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2009 DIGILAW 2317 (MAD)

M. Kulasekaran v. V. Radhakrishnan & Another

2009-07-13

G.RAJASURIA

body2009
Judgment :- 1. A resume of facts which are absolutely necessary and germane for the disposal of this Revision would run thus : (i) The respondent herein filed the Complaint under Section 138 of the Negotiable Instruments Act as against the revision petitioner herein. Inasmuch as the revision petitioner pleaded not guilty, an enquiry was conducted. (ii) During enquiry on the side of the prosecution P.Ws. 1 and 2 were examined and Exs.P.1 to P.6 were marked. However, neither oral nor documentary evidence was produced on the side of the accused. (iii) Ultimately, the lower Court recorded conviction and imposed the sentence as under : Offence Sentence imposed Fine amount Under Section 138 r/w. 142 of the Negotiable Instruments Act 6 months Simple Imprisonment Rs.5,000/- In default to undergo two months Simple Imprisonment 2. Animadverting upon the judgment of the lower Court, an Appeal was filed for nothing but to be confirmed by the Appellate Court. Impugning and challenging the judgment of both the Courts below, this Revision is filed on various grounds the gist and kernel of them would run thus : (a) The Courts below failed to take into consideration the responsibility of the complainant to prove the alleged debt involved in the case (b) The Courts below erroneously placed reliance on the presumption as contemplated under Section 118 and 139 of the Negotiable Instruments Act. 3. Heard both sides. The point for consideration is as to whether the Courts below were perverse in holding that the cheque was issued in relation to a debt and whether the Courts below wrongly applied Section 118 and 139 of the Negotiable Instruments Act in deciding the case ? 4. 3. Heard both sides. The point for consideration is as to whether the Courts below were perverse in holding that the cheque was issued in relation to a debt and whether the Courts below wrongly applied Section 118 and 139 of the Negotiable Instruments Act in deciding the case ? 4. Learned counsel for the revision petitioner, by inviting the attention of this Court to various portions of the evidence, would advance and develop his argument to the effect that absolutely there in no shard or shred, iota or molecular evidence to point out that there existed a pre-existing debt relating to which the impugned cheque emerged; simply because no reply was given to the notice, the burden cast upon the complainant to prove the debt did not get obliterated and the presumption as contemplated under Section 118 and 139 of the Negotiable Instruments Act would in no way ensure to the benefit of the complainant as there are catena of decisions to the effect that in the event of the accused even not taking any plea about the existence of the debt, it is the bounden duty of the plaintiff to prove the pre-existing debt. Whereas, the learned counsel for the respondent-complainant would put forth and set forth his argument to the effect that this is a case in which the revision petitioner/accused had refrained from giving any reply to the pre-litigation notice in view of the fact that the averments as contained in the said notice were true and correct; the complainant examined himself as P.W.1 and exhibit the document; the accused did not examine himself as a witness in this case and for that matter he had not even chosen to give any statement at the time of his examination under Section 313, Cr.P.C., there is no specific denial of the signature in the impugned cheque and in such a case absolutely there is nothing to find fault with the decision arrived at by both the Courts below. Accordingly, he prayed for the dismissal of this Revision. 5. Accordingly, he prayed for the dismissal of this Revision. 5. The learned counsel for the revision petitioner would cite a decision of this Court reported in M.A. Nachimuthu v. N. Ravichandran, 2007 (1) LW (Crl.) 579, and develop his argument to the effect that the burden is heavily on the complainant to prove that on the date of the drawal of the cheque there had been a legally enforceable subsisting debt. Whereas, the learned counsel for the complainant/respondent herein would appositely and appropriately, correctly and convincingly point out that the cited decision emerged in a case where the complainant filed the Appeal as against the acquittal whereupon, this Court refrained from interfering with the acquittal. 6. At this juncture, I would like to call upon and recollect the following decisions of the Honble Apex Court : (i) Binseshwari Prasad Singh alias B.P.Singh and Others v. State of Bihar (now Jharkhand) and another, 2002 SCC (Crl.) 1448, an excerpt from it would run thus: "13. The instant case is not one where any such illegality was committed by the Trial Court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding difference from the Trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases in not warranted. 14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the Trial Court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the Trail Court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. We cannot say that the judgment of the Trail Court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. (ii) Sathyajit Banerjee and Others v. State of W.B. and Others, 2005 SCC (Cri.) 276, an excerpt from it would run thus: "22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice." A bare poring over and perusal of the above judgments would exemplify and demonstrate that Revisional Court should be reluctant to interfere with the findings recorded by the lower Court, unless there is perversity or non-application of law in appreciating the evidence. The sum and substance of the said judgments of the Apex Court is to the effect that acquittal by the trial is in reinforcement of the presumption about the innocence of the accused. Over and above that a bare reading of the decision of this Court, cited supra, would reveal that it emerged from a case where the complainant had not proved the existence of the subsisting debt. As such, I am of the view that ratio decidendi of the decision of this Court reported in M.A. Nachimuthu v. N. Ravichandran, 2007 (1) LW (Crl.) 579, cannot be pressed into service so far as this case is concerned. Indubitably and indisputably the revision petitioner herein failed to reply to the Pre-litigation Notice. Absolutely, there is no reason, much less, any valid reason available for such inaction on the part of the accused. Had really the complainant issued such pre-litigation notice, allegedly fraught with falsity, naturally the accused should have swing into action by way of tarpedoing the said notice by issuing a reply notice. But he did not do so. Over and above that, he has not chosen to examine himself before the Trial Court as a witness. Even during the examination under Section 313, Cr.P.C. he never stated anything as to what was his defence, except denying his guilt in toto. But he did not do so. Over and above that, he has not chosen to examine himself before the Trial Court as a witness. Even during the examination under Section 313, Cr.P.C. he never stated anything as to what was his defence, except denying his guilt in toto. In this case, P.W.1 had detailed and delineated expressed and expatiated as to what transpired between him and the accused P.W.1 set out and put forth the facts to the effect that the accused borrowed money from him by way of hand loan and in such a case the Court cannot expect that evidence aliunde ought to have been produced by the complainant in support of his case. For mere hand loan, there cannot be any documentary evidence. At the risk of repetition and pleonasm but without being tautologous, I would like to point out that no law says that if one individual lends money to another individual without any witness, he would not be able to approach the Courts of justice for recovery. It all depends upon the facts involved in a particular case. It is not the number of witness that matters as per Section 134 of the Indian Evidence Act. Here the evidence of P.W.1 is free from blemish. One suggestion was found to have been put during cross-examination of P.W.1 as though there was one S.B. Subramaniam and that he was acting on behalf of that person by instituting the false Complaint. In my opinion, this is a far fetched suggestion having no legs to stand. There is nothing to indicate and exemplify that the complainant is in any way connected with the said S.B. Subramaniam. In such a case, on mere assumption the accused cannot plead that the presumption as contemplated under Section 139 was rebutted by him. In this connection, the following decision of the Apex Court can fruitfully be referred to: P. Venugopal v. Madan P.Sarathi, 2009 (1) SCC 492 . An excerpt from it would read thus: 14. Indisputably, in view of the decision of this Court in Krishna Janardhan Bhat1, the initial burden was on the complainant. The presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. An excerpt from it would read thus: 14. Indisputably, in view of the decision of this Court in Krishna Janardhan Bhat1, the initial burden was on the complainant. The presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. The presumption raised does not extend to the extent that the cheque was issued for the discharge of any debt or liability which is required to be proved by the complainant. In a case of this nature, however, it is essentially a question of fact. 15. The complainant contended that he gave a loan of Rs.1,20,000 to the appellant. He denied and disputed the said fact. Both the parties adduced their respective evidences. 16. All the three Courts below have arrived at a concurrent finding that the complainant has been able to prove his case of grant of a loan. Admittedly, the burden of proof shifted to the appellant. Again a finding of fact was arrived at that the appellant had failed to discharge his burden. 17. In the aforementioned situation, we are of the opinion that the finding of fact arrived at by the courts below cannot be said to be such which warrants interference by us. So far as the question of service of notice in terms of the proviso appended to Section 138 of the Act is concerned, again the same is essentially a question of fact. If the evidence of PW 2 has been believed by the learned Trial Judge as also by the Appellate Court and the Revisional Court, we in exercise of our jurisdiction under Article 136 of the Constitution of India should not interfere therewith." A plain poring over and perusal of the said decision would clearly indicate and spotlight that there should be some facts or circumstances established by the defence so as to fob off the burden once again to the complainants side. It is quite obvious and axiomatic that the complainant at the first instance should place before the Court the relevant evidence that there existed a debt and in connection with that debt the cheque emerged. In this case, the complainant, by examining himself as P.W.1, narrated the facts and also produced the cheque Ex.P.1, thereby with the help of Section 139 he fobbed off onus of proof on the accused. In this case, the complainant, by examining himself as P.W.1, narrated the facts and also produced the cheque Ex.P.1, thereby with the help of Section 139 he fobbed off onus of proof on the accused. As contemplated by the Honble Apex Court, such burden, which was shifted with the help of Section 139 in this case, should have been shifted back to the complainant by the accused. But, as correctly pointed out by the learned counsel for the complainant absolutely there is nothing on record to indicate that such burden was shifted back to the complainant by the accused in any manner as contemplated in the Apex Courts judgment. In such a case, I could see no infirmity or illegality, impropriety or perversity in the judgment of the Courts below. 7. The sentence aspect is concerned, both the Courts below were of the view that six months imprisonment would be comeuppance. In this case compensation was also not awarded. Learned counsel for the complainant would submit that even if fine is replaced by compensation, such amount, P.W.1 would not be able to recover. In such a case, I am of the opinion that the sentence of six months Simple Imprisonment could be reduced to three months Simple Imprisonment and that would meet the ends of justice. The Criminal Revision Case is partly allowed. The Magistrate shall issue warrant to secure the revision petitioner and send him to jail to undergo the period of three months imprisonment, if he had not already undergone.