Madras High Court
Babu @ Shahabudeen vs S.M. Rizwannul Hug on 29 November, 2012
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.11.2012 CORAM: THE HONOURABLE MR.JUSTICE B. RAJENDRAN CRL. RC. No. 568 of 2008 Babu @ Shahabudeen .. Petitioner Versus S.M. Rizwannul Hug .. Respondent Petition filed under Sections 397 read with 401 of the Criminal Procedure Code against the Judgment dated 04.04.2008 made in Criminal Appeal No. 118 of 2007 on the file of the First Additional District & Sessions Court, Erode, confirming the order dated 25.04.2007 made in C.C. No. 468 of 2006 on the file of the Second Additional District Munsif Court, Erode. For Petitioner : Mr. N. Manokaran For Respondent : Mr. A.K. Kumarasamy ORDER
In the proceedings initiated by the respondent herein under Section 138 of the Negotiable Instruments Act in C.C. No. 468 of 2006 on the file of the Second Additional District Munsif Court, Erode. by judgment dated 25.04.2007, the petitioner suffered conviction under Section 138 of the Negotiable Instruments Act and sentenced to undergo six months simple imprisonment with fine of Rs.5,000/-, in default to undergo three months simple imprisonment. The petitioner unsuccessfully appealed thereagainst by filing Criminal Appeal No. 118 of 2007 before the Appellate Court, as it was dismissed on 04.04.2008 confirming the conviction and sentence imposed on him. As against the same, the present Criminal Revision case is filed.
2. According to the respondent, the petitioner borrowed a sum of Rs.1,40,000/- from him on 02.05.2011 and issued a post dated cheque dated 02.07.2001 for the said amount, drawn on ICICI Bank Limited, Gobichettipalayam. The respondent presented the cheque on being assured by the petitioner that the cheque would be honoured on its presentation, however, when the cheque was presented for collection on 18.12.2001, it was returned on 19.12.2001 with an endorsement 'funds insufficient'. The respondent issued a statutory notice on 31.12.2001, Ex.P3, but the same was returned with an endorsement 'not claimed'. Thereafter, the respondent filed the complaint before the trial court, which was taken on file as C.C. No. 468 of 2006.
3. The learned counsel for the petitioner would contend that the petitioner was a stranger to the proceedings before the courts below and he had no transaction with the respondent in the matter of borrowing money or he had ever issued the cheque in favour of the respondent. The petitioner used to sign only in English but the cheque in question was signed in Tamil and therefore it is clear that the cheque was not signed by the petitioner. Further, there is no need or necessity for the petitioner to borrow money from the respondent inasmuch as the petitioner is having sufficient income from his agricultural lands. The respondent and his son were staying with the petitioner during the relevant period to secure admission for the son of the respondent and during such stay, they have stolen the cheque of the petitioner and misused it. Further, the respondent has no means at all to advance such a huge sum of Rs.1,40,000/- to the petitioner. According to the learned counsel for the petitioner, as per the decision of the Honourable Supreme Court reported in (Krishna Janardhan Bhat vs. Dattatraya G. Hegde) 2008 4 SCC 54 whenever a sum of Rs.20,000/- and above are paid as loan, it should be paid only by means of cheque. In the present case, the respondent has paid the sum of Rs.1,40,000/- allegedly by cash and therefore, the alleged lending of the amount by the respondent is contrary to the decision of the Honourable Supreme Court. The learned counsel for the petitioner also relied on the decision of the Honourable Supreme Court reported in (Rev. Mother Marykutty vs. Reni C. Kottaram and another) 2012 (10) Scale 149 to contend that the liability on the part of the accused has to be proved by the respondent himself and in the absence of proof of the same, the petitioner is entitled for acquittal.
4. On the other hand, the learned counsel for the complainant/ respondent would mainly contend that the allegation that the cheque has been misused or forged by the respondent has not been proved by the petitioner or the petitioner has not taken any steps thereof. The petitioner and the respondent are closely related to each other and there were previous transaction between them. In order to disprove that the petitioner only signs in Tamil, the learned counsel for the respondent relied on Ex.D9, a document filed by the petitioner himself, wherein the petitioner has signed his name in Tamil before the revenue authorities at the time of paying tax receipt for his lands. Therefore it is clear that it is the petitioner who had signed the cheque and consequently he is liable to pay the cheque amount. The courts below also compared the signatures found in the cheque as well as Ex.D9 and arrived at a conclusion that the signatures found in both Ex.D9 as well as the cheque are identical. Therefore, the contention of the petitioner that he used to sign only in English, that the cheque was not issued by him for any legally enforceable debt or that the respondent has forged or stolen his cheque does not stand to scrutiny. The learned counsel for the respondent further contends that the cheque issued by the petitioner was returned by the bankers only for want of funds and not on the ground that the signature in the cheque does not tally with the specimen signature available with their records. If really the petitioner used to sign the cheque in English, but the signature of the petitioner is found in Tamil in the cheque in question, the bank would have rejected the cheque on the ground that the signature does not tally, but the bank, which is the competent authorities, entertained the cheque and returned it only on the ground that there are insufficient funds in the account to honour the cheque. In any event, the courts below have given a detailed analysis for convicting the petitioner under Section 138 of the Negotiable Instruments Act and it need not be interfered with.
5. I heard the counsel for both sides and perused the materials on record. The main argument of the counsel for the petitioner is that the petitioner only used to sign in English and not in Tamil. The cheque in question was signed in Tamil after being stolen and misused by the respondent and therefore it can be construed that the cheque was not issued by the petitioner for any legally enforceable debt. These contentions of the counsel for the petitioner cannot be countenanced in view of Ex.D9, a kist receipt marked by none other than the petitioner before the trial court wherein the petitioner has clearly and legibly signed in Tamil. According to the counsel for the petitioner, there is no need to sign a kist receipt and therefore the signature appearing in Ex.D9 cannot be given much credence. It has to be stated that Ex.D9 was filed by none other than the petitioner. It cannot be said that the petitioner need not sign a kist receipt. Whenever amount is collected towards tax, the remitter of the amount will be required to sign the receipt as a token of acknowlodgment of the tax receipt. Even other wise, on a careful perusal of the signature of the petitioner found in the cheque as well as Ex.D9, it can be safely concluded that the signatures in both the cheque as well as Ex.D9 are signed by the petitioner inasmuch as both the signatures, signed in Tamil, are identical with each other.
6. Further, the contention of the counsel for the respondent that the cheque was returned only for want of funds and not for any difference in the signature in the cheque is well founded. The cheque in question was entertained by the bank and it was dishonoured only for want of funds, meaning thereby, the signature in the cheque was identical or similar with the specimen signature available with the bank for comparision. Further, the petitioner would contend that the cheques were stolen or misused by the respondent, while so, the petitioner, being a person working in the Police Department, could not have remained silent without giving a formal complaint regarding stolen of the cheques. The petitioner did not do so. Even before the trial court, the petitioner did not take any steps to get the signature in the cheque compared with his admitted signature. Therefore it is futile on the part of the respondent to contend that the cheque in question was not signed by him or it was not issued for any legally enforceable debt.
7. The learned counsel for the petitioner next contends that the statutory notice was not served on the petitioner. According to the counsel for the petitioner, the name and address of the petitioner were not correctly indicated in the notice to see that the petitioner do not receive the same. The name of the petitioner was mentioned in the notice, but the door number or street name were not indicated therein, except the name of the Village. In this context, the postal cover, which was returned by the petitioner, has been enclosed in the typed set of papers and it is required to be examined. In the postal cover, the postman had made an endorsement on the backside that he had taken the cover on two occasion and on both the occasion, intimation was delivered to the person available in the address to collect the registered cover. Since the person to whom the registered letter was addressed did not come forward to collect the registered cover, it was returned to the sender. It is also seen from the postal cover that the name of the petitioner is clearly mentioned, as also his father's name. Similarly, the name of the Village, via., etc., have been clearly mentioned. When such an intimation was given to the petitioner, it is for the petitioner to collect the registered cover within 7 days from the date of deliverance of such intimation. In such event, the General Clauses Act will come into play. It is also seen that the registered cover was not returned for any other reason namely the address was not clear or the door number or street numbers were not given. The registered cover was in fact attempted to be delivered by the postman to the address mentioned therein which would only indicate that the address given was clear and correct, especially when the petitioner was employed in the Police Department in the Village and his address may be familiar for the postman in the Village. Therefore, in view of the endorsement made by the postman in the registered letter and the fact that the petitioner did not collect the registered letter, it cannot be said that the address to which notice was sent is incorrect, hence, the argument of the counsel for the petitioner that the statutory notice was not served on the petitioner is rejected.
8. The learned counsel for the petitioner, relying on the decision of the Honourable Supreme Court reported in (Rev. Mother Marykutty vs. Reni C. Kottaram and another) 2012 (10) Scale 149, would contend that there is no legal or enforceable liability on the part of the petitioner to pay the cheque amount. As discussed above, the cheque was issued by the petitioner and when the signature in the cheque is found to be that of the petitioner, the presumption is that the cheque was issued for a legally enforceable debt and therefore, the decision of the Honourable Supreme Court cannot be made applicable to the facts of the present case.
9. At this stage, the learned counsel for the petitioner submitted that already the petitioner has deposited Rs.40,000/- pursuant to the order dated 17.04.2008 passed by this Court in MP No. 1 of 2008 in Crl.R.C. No. 568 of 2008 and therefore he prayed this Court to modify the conviction and sentence imposed on the petitioner by directing him to pay a reasonable amount towards compensation. The learned counsel for the respondent fairly submitted that the respondent is not interested in sending the petitioner to jail and if any reasonable amount is awarded towards compensation, it will serve the ends of justice. Taking into consideration that the petitioner has already deposited Rs.40,000/- as per the direction of this Court, the conviction imposed on the petitioner is confirmed and the petitioner is directed to pay a sum of Rs.75,000/- towards compensation to the credit of C.C. No. 468 of 2006 on the file of the learned II Additional District Munsif, Erode, within a period of two months and on such deposit, the respondent shall withdraw the amount as compensation together with the amount of Rs.40,000/- already deposited by the petitioner. In such event, the petitioner will be exonerated of the charges. However, on failure to pay the amount, as mentioned above, within the stipulated time, the petitioner has to undergo the sentence imposed on him by the Courts below.
10. Subject to the aforesaid modification in the sentence, the Criminal Revision Case is partly allowed. Consequently, connected MP No. 1 of 2008 is closed.
29.11.2012 rsh Index : Yes Internet : Yes B. RAJENDRAN, J rsh CRL.RC.No. 568 of 2008 29.11.2012