Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3966 (MAD)

MADRAS CEMENTS LIMITED v. S. BALASUBRAMANIAM

2018-10-26

M.NIRMAL KUMAR

body2018
JUDGMENT M. NIRMAL KUMAR, J. 1. This appeal is filed against the judgment dated 11.10.2007 made in C.A.No.16 of 2007 passed by the learned IV Additional Sessions Judge, Chennai after reversing the trial Court judgment dated 22.12.2006 made in C.C.No.6248 of 2002 rendered by the learned XVI Metropolitan Magistrate, George Town, Chennai for the offence under Section 138 of the Negotiable Instruments Act, convicting the respondent/accused and sentenced to undergo three months Simple Imprisonment and to pay a fine sum of Rs. 2,50,000/- [Rupees two lakh fifty thousand only] as compensation to the complainant within one month in default to undergo one month Simple Imprisonment. The lower appellate Court set aside the judgment of the trial Court and acquitted the respondent/accused, against which, the above appeal has been filed by the appellant. 2. The gist of the case is that, the appellant had filed a private complaint for offence under Section 138 of the Negotiable Instrument Act, against the respondent/accused herein. The appellant is a Cement Manufacturing Company and the respondent is one of the dealer of the appellant company used to purchase cements from the appellant company on credit basis. In such transaction, the respondent is liable to pay a sum of Rs. 3,19,128.97/- towards discharge of the said liability in part. The cheque in issue in the above case was issued by the respondent/accused. 3. The respondent had issued a cheque in favour of the complainant vide Cheque bearing No.767996, dated 10.08.2002 drawn on the State Bank of Travancore, Vijayapuram Branch, Tiurpur for a sum of Rs. 2,50,000/- [Rupees two lakh fifty thousand only]. The appellant had deposited the cheque with their bankers viz., Standard Chartered Bank, Grindlays Bank Limited, Chennai for realization and the same was returned as unpaid on 26.08.2002 for the reason "Exceeds Arrangement". Thereafter, the appellant had issued a statutory notice to the respondent on 16.09.2002, calling upon the respondent to pay the above cheque amount. The said notice was returned unserved. Thereafter, the case under Section 138 of the Negotiable Instruments Act had been filed against the respondent before the trail Court. 4. Thereafter, the appellant had issued a statutory notice to the respondent on 16.09.2002, calling upon the respondent to pay the above cheque amount. The said notice was returned unserved. Thereafter, the case under Section 138 of the Negotiable Instruments Act had been filed against the respondent before the trail Court. 4. During the trial, Mr.E.R.Chandrasekaran represented the appellant company and examined as PW.1 and Ex.P1 to Ex.P9 were marked by him and on the side of the respondent, the respondent had examined himself as DW.1 and Mr.Kalyanaraman, Branch Manager, the State Bank of Travancore, Vijayapuram, Tirupur Branch was examined as DW.2 and Ex.D1 to Ex.D5 were marked. Ex.P1 and Ex.P2 are resolution of Board of Directors and authorization letter to PW.1, Ex.P3, Statement of Accounts, Ex.P4, cheque for Rs. 2,50,000/- issued by the respondent, Ex.P5 and Ex.P6 are the Return Memo and Debit advice, Ex.P7 is the statutory notice, Ex.P8 is the postal return cover and Ex.P9 is the letter of the respondent, accordingly, the Debt to the tune of Rs. 3,25,000/-. 5. The respondent examined as DW.1 and marked Ex.D1, which is the receipt dated 14.10.1997 given on his appointment as a dealer of the appellant company, Ex.D2 is the counterfoil of cheque book, Ex.D3 is the Pass Book, Ex.D4 is the statement of accounts and Ex.D5 is the acknowledgement letter dated 15.11.1997 given by one Mr.Ramakrishnan, Sales Officer of the appellant company for receipt of the cheque bearing No.767996 (Ex.P4). 6. It is admitted, that there was a business transaction between the appellant and the respondent. According to Ex.P3 and Ex.D4, the dispute is with regard to the entries shown therein like Transport Charges, Annual Trade Discount and other incentives, which the respondent is entitled has not been paid by the appellant. 7. The contention of the learned counsel for the appellant is that the signature in Ex.P4 cheque is not disputed by the respondent and as per Ex.P9, the respondent admits his due of Rs. 3,25,000/- as on 06.12.2001 and hence, the cheque Ex.P4 dated 10.08.2002 had been issued by the respondent in discharge of part liability. 8. The trial Court as coming to the conclusion that the cheque was proved to have been issued in anticipation of the business transaction. 3,25,000/- as on 06.12.2001 and hence, the cheque Ex.P4 dated 10.08.2002 had been issued by the respondent in discharge of part liability. 8. The trial Court as coming to the conclusion that the cheque was proved to have been issued in anticipation of the business transaction. As per Ex.P9, it is clear and in unequivocal terms acknowledged the debt due from respondent to the appellant and had rejected the defence of the respondent and convicted him for issuing a blank cheque (Ex.P4), which was handed over to the complainant. 9. The only defence urged by the respondent is that the blank cheque was issued as a trade usage and practice. Even prior to the commencement of business transaction between the respondent and the appellant, the blank cheque was issued. This blank cheque was not issued in respect of any existing or past liability and therefore, it cannot be construed as a cheque issued in discharge of any liability. Further, contented that the respondent has not authorized the appellant to fill it and utilize the said cheque as per his whims and wishes. 10. Further, contended by the learned counsel for the respondent is that R.Ramakrishnan of Madras Cements Limited had issued receipt Ex.D5, dated 15.11.1997 for receiving the cheque. Hence, the appellant had filled the cheque without getting authorization from the respondent on his own needs and presented the same, which was handed over to the appellant as a security cheque. 11. Further, the admitted case is that the last transaction was held between the appellant and the respondent on 02.11.2001 and thereafter, there is no supply to the respondent, since, there was a dispute with regard to the payment of Transport Charges, Annual Trade Discount and other incentives which the respondent is eligible. The appellant has not paid, which has been admitted by PW.1 and hence, respondent had probabalized his defence. 12. The lower Court rejecting the defence of the respondent convicted him in the above case. Aggrieved against the same, the respondent had preferred an appeal before the learned IV Additional Sessions Judge, Chennai. The appellant has not paid, which has been admitted by PW.1 and hence, respondent had probabalized his defence. 12. The lower Court rejecting the defence of the respondent convicted him in the above case. Aggrieved against the same, the respondent had preferred an appeal before the learned IV Additional Sessions Judge, Chennai. The learned IV Additional Sessions Judge, Chennai, considering the evidence and defence of the respondent had given a detailed finding and reason for the acquittal is that R.Ramakrishnan was the Sales Officer of the appellant company and PW.1 in his evidence admitted that the respondent was appointed as stockist dealer of the company during the year 1997 and the receipt of the cheque (Ex.P4). 13. It is an admitted case that as on 15.11.1997, the business transaction between the appellant and the respondent had not commenced and there was no existing or past liability. Further, the lower appellate Court had rightly given a finding that the respondent had examined himself as DW.1 and through him Ex.D1 to Ex.D5 had probabilized his defence and the respondent had dislodged the presumption sufficient to prove the preponderance of probabilities in order to rebut the presumption, which the respondent had done in this case and hence acquitted the respondent. The respondent need not prove his case beyond all the reasonable doubts. 14. The respondent has not appeared in this case, despite notices sent to the respondent returned as unserved for the reason "Address Left". Hence, there has been no appearance on the side of the respondent. Therefore, this Court proposed to dispose the case on the basis of the materials available and on the submissions of the learned counsel appearing for the appellant. 15. The learned counsel for the appellant vehemently opposed the finding of the lower appellate Court and submitted that the trial Court had rightly convicted the respondent and also relying upon the evidence and exhibits. On perusal of the evidence of the PW.1, it seems that, PW.1 is a Legal Advisor to the complainant company and through him certain documents were marked and he is not aware of the transactions between the appellant and the respondent, the feigns ignorance of the nature of business and about the exhibits. 16. On perusal of the evidence of the PW.1, it seems that, PW.1 is a Legal Advisor to the complainant company and through him certain documents were marked and he is not aware of the transactions between the appellant and the respondent, the feigns ignorance of the nature of business and about the exhibits. 16. The PW.1 is not aware, when the respondent was appointed as a stockist dealer of the appellant company and what are the commissions due to him, though he admits that the trade incentives are given, which are maintained in a separate account and for what reason, the trade incentives was not paid to the respondent and the amount dues by the appellant to the respondent. It is admitted that the last sale was held on 02.11.2001 and thereafter, there has been no transaction between them and it is certain that the cheque, which was received in the year 1997 had been filled up in the year 2002 without the authorization of the respondent. 17. Taking into consideration on the evidence and materials, this Court finds that there is no perversity to interfere in the Judgment of the lower appellate Court. 18. The decision of the Hon'ble Apex Court of India in the case of Mohinder Singh Vs. State of Punjab reported in, (2018) CriLJ 4213 and the relevant paragraph No.42 is extracted here under: "42.From the above decisions, in our considered view, the following general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal emerge: (1)An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2)The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3)Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion." 19. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion." 19. The trial Court convicted the respondent on presumption failing to look into the fact that it is not a statutory presumption. The respondent by examining himself and producing documents had probabalized his case, which the lower Appellate Court had taken into consideration and rightly acquitted the respondent. 20. The finding of the lower appellate Court is confirmed. In the result, this Criminal Appeal stands dismissed. No costs.