Allowed

N.Thangarajan v. J.Odusivan

Madras HC12 Aug 2021CRL RC/651/2015

Case brief

AI extract

What is this about?

This criminal revision judgment addressed two cheque bounce cases. The court held that the defence successfully rebutted the presumption under Section 138 by demonstrating material contradictions and alterations in promissory notes, lack of legally enforceable debt, and discrepancies regarding account closure and cheque presentation dates. Consequently, the conviction set aside, and the cases dism

What did the court decide?

Both criminal revision petitions allowed; convictions and sentences set aside; criminal complaints C.C.Nos.495 & 496 of 2011 dismissed.

N.Thangarajan Vs J.Odusivan — Cheque Dishonour | Madras HC (2021)

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BAIL SLIP

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The Appellant / Accused namely Mr.N.Thangarajan S/o.Natesa Mudaliar was directed to be released on bail as per order of this Court dated 02.07.2015 in Crl.M.P.No.1 of 2015 Crl.R.C.No.652/2015 on the file of this Court.

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Date of Reserving Order Date of Pronouncing Order 02.08.2021 12.08.2021

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CORAM

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THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN

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Crl.R.C.Nos.651 & 652 of 2015

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N. Thangarajan

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.. Petitioners in both the Crl.R.Cs/ Appellant/Accused

Vs.

1.J.Odusivam (Died)

2.Thadchayeni

3.P.Usha

4.O.Suresh

5.Chitra

.. Respondents in both the Crl.R.Cs/Respondents/Complainants

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COMMON PRAYER : Petition filed under Section 401 read with 397 of the Criminal Procedure Code, to call for the entire records in respect of the judgment rendered by the Ist Additional District and Sessions Judge, Vellore in C.A.Nos.153 & 154 of 2012, respectively dated 17.04.2015 by confirming the judgment rendered by learned Judicial Magistrate (Fast Track Court, Vellore) in C.C.Nos.495 & 496 of 2011, respectively dated 31.07.2012 set aside the same and acquit the petitioner in view of the above mentioned grounds.

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C O M M O N O R D E R

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The matter is heard through "Video Conference".

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2. These criminal revision cases have been filed to set aside the judgment rendered by the Ist Additional District and Sessions Judge, Vellore in C.A.Nos.153 & 154 of 2012, respectively dated 17.04.2015 by confirming the judgment rendered by learned Judicial Magistrate (Fast Track Court, Vellore) in C.C.Nos.495 & 496 of 2011, respectively dated 31.07.2012.

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3. Both the cases have been filed by the same person and hence, common arguments have been heard and disposed of by this common order.

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4. Crl.R.C.No.651 & 652 of 2015 arising out of criminal appeals in C.A.Nos.153 & 154 of 2012 against C.C.Nos.495 & 496 of 2011. In these cases, five cheques are issued by the revision petitioner and the same was dishonored.

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5. After trial, conviction was laid and the appeal was dismissed. Hence, the criminal revision.

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6. The learned counsel for the revision petitioner would contend that

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(a) In view of the evidence of the scribe D.W.1, that there is a material contradiction with regard to date and as well as the amount, the two pro notes marked as Exs.P1 and P2 suffer from material alteration warranting interference that they have not borrowed the amount in the manner as stated in the complaint. Further, there is no legally enforceable debt.

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(b) The next contention is that as per the evidence of D.W.2/Bank Manager, the account of the accused was closed as NPA in the year 2008 and the cheque was presented in the year 2010, while the original cheque was issued by the bank in the year 2004. Therefore, after closing of the account in respect of the old cheque, the respondent/private complainant has utilised the old cheque and presented the same and thereafter, filed another case and besides, he has also challenged the financial capacity of the complainant to pay a sum of Rs.1,60,000/- and Rs.90,000/in total Rs.2,50,000/-.

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7. The learned counsel for the respondent/private complainant would state that even in respect of the account closed cheques, the endorsement made by the bank, it falls under the category of insufficiency in funds. Hence, could contend that the offence as contemplated under Section 138 of Negotiable

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Instruments Act is made out. The revision petitioner/accused has not probabilised the suggestive case to rebut the presumption under Section 138 of the Negotiable Instruments Act and drew my attention to the reasoning given by the learned trial Magistrate that Exs.D1 and D2 lends support to the case of the private complainant and also observed that the evidence of D.W.1 does not probabilise the suggestive case.

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8. Heard, the respective counsels.

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9. It is not in dispute that the case of the complainant/respondent is that both the complainant and accused are PWD Contractors. In such activity, the accused had asked for money and the same was accepted by the private complainant and it is alleged that the accused had executed two promissory notes dated 18.01.2008 another promissory note dated 18.01.2008. For the said amount covered by the promissory notes, he had issued four cheques, [three cheques are covered under Crl.R.C.No.651 and two cheque is Crl.R.C.No.652]. On all other aspects, the presentation of the cheques and bouncing of the cheque are one and the same.

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10. Before the trial Court, the revision petitioner/accused has projected the suggestive case that he had entirely settled the amount except for a few thousands and marked Ex.D1, the hand written account slip said to have been maintained between the parties to the transaction and further stated that the basis of this complaint stems from two pro notes executed by the accused for the alleged borrowal and for non payment. It is a specific case of the revision petitioner/accused that there is a material alteration in the date and the amount and further case is that he has settled almost the entire amount and only a few thousands is left as per Ex.D1. By altering the pro note, date and the amount mentioned therein, he has presented the cheque. Further, the account was closed as early as on 2008 and the third point is about the financial capacity of the complainant for lending a sum of Rs.2,50,000/-. Both the Courts below have negatived the suggestive case and held that the charges are proved against the accused and convicted him.

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11. Ex.D1, which is a copy of the hand written statement was admitted by the private complainant during the cross examination of P.W.1. However, an explanation was offered by P.W.1, private complainant that what was found in the carbon copy is true but the other handwriting in the ink is not his handwriting and hence, both the Courts have rejected the contention of the accused because of the explanation that there are some over writing in Ex.D1. The said observations of both the Courts below appear to be proper and does not warrant any interference.

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12. In order to probabilise the suggestive case with a view to rebut the presumption, the defence summoned the scribe of Exs.P1 and P2, Umachandran and he was examined as D.W.1. He has disowned Ex.P1 by saying that the blank pro notes were filled up and filed as Ex.P1, the signature was disputed by him and also categorically stated that he has not written Ex.P1 pro note, which assumes significance. He has categorically admitted that he only wrote Ex.P2 pro note and further evidence is that which reads as under :

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,e ; j ghz ; il g{h ; j ; jp bra ; ag ; gl ; L ifbahg ; gk ; nghlg ; gl ; oUg ; gJ vd ; Dilajy ; y/ nkw ; go Mtzj ; ij ehd ; jahh ; bra ; atpy ; iy/ kjrh/M/2 g [ nuh nehl ; il vd ; dhy ; vGjg ; gl ; lJ/ nkw ; go g [ nuhnehl ; oy ; vd ; dhy vGjg ; gl ; l 2006 vd ; w tUlj ; ij b$y ; ngdhtpdhy ; 2008 vd ; W jpUj ; jk bra ; ag ; gl ; Ls ; sJ. KjrhM/2 g [ nuh nehl ; oy ; ehd ; tUlk ; khjk ; njjp kw ; Wk Xjrptk ; brl ; oahh ; vd ; gtUila Kfthpa [ k ; vd ; /j' ; fuh$ ; vd ; gth ; Kfthpa [ k kw ; Wk ; U : /2 yl ; rk ; vd ; gij vz ; zhYk ; vGj ; jhYk ; vd ; dhy ; jhd vGjg ; gl ; lJ/ ,e ; j ghz ; il vGjpath ; vd ; w ,lj ; jpy ; vd ; Dila bgah nghl ; L ifbahg ; gk ; kpl ; nld ; . ehd ; ,e ; j ghz ; il vGJk ; nghJ rhl ; rpfs ahUk ; ,y ; iy rhl ; rp ifbahg ; gk ; ,lg ; gltpy ; iy.

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kjrhM.1 vg ; nghJ ahuhy ; jahh ; bra ; ag ; gl ; lJ vd ; gJ vdf ; F bjhpahJ/ $dthp 18, 2006 md ; W vd ; dhy ; jahh ; bra ; ag ; gl ; lJ/ ,J Fwpj ; J tHf ; F rk ; ge ; jkhf vJt [ k ; vdf ; F bjhpahJ. nkw ; go kjrhM/2 MtzkhdJ vjhphp jug ; g [ rhd ; whtdk ; 2 MFk ; /

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13. In view of the specific evidence of the scribe of Exs.P1 and P2 pro notes, that he has not written Ex.P1 pro note, I find that the case of the defence is probabilised by the answer elicited in the cross examination. In the cross examination, nothing is elicited to dispute and discredit the evidence of R.W.1 also assumes significance. His evidence is to the effect that the date and the year in Ex.P2 pro note is altered from 2006 to 2008 and in his presence no one has attested the document as witness and he has specifically stated that the pro note is dated 18.01.2006 not 2008 as found after alteration, it assumes significance and the amount said to have been transacted on that date is only Rs.2 lakhs and hence, I find that in view of the specific evidence of R.W.1, the scribe of Exs.P1 and P2 which is the basis for Ex.P3 in the respective cases, the cheque and hence, I find that it is highly doubtful as to whether there was a legally enforceable debt on the alleged date of issuing the cheques. In the absence of any legally enforceable debt, in support of the cheques in issue / disputed cheques, this Court finds that the suggestive case of the accused is more probable than the private complainant.

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14. Yet another point is that the material alteration in Ex.P2 as spoken to by R.W.1 fails, to prove, as to the genuineness of the Exs.P1 and P.2 pro note which is the basis for alleged issuance of cheques in both the cases. With regard to the date and the amount, there is a material contradiction as spoken to by RW.1. In the absence of any positive explanation or any other witnesses in support of Exs.P1 and P2 pro notes, this Court finds that it is totally unsafe to rely upon the respective cheques since the alleged preexisting legally enforceable debt itself remains as a big question mark, when Exs.P1 and P2 suffer from material contradiction as to the quantum, date and year.

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15. In view of the specific evidence of RW.1, I find that the entire case of the private complainant stands demolished by the demonstration of the accused side.

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16. Yet another point that is to be discussed is that the pro note as per the scribe, R.W.1 was written in the year 2006. The year 2006 was alerted as 2008 as spoken to by R.W.1. The cheque belongs to the year 2004 as per evidence of R.W.2 which is discussed infra and the amount alleged to have been borrowed is only in the year 2006, and the cheque presented in the year 2008. While the account was closed in the year 2008, the cheque is said to have been presented in 2009. On Court summons, R.W.2 / Bank Manager was summoned and he could depose that the year of issuance of cheque of the year is 2004 and on 22.09.2008, the account was closed and the cheque was dishonored in the year 2011.

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17. On a combined reading of the evidence of R.W.1 and R.W.2, the scribe and the Bank Manager, Ex.P1 was not written by R.W.1 and there is a material contradictions in Ex.P2 pro note with regard to the year and the amount and the pro note was prepared in the year 2006. While, the bank account was closed in the year 2008 and the cheque was presented only in the year 2011 also lend support to the case of the accused.

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18. In view of the above, I find that on perusal of the evidence of R.W.1 for the reasons best known, he has not deposed on which date he has received the cheque. The private complainant/respondent has failed to prove the execution of Ex.P2 pro note which is the basis for the issuance of cheque in the instant case. Besides, Exs.P1 and P2 suffer from material alterations and thus, I find that Exs.P1 and P2 were manipulated by the respondent/private complainant and pressed into service, he has also fabricated Exs.P3 to P5 and presented the case and brought the cheque bounce and filed the present case.

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19. Furthermore, the cheque being of the year 2004 for the reasons unknown, it seems to have been presented in the year 2010, while the account is closed as early as in the year 2008 as could be seen from the evidence of R.W.2/Bank Manager. Furthermore, the evidence of R.W.1 the scribe of Exs.P1 and P2 pro note, has probabilised the case of the accused and hence, I find that the revision petitioner/accused has successfully rebutted the presumption which has arisen in favour of the respondent/private complainant. Hence, it is for the private complainant as to explain his coming into the existence of Exs.P1 and P2. However, for the reasons best known, there is no positive evidence to prove on the side of the private complainant/respondent as to the coming into the existence of the sheet anchor of the case namely pro note Exs.P1 and P2 and hence, I hold that in view of the suggestive case which has been found to be probabilised, more probable than the private complainant case, the case has to be allowed.

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20. Accordingly, I find that both the Courts below have not properly appreciated the evidence of R.W.1/scribe and R.W.2/Bank Manager in the proper prospective as to the basis of the complaint itself and hence, I find that the suggestive case of the defence is found to be more probable than that of the private complainant, in the absence of any positive evidence to show that the subject matter, of the cheques were issued for preexisting legally enforceable debt. In the absence of any positive evidence to show the cheques in issue, as in the instant case, had been issued for preexisting legally enforceable debt, the case of that complainant has to fail.

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21. Accordingly, both revisions allowed. Conviction and sentence passed by both the Courts below are set aside and C.C.Nos.495 & 496 of 2011 shall stands dismissed.

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Sd/-

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Assistant Registrar(CS VII)

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//True Copy//

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Sub Assistant Registrar

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1.The Ist Additional District and Sessions Judge, Vellore.

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2.The Judicial Magistrate (Fast Track Court, Vellore).

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+2ccs to Mr.P.Chandrasekar, Advocate Sr No.40308,40309

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Crl.R.C.Nos.651 & 652 of 2015

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SRA (CO) PR (22/09/2021)

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N.Thangarajan v. J.Odusivan

Case brief

What is this about?

What did the court decide?

N.Thangarajan v. J.Odusivan

Case brief

What is this about?

What did the court decide?

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