010 has been marked as Ex.P6, the Courier receipt dated 27.08.2010 has been marked as Ex.P7 and the Acknowlegement card dated 30.08.2010 has been marked as Ex.P8; the accused despite receiving the legal notice, neither replied nor repaid the cheque amount as demanded by the complainant. Therefore, the complainant initiated prosecution by way of private complaint in C.C.No.166 of 2010 before learned Judicial Magistrate, Katpadi, Vellore District, for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for brevity the NI Act) against the accused.
3.On appearance, the accused was questioned under Section 251 Cr.P.C. and he denied the accusation.
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4.The complainant examined himself as P.W.1. and marked Ex.P1 to Ex.P8.
5.When the accused was questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances appearing against him, he denied the same and opted to let in evidence on his side as defence, however, he did not let in any evidence.
6.After considering the evidence on record and hearing either side, the trial Court, by judgment and order dated 05.07.2012 in C.C.No.166 of 2010 had found the accused guilty and convicted him u/s.138 of Negotiable Instruments Act, 1881 and sentenced him to undergo simple imprisonment for a period of one year in terms of Section 255(2) Cr.P.C. and to pay a compensation of Rs.2,50,000/- to the complainant within a period of three months and in default of payment of the compensation, directed to undergo simple imprisonment for a period of three months u/s.357(3) Cr.P.C. Against the said conviction and sentence, the accused had filed an appeal in C.A.No.126 of 2012 and the learned Principal District and Sessions Judge, Vellore, Vellore 4/14 CRL.R.C.No.494 of 2014 District by judgment and order dated 10.03.2014, allowed the appeal in part and while confirming the conviction u/s.138 of N.I.Act had modified the sentence and the accused was sentenced to undergo simple imprisonment for six months, instead of one year as imposed by the trial Court and confirmed the compensation amount awarded by the trial Court. Aggrieved by the findings of the Courts below, the accused has preferred the present Criminal Revision under Section 397 r/w 401 Cr.P.C.
7.Heard Mr.E.Kannadasan, learned counsel appearing for the accused and Mr.S.T.Varadharajulu, learned counsel appearing for the complainant.
8.Learned counsel for the accused contended that it is a case of the complainant that the accused had borrowed an amount of Rs.2 Lakhs as hand loan on 10.06.2009 and that the accused had agreed to repay the amount with interest at the are of 24% per annum and that he has also executed a promissory note in favour of the complainant on the same day. Whereas, the cheque had been presented on 11.08.2010 and that the 5/14 CRL.R.C.No.494 of 2014 cheque had been filled for an amount of Rs.2,50,000/- with interest. The amount in the cheque does not tally with the amount what was actually claimed as per the promissory note and the burden is cast on the complainant to prove in how and in what manner the cheque amount of Rs.2,50,000/- has been arrived at. He would submit that except the promissory note (Ex.P1) and the post dated cheque (Ex.P2) no other documents have been furnished by the complainant to prove that the consideration has been passed. The promissory note and the cheque were not issued to discharge a legally enforceable debt and further the complainant has failed to examine the attester of the pronote. The Courts below have not properly analysed the evidence with regard to the same.
9.Per contra, learned counsel for the complainant would submit that the complainant had proved his case by letting in cogent evidence. The complainant had proved that there was legally enforceable debt by marking Ex.P1 viz. Pronote and Ex.P2 viz. post date cheque. Further, after the issuance of cheque for an amount of Rs.2,50,000/-, the same was presented within time on 11.08.2010 and the same was returned on 13.08.2010 with an endorsement “insufficient funds” and on 26.08.2010, 6/14 CRL.R.C.No.494 of 2014 therefore, the complainant issued a legal notice which was received by the accused on 30.08.2010, but the accused after receipt of the notice, neither replied nor repaid the amount to the complainant, thereby, the complainant has proved his case beyond all reasonable doubt and as per Section 118 & 139 of N.I.Act. The presumption is in favour of the complainant and in this case, the accused has not rebutted the presumption. In support of his contentions, learned counsel relied on the decision in APS Forex Services Private Limited vs. Shakti International Fashion Linkers and Others reported in (2020) SCC Online SC 193.
10.Before adverting to the rival submissions, it may be necessary to state here that while exercising Revisional jurisdiction in a case involving concurrent findings of fact arrived at by two Courts below, the High Court cannot act as a second appellate Court [See State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and Others, etc. (2004) 7 SCC 659]. Very recently, in Bir Singh Vs. Mukesh Kumar [(2019) 4 SCC 197], the Supreme Court has held as under:
“17. As held by this Court in Southern Sales & 7/14 CRL.R.C.No.494 of 2014 Services v. Sauermilch Design and Handels GmbH [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. ....
(emphasis supplied)
11.In this case, the accused has not denied his signature in the impugned promissory note and the post dated cheque (Ex.P1 & Ex.P2). This Court perused the cheque and other documents marked by the complainant viz. Ex.P1 to Ex.P8 and did not find any suspicious feature in it. The defence of the accused is that the impugned pronote and cheque were given to the complainant only towards security for loan advanced by one of his friends, which has been misused by the complainant. The accused received the statutory demand notice viz. Ex.P5, but did not choose to give any reply. It is the case of the accused that he had issued the impugned pronote dated 10.06.2009 (Ex.P1) and cheque dated 09.08.2010 (Ex.P2) to the complainant for the loan advanced by one of his friends.
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12.It is the case of the complainant that the accused approached him on 10.06.2009 and borrowed a sum of Rs.2,00,000/- as hand loan and agreed to repay the same with interest at the rate of 24% per annum. In order to discharge his liability, the accused had executed a Promissory Note dated 10.06.2009 (Ex.P1) on the same day and from the date of hand loan, the accused neither paid any amount towards the interest nor paid the principal. During the month of June 2010, the complainant approached the accused and made a demand to repay the said amount with interest, the accused instead of repaying the said sum, sought one more month for repayment. Thereafter, the complainant made several attempts to get back his amount and finally during the 1 st week of August, 2010, the accused had issued a cheque bearing No.230371 dated 09.08.2010 for a sum of Rs.2,50,000/- (Ex.P2), drawn on ICICI Bank Limited, Vellore Branch in favour of the complainant and assured him that the cheque would be honoured on presentation. The complainant believing his words, presented the cheque through his banker viz. Indian Bank, Katpadi on 11.08.2010 and the counter foil is marked as Ex.P3, but the said cheque was returned by the accused banker with an endorsement “Funds insufficient” vide bank return memo dated 9/14 CRL.R.C.No.494 of 2014 13.08.2010 (Ex.P4). Therefore, the complainant issued a statutory demand notice dated 26.08.2010 by registered post (Ex.P5), the certificate of posting receipt dated 27.08.2010 has been marked as Ex.P6, the Courier receipt dated 27.08.2010 has been marked as Ex.P7 and the Acknowlegement card dated 30.08.2010 has been marked as Ex.P8; the accused despite receiving the legal notice, neither replied nor repaid the cheque amount as demanded by the complainant. On the side of the accused no oral or documentary evidence were let in to prove his case. However, it is the case of the complainant that Ex.P1 to Ex.P2 were given purely for the purpose of borrowal of hand loan of Rs.2,50,000/- by accused on 10.06.2009 and 09.08.2010, the accused had agreed to repay the same along with interest. Assuming for a moment that the accused had given a blank but signed cheque to the complainant, he would have taken steps to get back the cheque, when the cheque issued by him was dishonoured. The accused would have atleast issued stop payment instructions to the banker, which was not done. Even in the 313 Cr.P.C. statement, the accused did not take this plea. Therefore, the complainant initiated prosecution by way of private complaint in C.C.No.166 of 2010 before The learned Judicial Magistrate, Katpadi, 10/14 CRL.R.C.No.494 of 2014 Vellore District, for the offence under Section 138 of the Negotiable Instruments Act, 1881. A presumption is cast under Section 139 of the Negotiable Instruments Act, however the presumption is rebuttable by the accused in this case.
13.In APS Forex Services Private Limited vs. Shakti International Fashion Linkers and Others reported in (2020) SCC Online SC 193, the Hon'ble Apex Court has held that Section 139 of the N.I. Act is an example of reverse onus clause and once the issuance of cheque has been admitted and the signature on the cheque has been admitted, there is always presumption in favour of the complainant as to the existence of a legally enforcible debt or liability and thereafter it is for the accused to rebut such presumption by leading evidence.
14.In this case, as stated above, the complainant has proved his case by letting in cogent evidence. Whereas, the accused has failed to rebut the presumption u/s.139 of N.I.Act to prove his case. In this case, though the accused had accepted the signature in the disputed cheque and the pronote, it is the case of the accused in defence that no consideration 11/14 CRL.R.C.No.494 of 2014 has been passed based on the Ex.P1 & Ex.P2 and that the complainant had not proved the passing of consideration by adducing sufficient evidence and that the complainant had also not proved that he had sufficient sources of income to lend the loan amount of Rs.2,00,000/- as alleged in the complaint and that the attester of the pronote has not been examined. The statutory presumptions u/s.118 and 139 of N.I.Act make it clear that the burden is not on the complainant to prove his case, whereas, the burden is on the accused to prove his case. In this case, as stated above that the complainant has proved his case by letting in sufficient evidence, however, the accused having admitted the signatures in the pronote and the cheque has not let in any evidence in rebuttal. The trial Court as well as the Appellate Court finding that the accused has not rebutted the presumption, found him guilty for the offence under Section 138 of Negotiable Instruments Act and had rightly convicted him. The Appellate Court while confirming the conviction, modified the sentence to six months instead of one year as imposed by the trial Court and as far as awarding of compensation is concerned, the same was confirmed. This Court finds no infirmity or illegality in the judgments passed by the Courts below.
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15.In the result, the Criminal Revision case stands dismissed as devoid of merits. The conviction imposed by the both Courts, and the sentence modified by the Appellate Court shall stand unaltered. The bail bonds stand cancelled. The Trial Court is hereby directed to secure the accused and commit him to prison to undergo sentence and to pay the compensation as ordered by the learned Principal District and Sessions Judge, Vellore, Vellore District in Judgment and order passed in C.A.No.126 of 2012 dated 10.03.2014. The Registry is directed to transmit the original records if any, to the respective Courts forthwith.
16.03.2021 kas Index : yes / no Internet : yes / no Speaking / Non Speaking order To
1.The Principal District and Sessions Judge Vellore, Vellore District
2.The Judicial Magistrate Katpadi, Vellore District 13/14 CRL.R.C.No.494 of 2014 A.D.JAGADISH CHANDIRA, J.
kas CRLR.C.No.494 of 2014 16.03.2021 14/14