IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.04.2011 CORAM THE HON'BLE MS. JUSTICE R. MALA Crl.R.C.No.1927 of 2007 R.Thangavel .. Petitioner/Accused ..Vs.. P.Manoharan .. Respondent/Complainant Prayer:This Criminal Revision is filed under Sections 397 read with 401 Cr.P.C. against the Judgment dated 18.10.2007 made in C.A.No.343 of 2006 by the learned Additional District and Sessions Judge, Fast Track Court No.I, Erode by confirming the conviction and sentence of simple imprisonment for 2 years and set aside the compensation award of judgment dated 27.11.2006 made in C.C.No.294 of 2003 by the learned Judicial Magistrate No.III, Erode for the offences under Sections 138 read with 142 of Negotiable Instruments Act. For Petitioner : Mr.C.D.Johnson For Respondent : Mr.C.S.Saravanan O R D E R
This criminal revision arises out of the conviction and sentence passed by the learned Additional District and Sessions Judge, Fast Track Court No.1, Erode, in C.A.No.343 of 2006, dated 18.10.2007, confirming the conviction and sentence of simple imprisonment for two years and set aside the compensation award passed in C.C.No.294 of 2003, dated 27.11.2006, by the learned Judicial Magistrate No.III, Erode, for the offences under Sections 138 read with 142 of Negotiable Instruments Act.
2.The skeleton of the complaint is as follows:
(i)The revision petitioner/accused borrowed a sum of Rs.50,000/- from the respondent/complainant on 20.09.2002. He issued a cheque bearing No.328633 dated 23.11.2002 in favour of the said amount and the same was presented in the Bank on 15.03.2003, but it was returned as ‘insufficient funds’. Immediately, the respondent/complainant issued a statutory notice on 03.04.2003 and the revision petitioner/accused received the same on 04.04.2003 and he gave a reply with false allegations. Since he has not repaid the cheque amount, the respondent/complainant has come forward with the complaint under Sections 138 read with 142 of Negotiable Instruments Act.
(ii) The trial Court, after following the procedure, since the revision petitioner/accused has pleaded not guilty, he examined the witnesses P.W.1, P.W.2, D.W.1 and D.W.2 and perused the documentary evidence Exs.P1 to P9 and Exs.D1 to D11, convicted the revision petitioner/accused for the offences under Sections 138 read with 142 of Negotiable Instruments Act and sentenced him for two years simple imprisonment and also directed him to pay the cheque amount as a compensation, against which, the revision petitioner/accused preferred an appeal in C.A.No.343 of 2006 on the file of the Additional District and Sessions Court-cum-Fast Track Court No.1, Erode. The learned Additional District and Sessions Judge, after hearing the arguments, set aside the compensation, but confirmed the conviction and sentence passed by the trial Court, against which, the present revision has been preferred by the revision petitioner/accused.
3. The learned counsel for the revision petitioner/accused submitted that nearly seven cases have been filed. The revision petitioner/accused is running power looms factory in the name and style of ‘Tamilarasi Tex’. He is manufacturing kada clothes. The respondent/complainant Manoharan is doing clothe business by way of purchasing clothes from various persons in Erode and other Districts and supplying clothes to various states. The respondent/complainant also entered into an oral agreement and gave an order for manufacturing clothes, after supplying yarns and he paid coolie of Rs.2/- per meter of kada piece. He gave an order for manufacturing kada piece in the month of January 2002 and supplying yarns for making clothes and at that time, he obtained 10 signed empty pro-notes from the revision petitioner/accused. The learned counsel further submitted that since the revision petitioner/accused has missed his cheque book contains 15 leaves, the respondent/complainant filled up the empty cheque and forged the signature of the revision petitioner/accused and seal of his business name and style and utilised the same and filed the complaint by himself and his relatives. The respondent/complainant also given the date of cheques and cheque numbers, which are clearly proved that they were not issued for discharging of existing liability. Hence he prayed for setting aside the conviction and sentence passed by both the courts below.
4.Refuting the same, the learned counsel for the respondent/complainant submitted that the revision petitioner/accused in his reply notice under Ex.P6, his candid admission is that Ex.P1-cheque is not contained his signature. His signature and his concern seal was forged by the respondent/complainant. But at the time of his cross-examination, he fairly conceded that the cheques were handed over to the respondent/complainant, when he had gone out of station for business purpose. It shows that to avoid the repayment of Rs.50,000/-, he come forward with such an inconsistent defence. Since the revision petitioner/accused borrowed a sum of Rs.50,000/- from the respondent/complainant for his business purpose, he issued a cheque for discharging existing enforceable legal liability. To substantiate his arguments, he relied upon the decision reported in AIR 2010 SC 1898 (Rangappa v. Sri Mohan) and submitted that since appellant did admit that signature on cheque was his and statutory presumption comes into play and same has not been rebutted even with regard to materials submitted by respondent. Once the accused admitted the signature in the documents are his, the respondent/complainant is having presumption under Sections 118 and 139 of Negotiable Instruments Act. It is rebuttable presumption. So the revision petitioner/accused ought to have rebutted the presumption by evidence, but he has not rebutted the presumption. Hence the trial Court and the first Appellate Court considered this aspect and came to the correct conclusion, so the conviction and sentence passed by the courts below does not warrant any interference. Hence he prayed for the dismissal of the revision.
5. Considered the rival submissions made on both sides.
6. The revision petitioner/accused has borrowed a sum of Rs.50,000/- and issued a cheque bearing No.328633 dated 23.11.2002 in favour of the said amount under Ex.P1. When it was presented in the Bank on 15.03.2003, it was returned as ‘insufficient funds’, which was evidenced by Ex.P2. So the respondent/complainant issued a statutory notice under Ex.P3 on 03.04.2003 and the postal receipt was marked as Ex.P4 and an acknowledgment card was received on 04.04.2003 under Ex.P5. Ex.P6 is the reply notice sent by the revision petitioner/accused.
7.When P.W.1-Manoharan, the respondent/ complainant was in witness box, in his cross-examination, he stated that ” .. .. bjhif vGjp vjphp ifbaGj;J bra;J bfhLj;jhh;/ //// ” and the name of the payee was filled up by him. He further deposed that the revision petitioner/accused has already received loans from him and issued cheques and repaid the same. Now it is appropriate to consider the evidence of D.W.1, the revision petitioner/accused, in his chief-examination, he stated that the respondent/complainant make arrangements for opening current account in the Bank. He received the cheque book and after signing the cheques, handed over the same to Manoharan, but he has not filled up the cheques. Since the revision petitioner/accused has gone out of station for purchasing yarns, he handed over the signed unfilled up cheques to P.W.1-Manoharan. But the averment in the reply notice under Ex.P6 is contrary to the statement given by D.W.1 in his chief examination. If really he handed over the signed cheques to P.W.1, he has to mention the same in his reply notice. His specific averment in paragraphs-9 and 11 of his reply notice under Ex.P6 is as follows:
“9.Further my client submit that he kept 11 empty cheques in the shop of your client and your client took them and forged the cheque by way of filling them and further the sign of my client and forged the seal.
11.There is a mis-understanding between my client and P.Manoharan in respect of making payment of coolie by P.Manoharan to my client. So far the purpose of cheating my client and getting wrongful gain, P.Manoharan filled the empty cheque and forged signatures of client and forged the seal of my client business name and style and P.Manoharan instigated your client to issue this notice to my client.”
On the contrary, in his chief-examination, he stated as follows:
” .. .. nkw;go t’;fp fzf;fpy; ,Ue;J fhnrhiy g[j;jfk; bgw ntz;oa kDtpid kndhfud; jhd; vGjp bfhLj;jhh;/ mth; jhd; vd;Dld; te;J fhnrhiy g[j;jfj;ij bgw;Wj;je;jhh;/ nkw;go fhnrhiy g[j;jfj;jpid th’;fp kndhfudplk; bfhLj;njd;/ ehd; nkw;go fhnrhiyfspy; ifbaGj;J bra;J kndhfudplk; bfhLj;njd;/ ehd; nkw;go fhnrhiyfis g{h;j;jp bra;ahky; mthplk; bfhLj;njd;/ ehd; tpahghu tprakhf btspa{h; brd;W tpLtjpdhy; Ehy; th’;Ftjw;fhf gzk; bfhLf;f nkw;go ifbaGj;J bra;j fhnrhiyfis kndhfud; ,lk; bfhLj;J ,Ue;njd;/ vd;Dila tpahghu rk;ge;jkhf vy;yh eltof;iffisa[k; kndhfud; jhd; bra;J te;jhh;/ brf; g[j;jfk; jtpu rPy;. gpy; g[j;jfk;. !;lhk;g; ngl; Mfpatw;iw ehd; kndhfud; ,lk; bfhLj;J itj;jpUe;njd;/ // // @
;So it is clearly proved that the revision petitioner/accused has taken inconsistent plea, even though in his reply notice, he stated that the cheque was filled up and forged by Manoharan/the respondent/complainant, in his chief-examination, he himself admitted that he gave signed cheques to Manoharan. In such circumstances, the respondent/complainant is entitled to statutory presumption under Sections 118 and 139 of Negotiable Instruments Act.
8.At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the respondent/complainant reported in AIR 2010 SC 1898 (Rangappa v. Sri Mohan), in which, it is stated that since appellant did admit that signature on cheque was his and statutory presumption comes into play and same has not been rebutted even with regard to materials submitted by respondent. Here, the revision petitioner/accused has filed 9 cheques with various dates, issued to P.W.1-Manoharan, which are as follows:
(i) Ex.D1-cheque bearing No.328632 dated 16.11.2002 issued to P.Manoharan.
(ii) Ex.D2-cheque bearing No.328639 dated 14.12.2002 issued to P.Manoharan.
(iii) Ex.D3-cheque bearing No.328642 dated 14.12.2002 issued to one Century Tex and its Proprietor is P.Manoharan.
(iv) Ex.D4-Two cheques bearing Nos.328648 and 328649 dated 04.01.2003 issued to one Rajeshwari Textiles and its Proprietor is S.P.Murugesan.
(v) Ex.D5-Two cheques bearing Nos.328626 and 328628 dated 02.11.2002 issued to one Rajeshwari Textiles and its Proprietor is S.P.Murugesan.
(vi)Ex.D6-cheque bearing No.0025390 dated 08.02.2003 issued to one A.Gurusakthivel.
(vii)Ex.D7-cheque bearing No.0025377 dated 18.02.2003 issued to one N.Periyasamy.
Ex.D9 which is equal to Ex.P9 is an application form, which was filed by P.W.2, the Bank Manager, for opening current account of the revision petitioner/accused. So it shows that the respondent/complainant has introduced the revision petitioner/accused for opening current account in the name and style of ‘Tamilarasi Tex’. So the evidence of D.W.1 is not sufficient to rebutt the presumption under Sections 118 and 139 of Negotiable Instruments Act.
9.At this juncture, it is appropriate to incorporate Sections 118 and 139 of Negotiable Instruments Act.
“118-Presumptions as to negotiable instruments:
Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration–that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date– that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptancethat every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transferthat every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsement–that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stampthat a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due coursethat the holder of a negotiable instrument is a holder in due course: provided that where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
139.Presumption in favour of holder-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability.”
It is true, existence of legally recoverable debt is not a matter of presumption under Section 139 of Negotiable Instruments Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. It is also true that the prosecution must prove the guilty of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is ‘preponderance of probabilities’. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies. But here, the respondent/complainant as soon as he issued notice under Ex.P3, a reply notice was received under Ex.P6, in which, the revision petitioner/accused stated that the respondent/complainant has taken away the cheques and forged the same. But when D.W.1/the revision petitioner/accused was in witness box, his categorical evidence is that when he has gone out of station for business purpose, he handed over the signed blank cheques as well as bill book, seal and stamp pad to P.W.1, which was utilised for the purpose of the case. So both the statements given by the revision petitioner/accused are entirely inconsistent plea. In such circumstances, I am of the view that the revision petitioner/accused has not rebutted the presumption under Section 139 of Negotiable Instruments Act.
10.Admittedly, the respondent/complainant herein has purchased yarns for manufacturing clothes and paid coolie of Rs.2/- per meter of kada piece. So there was a business transaction between both the parties for several years. Admittedly, P.W.1, in his statement, he stated that usually he lends loan to the revision petitioner/accused and obtained cheques for the same. As soon as the loan amount was discharged, he handed over the cheques to the revision petitioner/accused. This factum has not been disputed. P.W.1, in his cross-examination, he stated that there was a cordial relationship between both the parties nearly 10 years. There is no evidence to show that what steps the revision petitioner/accused had taken to get back the signed cheques entrusted to the respondent/complainant. But D.W.1 in his chief-examination, he stated that there was a misunderstanding between both of them in selling the kada clothe. As already stated that in his reply notice under Ex.P6, he stated that his signature in the cheque was forged. But whereas in his cross-examination and evidence, he stated that when he gone out of station for business purpose, at that time, he handed over the signed cheques, bill book and pass book to the respondent/complainant. So there is an inconsistent defence. Hence I am of the view that the revision petitioner/accused has accepted the issuance of the cheque under Ex.P1. So the respondent/complainant is entitled presumption under Sections 118 and 139 of Negotiable Instruments Act. The Revision petitioner/accused borrowed money for his business purpose and to discharge the same, he issued a cheque, which was presented for encashment and returned as ‘insufficient funds’. So P.W.1 issued statutory notice. Since the revision petitioner/accused has not repaid the amount, he preferred the complaint against the revision petitioner/accused for the offences under Sections 138 read with 142 of Negotiable Instruments Act. It is proved that on the date of issuance of cheque by the revision petitioner/accused, there is a legally enforceable debt. The cheque was drawn from the account of the revision petitioner/accused in the Bank for discharging in whole liability, which shows that the cheque was issued for discharging legally enforceable debt and the cheque so issued was returned due to ‘insufficient funds’. P.W.1 in his evidence, has clearly proved that after borrowing money, to discharge the same, the revision petitioner/accused issued a cheque under Ex.P1. The cheque was presented and the same was returned as ‘insufficient funds’, which was evidenced by Ex.P2 and the evidence of P.W.2, the Bank Manager. Hence both the Courts below are considered all the aspects in proper perspective and came to the correct conclusion that the revision petitioner/accused found guilty for the offences under Sections 138 read with 142 of Negotiable Instruments Act. Hence the conviction and sentence passed by the trial Court does not warrant any interference. So the conviction and sentence passed by the courts below are liable to be confirmed and hence they are hereby confirmed.
11.In fine,
This criminal revision is dismissed.
The conviction and sentence passed by both the courts below
are confirmed.
The trial Court is directed to take steps to secure the custody of
the revision petitioner/accused to undergone the remaining
period of sentence.
11.04.2011 Index : Yes / No. Internet : Yes / No kj To 1.The Additional District and Sessions Court Fast Track Court No.I, Erode. 2.The learned Judicial Magistrate No.III Erode. 3.The Public Prosecutor High Court, Madras. 4.The Record Keeper Criminal Section, High Court, Madras. R.MALA,J. kj pre-delivery judgment in Crl.R.C.No.1927 of 2007 11.04.2011 Crl.R.C.Nos.1927,1928, 1930,1933,1934,1935 & 1939 of 2007 R. MALA, J. At the time of pronouncing the orders, the learned counsel appearing for the petitioner submitted that the sentences imposed in all cases (7 nos.) may be ordered to run concurrently, as ordered by the Trial Court. 2. Considering his representation, the revision petitioner/ accused is directed to undergo the sentences imposed in all cases ( 7 nos.) concurrently. 11.04.2011 ari