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2003 DIGILAW 1602 (MAD)

P. Shanmugasundaram v. Abishek Poddar

2003-10-09

V.KANAGARAJ

body2003
Judgment :- The Criminal Revision Petitions in Crl.R.C.Nos.1216 to 1223 of 2003 are preferred against the judgments dated 31.7.2003 made in C.A.Nos.74, 75, 76, 77, 78, 79, 80 and 81 of 2003 on the file of the I Additional Sessions Court, Erode thereby confirming the conviction imposed in the judgments dated 28.4.2003 made in C.C.Nos.236, 237, 238, 286, 287, 288, 289 and 290 of 2002 on the file of the Judicial Magistrate No.I, Erode. 2. Since the issue involved in all these revisions and the parties are one and the same, this Court deems it fit to pass a common order in all the cases. 3. On a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be known that the respondent is manufacturing various Masala products; that on account of the dealings the petitioner had with the respondent on credit by purchasing various masala products from 3.4.2001 to 17.12.2001, a sum of Rs.6,01,428/- is due to the respondent; that towards the portion of amount due by the petitioner and to discharge the portion of the said liability, the petitioner has issued 24 cheques drawn on Indian Overseas Bank, Cauvery R.S; that since all the cheques were dishonoured as "Insufficient funds", after issuing notices to the petitioner, the respondent filed complaints in C.C.Nos.236 to 238 and 286 to 290 of 2002 (three cheques in each case) on the file of the Court of the Judicial Magistrate-I, Erode for the offence punishable under Section 138 of the Negotiable Instruments Act. 4. 4. It further comes to be known that the Court of Judicial Magistrate- I, Erode, having conducted a thorough separate trial into the facts and circumstances of each of the above cases, wherein on behalf of the respondent/complainant, P.Ws.1 and 2 were examined as prosecution witnesses for oral evidence and Exs.P.1 to P.10 were marked for documentary evidence and on behalf of the repondent/complainant, D.Ws.1 and 2 were examined and Exs.D.1 to D.11 were marked, has found the petitioner guilty of the offence charged in all cases and convicted and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for two months for the offence punishable under section 138 of the Negotiable Instruments Act and directed the petitioner to pay a sum of Rs.4,000/- as compensation to the complainant out of the fine amount in each case. 5. Aggrieved, the petitioner/accused preferred appeals in C.A.Nos.74, 75, 76, 77, 78, 79, 80 and 81 of 2003 on the file of the Court of I Additional Sessions Court, Erode and since the said Court also confirmed the conviction and sentence imposed on the petitioner/accused in all cases, he has come forward to file the above Criminal revision cases on grounds such as the veracity of the complainant's version about the transaction alleged in his complaint arises out of the date, which Exs.P.2 to P.4 bear; that the material legal infirmities in complainant's story effectively displaces and successfully rebuts the presumption under Section 139 available in favour of the existence of debt or liability against accused as laid down in 2001 Cri.L.J. 745; that the petitioner/accused is not liable to pay any amount as he never purchased goods on credit and he was only an agent for canvassing and forwarding Aditya Masala in and around Pallipalayam and Tiruchengode area, besides collecting the amount from grocery shops and hand over it to the complainant, but the respondent obtained the cheques as security and misused the same by filing these complaints. 6. 6. During arguments learned counsel appearing on behalf of the petitioner would submit that the complainant admitted that the accused was a distributing and forwarding Agent to canvass his Masala product; that he had terminated the agency under Ex.A9 dated 11.2.2002 issuing notice to the complainant and requesting him to return the cheques, 24 in numbers; that no vendor, vendee relationship existed; that the relationship was only as principal and agent. 7. On the contrary on the part of the learned counsel appearing on behalf of the respondent himself sailing along with the concurrent judgements of the trial Court and the Lower First Appellate Court would see that there is absolutely no anomaly or ambiguity or illegality or procedural failure which have crept into throughout the judgements of the trial Court and the Appellate Courts as well and hence this revision Court has no reason to interfere with the said concurrent findings rendered by the Courts below on the facts and circumstances of the case and in the context of the proposition of law covering the subject to the bouncing of cheques so far as Sections 138 and 142 of Negotiable Instruments Act are concerned and therefore the learned counsel would pray to dismiss all the above revision cases as absolutely bereft of any merits. 8. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, what comes to be known is that, so far as the issuance of cheques in dispute in all the above cases are concerned, it is an admitted fact on the part of the petitioner in his cross examination of his evident before the Court as D.W.1 regarding issuance of the said cheques, genuiness of the accounts of the complainant and also the liability on the part of the petitioner to the extent alleged by the respondent and therefore factually so far as the issuance of the cheques are concerned and there is no controversy involved in all the above cases. 9. 9. However, the defence that is taken now before this Court is that there had been no pre-existing debt; that the petitioner is only a distributor and forwarding agent to canvass the Masala products of the respondent company, that too he had terminated the agency under Ex.A9 dated 11.2.2002 causing a legal notice on the complainant further requesting to return the cheques and that there was no relationship between them as vendor and vendee but only a principal and agent. Such defence had already been taken before the trial Court itself and the trial Court has also considered those questions including the defence that there was no legally enforceable debts existing and finding that when such a stand has been taken on the part of the petitioner/accused whether regarding the non-existence of the pre-existing debt or regarding the relationship between them not as vendor and vendee but only as principal and agent or whether the petitioner was the respondents distributor and forwarding agent of the Masala products of the respondent, the burden to establish all these defence taken on the part of the petitioner lay only on the petitioner with proper oral and documentary evidence and the petitioner inspite of having come forward to allege that there was an agreement to the said effect, he has not filed the same nor marked it as a document thus giving an opportunity for the respondent to contest the same and therefore all these defence taken on the part of the petitioner/accused have been concluded by the trial Court and the first appellate Court having not been established in evidence and stood only as allegations particularly in view of the fact that preliminarily on production of the bounced cheques within the meaning of Section 138 of the Negotiable Instruments Act that the cheques have been issued only for the debt and liability that the accused had incurred in the business or trade or business that he had with the complainant and therefore, both the lower Courts have already gone into all these questions and all these points raised on the part of the petitioner and have answered in the negative; that they have not been established or proved with supporting documents or oral evidence to the satisfaction of the lower Courts and therefore this Court is of the view that the interference sought for to be made is neither desirable in the circumstances of the case nor is it necessary. 10. 10. During arguments, learned counsel appearing on behalf of the petitioner would cite from the following judgements what the upper forums of law including that of the Apex Court have held in different circumstances regarding the cheques bouncing cases reported in different Journals such as (1) 2000(2) Civil Law Journal 737 (SC) wherein it is held " in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, the notice might fail to meet the legal requirement and may be regarded as bad." (2) 1999 (1) C.T.C. 6 wherein the Single Judge of this Court has held that "if a cheque was not handed over with the intention of making it as an instrument of immediate negotiation to discharge a subsisting liabilityor debt, a complaint under Section 138 of Negotiable Insruments Act is nto maintainable." (3) 2002(1) Civil Law Journel 434 wherein the learned Single Judge of the Andhra Pradesh High Court has held that " If the demand is for a lsser amount or for a higher amount not covered by the cheque, then the prosecution must fail." (4) 2002(2) Civil Law Journal 206 wherein the learned Singe Judge of Jharkhand High Court held that "Cheques issued by way of advance payment for purchasing vehicle, no legally enforceable debt or liability and no question of discharge of any such debt or liability - cheque not honoured wouldl not constitute an offence under section 138 of the Negotiable Instruments Act. (5) 2000(3) Civil Law Journal 724 wherein the learned signle Judge of the Gujarat High Court has held that " No liability for discharge of debt on date of delivery of cheques - cheques issued as collateral security - complaint does not maintain. (5) 2000(3) Civil Law Journal 724 wherein the learned signle Judge of the Gujarat High Court has held that " No liability for discharge of debt on date of delivery of cheques - cheques issued as collateral security - complaint does not maintain. (6) 1993(2) Civil Law Journal 247 wherein the learned single Judge of the Orissa High Court in First Appeal had held " Presumption- when a person issuing cheque explains the situationl under which cheque was issued-presumption is rebutted." (7) 2000(1) C.T.C. 654 wherein the learned single Judge of this court has held that "No positive evidence produced by bank to show that pumpset was intact supplied - Account books of bank was not produced - Adverse inference drawn against bank and suit filed by Bank was dismissed in second appeal setting aside decree passed by trial Court and as confirmed by appellate court." (8) 2001(1) C.T.C. 616 wherein the Hon'ble Apex Court has held that "Proviso to Section 138 are penal in nature - Such penal provision has to be interpreted strictly so that no one can ingeniously or insidiouslyor guilefully or strategically be prosecuted." 11. Several judgements of different High Courts and the Hon'ble Apex Court have been cited for different proposition held by them either in the First Appeal or in the Second Appeal having come to be reported in the Civil Law Journal. Regarding these judgements, the answer is that the parameters applied for deciding a civil case are not the same for deciding the case registered under Sections 138 and 142 of the Negotiable Instruments Act as they have been enumerated under this particular Act which is a Special Act and therefore the application of propositions held in those civil cases cannot be applied for the prosecution of a case under the Negotiable Instruments Act which are decided under different parameters as envisaged in the said Special Act itself. 12. Regarding the other judgments of the High Courts they have been held to suit the facts and circumstances of the cases dealt with by them and the facts of the case connected to the above criminal revision cases since being different from that of those cases, the propositions held to suit the convenience of the facts of those cases decided by the Hon'ble Judges become not applicable to the cases on hand so far as the Hon'ble Supreme Court decisions are concerned. They have been followed scrupulously by the Courts below and therefore it is a case in which a decision has to be arrived at, regarding those facts and circumstances which have arisen in these cases and the defence taken on the part of the petitioner/accused wherein the evidence placed on record and the legalities argued in the context of certain judgement broughtforth during arguments before the trial Court and the Appellate Court as well have not only traced the facts and circumstances of the case as they have been broughtforth in their respective pleadings but also conducted a thorough trial into the same with due opportunity for both parties to be heard in full permitting to adduce oral evidence and to mark the documentary evidence as broughtforth supra and in full appreciation of the evidence placed on record and in application of the legality involved in the case, both the Courts have arrived at a concurrent decision to convict the accused in the manner extracted supra and in these circumstances, this Court does not feel any room is left with for causing such interference into the well considered and merited judgement concurrently rendered by the trial Court and the First Appellate Court as well, to convict the accused for the commission of offence under Section 138 of the Negotiable Instruments Act thereby sentencing in each case to undergo simple imprisonment of one year and imposing a fine of Rs.5000/- in default to undergo imprisonment for two months and on payment of the fine amount, a sum of Rs.4000/- is directed to be paid to the respondent as compensation under section 357(1)(a)&(b) of Cr.P.C. and to pay the rest of Rs.1000/- to the Government as fine amount. In result, i) the above civil revision cases do not merit acceptance and they are dismissed as such. ii) the judgements dated 31.7.2003 rendered by the Court of the I Additional Sessions Judge, Erode, in C.A.Nos.74,75, 76, 77, 78, 79, 80 and 81 of 2003 respectively thereby confirming the conviction and sentence rendered by the Court of Judicial Magistrate No.I, Erode, in C.C.Nos.236, 237. 238, 286, 287, 288, 289 and 290 of 2002 in its orders dated 28.4.2003 respectively, are hereby confirmed.