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2018 DIGILAW 1900 (MAD)

M. Krishnasamy v. R. M. Gnaneswaran

2018-06-19

P.RAJAMANICKAM

body2018
JUDGMENT : P. Rajamanickam, J. This appeal has been filed by the complainant against the Judgment passed by the Additional Sessions Judge (Fast Track Court No.II, Tiruchirapalli) dated 17.11.2006 in Crl.A.No.102 of 2006 reversing the Judgment passed by the Judicial Magistrate No.IV, Tiruchirapalli in C.C.No.460 of 2002 dated 17.05.2006. 2. The appellant herein has filed a complaint under section 200 of Cr.P.C., 1973 stating that the respondent herein has borrowed a sum of Rs. 1,00,000/- from him on 02.12.2001 and with a view to discharge the said debt, the respondent has issued a cheque for Rs. 1,00,000/- dated 06.05.2002. The said cheque was presented in the bank on 20.09.2002 for encashment and the same was returned on 21.09.2002 as "funds insufficient" in the respondent's account. The said fact was informed to the appellant on 28.09.2002. Thereafter, on 05.10.2002, the appellant has sent a statutory notice calling upon the respondent to pay the cheque amount within fifteen days from the date of receipt of the said notice. The respondent herein has received the said notice on 12.10.2002. Instead of paying the amount, he has sent a reply notice dated 12.10.2002 with false averments. Hence the appellant was constrained to file a private complaint to punish the respondent under section 138 of the Negotiable Instruments Act. For the sake of convenience, the parties are referred to as described before the trial court. 3. Based on the said complaint, the Judicial Magistrate No.IV, Tiruchirapalli has taken the case on file in C.C.No.460 of 2002. On appearance of the accused, copies were furnished to him and thereafter, he was questioned with regard to the offence said to have committed by him. He denied the offence and pleaded not guilty. Hence the learned Judicial Magistrate No.IV, Tiruchirapalli, has tried the case. 4. During trial, on the side of the complainant, his daughter A. Valarmathi (Power Agent) was examined as PW1. She has stated in her evidence that her father gave a power of attorney in her favour for conducting the above case. The said power of attorney has been marked as Ex.P1. She further stated that on 02.12.2001, the accused borrowed a sum of Rs. 1,00,000/- from her father and subsequently with a view to discharge the said debt, he has issued a cheque dated 06.05.2002. The said cheque has been marked as Ex.P2. The said power of attorney has been marked as Ex.P1. She further stated that on 02.12.2001, the accused borrowed a sum of Rs. 1,00,000/- from her father and subsequently with a view to discharge the said debt, he has issued a cheque dated 06.05.2002. The said cheque has been marked as Ex.P2. The said cheque was presented in the bank on 20.09.2002 and the same was returned on 21.09.2002 with a memo (Ex.P3) as "funds insufficient" in the account of the accused. Thereafter on 05.10.2002, a statutory notice was issued calling upon the accused to pay the cheque amount and the office copy of the said cheque was marked as Ex.P4. The accused has received the said notice and the postal acknowledgment was marked as Ex.P5. After receipt of the notice, instead of paying the amount, he has sent a reply with false averments. The said reply notice has been marked as Ex.P6. A copy of the report submitted by the Inspector of Police, Thillai Nagar, has been marked as Ex.P7. 5. Evidence on the side of the complainant was closed with PW1 and thereafter the accused was questioned under section 313 of Cr.P.C., 1973 The accused denied them as false and also filed a written statement. He examined himself as DW1 and examined his father as DW2. 6. DW1 and DW2 have stated in their evidence that the DW1's mother was a subscriber in the chit which was conducted by PW1 and that being so, on 04.06.2002 at about 2.00 p.m., PW1 and six others came to their house and criminally intimidated DW1's mother and obtained signatures in two blank pronotes and also they have taken a blank cheque which was signed and kept by the accused in the bureau and the said cheque has been filled in the name of the complainant and filed the above case. After consulting with the advocate, DW2 has filed a complaint on 12.09.2002 before the Judicial Magistrate No.IV, Tiruchirapalli and the said complaint was forwarded to the Inspector of Police, Thillai Nagar Police Station, for enquiry and report. DW1, DW2 and DW1's mother have filed a suit in O.S.No.1082 of 2002 on the file of the District Munsif, Tiruchirapalli for the relief of permanent injunction and mandatory injunction. A copy of the plaint filed in the said suit has been marked as Ex.D1. DW1, DW2 and DW1's mother have filed a suit in O.S.No.1082 of 2002 on the file of the District Munsif, Tiruchirapalli for the relief of permanent injunction and mandatory injunction. A copy of the plaint filed in the said suit has been marked as Ex.D1. A copy of the written statement filed by the fifth defendant has been marked as Ex.D2. A copy of the complaint, which was filed by the DW2 before the Judicial Magistrate No.IV, Tiruchirapalli has been marked as Ex.D3 and a copy of the summons which was served on the first defendant (P.W.1 herein) in O.S.No.1082 of 2002 on the file of the District Munsif, Tiruchirapalli, has been marked as Ex.D4. A copy of the vakalat filed by the defendants in the said suit has been marked as Ex.D5. Another copy of the written statement has been marked as Ex.D6. They have further stated that DW1 is not liable to pay any amount to the complainant. 7. The evidence on the side of the accused was closed with DW2. The learned Judicial Magistrate No.IV, Tiruchirapalli, after hearing both sides and considering the materials placed before him, found the accused guilty under section 138 of the Negotiable Instruments Act and convicted him to undergo simple imprisonment for one year and also ordered to pay double the amount of the cheque amount as compensation to the complainant under section 357 (3) of Cr.P.C., 1973 8. Aggrieved by the aforesaid Judgment, the accused filed an appeal in Crl. A. No. 102 of 2006 on the file of the Additional Sessions Judge (Fast Track Court No.II) Tiruchirapalli. The learned Additional Sessions Judge by the Judgment dated 17.11.2006 has allowed the said appeal and set aside the Judgment and sentence passed by the Trial Court. Aggrieved by the same, the complainant has preferred the present appeal. 9. Heard Mr. T.A. Om Prakash, learned counsel for the appellant/complainant and the Mr. N. Samugavel, learned counsel for the respondent/accused. 10. The points for consideration are as follows :- (1) Whether the learned Additional Sessions Judge (Fast Track Court No.II) Tiruchirapalli was right in setting aside the Judgment of the trial court? (2) Whether this appeal has to be allowed? 11. Point Nos. N. Samugavel, learned counsel for the respondent/accused. 10. The points for consideration are as follows :- (1) Whether the learned Additional Sessions Judge (Fast Track Court No.II) Tiruchirapalli was right in setting aside the Judgment of the trial court? (2) Whether this appeal has to be allowed? 11. Point Nos. 1 & 2: The learned counsel for the appellant/complainant has submitted that the learned Additional Sessions Judge (Fast Track Court No.II) Tiruchirapalli has committed error in reversing the well reasoned Judgment of the trial court. He further submitted that the accused has not stated any reason for keeping the signed cheque in his house. He further submitted that the learned Additional Sessions Judge (Fast Track Court No.II) Tiruchirapalli has failed to consider that the accused and his family members have not immediately lodged a complaint before the police. He further submitted the learned Additional Sessions Judge has failed to consider that with a view to escape from paying the cheque amount, the accused has set up his father and filed a private complaint belatedly before the Judicial Magistrate and the said complaint was forwarded to the Inspector of Police, Thillai Nagar and the said Inspector of Police, after enquiry, closed the said complaint as false. He further submitted that the learned Sessions Judge has failed to consider that the suit also filed with a view to escape from making payment for the cheque. He further submitted that the learned Additional Sessions Judge erred in coming to the conclusion that the accused has rebutted the presumption by adducing satisfactory evidence and hence he prayed to allow the appeal and set aside the Judgment passed by the learned Additional Sessions Judge (Fast Track Court No.II) Tiruchirapalli and restore the Judgment and Sentence awarded by the learned Judicial Magistrate No.IV, Tiruchirapalli. 12. The learned counsel for the respondent/accused has submitted that in this case, the complainant has not examined himself as witness before the trial court and only his daughter examined herself as power agent. He further submitted that due to chit fund transaction, the power agent of the complainant and others have criminally intimidated the accused's mother and obtained signatures in two blank pronotes and also taken the cheque which was signed and kept by the accused in his house. He further submitted that due to chit fund transaction, the power agent of the complainant and others have criminally intimidated the accused's mother and obtained signatures in two blank pronotes and also taken the cheque which was signed and kept by the accused in his house. He further submitted that since there was no transaction between the complainant and the accused, the complainant did not come forward to adduce evidence and hence the learned Additional Sessions Judge has rightly drawn adverse inference against the complainant and allowed the appeal. He further submitted that the accused has rebutted the presumption by adducing satisfactory evidence and hence requests to dismiss the appeal. 13. According to the PW1, on 02.12.2001, the accused borrowed a sum Rs. 1,00,000/- from her father (complainant) as hand loan and with a view to discharge the said debt, the accused has issued Ex.P2/cheque for Rs. 1,00,000/- dated 06.05.2002. Her further case is that when the said cheque was presented in the bank for encashment, it was returned as 'funds insufficient' in the accused's bank account. Her further case is that the complainant has issued a statutory notice calling upon the accused to make payment and after receipt of the said notice, the accused instead of making payment, has issued a reply notice with false averments and hence, the complainant has filed a private complaint before the Judicial Magistrate No.IV, Tiruchirapalli. 14. The accused has not disputed the fact that Ex.P2/cheque is his cheque. He has also not disputed that the signature found in the said cheque is his signature. However, he denied the allegation that he borrowed the amount from the complainant on 02.12.2001 and in order to discharge the said debt, he issued Ex.P2 cheque. According to him, he does not know the complainant. He only knows PW1 as she conducted a chit in which his mother was a subscriber. His further case is that on 04.06.2002 at about 2.00 p.m., PW1 and others came to his house and criminally intimidated his mother by showing knife, aruval, etc, and obtained signatures from his mother in two blank pronotes. His further case is that PW1 and others have taken a blank cheque which was signed and kept by him in a bureau and the same has been filled up in the complainant's name and filed a false case. His further case is that PW1 and others have taken a blank cheque which was signed and kept by him in a bureau and the same has been filled up in the complainant's name and filed a false case. But he has not stated any reason for keeping the signed cheque in his bureau. This lead to an inference that the contention of the accused that the PW1 and others have taken a blank cheque which was signed and kept by him in his bureau is a false one. 15. It is also to be pointed out that neither the accused nor his family members have lodged a complaint before the police. On the contrary, the father of the accused (DW2) has filed a private complaint before the Judicial Magistrate No.IV, Tiruchirapalli and the said complaint was forwarded to the Inspector of Police, Thillainagar. The Inspector of Police, after receipt of the complaint, has conducted an enquiry and submitted a report on 12.09.2002 stating that the allegations made in the complaint are false. Further on 04.09.2002, the accused and his parents have filed a suit in O.S.No.1082 of 2002 on the file of the learned District Munsif, Tiruchirapalli against PW1 and four others for the relief of permanent injunction to restrain them from making any encumbrance with the help of the blank pronotes and blank cheque and also for mandatory injunction to direct them to return those documents. The conduct of the accused and his family members would show that only with a view to escape from making payment to Ex.P2/cheque, they have attempted to file a private complaint and suit. 16. Though the accused has stated in his evidence that he has issued stop payment instruction to the bank, the bank memo (Ex.P3) shows that the cheque was returned on the ground "funds insufficient". It also shows that the accused has not issued any stop payment instruction to the bank. If really the cheque was taken away by PW1 as stated by the accused, he would have immediately sent intimation to the bank for stop payment. But, he has not done so. Further, he would have lodged a complaint before the police and that was also not done by the accused. Therefore, this court is of the view that the accused has not rebutted the presumption which has arisen under section 139 of the Negotiable Instruments Act. But, he has not done so. Further, he would have lodged a complaint before the police and that was also not done by the accused. Therefore, this court is of the view that the accused has not rebutted the presumption which has arisen under section 139 of the Negotiable Instruments Act. The complainant has stated in Ex.P1 (power of attorney that he is not able to personally be present and perform various acts and deeds and hence he executed the power of attorney in favour of PW1. The accused has not disputed the genuineness of Ex.P1. Further, the evidence of the PW1 would show that she had personal knowledge about the transaction which took place between her father (complainant) and the accused. Hence no adverse inference can be drawn against the complainant for his non-examination as witness. The trial court has elaborately discussed and came to the conclusion that the defence set up by the accused is a false one, but the learned Additional Sessions Judge, without considering the evidence in a proper perspective, has allowed the appeal and set aside the Judgment passed by the trial court. Therefore, this appeal has to be allowed and accordingly, these points are answered. 17. The trial court has awarded one year simple imprisonment and also directed the accused to pay double the amount of cheque as compensation to the complainant. Taking into consideration the amount of the cheque, this court is of the view that awarding of Rigorous Imprisonment for six years and a fine of Rs. 5,000/-, in default, three months Rigorous Imprisonment would meet the ends of justice. 18. In the result, the Judgment passed by the learned Additional Sessions Judge,(Fast Track Court No.II), Tiruchirapalli in Crl.A.No.102 of 2006 dated 17.11.2006, is hereby set aside and the findings of the learned Judicial Magistrate No.IV, Tiruchirapalli in C.C.No.460 of 2002 dated 17.05.2006, that the accused has committed an offence under section 138 of the Negotiable Instruments Act is restored. In so far as the sentence awarded by the trial court is modified as six months Rigorous Imprisonment and fine of Rs. 5,000/-, in default, three months Rigorous Imprisonment is awarded. The Judicial Magistrate No. IV, Tiruchirapalli is directed to secure the accused by issuing Non-Bailable Warrant and send him to jail to serve the sentence.