Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 4387 (MAD)

Krishnasamy v. Ponniyan

2012-10-18

C.S.KARNAN

body2012
Judgment :- The revision petitioner / petitioner / accused has preferred the present revision in Crl.R.C.No.303 of 2009, to set-aside the order passed in C.M.P.No.3620 of 2008 in C.C.No.960 of 2008, on the file of Judicial Magistrate-II, Mettur, dated 29.12.2008. 2. The short facts of the case are as follows:- The complainant is the father-in-law of the accused. On 20.01.2007, the accused had borrowed a sum of Rs.15,00,000/-from the complainant, agreeing to pay the same in the month of May 2007. In the meanwhile, the accused having come to know that his daughter Meenakshi was in love with a person, had tried to kill her, on numerous occasions. The complainant had saved his grand daughter Meenakshi by keeping her under his custody and had got her married on 24.06.2007 at Easwaran Temple and had kept both his grand daughter Meenakshi and her husband in his custody. Due to this, the accused, harboring ill feelings towards the complainant, had refused to return the Rs.15,00,000/- borrowed from the complainant. Subsequently, the accused had given a cheque dated 20.06.2008, drawn on Catholic Syrian Bank, Vellar Branch (Cheque No.198904), for a sum of Rs.15,00,000/- to and in favour of the complainant. 3. Subsequently, the accused and his wife Jayalakshmi had filed a original suit in O.S.No.195 of 2008 before the Mettur District City Civil Court, against the complainant and the some others. When the complainant presented the said cheque for encashment with his bankers, viz., Indian Bank, Mecheri Branch on 30.07.2008, it was returned unpaid on 31.07.2008, with an endorsement of "account closed". The complainant sent a lawyer's notice to the accused on 01.08.2008 which was received by the accused on 05.08.2008. The accused had sent a reply notice dated 16.08.2008 making false allegations. Hence, the complainant had filed a complaint against the accused for an offence under Section 138 of Negotiable Instruments Act before the Judicial Magistrate-II, Mettur. 4. Subsequently, the case was taken on file of Judicial Magistrate-II as C.C.No.960 of 2008. During the pendency of the case, the accused had filed a petition in C.M.P.No.3620 of 2008 under Section 45 of the Evidence Act and Section 293 of Cr.P.C. and Sections 138 and 139 of the Negotiable Instruments Act. It was submitted that the respondent herein is the father-in-law of the petitioner / accused and that the respondent has only one daughter, viz., Jayalakshmi. It was submitted that the respondent herein is the father-in-law of the petitioner / accused and that the respondent has only one daughter, viz., Jayalakshmi. It was submitted that the petitioner is owner of lands in Vellar Village and that the petitioner went to Madras in the year 1974 for his business purposes and requested the complainant and his wife to look after his agricultural operations and also to receive rents. It was submitted that the petitioner's building was rented to Catholic Syran Bank at Vellar. For the purpose of collecting rent and also for other agricultural operations, the petitioner herein authorized the complainant / respondent to operate savings bank account No.505 of Catholic Syrian Bank at Velllar. It was submitted that the respondent / complainant and his wife misappropriated the petitioner's agricultural income and also the rent from Catholic Syrian Bank. So a panchayat was convened in the year 2001 and the complainant herein accepted his fraudulent act before the panchayat and settled at Mecheri Town in the year 2002 and vacated the properties of the petitioner. It was submitted that the complainant herein did not return one or two cheques leaves of the petitioner in connection with S/B account No.505. Therefore, the petitioner closed his S/B account No.505 of Catholic Syrian Bank at Vellar and started a new account in S/B account in the same bank in account No.2385 on 27.10.2001 and started operations thereafter. 5. It was submitted that the respondent / complainant tried to sell the individual joint family property belonging to the complainant and his daughter Jayalakshmi, who is the wife of the petitioner herein. It was submitted that the petitioner's wife has ½ share in the ancestral property. Hence, the petitioner's wife, Jayalakshmi and the petitioner jointly filed a suit for the relief of partition, declaration and injunction against the respondent and others in O.S.No.195 of 2008, on the file of District Munsif Court, at Mettur. The above suit was filed on 21.07.2008. It was submitted that in order to escape from the suit proceedings, the respondent / complainant falsely fabricated the cheque leaf of the petitioner and filled it as if the petitioner borrowed a sum of Rs.15,00,000/-from the complainant on 20.06.2008. It was submitted that the petitioner did not borrow any loan from the complainant and the petitioner never handed over the cheque leaf on 20.06.2008. It was submitted that the petitioner did not borrow any loan from the complainant and the petitioner never handed over the cheque leaf on 20.06.2008. It was submitted that the cheque leaf was materially altered in line No.5. In the line Number 5, the number "19" is materially altered as "20" as if the cheque was issued on 20.06.2008. It was submitted that the petitioner had closed his S/B account in a/c No.505 in the year 2001 itself and that he is operating the new S/B account in a/c. No.2385 since 2001 onwards. It was submitted that the petitioner filed a private complaint before this Court and the Court was pleased to entertain the complaint in C.M.P.No.2357 of 2008, dated 05.08.2008 and a direction was given to the Inspector of Police, Mecheri to investigate the case. The Mecheri Police also filed a F.I.R. in Crime No.432 of 1998, on 28.08.2008 for an offence under Section 420 and 468 and started their investigation. It was submitted that the respondent / complainant had filed the present complaint in a fraudulent manner. It was submitted that the date, the name of the drawer, the amount in words of Rs.15,00,000/-and the amount in number had not been filled by the petitioner. It was submitted that the ink used in the writings of words and figures is not that of the petitioner and that the signature of the petitioner is in a different ink from that used in the writing of the other particulars. Hence, it was prayed to send the disputed cheque to an expert of the Forensic Department to compare the writings in the cheque leaf with that of the admitted signatures in the cheque leaves viz., xerox copes of the cheque leaves dated 20.05.2008 and 10.06.2008 and to verify the difference in the age of the inks in the disputed cheque leaf and to identify the material alterations in Col.6 of the cheque leaf mentioned above. It was submitted that the petitioner was ready to bear the cost of the above legal process. 6. The respondent in his counter had admitted the relationship that the petitioner is his son-in-law, but had denied the other allegations made in the petition. It was submitted that the petitioner was ready to bear the cost of the above legal process. 6. The respondent in his counter had admitted the relationship that the petitioner is his son-in-law, but had denied the other allegations made in the petition. The respondent had denied the convening of panchayat as detailed by the petitioner but had stated that there was enmity between his family and that of the petitioner in the year June 2007, due to the marriage of the petitioner's daughter. It was submitted that the accused, even prior to this had borrowed a sum of Rs.15,00,000/-from the respondent on 20.01.2007. The respondent had also denied the allegation of the petitioner that the respondent had not given him the two cheques. It was submitted that if the petitioner had really closed his S/B account in the bank, he should have handed over all the unused cheques to his bank. It was submitted that even if some of the cheques had been lost by the petitioner, he should have informed about this to his bank. It was submitted that the petitioner had hidden all the facts in order to escape from the clutches of law and filed the petition. It was submitted that the respondent had given a loan of Rs.15,00,000/- only because he was his son-in-law and that there was no material alteration in the cheque given to him by the petitioner. It was also submitted that the petitioner had filed the original suit before the Court against him only after receipt of lawyer's notice issued by him for dishonour of cheque. It was also submitted that there are no reliable and scientific method to find out the age of ink in the writings contained in the cheque and hence it was prayed to dismiss the petition. 7. The learned Magistrate on scrutiny of the reply notice sent by the petitioner on 16.08.2008 observed that the petitioner had only contended that the respondent, in order to obtain wrongful gain, had misused the cheque and had not stated that the cheque had not been issued by him and that he had not signed the cheque. It is seen that the petitioner had only stated that the writings contained in the other parts of the cheque are not his. It is seen that the petitioner had only stated that the writings contained in the other parts of the cheque are not his. The learned Magistrate opined that when the petitioner had not disputed his signature in the cheque, the details regarding how it came into the possession of the respondent and how he had misused it could be determined with clarity during trial. The learned Magistrate also opined that it is not mandatory and no law prescribes that the body of the cheque should also be written by the signatory of the cheque and that a cheque could be filled up by anybody, if it has been signed by the account holder of the cheque. The learned Magistrate observed that by comparing the handwritings viz., the writings in the body of the cheque as well as admitted handwriting of the petitioner, it would not tilt the balance of the case in anybody's favour and that it would depend upon the liability and under what circumstances the cheque was issued. Hence, the learned Magistrate on holding that the petitioner could very well establish his contention, that the cheque was misused by the complainant, at the time of trial and on holding that there was no necessity for sending the cheque for an expert opinion to determine that the writings on the other parts of the cheque had not been filled by the petitioner, dismissed the petition. 8. Aggrieved by the dismissal of his petition, the petitioner / accused has preferred the present revision. 9. The learned counsel for the revision petitioner has contended in the grounds of revision that the trial Court has failed to note that the documents filed along with the petition would show that there was discrepancy in the writings. It was pointed out that the trial Court failed to see that there was strained relationship between the petitioner and respondent since 2001 during the pendency of the civil suit between the petitioner and his wife against the respondent. It was contended that the trial Court ought to have compared the disputed cheque with the certified copies of the cheques produced by the petitioner from the bank, for the relevant period under Section 73 of Evidence Act. It was contended that the trial Court ought to have compared the disputed cheque with the certified copies of the cheques produced by the petitioner from the bank, for the relevant period under Section 73 of Evidence Act. It was contended that the trial Court failed to appreciate that the complaint given by the petitioner has been taken on file by the same Court and that a direction was given to the police to investigate the case of the petitioner for the offence under Section 420 and 468 of IPC and the same has been registered in Crime No.432 of 2008, on the file of the Mecheri Police Station for the said offence and the investigation is pending. It was also pointed out that the trial Court failed to appreciate that the respondent had denied filling the particulars of the cheque and that only the petitioner has filled the cheque and as such the application ought to have been ordered. It was pointed out that the trial Court ought to have compared the signatures by itself and ought to have ordered application. 10. The learned counsel for the complainant submitted that the petitioner had not inspected the original cheque and without inspecting the original cheque, the petitioner has sought a direction to the Forensic Department officials to give an expert opinion. Actually, the accused had filed a memo on 20.11.2008 to inspect the original cheque which has been filed along with the complaint. The learned counsel further submitted that the age of the ink need not be determined, scientifically, on the basis of writings after the admission of the signature in the cheque by the accused. 11. From the foregoing discussions and on scrutinizing the impugned order of the learned Judicial Magistrate, this Court does not find any infirmity in the said order. Therefore, this Court is not warranted to interfere with the impugned order of the trial Court. This Court further directs the Judicial Magistrate-II, Mettur, to dispose the case in C.C.No.906 of 2008, on the topmost priority basis. 12. Resultantly, the above revision is dismissed. Consequently, the order passed in C.M.P.No.3620 of 2008 in C.C.No.960 of 2008, on the file of Judicial Magistrate-II, Mettur, dated 29.12.2008 is confirmed. Consequently, connected miscellaneous petition is closed.