Allowed

Krishnakumar v. Boopalan

Madras HC8 Oct 2021CRL A/728/2015

Case brief

AI extract

What is this about?

The High Court set aside the acquittal of the respondent in a cheque bouncing dispute. Restoring the trial court's conviction, the bench held the accused failed to rebut the statutory presumption of consideration as the cheque and its return were evidenced by bank records and admission.

What did the court decide?

The order of acquittal by the Additional District and Sessions Judge was set aside, and the conviction and sentence by the Judicial Magistrate were restored.

Krishnakumar Vs Boopalan — Cheque Dishonour | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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JUDGMENT RESERVED ON : 20.09.2021 JUDGMENT DELIVERED ON : 08.10.2021

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CORAM

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THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

Crl.A.No.728 of 2015

Krishnakumar

..Vs..

Boopalan ... Respondent/Sole Accused

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PRAYER: Criminal Appeal filed under Section 378 of the Criminal Procedure Code, against the acquittal of respondent by the learned Additional District and Sessions Judge, Dharmapuri, by judgment dated 12.09.2015 made in C.A.No.17 of 2014 for the offence under Section 138 of the Negotiable Instruments Act.

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JUDGMENT

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The matter is heard through "Video Conference".

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This Criminal Appeal has been preferred by the de facto complainant against the order dated 12.09.2015 passed by the learned Additional District and Sessions Judge, Dharmapuri, in C.A.No.17 of 2014, acquitting the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act.

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2. The revision petitioner/de facto complainant had filed a private complaint against the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act and the same was taken on file by the learned Judicial Magistrate, Fast Track Court, Dharmapuri, in S.T.C.No.15 of 2012. The said complaint was filed in connection with the two cheques issued for Rs.1 lakh each which was returned as ''insufficient funds''. After issuance of necessary legal notice, the private complaint was filed by the de facto complainant.

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3. After contest, the learned Judicial Magistrate, Fast Track Court, Dharmapuri, has held that the respondent/accused has committed the offence under Section 138 of the Negotiable Instruments Act and accordingly, by judgment dated 01.04.2014, convicted the respondent/accused under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.5,000/- and in default, to undergo simple imprisonment for one month.

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4. Aggrieved over the said order of conviction and sentence passed by the learned Judicial Magistrate, Fast Track Court, Dharmapuri, the respondent/accused has preferred an appeal in C.A.No.17 of 2014 before the learned Additional District and Sessions Judge, Dharmapuri. The learned Additional District and Sessions Judge, Dharmapuri, has allowed the said appeal by setting aside the order passed in S.T.C.No.15 of 2012 by the learned Judicial Magistrate, Fast Track Court, Dharmapuri, and acquitted the respondent herein/accused. As against the said order of acquittal passed by the learned Additional District and Sessions Judge, Dharmapuri, this Criminal Appeal has been preferred by the de facto complainant.

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Heard both sides and perused the records.

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The de facto complainant, who was examined as P.W.1, has clearly deposed that the accused had borrowed an amount of Rs.3 Lakhs on 05.02.2007 agreeing to repay it on 10.03.2007 and issued a cheque for an amount of Rs.1,00,000/- bearing No.885909 pertaining to State Bank of India, Krishnagiri Branch. When the said cheque was presented for collection with his bankers viz., State Bank of India, Dharmapuri, on 26.04.2007, the same was returned on 30.05.2007. When the de facto complainant demanded further payment of the loan on 05.05.2007, the accused had issued another cheque bearing No.885913 for an amount of Rs.1,00,000/- and when the said cheque was presented for collection on 07.05.2007, it was returned due to insufficiency of funds in the account of the accused on 13.06.2007. Hence, legal Notice dated 20.06.2007 was issued to the accused on 20.06.2007 and the said notice was returned as unclaimed. One Arumugam, who is the Chief Manager of State Bank of India, was examined as P.W.2. He had deposed that Ex.P.1-cheque dated 10.03.2007 was returned through Ex.P.3-Bank Return Memo and Ex.P.2-cheque dated 05.05.2007 was returned through Ex.P.4-Bank Return Memo.

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The suggestive case of the defence is that the accused had not borrowed any amount from the de facto complainant and no cheque was issued to him and there is no pre-existing liability upon the two cheques viz., Exs.P.1 and P.2. Exs.P.3 and P.4, Xerox copies of Return memos are inadmissible evidence and the

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disputed cheques were issued to the friends of accused who are the building contractors. It is the further case of the defence that there are many complaints pending against the de facto complainant for filing the false complaints and the accused was not served with any notice.

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In order to probabilise the suggestive case, the accused examined one Mrs.T.Kalaivani, who is the Assistant Manager of the State Bank of India, Krishnagiri, as D.W.1. She had deposed that the Bank Account No.01000061109 is in the name of Maneshar Engineering construction and in the said account number, transactions were being held in the year 2007. She had also deposed that there is no endorsement as to the presentation of Ex.P.1-cheque in the Bank and the Statement of Account of the accused from 01.01.2007 to 30.07.2011 was marked as Ex.D.1. D.W.1 had admitted that the return of cheques will be entered in the Cheque Referred and Returned Register.

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The summarization of argument of the learned counsel for the respondent/accused is that the accused had not borrowed any amount from the de facto complainant and there is no proof for presentation of the cheques in his Bank and there is a legally enforceable debt behind Exs.P.1 and P.2, case cheques. The return of the cheques-Exs.P.1 and P.2 is not entered in Ex.D.1Bank Income and Expenditure Statement of the accused and Exs.P.1 and P.2 are not at all presented before the bank.

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The accused has admitted that Exs.P.1 and P.2-cheques are belongs to his account. The issuance and ownership of Exs.P.1 and P.2 were admitted. According to the accused, the cheques were not issued to the private complainant and there is no legally enforceable debt behind Exs.P.1 and P.2.

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Perused the records. Exs.P.1 and P.2, original cheques and Exs.P.3 and P.4-xerox copies of the return memos were filed on the ground that the original was misplaced in the office of the Advocate. In order to show that Exs.P.1 and P.2, cheques were presented for encashment and the same was returned, P.W.2, Manager of the Bank was summoned and Ex.P.7-cheque referred and returned register of the State Bank of India was marked. In Ex.P.7, the entirety of the reports, presentation of the cheques and nature of transaction as spoken to by P.W.2 were duly reflected and mentioned. Therefore, this Court finds that the finding rendered by the learned Magistrate that the de facto complainant has satisfied the essential ingredients of Section 139 of the Negotiable Instruments Act to raise a statutory presumption in his favour is found to be proper and correct. The contrary finding recorded by the Lower Appellate Court as pointed out by the learned counsel for the appellant is perverse and therefore, the finding of the trial Court as stated supra is

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restored and the finding rendered by the Lower Appellate Court which does not reflect the true state of affairs as reflected under Ex.P.7 stands vacated.

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Though an attempt has been made, as if, no notice was issued, however, based upon Ex.P.6-RPAD, the trial Court has rightly come to the conclusion that "the refusal amounts to sufficient in service". Accordingly, the next contention raised by the learned counsel for the respondent/accused also stands negatived.

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Learned counsel for the appellant/de facto complainant has relied upon a decision of the Hon'ble Apex Court reported in (2002) 6 SCC 259 [Assistant Director of Inspection Investigation Vs. A.B.Shanthi], to the effect that the Income Tax Act puts restriction only on person takes money but not on the person advances money and also penalise the borrower and not the lender.

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Learned counsel for the appellant also relied upon a decision of this Court reported in 2015 SCC Online Mad 156 [P.Pandiyarajan Vs. Parkunan] and the decision of the Hon'ble Apex Court reported in 2021 (2) CTC 357 [Kalamani Tex and others Vs.P.Balasubramanian] and submitted that the presumption raised under Sections 118 and 139 are rebuttable in nature. Learned counsel for the appellant submitted that as held in the case of M.S.Narayana Menon V. State of Kerala, reported in 2006 (3) CTC 730 (SC) : 2006 (6) SCC 39, p. 32, which was relied upon in the judgment reported in 2019 (1) MWN (Cr.) DCC 145 (SC) : 2019 (5) SCC 418 [Basalingappa V. Mudibasappa], a probable defence needs to be raised, which must meet the standard of "preponderance of probability", and not mere possibility. These principles were also affirmed in the case of Kumar Exports v. Sharma Carpets reported in [2009(1) MWN (Cr.) DCC 123 (SC) : 2009 (1) CTC 552 (SC) : 2009 (2) SCC 513], wherein, it was further held that a bare denial of passing of consideration would not aid the case of accused. The issuance of cheques and signature are admitted but the transaction is denied. The presumption under Sections 118 and 138 of the Negotiable Instruments Act operates and the accused is liable.

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At the risk of repetition, however for the sake of clarity, on a perusal of Exs.P.1 and P.2-cheques, it is seen that the same belongs to the accused and as stated above, the signature in the cheque is admitted by the accused. Exs.P.3 and P.4 are the Xerox copies of the Bank Return Memo. It is the office copy of the Advocate and in order to show the presentation of the cheque for encashment and the return of the cheque, the private complainant has filed Ex.P.7-Cheque Referred and Returned Register, wherein, it is categorically stated that the above two cheque numbers were clearly mentioned and the same

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were returned due to insufficient funds.

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Thus, this Court finds that the private complainant is entitled for statutory presumption under Section 139 of the Negotiable Instruments Act. In order to probabilize the suggestive case, the respondent/accused raised a plea that Ex.D.1 was marked by the respondent to show that the cheques were not presented for encashment. Had there been any such cheque presented for encashment, it could have been found relates entry between the period 25.06.2007 and 09.06.2007. D.W.1 had deposed regarding the entries made in Ex.D.1. He has categorically stated that he has brought the original Cheque Referred and Returned Register, wherein, there is no suggested entry for penalty charges for processing and returning for insufficient funds. In this regard, it is necessary to extract the version of P.W.2 in the cross-examination.

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Mdhy; t';fp fhnrhiy jpUg;gg;gl;lnghJ mk;khjphp ve;jj; bjhifa[k; gpof;fg;gltpy;iy/ Vbddpy; t';fp fzf;fpy; bjhif VJk; ,y;iy/ ngyd;!; xU t';fp fzf;F eilKiwapy; ,Uf;f ntz;Lk; vd;why;. mjpy; U:/5.000/- ,Uf;f ntz;Lk;/ (elg;g[ fzf;fpy;) k/rh/M/3. 4 jpUg;g[jy; Fwpg;ghizfs; xsp efy; vd;why; rhpjhd;/ bghJthf jpUg;g[jy; Fwpg;ghiz mry; jhd; mDg;gg;gLk;/ k/rh/M/3. 4 vg;bghGJ ahuhy; tH';fg;gl;lJ vd;why; vd;dhy; brhy;y ,ayhJ/ (emphasis supplied)

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kW tprhuiz:- k/rh/M/1. 2 fhnrhiyfs; jpUg;gg;gl;lJ Fwpj;J v';fsJ t';fpahy; guhkhpf;fg;gLk; brf;!; bugh;L md;l; hpl;ld; hp$p!;lh; rhd;wpl;l xsp efiy k/rh/M/7 Mf FwpaPL bra;fpnwd;/

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kW F/tp:- k/rh/M/7 xsp efy; mry; gjpntl;il ePjpkd;wj;jpw;F bfhz;L te;jpUf;fpnwd;/ me;j gjpntl;oy; fpUc&;zfphp ghuj t';fpf;F rk;ge;jg;gl;lJ vd;W ve;j ,lj;jpYk; Fwpg;gplg;gltpy;iy vd;why; rhpjhd;/ (emphasis supplied)

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Hence, I find that since there is a zero balance in the account of the accused, even penalty charges for the cheque bounced could not be reflected. So is the pathetic condition of the accused. It appears that the accused is attempting to divert the attention of this Court by filing irrelevant document viz., Ex.D.1. Specific answer is given by P.W.2-Manager that penalty charges for cheque bouncing could not be reflected in the account of the accused, since the account of the accused has already touched ''zero balance''.

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Hence, I find that all the pleas raised by the respondent/accused to probabilise the suggestive case stands negatived. It appears that such pleas are raised by the accused

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only for the sake of to built a false case. Accordingly, I have no hesitation to hold that the accused has miserably failed to probabilise the suggestive case and in view of the fact that the private complainant has successfully satisfied the necessary ingredients under Section 139 of the Negotiable Instruments Act and on the failure of the accused to probabilise the suggestive case, I find that the order of acquittal passed by the Lower Appellate Court is erroneous and finding thereon is found to be perverse and hence, both the finding as well as the order of acquittal of the Lower Appellate Court are liable to be set aside.

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Accordingly, the finding rendered by the trial Court that the accused is entitled for statutory presumption is correct one and the finding rendered based upon Ex.P.7 that the cheques have been presented for encashment and the same were returned and penalty charges for cheque bouncing could not be found place in Ex.D.1 due to the fact that the account of the accused as reflected in Ex.D.1 is 'zero' account and the accused has not probalise the suggestive case and hence, the finding rendered by the Lower Appellate Court is perverse, as the same is not reflection of Exs.P.7 and D.1. Accordingly, the contra finding rendered by the Lower Appellate Court is liable to be vacated and the finding as that of the trial Court is liable to be restored. Consequently, it is held that the accused has miserably failed to probalise the suggestive case. Consequently, the conviction laid by the trial Court is held to be sustainable in law. So also the sentence. Accordingly, the conviction and sentence passed by the trial Court in S.T.C.15 of 2012 are liable to be restored.

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In the result,

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[i] this Criminal Revision Case is allowed.

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[ii] The order of acquittal passed by the learned Additional District and Sessions Judge, Dharmapuri, in Crl.A.No.17 of 2014, dated 12.09.2015, is set aside.

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[iii] The conviction and sentence passed by the learned Judicial Magistrate (Fact Track Court), Dharmapuri, in S.T.C.15 of 2012 are restored.

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Assistant Registrar(CS II)

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//True Copy//

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Sub Assistant Registrar

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

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Jrl To

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1.The Judicial Magistrate, Fast Track Court, Dharmapuri. 2.The Judicial Magistrate I, Dharmapuri. 3.-do- Chief Judicial Magistrate, Dharmapuri. 4.The Additional District and Sessions Judge, Dharmapuri. 5.-do- The Principle Session Judge, Dharmapuri. Copy to: The Section Officer, Criminal Section, High Court, Madras. +1cc to Mr.Sathiaseelan, Advocate Sr No.53592 MG (CO) PR (02/11/2021)

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Crl.A.No.728 of 2015

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

Krishnakumar v. Boopalan

Case brief

What is this about?

What did the court decide?

Krishnakumar v. Boopalan

Case brief

What is this about?

What did the court decide?

What the court decided

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