Madras High Court
R. Elango vs Saravanan on 4 December, 2012
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04-12-2012 Coram THE HONOURABLE MR. JUSTICE B. RAJENDRAN Criminal Revision Case Nos. 376, 377 and 383 of 2008 R. Elango .. Petitioner in all the Criminal Revision Cases Versus Saravanan .. Respondent in Crl.RC 376 Selvaraj .. Respondent in Crl.RC 377 V.T. Subramaniam .. Respondent in Crl.RC 383 Crl.R.C. No. 376 of 2012:- Criminal Revision Cases filed under Section 397 and 401 of Cr.P.C. against the Common Judgment dated 26.02.2008 made in C.A. Nos. 232 of 2007, 234 of 2007 and 233 of 2007 respectively on the file of the First Additional Sessions Court, Erode, confirming the conviction imposed in the Judgment dated 22.10.2007 made in C.C. Nos. 147 of 2005, 149 of 2005 and 148 of 2005 respectively on the file of the District Munsif cum Judicial Magistrate, Perundurai. For Petitioner : Mr. N. Manokaran in all the Criminal Revision Cases For Respondents : Ms. G. Thilagavathi in all the Criminal Revision Cases COMMON ORDER
These three Criminal Revision Cases are filed by the petitioner/accused, questioning the correctness of the common Judgment dated 26.02.2008 passed by the learned I Additional Sessions Judge, Erode in C.A. Nos. 232 of 2007, 234 of 2007 and 233 of 2007, confirming the conviction and sentence imposed in the Judgment dated 22.10.2007 made in C.C. Nos. 147 of 2005, 149 of 2005 and 148 of 2005 respectively on the file of the District Munsif cum Judicial Magistrate, Perundurai, whereby the petitioner was convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo one year rigorous imprisonment with fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for a period of three months in each of the case.
2. The revision petitioner in all the three Criminal Revision Cases are one and the same namely R. Elango. The three Calander cases have been filed by the respective respondent herein before the trial court under Section 138 of the Negotiable Instruments Act complaining that the cheques issued by the petitioner herein were dishonoured for 'insufficient funds'. The learned counsel for the petitioner as well as the respondent in all the three Criminal Revision Cases have advanced common argument and therefore, by consent of the counsel for both sides, these criminal revision cases are disposed of by this common order.
3. Crl.R.C. No. 376 of 2008 has been filed against the Judgment of the appellate Court made in Crl.Appeal No. 232 of 2007 confirming the order of conviction passed in C.C. No. 147 of 2005. The respondent/complainant has filed C.C. No. 147 of 2005 complaining that the petitioner/accused borrowed Rs.1,00,000/- on 20.10.2004 and in order to discharge such legally enforceable debt, he issued a post dated cheque dated 20.11.2004. On presentation of the cheque for collection on 07.01.2005, it was dishonoured on 08.01.2005 for the reason 'not arranged for' i.e., for insufficient funds in the account. Therefore, a statutory notice dated 11.01.2005 was issued by the respondent/complainant, which was replied to by the petitioner/accused on 01.02.2005. Thereafter, the respondent/complainant has filed the aforesaid C.C. No. 147 of 2005.
4. Crl.R.C. No. 377 of 2008 has been filed against the Judgment of the appellate Court made in Crl.Appeal No. 234 of 2007 confirming the order of conviction passed in C.C. No. 149 of 2005. The respondent/complainant has filed C.C. No. 149 of 2005 complaining that the petitioner/accused borrowed Rs.2,50,000/- on 01.10.2007 and in order to discharge such legally enforceable debt, he issued a post dated cheque dated 20.11.2004. On presentation of the cheque for collection on 07.01.2005, it was dishonoured on 08.01.2005 for the reason 'not arranged for' i.e., for insufficient funds in the account. Therefore, a statutory notice dated 11.01.2005 was issued by the respondent/complainant, which was replied to by the petitioner/accused on 01.02.2005. Thereafter, the respondent/complainant has filed the aforesaid C.C. No. 149 of 2005.
5. Crl.R.C. No. 383 of 2008 has been filed against the Judgment of the appellate Court made in Crl.Appeal No. 233 of 2007 confirming the order of conviction passed in C.C. No. 148 of 2005. The respondent/complainant has filed C.C. No. 148 of 2005 complaining that the petitioner/accused borrowed Rs.5,00,000/- on 15.10.2004 and in order to discharge such legally enforceable debt, he issued a post dated cheque dated 20.11.2004. On presentation of the cheque for collection on 07.01.2005, it was dishonoured on 08.01.2005 for the reason 'not arranged for' i.e., for insufficient funds in the account. Therefore, a statutory notice dated 11.01.2005 was issued by the respondent/complainant, which was replied to by the petitioner/accused on 01.02.2005. Thereafter, the respondent/complainant has filed the aforesaid C.C. No. 148 of 2005
6. The defence raised by the petitioner/accused before the courts below as well as before this Court is that even though there was a business transaction between the petitioner/accused and the respective respondent/ complainant, the cheques have been issued in blank and they have been misused by the respective complainant. Further, the petitioner/accused was in Chennai on the date when the cheques were said to have been issued by him i.e., 20.11.2004 and therefore, there is no chance for the petitioner to have issued the cheques in favour of the respondent on 20.11.2004 and pleads alibi. The petitioner also contended that the comparision of the signature of the petitioner in the cheques by the courts below is erroneous. The liability on the part of the petitioner has not been proved by the respondent and therefore the presumption of innocence is very much in favour of the petitioner/accused warranting acquittal from the criminal cases.
7. The learned counsel appearing for the petitioner would contend that even though the cheques have been issued by the petitioner, he has never signed the cheques. The trial court compared the signature on its own and came to an erroneous conclusion that the signature contained in the cheques is that of the petitioner. Such a conclusion arrived at by the trial court is legally not sustainable, which was also confirmed by the appellate Court. According to the learned counsel for the petitioner, the cheques were misused by the respective complainant to harass the petitioner. It is true that there were business transaction between the petitioner and the respective complainant, but, making use of such relationship, the respondent/complainant have stolen the cheques of the petitioner and misused it. The learned counsel for the petitioner also contended that the petitioner is the Secretary of the District Cricket Association and during the relevant point of time, for the purpose of organising a test match, he was named as a Local Manager for the Indian Cricket Team. The petitioner, for the purpose of organising the cricket match, went to Chennai and returned only a week thereafter. Therefore, according to the learned counsel for the petitioner, on 20.11.2004, the date on which the cheques have been allegedly issued by the petitioner, he was in Chennai and therefore there was no possibility for the petitioner to have issued the cheques. In support of such contention, the learned counsel for the petitioner relied on the certificate issued by the Cricket Association to contend that the petitioner was in Chennai during the relevant point of time and therefore, the cheques could not have been issued by him. The learned counsel for the petitioner further contended that merely because there were past transaction between the parties, it cannot be construed that the petitioner had issued the cheques for a legally enforceable debt and therefore he prayed for setting aside the orders passed by the Courts below.
8. On the contrary, the learned counsel appearing for the respective respondent/complainant vehemently contended that the cheques have been issued by the petitioner for a legally enforceable debt. The learned counsel for the respondent/complainant relied on the evidence adduced by the petitioner in his cross-examination wherein he had admitted that "fhnrhiy vd;DilaJ jhd;/ mjpy; cs;s ifbaGj;J vd;DilaJ my;y/ ,e;j tHf;fpy; rk;ge;jg;gl;l fhnrhiy fhzhky; ngha;tpl;lJ/ Relying on this evidence of the petitioner, the learned counsel for the respondent/complainant would contend that the petitioner had admitted that the cheques were his cheques but denied that he has not signed the cheques and that the cheuqes have been lost. If really the cheques have been lost, the petitioner ought to have given complaint complaining theft of cheques, but there is no material produced to prove this. Even in the reply notice given by the petitioner, it was not stated by the petitioner that the cheques were lost or stolen or misused by the complainant/respondent. Even during the questioning, the petitioner has not stated that the cheques have been lost. Therefore, when once it is admitted that the cheques belonged to the petitioner coupled with the admission that there were past transaction between the parties, the presumption must be that the cheques were issued for a legally enforceable debt or liability. When the petitioner denied his signature in the cheque, it is he, who should have taken steps to get the signatures compared by a finger print expert and failure to do so can lead to the inference that the cheques were signed by the petitioner. Further, the Manager of the Bank was examined as PW2 in all the complaints who had identified the signature of the petitioner/accused in the cheques. The trial court only compared the signature of the petitioner to a limited extent to arrive at a prima facie view inasmuch as there are other material evidence to prove that the signature is that of the petitioner. Further, in order to prove the plea of alibi, the petitioner has not taken any steps to examine the person who had issued the certificate to show that the petitioner was in Chennai during the relevant period. Even as per the evidence of the petitioner, he had vacated the room at Chennai on 19.11.2004 and therefore the petitioner cannot be heard to say that he was not in Chennai on 20.11.2004. Therefore, the question of alibi raised by the petitioner cannot be sustained. Further, merely because in the reply notice, the petitioner sought for furnishing the copy of the cheque and it was not supplied to him by the respondent/ complainant, it will not enure to the benefit of the petitioner especially when he failed to take any steps to compare his signature in the cheque through a finger print expert. In any event, the liability of the petitioner is clearly proved by his own admission in cross-examination and therefore the presumption is the petitioner had issued the cheques in question for a legally enforceable debt, which was rightly decided by the courts below.
9. I heard the counsel for both sides and perused the materials on record. At the outset, it has to be mentioned that the petitioner had admitted that the three cheques in question are his cheques and there is no dispute about it. The main defence of the petitioner/accused is that the signature in those three cheques is not his signature. When such a defence was taken before the courts below, the petitioner ought to have taken the same stand in the reply notice sent to the respondent/complainant. On a perusal of the reply notices, it is seen that the contents of the averment made therein are identical in all the three cases. In the reply, the petitioner would say that he neither borrowed any amount nor issued any cheque, as alleged by the complainants. The petitioner also stated that the claim made by the complainants, based on the cheque, is a rank forgery. The petitioner also requested the complainants to furnish a copy of the cheque so as to enable him to give a suitable reply. At this juncture, it is clear that in the reply notice issued by the petitioner, at the earliest point of time, he did not say that the cheques were stolen. Having not stated so, immediately after the complaints were filed by the respondent/complainant, at the time of questioning, the petitioner ought to have brought to the notice of the Court that the cheques were stolen and that the complainants are misusing it. The petitioner has not stated so. This was also recorded by both the courts below.
10. As rightly pointed out by the courts below, the petitioner has not taken any steps to send the cheques for comparision of the signature found therein by the finger print experts. Contra, when we see the evidence of PW2, Mr. Gopala Krishnan, Manager of the Bank in which the petitioner/accused maintains his account, he had categorically stated that the cheques belong to the petitioner herein. Ex.P9 is the application for opening of bank account in which the specimen signature of the petitioner is found and it was marked through PW2. PW2 further deposed that the specimen signature available with the bank was compared with the signature found in the cheques in question and the signature in the chques have been signed by the petitioner. In the cross-examination, PW2 categorically stated that in the normal course of banking business, the bank used to compare the signature in the cheque presented for collection with the specimen signature available with the bank for the purpose of passing the cheque and in the present case, the signatures found in the cheques are the signature of the petitioner. It is needless to say that PW2 is the competent person to say as to whether the signature in the cheques is that of the petitioner or not, as, normally, in the banking business, for the purpose of passing the cheque for clearance, the signature available in the cheque would be compared with the specimen signature and even if there is a slight variation in the signature in the cheque and the specimen signature, the cheque will not be passed for collection. Therefore, by examining the Manager of the Bank, PW2, the respondent/complainant have proved that the signature in the cheques is that of the petitioner. When such an evidence is available, it cannot be said that the signature in the cheques are not that of the petitioner. Under those circumstances, there is nothing wrong in the trial court comparing the signatures in the cheques with the admitted signature of the petitioner for arriving at a prima facie view and therefore, such an argument advanced on behalf of the petitioner is rejected.
11. Time and again, this Court has held that the Courts can compare the signature in the cheque with the admitted signature available in the court records, but Courts must necessarily take the aid of the finger print experts when there is no other evidence available to prove the signature in the cheque, either on an application or suo motu. In the present case, the respondent/complainant have examined the Manager of the Bank, who is a competent person to speak about the signature of the petitioner and he also produced Ex.P9, application form submitted by the petitioner at the time of opening the bank account wherein his specimen signature are available. The petitioner could not assail the deposition of PW2 either in the cross-examination or by producing any contrary materials before the Court. Therefore, it can safely be concluded that the petitioner failed to get his signature compared by an expert when he asserts that the signature in the cheque is not that of his signature and it is fatal to the plea of the petitioner. Merely because the petitioner, in his reply, sought for copies of the cheques, it will not be a ground to contend that the signature in the cheques are not his signature. The petitioner also not given any complaint regarding the alleged theft of the cheques. On the contrary, the respondent/complainant have taken all possible steps to prove that the cheques were issued by the petitioner for a legally enforceable debt. Therefore, the main defence of the petitioner that the signature in the cheques is not his signature cannot be accepted and the courts below are right in drawing a presumption as contemplated under Section 139 of the Negotiable Instruments Act that the cheques were issued by the petitioner for a legally enforceable debt and not otherwise.
12. The learned counsel for the petitioner relied on the following decisions to lend support to his contentions:-
(i) (M.A. Velappan vs. Karthic Worms, a Partnership Firm, rep. by its partner A. Rathinagiri and others) (2011) (1) MWN (Civil) 843 and (ii) John Prabhakar vs. T. Selvam (2012) (1) T.N.C.J. 408 (Mad) (MB) to contend that the courts are not expected to assume the role of an expert and cannot compare the signature found in the cheque for arriving at a finding that the disputed signature is that of the accused.
(iii) The decision of the Division Bench of this Court reported in (Central Bank of India vs. Antony Hardware Mart) 2006 (3) CTC 39 for the proposition that disputed signature cannot be compared with the signatures made subsequently and it should be compared only with the contemporaneous documents.
(iv) The decision of the Honourable Supreme Court reported in (Thiruvengadam Pillai vs. Navaneethammal and another) (2008) 4 Supreme Court Cases 530 for the proposition that when a person positively denies his finger impression in an instrument, the Court should be reluctant to venture a decision based on its own comparision of the disputed and admitted finger impressions. In para-17 it was held as follows:-
"17. The decision in Murari Lal and Lalit Popli should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparision, the court should hesitate to venture a decision based on its own comparision of the disputed and admitted finger impressions. Further, even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal."
13. These decisions relied on by the learned counsel for the petitioners cannot be made applicable to the facts and circumstances of the case. It is true that the Courts should avoid reaching conclusions based on a mere casual or routine glance or perusal of an instrument and the Courts are not experts to arrive at any conclusion. In the present case, the Manager of the Bank was examined as PW2 who had categorically deposed, on perusal of the specimen signature of the petitioner available with the bank, that the signature in the disputed cheques are that of the petitioner. When such an evidence is available, the trial court made a mere comparision of the signature to arrive at a prima facie conclusion and it cannot be said that the trial court had solely relied on its comparision of the signature in the disputed cheques to convict the petitioner under Section 138 of the Negotiable Instruments Act. Even in para-16 of the decision of the Honourable Supreme Court mentioned supra, it was held that there is no bar to a Court to compare the disputed finger impression with the admitted finger impression, but the Court can record an opinion or finding only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. Therefore also, the procedure adopted by the trial court in comparing the signature in the cheque with the admitted signature cannot be said to be unreasonable and consequently, the decision of the Honourable Supreme Court, relied on by the learned counsel for the petitioner, cannot be made applicable to the facts and circumstance of the case.
14. The learned counsel for the petitioner further relied on the decision of this Court reported in (P. Krishnasamy vs. Delta Knit Wearables and others) 2011 ACD 1326 (Mad) to contend that mere issuance of cheque will not prove the liability of the person who issued such cheque and a presumption cannot be drawn against him and the question of rebuttal of such liability does not arise. This decision also cannot be made applicable to the facts and circumstance of the case. It is not the case of the petitioner that the cheques were issued without any liability. Initially, the petitioner contended that the cheques were stolen, but he has not taken any steps to compare the signatures in the cheques by an expert. In the cross-examination, the petitioner admits his past transaction with the respondent/complainant but only contends that the claim made by the respondent/complainant is a rank forgery without any proof thereof. On the contrary, the respondent/complainant have examined the Manager of the Bank and proved the signature of the petitioner in the cheques. It is an admitted fact that the cheques were issued by the petitioner, the cheques were signed by the petitioner and there were past transaction between the parties. Therefore, it is futile on the part of the petitioner to contend that the cheques were not issued for discharge of a legally enforceable debt and it is not legally sustainable.
15. As regards the past transaction between the petitioner and the respective respondent herein, in the cross-examination of the complainant as PW1 in C.C. No. 147 of 2005, he had categorically deposed that ",s';nfhtplk; ehd; Kjypy; tpahghuk; bra;jpUf;fpnwd;/ mg;nghJ mth; mg;ght[k; cld; tUthh;fs;/ ,e;j tpahghuj;jpy; fld; cz;L/ To a suggestion made to the complainant in C.C. No. 147 of 2005, he would depose that "tpahghu rkaj;jpy; vjphpapd; ifbahg;gkpy;yhj btw;W fhnrhiy fpilf;fg;gl;lij gad;gLj;jp vjphpapd; ifbaGj;ij nghypahf jahh; bra;J ehnd fhnrhiyia g{h;j;jp bra;J vjphpaplk; gzk; gwpf;f ntz;Lk; vd;w vz;zj;jpy; ,e;j tHf;if jhf;fy; bra;Js;nsd; vd;why; rhpay;y/ This is evident that admittedly, there were transaction between the complainant and the petitioner and such transactions were made through cheque. Therefore, it is clear that the respondent/complainant have proved that there were past transactions and such transactions were made through cheque. Further, in the cross-examination of the respondent/ complainant in C.C. No. 148 of 2005, it was deposed that "fliyf;fha; th';fpa tifapy; vjphpaplkpUe;J vdf;F gzk; vJt[k; tuntz;oaJ fpilahJ/ tpahghu hPjpahf vjphpaplk; vdfF tut[ bryt[ vJt[k; fpilahJ/ ehd; 3k; egUf;F fld; bfhLj;J th';Fk; gHf;fk; cz;L/ mjw;F fzf;F fpilahJ/ vjphp vd;dplk; gyKiw fld; th';fpapUf;fpwhh;/ 5. 6 Kiw gzk; bfhLj;J th';fpapUf;fpnwd;/ For a suggestion in his cross-examination, the complainant in C.C.No. 148 of 2005 would depose that "vjphpf;Fk; vdf;Fk; ele;j fliyf;fha; tpahghuj;jpy; vjphpapd; ifbahg;gkplhj fhnrhiy vd;dplk; fpilf;fg;gl;lJ vd;W brhd;dhy; rhpay;y/ ehd;. Rutzd; kw;Wk; bry;tuh$; Mfpnahh; fliy tpahghuk; bra;nthk; vd;Wk; mg;nghJ v';fs; K:tUf;Fk; vjphpf;Fk; fliy tpahghuj; bjhlh;g[ cz;L vd;W brhd;dhy; rhpjhd;/ This evidence of the complainant in C.C. No. 148 of 2005 fortify the case of the complainant/respondent that there were past transaction between the parties and that the mode of such transaction is cheque. Therefore it is clear that there was a liability or past transaction and in order to discharge such legally enforceable debt, the petitioner had issued the cheques in question.
16. As regards the plea of alibi raised by the petitioner, it is the contention that the petitioner was the Local Secretary of the District Cricket Association and he was in Chennai for the period from 13th to 19th November 2004 and therefore, the petitioner could not have issued the cheques in dispute on 20th November 2004 to the respective complainant. In this context, the petitioner relied on the identity card issued to him by the Match officials and also a certificate issued by the Association, certifying his presence during the relevant period at Chennai . As rightly pointed out by the appellate Court, the document is only a xerox copy and its original has not been filed by the petitioner before the Court and therefore, the non-filing of the original is fatal to the case of the petitioner. The petitioner has also not properly explained as to why the original certificate was not marked before the courts below or the person, who issued such certificate was not examined. A perusal of the certificate would reveal that it is not known as to how the Association member can issue such a certificate stating that the petitioner was in Madras during 12th to 19th November 2004 in the absence of any attendance register or any other material to show or prove the presence of the petitioner at Chennai. As far as the room rent bills relied on by the petitioner, it shows that the petitioner reached Chennai on 11th November 2004 and left Chennai on 19th November 2004 and therefore it can safely be construed that the petitioner could have reached Chennai on 20th November 2004 and issued the cheques in favour of the respondent/complainant. Therefore I hold that the plea of alibi raised by the petitioner has not been proved to the satisfaction of the Court besides that the non-examination of the person who issued certificate in favour of the petitioner is fatal to the defence raised by the petitioner.
17. In view of the aforesaid discussion, all the Criminal Revision Cases fail and they are dismissed.
04-12-2012 rsh Index : Yes / No Internet : Yes / No To
1. The I Additional Sessions Judge Erode
2. The District Munsif cum Judicial Magistrate Perundurai Erode District B. RAJENDRAN, J Pre-delivery Common Order in Crl RC Nos. 376, 377 and 383 of 2008 04-12-2012 Crl RC Nos. 376, 377 and 383 of 2008 B. Rajendran, J After pronouncing the order in the above Criminal Revision Cases, the learned counsel for the petitioner prayed this Court to consider reduction of sentence imposed by the courts below against the petitioner in all the Criminal Revision Cases namely one year rigorous imprisonment . The counsel for the petitioner also submitted that the petitioner is prepared to deposit a portion of the cheque amount.
2. The learned counsel for the respective respondents opposed the prayer for reduction of sentence by stating that cheques were issued by the petitioner/accused on 20.11.2004, but till date, the respondents were not been paid a single pie.
3. Considering the submission of counsel for both sides and the fact that the petitioner is prepared to deposit a portion of the cheque amount, the sentence imposed on the petitioner by the courts below is hereby modified as mentioned below:-
(i) The petitioner is directed to pay 75% of the cheque amount namely Rs.75,000/- out of Rs.1,00,000/- in CC No.147 of 2005; Rs.1,87,500/- out of Rs.2,50,000/- in CC No.149 of 2005 and Rs.3,75,000/- out of Rs.5,00,000/- in CC No.148 of 2005 to the credit of the respective calander cases towards compensation within a period of three months from the date of receipt of a copy of this order.
(ii) On such deposit, as mentioned in clause (i) above, the petitioner will be exonerated of the sentence of one year imposed on him by the courts below
(iii) If the amount is paid by the petitioner as indicated above, within the period stipulated, the trial court shall permit the respective respondent/ complainant to withdraw the amount that would be deposited by the petitioner towards compensation in lieu of sentence imposed on him.
B. RAJENDRAN, J
(iii) On failure to deposit the amount by the petitioner, he shall undergo nine months rigorous imprisonment as against one year rigorous imprisonment imposed by the Courts below in each of the calander case and in such event, the trial court shall take steps to secure the presence of the petitioner to undergo the period of sentence, as indicated above.
04-12-2012 rsh Crl RC Nos. 376, 377 & 383/2008 04-12-2012