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2017 DIGILAW 4146 (MAD)

R. Sarangapani v. R. S. Nammalwar

2017-12-05

P.N.PRAKASH

body2017
ORDER : 1. For the sake of convenience, the parties may be referred to as the complainant and the accused. 2. The case of the complainant is that the land measuring 5½ grounds in S. Nos. 78/1, 78/3 in T.S. No. 105, Block No. 16 Ward No. 119, Kotturpuram, Chennai-85 belonged to one R. Ranganathan (since deceased), Smt. Sulochana Ranganathan, S.L. Narayanamurthy and R.S. Nammalwar (accused herein). The said four persons agreed to sell the land to the complainant at the rate of Rs. 53,00,000/- per ground. 3. It is also the case of the complainant that he had given an advance of Rs. 1,02,00,000/- to the said persons, but, after having received the huge advance amount, they were not coming forward to execute the sale deed nor did they return the advance amount paid. Therefore, the complaint lodged a police complaint, based on which, a case in Cr. No. 734 of 2008 for offence punishable under Sec. 420 r/w 34 IPC was registered on 19.09.2008 by the Central Crime Branch, Madras. 4. During pendency of investigation, all the four persons entered into a compromise agreement with the complainant on 16.10.2008 agreeing to return Rs. 2,10,00,000/- as compensation, which includes the advance amount of Rs. 1,02,00,000/-. 5. While so, R.S. Nammalvar (the accused herein) gave a cheque bearing No. 510422 dated 15.11.2008 drawn on Indian Overseas Bank for Rs. 52,50,000/- in favour of the complainant. The complainant deposited the cheque on the same day and it was returned unpaid on 17.11.2008 with an endorsement stop payment. The complainant issued the statutory notice under Sec. 138 of the Negotiable Instruments Act on 29.11.2008 calling upon the accused to pay the cheque amount of Rs. 52,50,000/- within fifteen days of the receipt of the legal notice. Since the accused did not pay the amount, the complainant initiated prosecution in C.C. No. 564 of 2010 before the learned Metropolitan Magistrate/ Fast Track Court No. I, Egmore, Chennai under Sec. 138 of the Negotiable Instruments Act. 6. On receipt of summons, the accused appeared before the trial Court and when he was questioned about the substance of the accusation, he pleaded not guilty. 7. The complainant examined himself as PW-1 and also examined the Senior Manager of Indian Overseas Bank as PW-2. On behalf of the complainant, 15 exhibits were marked. 8. 6. On receipt of summons, the accused appeared before the trial Court and when he was questioned about the substance of the accusation, he pleaded not guilty. 7. The complainant examined himself as PW-1 and also examined the Senior Manager of Indian Overseas Bank as PW-2. On behalf of the complainant, 15 exhibits were marked. 8. The accused was questioned about the incriminating circumstances under Sec. 313 of Criminal Procedure Code and denied the same. No witness was examined on behalf of the accused, but, however, three exhibits were marked. 9. The trial Court, after considering the evidence adduced by both sides, convicted the accused under Sec. 138 of Negotiable Instruments Act and sentenced him to undergo one year simple imprisonment and to pay a sum of Rs. 52,50,000/- as compensation to the complainant, in default, to undergo simple imprisonment for three months. Challenging the conviction and sentence, the accused filed Criminal Appeal in C.A. No. 224/2013, in which, the learned XV Additional Sessions Judge, Chennai acquitted the accused on 22.04.2014. Aggrieved by which, the complainant filed the present appeal against acquittal with a delay of 149 days. 10. This Court, by order dated 21.11.2016 in M.P. No. 1 of 2015 in Crl. A. No. 55688 of 2014 condoned the delay of 149 days. Now, the Special Leave Application is under consideration. 11. It is trite that Special Leave to appeal is not automatic and only if the Court is convinced that there are prima-facie materials to show that the order of acquittal suffers from serious infirmity, warranting interference, in appeal, should leave be granted. This Court also bear in mind the following passage from the judgment of the Hon'ble Supreme Court in Arulvelu and Another vs. State Rep. by Public Prosecutor and Another, 2009 (10) SCC 206 , wherein the Hon'ble Supreme Court has held as follows: “36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.” 12. On a reading of the affidavit and the evidence of the complainant, it is seen that neither in the complaint nor in the evidence of the complainant, he has stated as to the date on which, the huge amount of Rs. 1,02,00,000/- was paid. This was specifically put to the complainant in the cross-examination, for which, he has stated as follows: xxx xxx xxx 13. Even according to the complainant, when the four persons did not come forward to execute the sale deed nor return the amount, he lodged the complaint to the police, based on which, an F.I.R in Cr. No. 734/2008 was registered for the offence under Sec. 420 r/w 34 IPC on 19.09.2008 and the police were set upon the accused. 14. It is the specific case of the accused that the Damocles sword was hanging over his head. He entered into an agreement on 15.11.2008 and paid the impugned cheque on that date. May be noted the two important dates viz. the date of first information report i.e. 19.09.2008 and the date of issuing of the cheque i.e. 15.11.2008, which is subsequent to the registration of the first information report. 15. The accused has marked Ex.D.1 which is a letter dated 14.11.2008, given by the accused to his banker, wherein, it is stated as follows: On 16.10.2008 at Egmore Police Commissioner's Office I was threatened and forced to issue a cheque by one Mrs. Martin, Inspector, A1 Crime Branch on behalf of Mr. R. Sarangapani. Therefore I request you to stop payment the Cheque No. 510422 dated 15.11.2008 for Rs. 52,50,000/-. 16. Even in the cross-examination of the complainant, he has stated as follows: xxx xxx xxx 17. Thus, it is apparent that for an alleged advance of Rs. Martin, Inspector, A1 Crime Branch on behalf of Mr. R. Sarangapani. Therefore I request you to stop payment the Cheque No. 510422 dated 15.11.2008 for Rs. 52,50,000/-. 16. Even in the cross-examination of the complainant, he has stated as follows: xxx xxx xxx 17. Thus, it is apparent that for an alleged advance of Rs. 1,02,00,000/- an FIR was registered against the accused at the instance of the complainant on 19.09.2008 and thereafter, on 16.10.2008, the accused was threatened to give a post dated cheque dated 15.11.2008 for Rs. 52,50,000/-. The Three Judges Bench of the Hon'ble Supreme Court in Rangappa vs. Sri. Mohan, 2010 (11) SCC 441 deprecated the practice of using the police machinery to settle civil dispute. In this case, presumption under Sec. 139 of the Negotiable Instruments Act has been satisfactorily rebutted by the accused through cross-examination of the complainant and by marking Exs.D.1 and D.2 to show that the impugned cheque was obtained under coercion. All these aspects have been considered by the first appellate Court for acquitting the accused. 18. In such view of the matter, this Court does not find any infirmity in the order of acquittal passed by the learned XV Additional Sessions Judge, Chennai in C.A. No. 224/2013 dated 22.04.2014. 19. In the result, the Special Leave Petition is dismissed. Consequently, connected Crl. A. No. 55688 of 2014 is closed.