Madras High Court
N.Senthil Kumar vs / on 8 August, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.R.C.No.906 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :01.08.2022
Pronounced on :08.08.2022
Coram:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.906 of 2015
N.Senthil Kumar,
S/o Narayanasamy,
Prop:M/s Sun Poly Pack,
No.7, Ranganathapuram 4th Street,
Tirupur. .. Petitioner
/versus/
M.Jayalakshmi,
W/o Dr.M.Mookkappan,
Proprietrix:M/s J.Plast
48, Sasthri Street,
Venkitapuram,
Coimbatore 641 025,
Rep.by Power Agent,
Sukumar
S/o Dr.Mookkappan
5, Bharathi Park 7th Cross Road,
Saibaba Colony,
Coimbatore. .. Respondent
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Crl.R.C.No.906 of 2015
Prayer: Criminal Revision Case has been filed under Section 397 r/w
401 of Cr.P.C., to set aside the order dated 22.07.2015 made in C.A.No.128
of 2014 on the file of the V Additional District and Sessions Judge,
Coimbatore confirmed the judgment passed in S.T.C.No.309 of 2012 dated
28.08.2014 on the file of the Judicial Magistrate, Fast Track Court No.II,
Coimbatore.
For Petitioner :Mr.P.Narayana Prasadh for
Mr.M.N.Bala Krishnan
For Respondent :Mr.V.Sivakumar
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ORDER
The Revision Petitioner is the accused in S.T.C.No.309/2012 on the file of Judicial Magistrate, Fast Track Court No.II, Coimbatore. In the private complaint filed against the accused for dishonouring the cheque issued by him for Rs.5,00,000/- dated 02/07/2008 to discharge his liability to pay the complainant towards the sale consideration of polythene bags sold and delivered, he was found guilty and convicted under Section 138 of ___________ Page No.2/10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.906 of 2015 the Negotiable Instruments Act, 1881 to undergo 10 months SI and to pay a fine of Rs.4000/- in default, to undergo 2 months SI.
2. Aggreived by the conviction and sentence imposed on him by the trial Court, he preferred an appeal in C.A.No.128 of 2014 before the V Additional District and Sessions Court, Coimbatore and the same came to be dismissed upholding the trial Court judgment of conviction and sentence.
3. The revision petition is filed on the premise that, the Courts below had not properly applied its mind to arrive at conclusion of holding him guilty. The complainant failed to mention the vehicle number through which the goods alleged to have been delivered to the accused. The invoice does not contain the signature to prove the delivery of goods. The documents called for production on summon issued under Section 91 of Cr.P.C was marked as prosecution side document, instead of Court document. The owner of the complainant company, who knows about the business transaction was not examined as witness. The evidence of the power of ___________ Page No.3/10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.906 of 2015 attorney is not legally sustainable. The business transaction between the accused and the complainant stopped in the year 2006. The subject cheque given as security was misused by the complainant after two years.
4.The learned counsel for the revision petitioner relying on the judgment of the Hon'ble Supreme Court in A.C.Narayanan –vs- State of Maharashtra and another reported in [2016(1) SCC (cri) 67] submitted that, complaint is filed through the power of attorney, who does not know about the transaction in connection with the subject cheque. Therefore, the complaint is not maintainable. He also relied upon the judgment of this Court rendered in Pandurangan –vs- Sivakami reported in [2017(2) MWN (cri) DCC 113 ( Mad.)] and submitted that, the name of the complainant in the cheque is written in different ink and handwriting, therefore, the court should have entertained doubt about the consideration alleged to have passed to the payee. The burden is shifted to prove the debt. Since the complainant has failed to prove the enforceable debt, the judgment of the Courts below is erroneous.
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5.The learned counsel for the respondent/complainant submitted that, the accused running a proprietary concern by name M/s Sun Poly Pack. He used to purchase polythene products from the complainant company M/s J.Plast on credit basis. As on 11/06/2008 a sum of Rs.5,97,371/- was due and payable. To discharge the said debt, Ex.P-2, the cheque No:930646, dated 02/07/2008 for a sum of Rs.5,00,000/- drawn by the accused from his account maintained at Karnataka Bank, Perumanallur Branch, Tirupur was given. The said cheque was presented for collection 02/07/2008 but returned on 08/07/2008 with the memo [Ex.P-3], stating ‘Payment Stopped by Drawer’. The statutory notice [Ex.P-4] informing about the return of the cheque and calling upon the accused to pay the cheque amount was sent on 25/07/2008. The accused received the notice sent through RPAD. The RPAD receipt and the postal acknowledgment card to prove the issuance of notice and delivery to the accused Ex.P-5 and Ex.P-6 were marked. The ledger account to prove the transaction and due payable marked as Ex.P-7. The complaint was filed by the payee represented by its power agent. The ___________ Page No.5/10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.906 of 2015 power of attorney deed marked as Ex.P-1 and he has deposed about the transactions and also proved through documentary evidence namely ledger account Ex.P-7.
6.Therefore, he submitted that, facts of the A.C.Narayanan case(cited supra) which was filed by the company through power agen,t without any supporting document like, power of attorney deed or resolution by the Directors of the Company is different from the facts of this case and the dictum of that judgment will not apply to the case in hand. Similarly, the name of the payee in the cheque being written in different ink alone not the reason for this Court to suspect the case of the complainant in Pandurangan case (cited supra) by the petitioner's counsel, in that case the complainant failed to establish the foundational fact of privity of contract between her and the accused. Whereas in the present case, the accused admits the signature and the trade relationship. His only defence was that the business transaction stopped two year prior to the alleged date of cheque. This plea has been disproved through Ex.P-7. Having issued the ___________ Page No.6/10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.906 of 2015 cheque for the debt payable, the accused took unsustainable defence before the trial Court, which was negative in view of the law settled in Rangappa –vs- Srimohan reported in [AIR 2010 SC 1898] regarding the standard of proof. The accused failed to rebut the statutory presumption not even by preponderance of probability. Hence, the trial Court found him guilty of offence under Section 138 of the Negotiable Instruments Act, 1881. In the appeal preferred by the accused, the lower Appellate Court confirmed to trial Court judgment. The grounds raised in the revision are not sustainable. Since, there is no error in the finding of the Courts below, the revision has to be dismissed.
7.The rival submissions taken into consideration and the records of the lower Courts perused. This Court, on perusal of the documents, finds that the complainant Firm M/s J.Plast is owned by one Jayalakshmi. She through her son Sukumar as her power agent has filed the complaint. The power of attorney deed is Ex.P-1. Sukumar has been examined as PW-1 before the Court and he has marked Ex.P-1 to Ex.P-7 to prove that the ___________ Page No.7/10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.906 of 2015 cheque Ex.P-2 was issued for the debt payable as per the ledger account Ex.P-7. The revision petitioner herein though received statutory notice has not replied to it. He has not filed any document like statement of accounts to rebut the evidence relied by the complainant. The grounds of revision which are extracted above does not disclose any error or illegality to interfere the judgment of the Courts below under the Revisional Jurisdiction.
8.The two judgments cited above are different to the facts of the case in hand. The name of the payee written in different ink will not per se render the cheque invalid in view of Section 118 of the Negotiable Instruments Act, 1881 and Section 20 of the Negotiable Instruments Act, 1881. More so, in this case, Ex.P-7 the ledger accounts extract maintained in the course of business proves the debt payable by the accused to the complainant leading to the presumption that the cheque was issued to discharge the said liability. Therefore, this Court finds no merit in the petiion.
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9.In the result, this Criminal Revision Case is dismissed. The findings of the Courts below are confirmed. Bail bond if any executed by the petitioner shall stand cancelled. The trial Court is directed to secure the accused and commit him in prison for the remaining period of sentence if any.
08.08.2022 Index:yes/no speaking order/non speaking order ari To :
1.The V Additional District and Sessions Judge, Coimbatore.
2.The Judicial Magistrate, Fast Track Court No.II, Coimbatore.
___________ Page No.9/10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.906 of 2015 DR.G.JAYACHANDRAN,J.
ari Delivery Order made in Crl.R.C.No.906 of 2015 08.08.2022 ___________ Page No.10/10 https://www.mhc.tn.gov.in/judis