Dismissed

K. Amudha Priya v. Mr. S. Sridhar

Madras HC1 Oct 2021CRL A/641/2015

Case brief

AI extract

What is this about?

The High Court of Madras dismissed an appeal filed by a private complainant against a Sessions Court order setting aside her conviction under Section 138 NI Act. The Court held that the accused rebutted the statutory presumption by showing the absence of book accounts and a clear proof of loan, failing the complainant to prove a legally enforceable debt.

What did the court decide?

CRIC.APP No.641 of 2015 dismissed and order confirmed by Principal Sessions Judge, Chennai dated 18.02.2014 upheld.

K. Amudha Priya Vs Mr. S. Sridhar — Cheque Dishonour | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 04.08.2021

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 PRONOUNCED ON : 01.10.2021

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CORAM:

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THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

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CRL.A.NO.641 OF 2015

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K.Amudha Priya

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... Appellant/Complainant

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Vs.

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S.Sridhar

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... Respondent/Accused

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Prayer: This Criminal Appeal has been filed under Section 378 of
the Criminal Procedure Code, to set aside the order passed by
the learned Principal Sessions Judge, Chennai dated 18.02.2014
in Criminal Appeal No.184 of 2012 and confirm the order passed
by the learned Metropolitan Magistrate, Fast Track Court-I,
Egmore in C.C.No.3201 of 2012 and convict the Respondent/Accused
for offence under Section 138 of the Negotiable Instruments
Act.

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For Appellant : Mr.S.R.Raghunathan

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For Respondent: Mr.V.Vijayakumar

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JUDGMENT

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(The case has been heard through Video Conference)

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The unsuccessful private complainant is the appellant
herein.

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2.This appeal has been filed against the order dated
18.02.2014 made in Criminal Appeal No. 184 of 2012, on the file

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https://hcservices.ecourts.gov.in/hcservices/

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of the learned Principal Judge, Chennai, wherein, the learned
judged has reversed the order of the learned Metropolitan
Magistrate, Fast Track Court No.I, Egmore, in C.C.No.3201 of
2012, dated 27.09.2012.

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3.For the sake of convenience, the parties are referred
to complainant and the accused as per the rankings before the
Trial Court.

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4.The private complainant has filed a private complaint
under Section 200 of Cr.P.C for the offence under Section 138 of
the Negotiable Instruments Act, against the accused, for the
dishonoured cheque to the tune of Rs.13,44,976/- and the same is
taken on file as C.C.No.355 of 2006 before the learned Judicial
Magistrate, Ambattur and the learned Judge had transferred the
said C.C. to the learned Metropolitan Magistrate, Fast Track
Court No.I, Egmore, Chennai and renumbered as C.C.No.3201 of
2012.

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5.After the Trial, the learned Metropolitan Magistrate,
Fast Track Court No.I, has convicted the accused for the
offence under Section 138 of the Negotiable Instruments Act and
sentenced him to undergo simple imprisonment for one year and to
pay cheque amount of Rs.13,44,976/- as compensation within a
period of one moth from that day, in default to undergo simple
imprisonment for a period of three months. Aggrieved by the
said conviction and sentence, the accused has preferred criminal
appeal in Crl.A.No.184 of 2012, before the Court of Sessions,
Chennai and by order dated 18.02.2014, the learned Judge has
allowed the appeal. Hence, the present Criminal Appeal has been
preferred by the complainant before this Court.

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6.Heard the learned counsel for the appellant and the
respondent and perused the materials placed on record.

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7.Brief facts leading to file of the private complaint
are as under:

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a) The complainant is the proprietor of “C.P.K.Leathers”
an exporter. The accused is the Commission Agent in leather
business and had a good acquaintance with the complainant's
husband viz., C.P.Siva Arasu. Due to this advantage, the accused
had received advance amount on the commission, for which the
accused has to procure orders for the complainant.

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b) On the business transaction with the complainant, the
accused owe a sum of Rs.81,190/- and Rs.5,13,994/- in two
Company's account viz., “Sun Shine Trading Company” and “Macsun
India” Account respectively.

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c) The accused failed to procure orders as well fail to
repay the said advance amount. Finally gave the following four
cheques:

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(i)Cheque bearing No:614377, dated 14.02.2006 drawn on
Canara Bank, Park Town Branch for a sum of Rs.81,130/- [Rupees
Eighty One Thousand One Hundred and Thirty only]

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(ii)Cheque bearing No:614379, dated 28.02.2006, drawn on
Canara Bank, Park Town Branch for a sum of Rs.5,13,994/- [Rupees
Five Lakhs Thirteen Thousand Nine Hundred Ninety Four only]

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(iii)Cheque bearing No:614380, dated 21.03.2006 drawn on
Canara Bank, Park Town Branch for a sum of Rs.1,02,220/- [Rupees
One Lakh Two Thousand Two Hundred Twenty only]

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(iv)Cheque bearing No:614381, dated 11.03.2006, drawn on
Canara Bank, Park Town Branch for Rs.6,47,632/- [Rupees Six
Lakhs Forty Seven Thousand Six Hundred Thirty Two only]

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d)The first two cheques were issued for repaying the
advance amount and the remaining cheques were issued for
interest for the dues.

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e)After two months, all the cheques were presented for
collection before the Indian Bank, Purasawakkam and they were
dishonored as “Account Closed” on 28.02.2006. The same was duly
intimated to the complainant on 14.05.2006 through separate
return memos, by the Payee Banker.

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f) On 26.04.2006 the complainant had sent a statutory
notice under Section 138(b) of the Negotiable Instruments Act
and the same was duly served on the accused on 28.04.2006.

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g)The accused replied to the statutory notice and denied
the liability and stated that those cheques were handed over to
C.P.Siva Arasu only for security purpose, since the transaction
between them is based on “commission”.

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h)The complainant not satisfied with the reply, has
lodged the complaint before the Judicial Magistrate, Ambattur.

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8.Exs.P1 to P4 are the cheques, dated 28.02.2006,
14.02.2006, 21.03.2006 and 11.03.06 and cheques representing the
amounts viz., Rs.81,130/-, Rs.5,13,994/-, Rs.1,02,200/- and
Rs.6,47,632/- respectively. On a perusal of the return
memo/Ex.P5, all the cheques when presented for encashment were
dishonoured.

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9.The suggestive case of the defence is that the cheques
were handed over only towards security in the course of the
business transaction to one Siva Arasu and he had presented some
of the cheques to this complainant. The issuance of the cheuqe
and signature in the cheuqe are not disputed by the accused. The
accused has arrayed as proprietary of the Sun Shine Trading
Company. Though a point has been raised that he being the
Letter of Authority cannot be prosecute in the business of the
proprietary, this Court does not find any legal ground to
sustain the same.

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10.Further, the accused was duly represented as
Proprietary of the Firm and he signed as a Letter of Authority,
since he is a Proprietary of the Firm, the complaint is
maintainable, in view of the settled position in connection with
the Proprietary of the Firm. Since, the signature in Exs.P1 to
P4/cheques are not disputed as that of the accused and the same
were dishonoured. The private complainant is entitled for
presumption under Section 138 of the Negotiable Instruments Act
and it is for the accused to rebut the same.

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11.To rebut the presumption, it is not necessary for the
accused to get into witness box or adduced any evidence. It is
always open to the accused to make use of the materials
available on record and to probablise the suggestive case to the
level of preponderance of probability.

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12.The case of the accused is that he is a Commission
Agent of one Siva Arasu and he used to receive advance
commission in the business from the said Siva Arasu and during
such business transaction, the said Siva Arasu had obtained many
blank cheques as security and on closure of his business, he had
transmitted some of the cheques to this complainant and through

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https://hcservices.ecourts.gov.in/hcservices/

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the complainant, he had falsely filed this case. According to
the accused, the cheques were handed over only towards security
in the course of business transaction.

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13.Further, according to the accused, this case has been
initiated at the behest of C.P.Siva Arasu, through his
wife/private complainant viz., K.Amudha Priya against the
mandate holder. The said K.Amudha Priya was examined as PW1. In
the cross examination, she admitted that accused is a Commission
Agent and he had transaction with C.P.K.Leathers. Further, PW1
has admitted that the accused had received advance towards
commission payable to him for the proposed placement of orders
with her. According to her, a sum of Rs.81,130/- is due and
payable under Sun Shine Trading Company and Rs.5,13,994/- is
payable under Macsun India, as the accused never procured any
order. For discharge of the said liability, the accused had
issued two cheques. She would further claim that cheque dated
21.03.2006 for a sum of Rs.1,02,220/- and cheque dated
11.03.2006 for a sum of Rs.6,47,632/- were issued to her
towards interest on the said advance amounts.

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14.Further, PW1 had admitted in her cross examination
that she is the proprietor of “CPK Leathers”. As the business
transaction the accused has to owe a sum of Rs.13,45,000/- to
her firm and her husband C.P.Siva Arasu is responsible for her
business activities and she is not aware about the business
transactions. Further, she admitted that she did not produced
the “Books of Accounts” of her own company to prove the case of
lending money to the accused and she had not explained to the
Court that what was the period of interest and how to calculate
the cheques pertains to the sum of Rs.1,02,220/- and
Rs.6,47,632/- issued as interest for the existing dues.

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15.In view of the answer elicited in the cross
examination of PW1, it clear that the accused has to owe a sum
of Rs.13,45,000/-, to her husband. According to her, a sum of
Rs.81,190/- is due payable under “Sun Shine Trading Company” and
Rs.5,13,994/- is due payable under “Macsun India”. As the
accused never procure any order and that represents the two
cheques and other two cheques namely one for a sum of
Rs.1,02,220/- and another cheque for a sum of Rs.6,47,632/- are
due in view of the interest payable on the advance amount.

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16.Admittedly, no books of accounts have been filed
before the Court to show that the accused owed money as claimed
by PW1 and there was an agreement to pay the interest amount in
default of the repayment of the principal amount.

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17.Admittedly, she is not aware in the business
transaction between the complainant and the accused and her
husband is responsible for business activity. Furthermore, she
has not produced books of accounts for the Company though she
said she willing to produce the same and no calculation sheet
has been filed to show the period of interest and rate of
interest and principle amount. In other words, in view of the
answer elicited in the cross examination of the PW1, the
suggestive case of the defence that he has not received any
amount from the complainant, a cheque that was given to
complainant has also probablise the suggestive case to the
preponderance of probability level that passing of consideration
is doubtful as claimed by PW1.

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18.In view of the suggestive case being made probable by
the accused, it is the duty of the private complainant to prove
the existence of the legally enforceable debt. As stated supra
neither the person responsible in business activity namely her
husband viz., C.P.Siva Arasu, was examined before the Court nor
any account books have been produced to show that initially an
amount of Rs.81,130/- was paid to Sun Shine Trading Company and
Rs.5,13,994/- is due for Macsun India limited. Hence, the Lower
Appellate Court has rightly come to the conclusion that the
after rebuttal of presumption by the accused, the private
complainant has not demonstrate before the Court regarding pre-
existing legally enforcible debt and in the absence of the same
the Sessions Court, Chennai has rightly allowed the appeal and
convicted the accused as stated supra.

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19.In the absence of any positive evidence to prove the
pre-existing legally enforceable debt, this Court does not find
any reasons to interfere with the order passed by the Courts
below.

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20.In view of the above, this Criminal Appeal is hereby
dismissed. The order passed by the learned Principal Sessions
Judge, Chennai dated 18.02.2014 in Criminal Appeal No.184 of
2012 by confirming the order passed by the learned Metropolitan

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https://hcservices.ecourts.gov.in/hcservices/

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Magistrate, Fast Track Court-I, Egmore in C.C.No.3201 of 2012 is
hereby confirmed.

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Sd/-

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Assistant Registrar(CS-VIII)

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// True Copy //

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Sub Assistant Registrar

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dua

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To:

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1. The Principal Sessions Judge, Chennai.

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2. The Metropolitan Magistrate, Fast Track Court-I, Egmore, Chennai.

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+1cc to M/s.R.Vaishali, Petitioner, Advocate, S.R.No.51443

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+1cc to Mr.V.Vijayakumar, Respondent, Advocate, S.R.No.51030

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Crl.A.No.641 of 2015

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NR(CO)

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RLP(02/11/2021)

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K. Amudha Priya v. Mr. S. Sridhar

Case brief

What is this about?

What did the court decide?

K. Amudha Priya v. Mr. S. Sridhar

Case brief

What is this about?

What did the court decide?

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