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2006 DIGILAW 784 (MAD)

D. Chandrasekaran v. M. Muthukumarasamy

2006-03-21

M.JEYAPAUL

body2006
Judgment :- (Revisions preferred under Section 397 and 401 of the Code of Criminal Procedure against the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.2, Coimbatore dated 14.3.2005 in Criminal Appeal Nos.255, 251 and 252 of 2001 confirming the judgment of the learned Judicial Magistrate No.2, Coimbatore dated 18.6.2001 in C.C.Nos.438 of 1998, 420 and 421 of 1996.) Common Order: The petitioner herein who faced prosecution under Section 138 of the Negotiable Instruments Act and having received a verdict of conviction, has preferred the respective criminal revision cases before this Court. 2. The complainant in the three cases are three different persons. M/s.Seven Star Videos represented by one Babu and Chandrasekaran are the accused in C.C.Nos.438 of 1998 and 420 of 1996 which ultimately culminated in Crl.R.C.Nos.372 and 373 of 2005 before this Court. Chandrasekaran is the accused in C.C.No.421 of 1996 which ultimately culminated in Crl.R.C.No.374 of 2005 before this Court. 3. Chandrasekaran, who figures as second accused in C.C.Nos.438 of 1998 and 420 of 1996, has preferred the respective criminal revisions in Crl.R.C.Nos.372 and 373 of 2005 and the very same accused in C.C.No.421 of 1996 has preferred Crl.R.C.No.374 of 2005. 4. The revision petitioner has been convicted for the offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo one year simple imprisonment and to pay a compensation of Rs.1,50,000/- in each of the three cases and the said verdict was upheld by the learned Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore in Criminal Appeal Nos.251, 252 and 255 of 2001 respectively. 5. The sum and substance of the charge as against the petitioner is that the first accused firm in C.C.No.438 of 1998 and C.C.No.420 of 1996 received a sum of Rs.3 lakhs on execution of pro-notes and towards the said dues, the petitioner herein issued cheque in his capacity as one of the partners of the first accused firm. 6. The charge as against the petitioner herein in C.C.No.421 of 1996 is that the petitioner herein in his individual capacity received a sum of Rs.3 lakhs on execution of pro-note and issued a cheque for a sum of Rs.3 lakhs towards the said dues. 6. The charge as against the petitioner herein in C.C.No.421 of 1996 is that the petitioner herein in his individual capacity received a sum of Rs.3 lakhs on execution of pro-note and issued a cheque for a sum of Rs.3 lakhs towards the said dues. The common charge as against the petitioner in all the three cases is that when the cheques were presented for collection, the respective cheques were returned dishonoured with an endorsement "account closed". After issuing statutory notice, the criminal prosecution was initiated by the respondents herein. 7. The trial Court, having adverted to the evidence on record in the back ground of oral testimony, has come to a conclusion that the cheques were issued for the existing liability by the petitioner herein in his capacity as partner of M/s. Seven Star Videos in two cases and in his individual capacity in one case. As the cheques presented for collection were returned dishonoured as "account closed", the petitioner herein was convicted for the offence under Section 138 of the Negotiable Instruments Act and mandated to undergo the sentence as stated supra. 8. The trial Judge has rejected the contention of the petitioner that the pro-notes and cheques which were issued towards chit transaction were misused, in the absence of cogent evidence on his side to rebut the voluminous testimony found on record. 9. The appellate Judge also has completely concurred with the decision arrived at by the trial Judge with regard to the existing liability, issuance of cheques in favour of the respondents herein and the dishonour of the cheques on account of the closure of accounts by the petitioner herein and confirmed the judgments pronounced by the trial Court. 10. Learned counsel for the petitioner would submit that the petitioner had some chit transaction with R.Marudhachalam, the respondent in Crl.R.C.No.373 of 2005 and towards such transaction, the petitioner executed two blank pro-notes and two blank cheques. But those blank documents were not returned in spite of the closure of the transaction way back in June 1994 itself. 10. Learned counsel for the petitioner would submit that the petitioner had some chit transaction with R.Marudhachalam, the respondent in Crl.R.C.No.373 of 2005 and towards such transaction, the petitioner executed two blank pro-notes and two blank cheques. But those blank documents were not returned in spite of the closure of the transaction way back in June 1994 itself. The petitioner issued notice on 20.9.1994 calling upon the said R.Marudhachalam to return the two blank pro-notes and two blank cheques issued in connection with the chit transaction and received a reply from him stating that those blank pro-notes and blank cheques were returned as the chit transaction was closed in the month of June 1994, but unfortunately, the petitioner was shocked to receive a statutory notice not only from the said R.Marudhachalam, but also from his close relatives, the respondents in the other criminal revision cases calling upon the petitioner to settle the amounts found in the dishonoured cheques. 11. It is his further contention that if at all there had been money transaction and towards which blank pro-notes and blank cheques were issued by the petitioner prior to the issuance of notice by the petitioner calling upon the said R.Marudhachalam to return the blank pro-notes and blank cheques, the said R.Marudhachalam in his reply dated 25.9.1994 would have definitely referred to such transaction and the existence of those blank pro-notes and blank cheques. He also referred to the public notice flashed in the newspaper about the blank pro-notes and blank cheques handed over to the said R.Marudhachalam and the non-return of those documents even after the closure of the transactions and submitted that the above facts and circumstances arisen from those documentary proof even in the absence of any oral testimony from the mouth of the petitioner would clinchingly establish that there was no existing liability and that the blank pro-notes and blank cheques in question were passed on to the said R.Marudhachalam only during the course of chit transaction the petitioner had with the said R.Marudhachalam and those blank pro-notes and blank cheques were later on filled up to suit the convenience of the said R.Marudhachalam and three cases were instituted for the offence under Section 138 of the Negotiable Instruments Act through himself and his relatives. 12. 12. Learned counsel for the respondents would submit that the notice dated 20.9.1994 issued by the petitioner was suitably replied by the respondent R.Marudhachalam by his reply notice dated 25.9.1994 denying any blank pro-notes or blank cheques left in his custody in connection with the chit transaction which was terminated even in the month of June 1994. It is his further contention that when there is such a total denial, the petitioner should have entered into the box and come out with rebuttal evidence to over come the statutory presumption which has arisen under Sections 118 and 139 of the Negotiable Instruments Act. It is his further submission that when the trial Court as well as the appellate Court have returned concurrent verdict, this Court cannot scan the evidence to arrive at an adverse verdict. 13. The notice dated 20.9.1994 has been issued by the petitioner to the said respondent R.Marudhachalam in Crl.R.C.No.373 of 2005 claiming individual chit transaction with the said R.Marudhachalam. But on a perusal of the documents produced before the trial Court in connection with Crl.R.C.No.373 of 2005, it is found that the petitioner herein in his capacity as partner of Seven Star Videos executed pro-notes and later on issued cheques only in his capacity as partner of Seven Star Videos. The said transaction had not taken place in his individual capacity. If at all, R.Marudhachalam had come out with a case under Section 138 of the Negotiable Instruments Act, alleging that the petitioner prior to the issuance of notice by him on 20.9.1994 borrowed money, executed pro-note and later on issued cheque, there is some point in the submission made by the petitioner that the pro-notes and cheques passed on in his individual capacity were fabricated to suit the convenience of the said R.Marudhachalam and filed before the Court in the criminal prosecution. 14. If at all the firm was involved in the chit transaction, the petitioner would have definitely mentioned about the involvement of the firm therein and sought for return of the alleged blank pro-notes and blank cheques issued by the firm. Considering the very fact that the firm had transacted with the said R.Marudhachalam, the Court finds that there is no truth in the version of the petitioner that blank pro-notes and blank cheques were concocted and criminal prosecutions were launched against him. Considering the very fact that the firm had transacted with the said R.Marudhachalam, the Court finds that there is no truth in the version of the petitioner that blank pro-notes and blank cheques were concocted and criminal prosecutions were launched against him. The respondent M.Muthukumarasamy in Crl.R.C.No.372 of 2005 has launched such a prosecution under Section 138 of the Negotiable Instruments Act, pleading that the petitioner in his capacity as partner of the firm borrowed a sum of Rs.3 lakhs and executed a pro-note therefor and later on passed on a cheque on behalf of the firm. The respondent S.V.Nachimuthu in Crl.R.C.No.374 of 2005 has come out with a case that D.Chandrasekaran in his individual capacity borrowed money, executed pro-note and later on passed on a cheque which bounced for the reason that the account of the petitioner was closed. There is no allegation against S.V.Nachimuthu that he received blank pro-notes and blank cheques from the petitioner herein. M.Muthukumarasamy and S.V.Nachimuthu may be related to R.Marudhachalam and may have animosity towards the petitioner, but when the retention of blank pro-notes and blank cheques were stoutly disputed by R.Marudhachalam in his reply dated 25.9.1994, it is the duty of the petitioner to enter into the box and give cogent rebuttal testimony to upset the statutory presumption which has arisen out of the admission of signatures in the pro-notes and the cheques that it was he who issued pro-notes after receiving the consideration and passed on the cheques to discharge the existing liability. 15. Mere denial or rebuttal by the accused through his notice or reply notice is not at all sufficient to disprove the presumption arisen under Sections 118 and 139 of the Negotiable Instruments Act as held in K.N.BEENA vs. MUNIYAPPAN ( (2001) 8 SCC 458 )). 16. The legal presumption arisen in favour of the respondent cannot be held to be discharged merely by reason of the fact that explanation offered by the accused is reasonable and probable as observed in DHANVANTRAI BALWANTRAI DESAI vs. STATE OF MAHARASHTRA (1964 (1) CRL. L.J. 437). 17. 16. The legal presumption arisen in favour of the respondent cannot be held to be discharged merely by reason of the fact that explanation offered by the accused is reasonable and probable as observed in DHANVANTRAI BALWANTRAI DESAI vs. STATE OF MAHARASHTRA (1964 (1) CRL. L.J. 437). 17. Further as the trial Judge as well as the appellate Judge have returned a concurrent verdict, this Court cannot re-examine and re-appreciate the evidence to come to a contrary conclusion except where the effective superintendence or supervision to correct the illegality is quite warranted as adumbrated in the authority in STATE OF MAHARASHTRA vs. JAGMOHAN SINGH KULDIP ANAND (2005 M.L.J. (CRL.) 77). 18. The trial Judge as well as the Appellate Judge have returned a verdict that the petitioner herein having issued the respective cheques towards the existing liability closed the account which culminated in dishonour of cheques. The sentence also has been awarded proportionate to the cheque amount involved in the case. 19. But it is found that all the three cases have been decided on a single day but the trial Judge has not directed the accused to undergo sentence concurrently. It is found that the petitioner has been undergoing sentence for the past more than one year. The petitioner could not come out from jail as he was not in a position to comply with the conditional order passed by this Court to deposit a part of the compensation amount awarded by the trial Court and confirmed by the Appellate Court. 20. The Court finds that the sentence will have to be ordered to run concurrently in the interest of justice. 21. The criminal revisions challenging the verdict of conviction passed in C.C.No.438 of 1998, C.C.No.420 of 1996 and C.C.No.421 of 1996 respectively by the learned Judicial Magistrate No.2, Coimbatore and confirmed in C.A.No.255 of 2001, C.A.No.251 of 2001 and C.A.No.252 of 2001 respectively by the learned Additional District and Sessions Judge, Fast Track Court No.2, Coimbatore stand dismissed, as there was no impropriety or illegality in the verdict passed by the trial Judge as well as the Appellate Judge. But the substantive sentence imposed in C.C.No.438 of 1998, C.C.No.420 of 1996 and C.C.No.421 of 1996 respectively by the learned Judicial Magistrate No.2, Coimbatore and confirmed in C.A.No.255 of 2001, C.A.No.251 of 2001 and C.A.No.252 of 2001 respectively by the learned Additional District and Sessions Judge, Fast Track Court No.2, Coimbatore are ordered to run concurrently. 22. With the above modification in the mode of undergoing the sentence, all the three criminal revision cases stand dismissed. Consequently, connected criminal miscellaneous petitions also stand dismissed.