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Madras High Court · body

2019 DIGILAW 3315 (MAD)

C. D. Shanmugam v. S. Sivagnanasambandam

2019-12-02

P.N.PRAKASH

body2019
ORDER : (Prayer: Crl.R.C.No.1069 of 2012 : Criminal Revision preferred under Sections 397 r/w 401 Cr.P.C. to set aside the judgment and order dated 17.07.2012 passed by the Principal District and Sessions Judge, Coimbatore in C.A.No.23 of 2012 confirming the judgment and order dated 06.01.2012 passed by the Judicial Magistrate No.VII, Coimbatore in S.T.C.No.728 of 2011. Crl.R.C.No.1070 of 2012 : Criminal Revision preferred under Sections 397 r/w 401 Cr.P.C. to set aside the judgment and order dated 17.07.2012 passed by the Principal District and Sessions Judge, Coimbatore in C.A.No.24 of 2012 confirming the judgment and order dated 06.01.2012 passed by the Judicial Magistrate No.VII, Coimbatore in S.T.C.No.729 of 2011. Crl.R.C.No.1071 of 2012 : Criminal Revision preferred under Sections 397 r/w 401 Cr.P.C. to set aside the judgment and order dated 17.07.2012 passed by the Principal District and Sessions Judge, Coimbatore in C.A.No.25 of 2012 confirming the judgment and order dated 06.01.2012 passed by the Judicial Magistrate No.VII, Coimbatore in S.T.C.No.730 of 2011. Crl.R.C.No.1072 of 2012 : Criminal Revision preferred under Sections 397 r/w 401 Cr.P.C. to set aside the judgment and order dated 17.07.2012 passed by the Principal District and Sessions Judge, Coimbatore in C.A.No.26 of 2012 confirming the judgment and order dated 06.01.2012 passed by the Judicial Magistrate No.VII, Coimbatore in S.T.C.No.731 of 2011.) 1. For the sake of convenience, the petitioner and the respondent will be referred to as accused and complainant respectively. 2. It is the case of the complainant that, he is a partner in M/s.Ranga Traders and during the course of business transaction with the accused, a sum of Rs.7,00,000/- was due; in the presence of mediators, the complainant and the accused entered into a memorandum of agreement on 17.08.2006 (Ex.P2), under which, the accused agreed to repay the sum of Rs.7,00,000/-, executed a promissory note dated 17.08.2006 and also gave four post-dated cheques for a sum of Rs.1,00,000/-, Rs.2,00,000/-, Rs.2,00,000/- and Rs.2,00,000/- respectively drawn on Centurion Bank, Avinashi Road branch; when the complainant presented those cheques on the dates mentioned thereon, the cheques returned unpaid with the endorsement “funds insufficient” vide return memo; the complainant issued a statutory demand notice dated 27.03.2007, for which, the accused gave a reply notice repudiating the debt. Therefore, for four cheques, the complainant initiated four prosecutions apiece in S.T.C.Nos.2857 of 2007, 4050 of 2006, 313 of 2007 and 2908 of 2007 before the Judicial Magistrate No.VII, Coimbatore under Section 138 of the Negotiable Instruments Act, 1881 (for brevity “the NI Act”), in which, the accused was convicted and sentenced on 28.01.2009. The appeals in C.A.Nos.30 of 2009, 27 of 2009, 28 of 2009 and 29 of 2009 were dismissed by the Sessions Court, Coimbatore on 15.09.2009. Aggrieved by that, the accused filed four criminal revisions viz. Crl.R.C.Nos.32 of 2010, 33 of 2010, 34 of 2010 and 35 of 2010 before this Court. 3. When the four criminal revisions came up for hearing, the learned counsel for the accused pointed out to this Court that in all the four cases, the trial Court had recorded common evidence of the complainant by inserting paper carbon. This practice was deprecated by this Court and, the appellate Court and trial Court judgments were set aside on 29.09.2011 and the matter was remanded to the trial Court for conducting trial afresh. 4. On remand, the cases were assigned fresh numbers as S.T.C.No.728 of 2011 (old S.T.C.No.2857 of 2007), S.T.C.No.729 of 2011 (old S.T.C.No.4050 of 2006), S.T.C.No.730 of 2011 (old S.T.C.No.313 of 2007) and S.T.C.No.731 of 2011 (old S.T.C.No.2908 of 2007). 5. On appearance, the accused was questioned under Section 251 Cr.P.C. and he denied the accusation. 6. The complainant examined himself as P.W.1 and marked Exs.P1 to P8 in each case. When the accused was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him, he denied the same. On behalf of the accused, one Karthikeyan, Branch Manager of HDFC Bank, Avinashi Branch and one Dhandapani, Income Tax Inspector, Coimbatore were examined as D.W.1 and D.W.2 respectively. 7. After considering the evidence on record and hearing either side, the trial Court, by four separate judgments and orders dated 06.01.2012, convicted the accused and sentenced him to undergo four months simple imprisonment and pay fine of Rs.1000/-, in each case and the sentences were ordered to run concurrently. The accused filed four appeals in C.A.Nos.23 of 2012, 24 of 2012, 25 of 2012 and 26 of 2012, which were dismissed by the Sessions Court, Coimbatore on 17.07.2012, aggrieved by which, the accused has filed the present four criminal revisions under Section 397 read with Section 401 Cr.P.C. 8. The accused filed four appeals in C.A.Nos.23 of 2012, 24 of 2012, 25 of 2012 and 26 of 2012, which were dismissed by the Sessions Court, Coimbatore on 17.07.2012, aggrieved by which, the accused has filed the present four criminal revisions under Section 397 read with Section 401 Cr.P.C. 8. Since the parties are the same and all the four cheques had emanated from the same transaction, this Court is passing a common order in all the four criminal revisions. 9. Heard Mr.Kumar Tarejaa, learned counsel representing Mr.Vasanthakumar Vigneswaran, learned counsel on record for the petitioner and Ms.M.Rajamani, learned counsel for the respondent. 10. It is trite that while exercising revisional jurisdiction in a case involving concurrent findings of fact arrived at by two Courts below, the High Court cannot act as a second appellate Court [See State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand and Others, etc. (2004) 7 SCC 659 ]. Very recently, in Bir Singh vs. Mukesh Kumar [ (2019) 4 SCC 197 ], the Supreme Court has held as under: “17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH [Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457 ], it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. ....” (emphasis supplied) 11. The complainant, who examined himself as P.W.1 in each of the cases, has spoken to about the business transaction with the accused, the memorandum of agreement dated 17.08.2006 (Ex.P2), under which, the petitioner agreed to pay Rs.7,00,000/-, the execution of the promissory note for Rs.7,00,000/-, the issuance of four cheques, their presentation and dishonour, the issuance of statutory demand notice dated 27.03.2007, the receipt of reply notice from the accused and the filing of the complaint. 12. It was the defence of the accused that Sivagnanasambandam (complainant) had no locus standi to file the complaints, inasmuch as the cheques were obtained under coercion and the bank account itself was opened by the accused only on 18.08.2006. Both the Courts have rejected the defence by giving cogent reasons. Mr.Kumar Tarejaa submitted that the impugned cheque is in the name of M/s.Ranga Traders, whereas, the complainant in this case is not M/s.Ranga Traders, but, Sivagnanasambandam. 13. Both the Courts have rejected the defence by giving cogent reasons. Mr.Kumar Tarejaa submitted that the impugned cheque is in the name of M/s.Ranga Traders, whereas, the complainant in this case is not M/s.Ranga Traders, but, Sivagnanasambandam. 13. It is the evidence of Sivagnanasambandam that he was a partner in M/s.Ranga Traders and even in the memorandum of agreement dated 18.08.2006 (Ex.P2), it is clearly stated that he is entering into the agreement in the capacity of partner of M/s.Ranga Traders. Even in the reply notice (Ex.P8) given by the accused, he has admitted that he has had transaction in yarn with the complainant to a tune of Rs.75,99, 833/-. He has also accepted in the reply notice in Ex.P8 that the complainant is a partner in M/s.Ranga Traders. Only for fastening criminal liability on the accused under Section 141 of the NI Act, the juristic person should have to be arrayed as accused. For filing a complaint, there is no legal bar for a partner to maintain a complaint under Section 138 of the NI Act on behalf of the firm, because, every partner has duties to act in the best interests of the firm. 14. As regards the contention of Mr.Kumar Tarejaa that the cheque was obtained by threat, there is absolutely no material to infer so. A reading of Ex.P2, the memorandum of agreement shows that the same was entered into in the presence of mediators, known to both of them. Had the accused been forced to give four post-dated cheques bearing different dates, he would have issued a letter for stop payment. Whereas, in this case, the four cheques were returned on the ground of insufficiency of funds in the account of the accused. Relying upon the evidence of Karthikeyan (D.W.1), Mr.Kumar Tarejaa contended that the bank account itself was opened only on 18.08.2006 by the accused. From a careful reading of the evidence of Karthikeyan (D.W.1), it is seen that he has admitted that the impugned cheques were issued by his bank to the accused and the cheque return memos signifying that the cheques were being returned for insufficiency of funds were also issued by his bank. In the teeth of his admission, the contention that the bank account was opened by the accused only on 18.08.2006 does not cut ice with this Court. In the teeth of his admission, the contention that the bank account was opened by the accused only on 18.08.2006 does not cut ice with this Court. In such view of the matter, this Court does not find any infirmity in the findings of the two Courts below warranting interference. In the result, these Criminal Revisions are dismissed. The trial Court is directed to secure the accused and commit him to prison to undergo the remaining period of sentence. If any amount has been deposited by the accused either in the appellate Court or in the trial Court in connection with this case, the same shall be disbursed with accrued interest to the complainant or to his legal heirs, as the case may be. It is always open to the parties to file an application before the trial Court under Section 147 of the NI Act for compounding the offence, even after the accused is taken into custody. In the event of the matter being compounded under Section 147, ibid. before the trial Court, the Magistrate shall send a report to the Assistant Registrar (Crl. Side), who shall make it form part of the records in Crl.R.C.Nos.1069 to 1072 of 2012. Registry is directed to transmit the original records to the respective Courts forthwith.