Jagatheeswaran Vs N.Eswaramoorthy (Deceased) — Cheque Dishonour | Madras HC (2025)

Jagatheeswaran Vs N.Eswaramoorthy (Deceased) — Cheque Dishonour | Madras HC (2025)

What the court decided

AI extract

Outcome

No relief to the revision petitioners; the conviction and sentence in C.C. No. 141 of 2013 stand confirmed; the Trial Court is directed to take steps to secure the first accused/revision petitioner to undergo the period of sentence.

¶unnumbered (result paragraph)

Issue for consideration

Whether the Criminal Revision against the judgment dated 21.12.2017 in C.C. No. 141 of 2013 (confirmed on 04.01.2020 in Criminal Appeal No. 47 of 2018) convicting the accused under Section 138 NI Act is liable to be set aside as perverse? +1 more

¶Point for Consideration

Court's answer

The decisions in G.R. Usha v. Pushpa and Ezhilvanan v. Pugazhendhi relied on by the accused are not applicable to this case, because here the complainant was available before the Court and the accused's counsel simply did not cross-examine him.

Ratio / Principle

An accused who fails to cross-examine the complainant while the complainant is available before the Court loses that right; after the complainant's death the accused cannot be permitted to seek eschewal of the recorded evidence of P.W-1.

Key takeaways

Not eschewing the deceased complainant's un-cross-examined proof-affidavit evidence was proper; if his evidence were eschewed, the substituted wife could only let in evidence lacking personal knowledge, would be branded an incompetent witness, and the accused would thereby secure an acquittal through his own conduct.ratio¶21
In exercise of revisional powers the High Court cannot sit as an Appellate Court to reassess evidence; no reason was found to interfere with the orders of the courts below.ratio¶24
Both the trial Court and the Appellate Court, on independent assessment of evidence, arrived at the conclusion that the accused committed the offence under Section 138 of the Negotiable Instruments Act; the point for consideration is answered in favour of the complainant.

Detailed headnote1 paragraphs

Criminal Revision dismissed — conviction under Section 138 NI Act confirmed — original complainant adduced evidence by proof affidavit but died (13.10.2014) before cross-examination; wife substituted and continued prosecution — accused, who did not cross-examine the complainant while he was regularly attending Court, cannot after his death seek to eschew P.W-1's evidence; dilatory tactics cannot be allowed to derail the trial (Vinod Kumar v. State of Punjab applied) — G.R. Usha and Ezhilvanan distinguished, since there the accused had cross-examined the complainant on foundational facts — eschewing the complainant's evidence would render the substituted wife an incompetent witness lacking personal knowledge and let the accused profit from his own lapse — in revisional jurisdiction the High Court cannot reassess evidence as an appellate court — defence witnesses examined on oral request without summons violative of professional ethics — purported Rs.5,00,000/- settlement after the complainant's death inferred to be arm-twisting — one year simple imprisonment and Rs.15,00,000/- compensation affirmed; Trial Court directed to secure the first accused to undergo sentence.

Crl.R.C.No.975 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 17.04.2025

CORAM :

THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP

Criminal Revision Case No.975 of 2020

Jagatheeswaran

M/s. J.K. Steel Corporation Rep by its Proprietor P. Jegathishvaran, No.10, Balaji Nagar, Muruga Nagar Street, Sundarapuram, Coimbatore - 24 .. Petitioners

Versus

N. Eswaramoorthy (deceased) substituted by his wife E. Rathika Rani (Female 44 years) Wife of Late. N. Eswaramoorthy, Door No.19/2, Andal Nagar Extension, Uppilipalayam Post, Coimbatore – 641 018. .. Respondent

Criminal Revision is filed under Sections 397 and 401 of Code of Criminal Procedure against the Judgment dated 04.01.2020 made in Criminal Appeal No. 47 of 2018 on the file of the III Additional District and Sessions Judge, Coimbatore confirming the Judgment dated 21.12.2017 made in C.C. No. 141 of 2013 on the file of the Judicial Magistrate, Fast Track Court-II (Magisterial Level), Coimbatore.

For Petitioners : Mr. V. Elangovan For Respondent : Mr. P. Nagarajan O R D E R

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This Criminal Revision is filed against the Judgment dated 04.01.2020 made in Criminal Appeal No. 47 of 2018 on the file of the learned III Additional District and Sessions Judge, Coimbatore confirming the Judgment of conviction dated 21.12.2017 made in C.C. No. 141 of 2013 on the file of the learned Judicial Magistrate, Fast Track Court-II (Magisterial Level), Coimbatore.

The brief facts, which are necessary for the disposal of this Criminal Revision, are as follows:-

2.1. Originally, the deceased complainant had filed the Complaint in C.C. No. 141 of 2013 under Section 138 of the Negotiable Instruments Act, 1881 against the Revision Petitioners/Accused herein. As per the said complaint, the Revision Petitioner/first Accused borrowed a sum of Rs.15,00,000/- from the deceased Complainant for his business purpose on 25.02.2010 and agreed to repay the said amount on demand. However, inspite of repeated requests, the Revision Petitioner/first Accused did not repay the amount. After persistent demands, the Revision Petitioner/first Accused issued a cheque No. 890801 for Rs.15,00,000/- drawn on Indian Overseas Bank, Kurichi Branch, Coimbatore. When the cheque was presented for collection by the deceased-Complainant, the cheque was returned with an intimation “exceeds arrangement” on 24.07.2010. When it was intimated to the

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Revision Petitioner/first Accused, he requested the deceased-Complainant to re-present the cheque during the month of September, 2010. Accordingly, when the cheque was presented for collection on 02.09.2010, it was once again returned for the reason “insufficient fund”. Therefore, on 13.09.2010, the deceased-Complainant sent a notice calling upon the Revision Petitioners/Accused to pay the cheque amount. Even though the notice was received, the Revision Petitioners did not pay the cheque amount or issued any reply to the notice dated 13.09.2010. Therefore, the complaint was filed by the deceased-Complainant invoking Section 138 of The Negotiable Instruments Act, 1881.

2.2. The complaint filed by the deceased Complainant was taken on file and his sworn statement was recorded. Thereafter, summons were issued to the Accused and he was questioned regarding the averments made in the complaint. However, the Revision Petitioners/Accused denied the averments and therefore, trial was conducted. During the trial, the Complainant was examined as P.W-1 by filing proof affidavit. Along with the proof affidavit, he had marked seven documents as Ex.P-1 to Ex.P-7. After closure of the complainant side evidence, the Revision Petitioner-first Accused was questioned under Section 313 (1) (b) of the Code of Criminal Procedure regarding the incriminating evidence available against him. The Revision 3/29

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Petitioner-first Accused denied the said evidence as false and claimed to examine evidence. Accordingly, one Selvaraj and Raviraj wre examined as D.W-1 and D.W-2. The Revision Petitioner-first Accused was examined as D.W-3.

2.3. During the pendency of C.C.No. 141 of 2013, the original Complainant died on 13.10.2014 and therefore, his wife was substituted and she prosecuted the complaint filed by her husband. As the Complainant died after his examination in chief by way of proof affidavit was recorded, he could not be cross-examined.

2.4. The learned Judicial Magistrate, Fast Track Court No.II

(Magisterial Level), Coimbatore, on analysing the oral and documentary evidence, concluded that the cheque was duly signed and tendered by the Revision Petitioner/first Accused. Further, the Revision Petitioners/Accused did not issue a reply to the statutory notice dated 13.09.2010. The initial presumption raised by the deceased Complainant had not been rebutted by the Revision Petitioners/Accused. Therefore, it was held that the cheque in question was issued for a legally enforceable debt and liability. Accordingly, the learned Judicial Magistrate, Fast Track Court No.II (Magisterial Level), Coimbatore held that the Revision Petitioners/Accused are guilty of the offence

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punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentenced the first Accused to undergo one year simple imprisonment and to pay the cheque amount of Rs.15,00,000/- as compensation within one month, in default, to undergo three months simple imprisonment.

2.5. Aggrieved by the Judgment of conviction dated 21.12.2017, the Revision Petitioners/Accused have preferred an Appeal in Criminal Appeal No. 47 of 2018 before the III Additional District and Sessions Judge, Coimbatore. The Appellate Court, by Judgment dated 04.01.2020 dismissed the Appeal and confirmed the Judgment of conviction and sentence passed by the Trial Court.

2.6. Challenging the Judgment dated 21.12.2017 of the learned Judicial Magistrate, Fast Track Court at Magisterial Level-II, Coimbatore, which was confirmed by Judgment dated 04.01.2020 passed in Criminal Appeal No. 47 of 2018 on the file of the III Additional District and Sessions Judge, Coimbatore, the Revision Petitioners are before this Court with this Criminal Revision.

Thiru. V. Elangovan, learned Counsel for the Revision Petitioners submitted the private complaint under 138 of Negotiable Instrument Act, 1881 was filed by the husband of the Respondent herein, as Complainant. Pending trial, after letting in evidence as P.W-1, before cross examination, the original

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Complainant died on 13.10.2014 and the wife of the Complainant was substituted to prosecute the case. It was held by the Courts below that the presumption raised by the Complainant was not rebutted by the Accused. However, the Courts below failed to note that the first Accused himself examined as D.W-3 along with two other witnesses as D.W-1 and D.W-2. Through the examination of defence witnesses, it was clearly brought out in the Complaint, the source of income of the Complainant is not at all stated. The complaint is also bereft of any particulars as to how the sum of Rs.15,00,000/was paid, either by cash or any other instrument. In fact, on receipt of the statutory notice from the Complainant, the Accused had sent reply notice. However, even the issuance of reply notice was not mentioned in the complaint. The complaint was filed by projecting as though the Accused, on receipt of the notice, did not issue any reply. On the other hand, a reply notice was issued on behalf of the Accused and it was suppressed in the complaint. The reply notice was also marked as Ex.P-7 before the Trial Court wherein it was stated that the Accused have borrowed only Rs.2,00,000/- from the deceased Complainant in the year 2009 and at the time of borrowing the amount, the Accused issued 5 cheques duly signed without filling the date or amount. Similarly, the Accused also issued signed promissory notes to the original Complainant but they were misused by the original Complainant to file the instant complaint. Thus, it is submitted by the learned Counsel for the

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Revision Petitioners/Accused that by issuing the reply notice dated 12.10.2010, Ex.P-7, the Accused have successfully rebutted the initial presumption raised by the deceased Complainant which was not properly considered by the Courts below. The learned Counsel for the Revision Petitioners/Accused also invited the attention of this Court to the content of the reply notice dated 12.10.2010, which reads as follows:-

“3. ckJ fl;rpf;fhuuplkpUe;J 25/02/2010 k; njjp U/15.00.000 fldhf bgwtpy;iy vd;Wk;. me;jf;flid jPu;g;gjw;fhf 13/07/2010 k; njjpapl;L Fwpr;rp fpis ,e;jpad; Xtu;rP!; t';fp fhnrhiy vJYk; bfhLf;ftpy;iy vd;Wk; mij t';fpapy; brYj;jp bjhif bgw;Wf;bfhs;SkhW Twpajhf brhy;ypapUg;gJ cz;ikf;F khwhd r';fjpahFk;/

4/ ckJ fl;rpf;fhuuplkpUe;J vdJ fl;rpf;fhuu;fs; 2009 k; tUlj;jpy; U2.00.000 (Ugha; ,uz;L ,yl;rk;) fldhf bgw;Wf;bfhz;L mjw;F Mjuthf njjp/ bjhif. bgau; g{u;j;jp bra;ag;glhj 5 fhnrhiyfSk; mnj nghy g{u;j;jp bra;ag;glhj bjhif vGjg;glhj gpuhkprup nehl;L 5k; vJt[k; vGjg;glhj Kj;jpiu jhs;fspYk; ghz;l; ngg;gu;fspYk; ifbaGj;J bra;J bfhLj;jpUe;jhu;/ me;j fld; bjhifia fle;j 2009k; tUl ,Wjpapy; tl;oa[ld; vdJ fl;rpf;fhuu; brYj;jptpl;lhu; vd;Wk;. flid ckJ fl;rpf;fhuUf;F brYj;jp tpl;L flDf;fhf bfhLj;jpUe;j Mtz';fis jpUg;gpf;nfl;l bghGJ ckJ fl;rpfhuu; t';fp yhf;fupy; itj;Js;nsd;. t';fp jpwe;jt[ld; vLj;J te;J jUfpd;nwd; vd;W Twpaij ek;gp vdJ fl;rpf;fhuu; nkw;go Mtz';fis jpUg;gp th';fhky; tpl;lhu; vd;Wk; vdJ fl;rpf;fhuu; bjuptpf;fpd;whu;/ vdJ fl;rpf;fhuu; ckJ fl;rpf;fhuuplk; gyKiw neupy; nkw;go Mtz';fisj; jpUg;gpj;jUkhW nfl;Lk; ckJ fl;rpf;fhuu; jpUg;gpj;juhky; fhyk; flj;jp te;jjhft[k; vdJ fl;rpf;fhuu; bjuptpf;fpd;whu;/

ckJ mwptpg;g[ fpilf;fg;bgw;w gpd;du; ckJ

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fl;rpf;fhuiu vdJ fl;rpf;fhuu; mZfp ,J gw;wpf;nfl;l bghGJk; Mtz';fisj; jpUg;gpf;ju ntz;Lkhdhy; bjhif U/15.00.000 bfhLj;jhy;jhd; jpUg;gpj; jUntd; vd;W brhd;djhf vdJ fl;rpf;fhuu; bjuptpf;fpwhu;/

6/ ckJ fl;rpf;fhuuplk; vdJ fl;rpf;fhuu; eP';fs; mwptpg;gpy; brhy;ypa[s;s fhnrhiyia t';fpapy; brYj;jp gzk; bgw;Wf;bfhs;s brhy;yt[kpy;iy. mJ gzk; ,y;yhky; jpUk;gp te;j gpwF kPz;Lk; t';fpapy; brYj;j nfl;Lf;bfhs;st[kpy;iy vd;W vdJ fl;rpf;fhuu; bjuptpf;fpwhu;/ ckJ fl;rpf;fjhuu; vdJ flrpf;fhuuplkpUe;J gzk; gwpf;f ntz;Lk; vd;w nehf;fj;jpy; ,t;thW bra;Js;shu; vd;W vdJ fl;rpf;fhuu bjuptpf;fpd;whh;/ vdJ fl;rpf;fhuiu t";rpj;J gzyhgk; bgwntz;Lbkd;gjhy; ckJ fl;rpf;fhuu; ck;kplk; ,t;thW mwptpg;g[ mDg;gr;brhy;ypa[s;sjhf vdJ fl;rpf;fhuu; bjuptpf;fpd;whu;/ ckJ mwptpg;gpy; Fw[pg;gpl;Ls;sthW ve;j Fw;wr;braiya[k; vdJ fl;rpf;fhuu; bra;atpy;iy mjdhy; 138 khw;whtz KiwaPl;L rl;lg;go ckJ fl;rpf;fhuuhy; eltof;if vLf;f ve;jf;fhuzKk; ,y;iy vd;W vdJ fl;rpf;fhuu; bjuptpf;fpd;whu;/ vdJ fl;rpf;fhuu; ckJ fl;rpf;fhuUffF ve;e fhnrhiy bfhLj;jjhf brhy;ypapUg;gJ Vw;Wf;bfhs;sKoahj bgha;ahFk;/ me;j mtrpaKk; Vw;gltpy;iy.”

The learned Counsel for the Revision Petitioners submitted that

the sum of Rs.2,00,000/- borrowed by the Accused have been repaid even in the year 2009 itself. After repaying the entire Rs.2,00,000/-, the Accused sought return of the signed unfilled five promissory notes and five blank cheques, for which, the Complainant informed the Accused that he will hand it over later, but he failed to do so, in spite of repeated requests. However, by misusing one of the cheques, the Complainant filed this complaint with false

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averments as though the Accused borrowed Rs.15,00,000/-. According to the learned Counsel for the Revision Petitioners-Accused, the Complainant has no wherewithal to lend such huge amount and it was not taken note of by the Courts below.

The learned Counsel for the Revision Petitioners/Accused further submitted that the Complainant filed proof affidavit to dispense with his examination in chief and marked documents as Ex.P-1 to Ex.P-7. However, before he could be cross-examined, he died. In such circumstances, the learned Judicial Magistrate, Fast Track Court-II (Magisterial level), Coimbatore ought to have eschewed the evidence of the deceased original Complainant but it was not done. On the other hand, reliance was on the evidence of the original Complainant Eswaramoorthy to convict the Revision Petitioners/Accused and the same is perverse and it has to be set aside.

The learned Counsel for the Revision Petitioners further submitted that on appeal, the learned III Additional District and Sessions Judge, Coimbatore without taking note of any of the grounds of appeal raised, had confirmed the judgment of conviction recorded by the learned Judicial Magistrate, Fast Track Court-II (Magisterial level), Coimbatore.

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In support of his contentions, the learned Counsel for the Revision

Petitioners relied on the following rulings:

7.1. In the case of G.R.Usha v. Pushpa reported in 2023 SCC OnLine

Mad 6506 this Court had observed as follows:

“13.In this context, the learned counsel appearing for the respondent has relied on the judgment of this Court in the case of V.Ezhilvanan v. R.Pugazhendhi reported in 2023 (2) MWN (Cr.) DCC 20 (Mad.), wherein this Court in paragraph Nos.9 and 13 held as follows:-

“9. The principle of law is now well settled. Before drawing statutory presumption under Section 139 of the Negotiable Instruments Act, 1881, the Court should satisfy whether the complainant has placed details about the foundational fact and evidence to prove it. The foundational facts are the proximity between the parties, the nature of transaction leading to liability and the subject cheque given to discharge that liability. If the complainant prima facie satisfy the Court providing the above details either in the notice or in the complaint or through documentary evidence, the statutory presumption under Section 139 of the Negotiable Instruments Act, 1881 should be drawn. In the absence of material to substantiate the foundational fact, presumption under Section 139 of the Negotiable Instruments Act, 1881 cannot be drawn merely because the signature found in the cheque is that of the accused.

13. The Omission to reply to the statutory notice or the agreement to settle the dispute pending appeal cannot be taken adverse to the accused. Whether to reply to the notice or to the suggesting settlement are the prerogative of the persons accused of any offence. The responsibility of the complainant under Section 138 of the Negotiable Instruments Act,1881 to prove the foundational facts cannot be shifted for these reasons. The Court shall exercise its discretion of drawing the presumption, if the necessary foundational facts are proved. Without proof of foundational fact, the Court cannot draw presumption contemplated under Section 139 of the Negotiable Instruments Act, 1881.”

14.On careful reading of the aforesaid judgment, it is clear that before drawing statutory presumption under Section 139 of the Negotiable Instruments Act, 1881, the Court should satisfy whether the

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complainant has placed details about the foundational fact and evidence to prove it. The foundational facts are the proximity between the parties, the nature of transaction leading to liability and the subject cheque given to discharge the liability. In the case on hand also, P.W.1 has not stated anything about the proximity between the appellant and the respondent and also failed to prove the source of income. Therefore, in order to draw the statutory presumption under Section 139 of Negotiable Instruments Act, the appellant has not proved the foundational facts with regard to proximity between the parties and the transaction. Therefore, as discussed supra and in view of the aforesaid judgment, this Court is of the opinion that the respondent/complainant has not proved the case and the trial Court also in its judgment elaborately discussed about all the aspects and correctly dismissed the complaint and acquitted the accused. Therefore, there is no infirmity found in the judgment of the trial Court and thereby, this Court has no warrant to interfere with the judgment of the trial Court. Hence, the appeal has no merits and deserves to be dismissed.”

7.2. In the case of Ezhilavan vs. V. Pugazhendhi reported in 2023

SCC OnLine Mad 2685 , this Court had observed as follows:-

“11. In the judgment of John K.John ?vs Tom Vargheese and another reported in [(2007)12 SCC 714] relied by the respondent/accused and cited supra, the Hon?ble Supreme Court has observed that,

?Presumption raised in terms of Section 139 of the Act is rebuttable. If, upon analysis of the evidence brought on record by the parties, in a fact situation obtaining in the instant case, a finding of fact has been arrived at by the High Court that the cheques had not been issued by the respondent in discharge of any debt, in our opinion, the view of the High Court cannot be said to be perverse warranting interference by us in exercise of our discretionary jurisdiction under Article 136 of the Constitution. The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the Court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only had no document been executed, even no interest had

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been charged. It would be absurd to form an opinion that despite knowing that the respondent was not even in a position to discharge his burden to pay instalments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken.?

12. In the case under consideration also, the complainant though claims, he used to lend money to the accused and collect it with interest and advanced loan on various dates to the accused, no instrument for borrowing or discharge of the loan due in part or full produced. The appellant has failed to place the material facts, which require to prove money transaction. Except the signed cheque, return memo, the statutory notice and the Acknowledgment of receipt of the notice, there is no other evidence to infer, there was transaction between the accused and the complainant as averred in the complaint and in PW-1 testimony. When the accused through cross examination of PW-1 had probablaised his case that the cheque given only to the brother of the complainant and that been misused. On behalf of the complainant, no evidence placed before the Court that the cheque was given to the complainant for discharge of an existing debt.”

By placing reliance on the above decisions, the learned Counsel

for the Revision Petitioners/Accused submitted that P.W-1/Complainant died before cross examination. His wife continued with the prosecution but she was not examined as Complainant witness. On the other hand, the Accused examined three witnesses including the first Accused as D.W-3. However, the evidence of the defence witnesses were rejected by the learned Judicial Magistrate, Fast Track Court-II (Magisterial level), Coimbatore as well as the learned III Additional District and Sessions Judge, Coimbatore. The learned Counsel for the Revision Petitioners/Accused, therefore, submitted that when the Revision Petitioners/Accused have successfully rebutted the presumption

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raised by the Complainant, the trial Court, as well as the Appellate Court erroneously held that the original Complainant was not cross-examined by the Accused. The Courts below did not consider that soon after his examinationin-chief, the original Complainant died and therefore, there was no occasion for the Accused to cross-examine him. While so, the Courts below erred in holding that the original Complainant was not cross-examined by the Revision Petitioners/Accused. In any event, the Revision Petitioners/Accused successfully rebutted the initial presumption raised by the original complainant by issuing a reply notice dated 12.10.2010, Ex.P-7 and by examining three defence witnesses as D.W-1 to D.W-3. The Courts below, without taking note of the preponderance of probabilities in favour of the Accused, have erroneously convicted and sentenced the first Accused. The learned Counsel therefore prayed for allowing this Criminal Revision by setting aside the judgments of the Courts below.

On the other hand, the learned Counsel for the Respondent vehemently objected to the line of arguments made by the learned Counsel for the Revision Petitioners/Accused. It is the contention of the learned Counsel for the Respondent that the Accused borrowed Rs.15,00,000/- for business purpose and for repayment of the said amount, issued the cheque. When the cheque was presented, it was returned with a memo indicating ‘exceeds

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arrangement’. When the same was informed to the first Accused by the deceased Complainant, he requested to present it after sometime. When the cheque was presented subsequently on 02.09.2010, it was returned with the endorsement ‘funds insufficient’. Therefore, the Complainant was forced to issue a statutory notice. The Accused received the statutory notice and issued a reply notice disputing the contentions in the statutory notice.

Before the trial Court, the deceased Complainant examined himself as P.W-1 and marked seven documents as Ex.P-1 to Ex.P-7. Ex.P-1 is the original cheque No.890801 for Rs.15,00,000/- drawn on Indian Overseas Bank, Kurichi Branch, Coimbatore. Ex.P-2 is the return memo dated 24.07.2010. Ex.P-3 is the return memo along with cheque dated 02.09.2010. Ex.P-4 is the statutory notice dated 13.09.2010. The notice was sent to the address of the Accused in his place of business as well as the residential address. Therefore, two acknowledgments were received and they were marked as Ex.P-5 and Ex.P-6. Ex.P-7 is the reply notice issued by the Revision Petitioners/Accused.

It is the contention of the learned Counsel for the Respondent/ Complainant that in spite of the deceased Complainant having adduced evidence and appeared regularly before the learned Judicial Magistrate, Fast

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Track Court-II (Magisterial level), Coimbatore, he was not subjected to cross examination. The Accused wantonly evaded and protracted the proceedings, forcing the Complainant to lodge a complaint with the High Court against the learned Judicial Magistrate, Fast Track Court-II (Magisterial level) for not disposing the case swiftly and for granting time to the Accused to delay the trial. The Complainant had also given a complaint against his own Counsel before the learned Judicial Magistrate, Fast Track Court-II (Magistrate level), to the Bar Council of Tamil Nadu and Puducherry. On the basis of such complaint, the Registry of the High Court proceeded with an enquiry. However, even before initiation of the enquiry or disciplinary proceedings initiated against the Presiding Officer of the Court or an enquiry by the Bar Council of Tamil Nadu and Puducherry against the Counsel for the deceased Complainant, the Complainant died. Subsequent to his death, the Counsel for the Accused claims that he wanted to eschew the evidence of P.W-1. However, the learned Judicial Magistrate proceeded with the trial.

The learned Counsel for the Respondent/Complainant had cross examined D.W-1 to D.W-3. From the cross examination, it was found that they were examined as defence witnesses not on summons by the Accused but on oral request of the learned Counsel for the Accused. The learned III Additional District and Sessions Judge had commented upon the conduct of the

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learned Counsel for the Accused in appreciation of evidence and in Paragraph

number 12, the Appellate Court held as follows:

“Moreover the other person named Antony who was also present at the time, according to Dw1 was not examined by the Accused. Instead he had examined one Raviraj as Dw2. DW2's version is that he was invited by the Accused to his godown a month before Diwali in the year 2009 and at the time the Complainant and Accused were talking to each other and that the complainant was demanding interest and the Accused had paid a sum of Rs.50,000/- towards interest and later, one week after Diwali the Accused requested this witness also to accompany him to meet the complainant to receive back the documents from the complainant and on the way they met the complainant, and that the complainant had informed that he would handover the documents to the Accused in his godown. During cross examination this witness has also admitted that he had no knowledge about the transaction between the complainant and the Accused and he has also admitted that he came to depose evidence on request by the Counsel for the Accused and not by the Accused. Therefore, this Court has conclude that this witness is a tutored and a false witness and his evidence cannot be relied on. The act of the Counsel on record for the Accused in creating and tutoring a false witness would amount to interfering with the administration of Justice an would amount to professional misconduct.”

Thus the learned Appellate Judge, on appreciation of evidence had stated that the deposition of D.W-1 and D.W-2 would indicate that they are not bona fide witnesses. The learned Judicial Magistrate, Fast Track Court-II (Magisterial level), Coimbatore, had also observed that D.W-1 admits in his cross-examination that he does not know how much money the Accused borrowed from the Complainant. When the witness is unable to give details of receipt of money, it only shows that D.W-1 was examined to help the Accused to wriggle out of the criminal case. Similarly, D.W-2 in his evidence would depose that one month prior to Diwali 2009, Accused paid Rs.5,50,000/- to the 16/29

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Complainant. D.W-2 also deposed that he does not know how much money the Accused borrowed. Therefore, the evidence of D.W-1 and D.W-2 does not inspire the confidence of the Court and their deposition may not be true. The presence of D.W-1 and D.W-2 in the manner narrated by them in their deposition was not mentioned by the Accused in his reply notice, Ex.P-7. The learned Judicial Magistrate, Fast Track Court-II (Magisterial level), Coimbatore had also observed in his discussion of evidence that the Accused, as D.W-3 deposed that he borrowed Rs.2,00,000/- alone and it was repaid. However, the deceased Complainant claimed more interest and therefore Rs.50,000/- was paid in the year 2009 prior to Diwali. Admittedly such facts were not stated in the reply notice under Ex.P-7. If really the Accused repaid the amount of Rs.2,00,000/-, the burden of proof is on the Accused. The Accused failed to probabilize the defence regarding discharge of liability in the cross-examination. The Accused admits that pending proceedings, he paid Rs.2,25,000/- to the wife of the Complainant. If really the Accused discharged the liability due to the original Complainant, there is no necessity for the Accused to pay any more amount over and above the actual liability. Therefore, the learned Judicial Magistrate, Fast Track Court-II (Magisterial level), Coimbatore had observed that the evidence of P.W-1 remains unchallenged and the Complainant is entitled to rely upon the evidence. Simply because the Complainant died, the Accused cannot say that the evidence

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already recorded has to be eschewed. The evidence of the deceased Complainant/P.W-1 is binding on the Accused and it is valid in the eyes of law. The case of the Complainant is consistent to the liability and issuance of cheque by the Accused. There is no material or satisfactory evidence to show that the cheque was misused by the original Complainant. If really the cheque was misused and the liability was discharged, why the Accused has not resorted to Police complaint or given “Stop payment” instructions on the cheque. The conduct of the Accused is not normal. There is absolutely no evidence to disbelieve the case of the original complainant or any material is produced to show that there exists no liability. Even during 313 Cr.P.C questioning the Accused simply denied the evidence of the Complainant as false and he had not offered any explanation as to how the cheque was placed in the hands of the Complainant. In the absence of any denial or contradictory version or any material to infer that the presumption is rebutted by the Accused, the Court has no other option except to believe that the transaction is true and the liability was proved in accordance with law. The Complainant had satisfactorily proved his case and the cheque was issued for the discharge of legally enforceable debt and liability. The Accused did not probabilize his case and the initial presumption raised by the original Complainant was not rebutted. Since the initial burden was not rebutted, the presumption is in favour of the Complainant. Therefore, the Courts below are right in convicting the

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Accused for the offence punishable under Section 138 of The Negotiable Instruments Act, 1881.

The learned Counsel for the Respondent also invited attention of this Court to the observations of the learned III Additional District and

Sessions Judge, Coimbatore, on independent assessment of the evidence. From para 11 to para 14 the Appellate Court had independently analysed and assessed the evidence to arrived at a conclusion that the deposition of the original Complainant was not challenged by the Accused by cross-examining him. The Accused took time and did not cross-examine the original Complainant for a considerable period of time. After death of the Complainant, the Accused seeks to eschew the evidence of P.W-1 which cannot be accepted. The Accused cannot be permitted to take advantage of his own lapses in not cross-examining the Complainant when the Complainant was readily available. In any event, this Court can only consider the Revision if there is any lapses either on the part of the trial Court or on the part of the Appellate Court in their judgment. Here both the Courts, on independent assessment of evidence, arrived at a conclusion that the Accused committed the offence under Section 138 of the Negotiable Instrument Act, 1881. Therefore, the learned Counsel for the Respondent seeks to dismiss this Criminal Revision.

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Before concluding the argument, the learned Counsel for the Respondent invited the attention of this Court to the conduct of the Accused. He had filed additional typeset wherein he had claimed that the wife of the Complainant entered into an out of Court settlement with the Accused for settling the amount for Rs.5,00,000/-. Further, during the pendency of this Revision Petition, by order dated 20.11.2020, this Court directed the Revision Petitioners/Accused to pay Rs.3,16,000/-. Subsequently, when the Criminal Revision was taken up for hearing on 08.08.2022, this Court referred the matter for mediation but a settlement could not be effected. Thereafter, when this Criminal Revision is taken up for hearing on 12.10.2023 a new Counsel appeared on change of vakalat for the Revision Petitioners and sought extension of time to deposit the amount by filing a fresh Crl. M.P. No. 3866 of 2022 to pay the amount. Thus, three learned Judges of this Court directed the Revision Petitioners to deposit the amount but he had not complied with the condition. Therefore, the learned Counsel for the Respondent prayed for dismissal of the present Criminal Revision.

Point for Consideration:

Whether the Revision Petition filed by the Accused against the Judgment dated 21.12.2017 passed by the learned Judicial Magistrate, Fast Track Court-II (Magisterial level), Coimbatore in C.C.No.141 of 2013 which was confirmed by judgment of the

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learned III Additional District and Sessions Judge, Coimbatore in Criminal Appeal No.47 of 2018 dated 04.01.2020 are liable to be set aside as perverse?

Heard the learned Counsel for the Revision Petitioners/Accused and the learned Counsel for the Respondent. Perused the evidence of the deceased Complainant as P.W-1, documents filed on the side of the deceased Complainant as Ex.P-1 to Ex.P-7 and the deposition of the defence witnesses as D.W-1 to D.W-3.

On perusal of the judgment it is found that the Complainant adduced evidence by filing proof affidavit to dispense with his examination in chief and marked documents as Ex.P-1 to Ex.P-7. After adducing evidence, the original Complainant was regularly appearing before the trial Court. The Accused did not cross examine the Complainant. Further, in this case, the Accused himself brought the witnesses to be examined on his side without being summoned by the trial Court, which is in violation of professional ethics and etiquette of the Members of the Bar. When the Complainant as P.W-1 had adduced evidence and was in attendance before the Court, in violation of the directions issued by the Honourable Supreme Court in Vinod Kumar v. State of Punjab [(2015) 1 MLJ (Crl) 288 (SC)], the defence Counsel did not cross

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examine P.W-1. Here it is the typical example of the dilatory tactics employed by the Accused which is in violation of the reported ruling of the Honourable Supreme Court in the case of Vinoth Kumar vs. State of Punjab [(2015) 1 MLJ (Crl) 288 (SC)] which had placed responsibility on the trial Judges to enforce the ruling. Above all, in this case, the deceased Complainant was forced to give a complaint against the learned Judicial Magistrate for having accommodated the Counsel for the Accused to examine defence witnesses and for not cross examining him, when he is available in Court. Unfortunately, the Complainant died before enquiry was ordered both by the Bar Council of Tamil Nadu and Puducherry against the defence Counsel as well as by the High Court against the Presiding Officer.

The decisions relied on by the learned Counsel for the Revision Petitioners/Accused in G.R. Usha v. Pushpa as well as the Ezhilvanan v. Pugazhendhi are not applicable to the facts of this case. Here, when the Complainant was available before the Court, the learned Counsel engaged by the Accused did not cross examine the Complainant. If he had been cross examined on these points then this rulings will be applicable.

In the reply notice under Ex.P-7 it was not stated that the original Complainant has no wherewithal for advancing the loan of Rs.15,00,000/-. The

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only defence raised in the reply notice by the first Accused is that he had availed a loan of Rs.2,00,000/- in 2009 and it was repaid in 2009 itself. It was also stated that at the time of availing loan, he had parted with 5 unfilled signed cheques and five promissory notes duly signed by the first Accused along with blank green concur sheets. It was also stated that after repayment of entire loan amount of Rs.2,00,000/- when the Accused sought the documents back, the Complainant took time to hand it over to the Accused but never handed over them. This was discussed at length by the learned Judicial Magistrate in appreciation of evidence and also by the learned III Additional District and Sessions Judge while considering the appeal.

20. When the deceased Complainant, after having adduced evidence

and marked documents the Counsel for the Revision Petitioners/Accused took time to cross-examine P.W-1. This is the attitude of the Accused in trial. The learned Counsel appearing for the Accused are instructed by the Accused to delay the trial. Therefore, the Counsel cannot be blamed for taking time. If the Counsel proceeds with trial, the Accused will engage a different Counsel who is ready to oblige him or her and thereby the Complainant was not at all cross examined during his lifetime. In this case, after the death of the Complainant, the Accused attempted to eschew the evidence of P.W-1 after losing the right of cross-examination but that cannot be accepted in the light of the reported

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ruling of the Honourable Supreme Court in Vinod Kumar v. state of Punjab

[(2015) 1 MLJ (Crl) 288 (SC)].

In criminal trial, the personal knowledge of the case of the witness is very important. Here the original Complainant filed a complaint based on his

personal knowledge. He had received a cheque from the Accused for repayment of the loan and he presented the cheque as per the instruction of the Accused. The transaction with respect to receipt of the disputed cheque is between the deceased Complainant and the Accused. The law permits the complaint under Section 138 of The Negotiable Instruments Act to prosecute the complaint through his or her legal heirs. However, after the death of the original complainant, when his evidence is eschewed, the wife, if examined, can only let in evidence which may not be relevant to the case. In such event, the wife of the deceased Complainant will be branded as incompetent witness as she may not have personal knowledge about the case. This will enable the Accused to secure a Judgment of acquittal. This conduct of the Accused cannot be appreciated. The learned Judicial Magistrate, Fast Track Court-II (Magisterial level), Coimbatore, had realised the risks involved in this case and had accordingly not eschewed the evidence of the original complainant as P.W1. The conduct of the learned Judicial Magistrate, Fast Track Court-II (Magisterial level), Coimbatore, is appreciated. Also he had analysed the

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evidence in the totality of the circumstances and arrived at a just conclusion that the evidence of D.W-1 to D.W-3 is found not inspiring the confidence of the trial Judge and rejected them.

Pending Criminal Revision, the Accused filed a typeset of papers wherein he claims that there was an amicable settlement of the dispute with the present Complainant, who is the wife of the original Complainant. It is stated that she accepted an out of Court settlement for Rs.5,00,000/- on 27.07.2017. On going through the settlement effected between the first Accused and the Respondent, it could be inferred that the Accused had employed arm twisting tactics to get the settlement effected. In the reported decision of this Court in the case of K.Gopal vs. The State of Tamil Nadu reported in 2005 SCC Online Mad 466 the husband who extended the loan died. The wife prosecuted the criminal complaint after the death of her husband. Taking advantage of the death of the husband, instead of Rs.15,00,000/-, the Accused attempted to settle the dispute for Rs.5,00,000/- and it was found to be unfair and unacceptable by this Court.

As rightly pointed out by the learned Counsel for the Respondent, at the time of admission of the Criminal Revision, the Revision Petitioner/Accused filed Crl. M.P. No. 6800 of 2020 in Crl. R.C. No.975 of

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2020 in which, this Court, by order dated 17.12.2020, directed to deposit Rs.3,16,000/- before the trial Court but he had not deposited it till 12.10.2023.

As rightly pointed by the learned Counsel for the Respondent/ Complainant, the trial Court as well as the Appellate Court, on independent assessment of evidence, arrived at an irresistible conclusion that the Accused committed the offence under 138 of Negotiable Instruments Act. Further, this Court, in exercise of revisional powers, cannot sit as an Appellate Court to reassess the evidence. The only question for consideration before this Court is whether the Judgment of the trial Judge as well as Appellate Judge in not rejecting the evidence of P.W-1, who was not subjected to cross examination is proper. This Court already observed that the attempt of the Accused in not cross examining the deceased original Complainant cannot be allowed to be taken advantage of, thereby derailing the trial. In effect, this Court does not find any reason to interfere with the orders passed by the Courts below. The Criminal Revision lacks merits and it is liable to be dismissed.

In the light of the above discussion, the point for consideration is answered in favour of the Respondent/Complainant and against the Revision Petitioners/Accused. The Judgment dated 04.01.2020 made in Criminal Appeal No. 47 of 2018 on the file of the III Additional District and Sessions Judge, Coimbatore confirming the Judgment dated 21.12.2017 made in C.C.

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No. 141 of 2013 on the file of the Judicial Magistrate, Fast Track Court-II (Magisterial Level), Coimbatore.

In the result, the Criminal Revision is dismissed confirming the Judgment dated 04.01.2020 made in Criminal Appeal No. 47 of 2018 on the file of the III Additional District and Sessions Judge, Coimbatore confirming the Judgment dated 21.12.2017 made in C.C. No. 141 of 2013 on the file of the Judicial Magistrate, Fast Track Court-II (Magisterial Level), Coimbatore. The Trial Court is directed to take steps to secure the first Accused/Revision Petitioner so as to enable him to undergo the period of sentence imposed in the Judgment of the trial Court in C.C. No. 141 of 2013.

17.04.2025

shl Index : Yes/No Internet : Yes/No Speaking/Non-speaking order

To

The III Additional District and Sessions Judge Coimbatore

The Judicial Magistrate,

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Fast Track Court-II (Magisterial Level), Coimbatore.

3.The Section Officer, Criminal Section, High Court Madras.

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SATHI KUMAR SUKUMARA KURUP, J.,

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17.04.2025

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