Allowed

Mr.C.P.Siva Arasu v. Mr.S.Sridhar

Madras HC1 Oct 2021CRL A/642/2015

Case brief

AI extract

What is this about?

This Criminal Appeal by a cheque complainant sought to set aside a Sessions Court order that had allowed an accused's appeal against conviction under Section 138 NI Act. The High Court dismissed the appeal, upholding the conviction. The Court held that the complainant failed to prove the existence of legally enforceable debt due to contradictory admissions regarding unaccounted funds and lack of b

What did the court decide?

The Criminal Revision Case was dismissed and the impugned order allowing the accused's appeal and conviction was confirmed.

Mr.C.P.Siva Arasu 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.642 OF 2015

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Mr.C.P.Siva Arasu

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... Appellant/Complainant

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Vs.

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Mr.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.182 of 2012 and confirm the order passed
by the learned Metropolitan Magistrate, Fast Track Court-I,
Egmore in C.C.No.3199 of 2012 and convict the respondent/accused
for offence under Section 138 of the Negotiable Instruments
Act.

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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 passed by
the learned Principal Sessions Judge, Chennai, in Crl.A.No.182
of 2012, dated 18.02.2014, wherein, the learned Judge has

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confirmed the order passed by the learned Metropolitan
Magistrate, Fast Track Court-I, Egmore in C.C.No.3199 of 2012,
dated 27.09.2012.

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

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4.The private complainant has filed a 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.2,00,000/- and the same is
taken up on file as C.C.No.353 of 2006 before the learned
Judicial Magistrate at Ambattur, Chennai, 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.3199 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 a period one
year and to pay cheque amount of Rs.2,00,000/- as compensation
within a period of one month from that date, 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 No.182 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 learned
counsel for 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)Both the complainant viz., Siva Arasu and accused viz.,
Sridhar were friends and doing leather exporting business.
Having well acquaintance with each other, the accused had
borrowed a sum of Rs.2,00,000/- for his urgent business
expenses, during February 2004.

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b)To repay the said loan, the accused had issued two
cheques, vide (i) Cheque bearing number 598200 drawn on Punjab
National Bank, dated 18.02.2006 & (ii) Cheque bearing No-127405,
drawn on HDFC Bank dated 27.02.2006 each for a sum of
Rs.1,00,000/-

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c)On 12.04.2006, both cheques were dishonored by the
respective drawee banks for the reason “Payment stopped by the
drawer” and “Account Closed” respectively.

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d)The said dishonour of the cheques were brought to the
knowledge of the accused, the drawer, through the statutory
legal notice dated 26.04.2006, demanding the amount due on the
cheques to be paid within 15 days.

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e)On receipt of the said notice, the accused had replied
on 16.05.2006 by stoutly denying the loan transaction and put
forth his version that the cheques were given during the course
of business without any consideration, for security at the time
of receipt of advance commission for procuring foreign orders,
had been misused.

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8.Exs.P1 & P3 are the cheques issued by the accused as a
proprietary of the Sun Shine Trading Company but in cheque it is
mentioned as Letter of Authority, since, the accused is
proprietaryship company.

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9.On a perusal of Exs.P2 & P4/return memo and legal
notice under Ex.P5, the Trial Court has rightly come to the
conclusion that since the accused has not disputed that the
cheques were belonged to him and he has also not disputed the
signature on the cheques, the private complainant is entitled to
statutory presumption under Section 139 of the Negotiable
Instruments Act. Hence, it is for the accused to rebut the
presumption by probablise the suggestive case of the defence to
the level of preponderance of probability.

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10.In order to elicit and create a dent on the
prosecution theory the accused has successfully elicited in the
cross examination of PW1, the payee, besides the initiation of
prosecution on the cheques addressed to him had initiated two
other prosecutions, through his wife K.Amudha Priya and one
Jothi Ramalingam, on identical pleadings.

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11(a).It is admitted by PW1 during his cross-examination
that he has borrowed money from the third party and given same
to the accused and thereafter the complainant had repaid the
said loan to that third party and the relevant portion of
deposition is extracted hereunder:

¶35

vd;Dila g[fhhpnyh gpuk;khd thf;FK:yj;jpnyh ahhplk; gzk; th';fp bfhLj;njd; vd;W rhpahd "hgfk; ,y;iy/ mth;fSf;F ehd; jpUg;gp bfhLj;Jtpl;nld;/ bfhLj;j Ms; "hgfk; ,Uf;fpwJ/ g[fhhpnyh. mwptpg;gpnyh gzk; th';fp jpUg;gp bfhLj;J tpl;nld; vd;w tptuj;ij brhy;ytpy;iy//// gzk; bfhLf;Fk; nghJ ve;j tpjkhd MtzKk; th';ftpy;iy/ ehd; gzk; th';fpajw;F vGjp bfhLj;Js;nsd; Mdhy; ehd; ,thplk; vGjp bfhLf;ftpy;iy. tHf;fj;jpy; Mtzk; vGjp th';f ntz;Lk; vd;gJ vdf;F bjhpa[k; vd;why; rhp/

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11(b).Further, the complainant could not remember from
whom he had borrowed and when he repaid the said borrowing, etc.
much less the name of the third party from whom he had borrowed
he could not be recollected. This evidence had clearly revealed
that the complainant had suppressed some facts and did not
initiate the prosecution with true facts.

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11(c).The complainant has not averred the basic material
facts of the alleged “loan” i.e., the date of borrowing, place
of borrowing, mode of borrowing & witness to the borrowing if
any, in order to defeat the contention of the reply notice and
to substantiate the prosecution case. Even after initiating
prosecution, in sworn statement as well in proof affidavit, the
complainant could not furnish those details before the Court,
enabling it to believe the alleged loan transaction.

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11(d). g[fhhpnyh. Mwptpg;gpnyh. gpuk;khd thf;FK:yj;jpnyh ve;j njjpapy; bfhLj;njd; vd;W brhy;ytpy;iy/ fhnrhiyahf bfhLj;njdh my;yJ buhf;fkhf vd;W brhy;ytpy;iy/ Vw;fdnt vd; kidtpaplk; mtUf;F fld; ,Ue;Jk; ehd; vjw;fhf gzk; bfhLj;njd; vd;w tptuj;ij brhy;ytpy;iy/ v';F itj;J gzk; bfhLj;njd; vd;W vd; g[fhhpnyh. mwptpg;gpnyh. gpuk;khd thf;FK:yj;jpnyh brhy;ytpy;iy/ ehd; buhf;fkhfjhd; fld; bfhLj;njd;/ 2 khjj;jpy; 3 jlit bfhLj;jpUg;ngd;/ rhpahf "hgfk; ,y;iy/ ,e;j tptuj;ij g [ fhhpnyh. mwptpg;gpnyh gpuk;khd thf;FK:yj;jpnyh brhy;ytpy;iy/ bkhj;jk; 2 yl;rk; bfhLj;njd;/ vj;jid jlit bfhLj;njd; vd;W "hgfk; ,y;iy/

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11(e).Moreover, the complainant had admitted in his cross
examination that he had not stated the above stated material
facts of loan in his legal notice, complaint, sworn statement
and proof affidavit and during the cross examination the
complainant could not able to furnish those details of alleged
“loan”.

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12.The complainant is the business man and Income Tax
assessee and not an agent but he could not able to give any
particulars of the loan for a sum of Rs.2,00,000/-. From the
inspection of the case it creates serious doubt as to the
allegation of loan transaction with the accused. Furthermore,
in the cross examination, the complainant has also admitted that
he has borrowed money from the third party but he could not
given the details of the person from whom he has borrowed. In
one portion of the cross-examination he has stated that he has
no means to lend two lakhs to others, so, he has borrowed money
from the third party. As extracted supra, he has not given the
details of the person from whom he has repaid and he has not
known when he has paid the loan to them. The relevant portion
of the deposition is extracted hereunder:

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“269 SS rl;l gpufhuk; xU egUf;F 20.000/-w;F nky; fld; bfhLg;gJ vd;why; fhnrhiy K:ykhfjhd; bfhLf;f ntz;Lk; vd;W bjhpa[k;/ mg;go ,Ue;Jk; fhnrhiyahf bfhLf;ftpy;iy vd;why; rhpay;y/ vd;Dila mf;bfsd;!; g[f;fpy; ,e;j r';fjpfs; nug;nyf;l; Mftpy;iy vd;why; rhpjhd;/ vd;Dila fzf;fpy; fhl;ltpy;iy/ fzf;fpy; fhl;lhj gzk;/ “

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13.Further, during the cross-examination the complainant
had deposed that he has not accounted the alleged “Borrowing” in
his Income Tax Returns. Categorically stated that it is
“Unaccounted Money”.

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14.Thus, this Court finds that from the answer elicited
in the cross examination of the private complainant he is unable
to give details on date of borrowing, place of borrowing, mode
of borrowing and whether any person had witnesses the borrowing.
These all are basic material facts for the alleged loan.
Neither in the complaint nor in the affidavit nor in his
evidence he has chosen to disclose the same. As extracted supra
by his own admission, he is unable to re-collect those days.
The cheque amount is two lakhs. In the year 2006, the
complainant was a business man and Income Tax assessee, it is
hard to believe that he has given hand loan without any proof
about the basic factors touching upon hand loan for a sum of
Rs.2,00,000/- in the year 2006.

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15.Yet another point is that the sum and substance of the
answer elicited in the cross examination of the complainant is
that he has no means to lend Rs.2,00,000/- so he borrowed the

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amount from the third party. In this connection also his
admission was to the effect that he has borrowed the amount from
various other persons and paid the said loan to the accused and
he could not recollect from whom he has received the amount nor
he is in a position to say when he has re-paid that amount and
in the further cross he could say that he has loan of
unaccounted money and hence, this Court finds that the accused
has successfully probablised the suggestive case as to the non
passing of consideration. Furthermore, he has created the dent
in the prosecution theory. The basic features disclosed in the
evidence of PW1 chief examination has been projected
successfully in the cross examination by way of admission and
hence, the Lower Appellate Court has rightly come to the
conclusion that the accused has successfully rebutted the
presumption by probablising the suggestive case to the
preponderance of probability level and the same does not suffer
from any illegality or irregularity, does not warrant any
interference.

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16.Hence, it is turn on the complainant to show the
existence of legally enforceable debt and to accept the oral
assertion no such document has been filed. In view of the
answer elicited in the cross examination of PW1, this Court has
no hesitation to held that the complainant has measurably failed
to demonstrate the existence of legally enforceable debt as he
filed to do so.

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17.Accordingly, this Criminal Revision Case devoid of
merits and stands dismissed. The order passed by the learned
Principal Sessions Judge, Chennai, in Crl.A.No.182 of 2012,
dated 18.02.2014, by confirming the order of the learned
Metropolitan Magistrate, Fast Track Court-I, Egmore in
C.C.No.3199 of 2012, dated 27.09.2012, is hereby confirmed.

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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.51031

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Crl.A.No.642 of 2015

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NR(CO)
RLP(02/11/2021)

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Mr.C.P.Siva Arasu v. Mr.S.Sridhar

Case brief

What is this about?

What did the court decide?

Mr.C.P.Siva Arasu v. Mr.S.Sridhar

Case brief

What is this about?

What did the court decide?

What the court decided

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