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2022 DIGILAW 2361 (MAD)

Siva @ Parameshwaran v. R. S. Arunachalam

2022-07-27

D.BHARATHA CHAKRAVARTHY

body2022
JUDGMENT (Prayer: Criminal Revision Case filed under Section 397 r/w 401 of Criminal Procedure Code, to set aside the judgment, dated 16.04.2019 passed in C.A.No.329 of 2018 by the IV Additional Sessions Court at Bhavani, Erode District confirming the judgment, dated 10.10.2018 passed by the learned Judicial Magistrate No.II, Bhavani in S.T.C.No.26 of 2018 (Old S.T.C.No.40 of 2017) and to acquit the petitioner.) The petitioner has filed this Revision Case aggrieved by the concurrent finding of the guilt for an offence under Section 138 of the Negotiable Instruments Act, 1881. 2. Heard Mr.P.Sesubalan Raja, learned Counsel for the petitioner and Mr.S.P.Yuvaraj, learned Counsel for the respondent. 3. According to the learned Counsel for the petitioner, it is the simple case of the respondent/complainant that the petitioner/accused borrowed a sum of Rs.2,50,000/- by way of hand loan by cash on 29.07.2014 and issued the cheque in repayment thereof and upon the cheque being dishonoured, the complaint is filed. 4. To the contrary, it is the case of the petitioner/accused that the respondent/complainant is also having a Car finance business in the name of Thangam Cars, whereunder, he is in the business of buying and selling/financing the used cars. The petitioner/accused had purchased a Car, bearing registration No.TN38 U 9091 from one Rajesh Kanna, who was examined as D.W.1 and at the time of purchase, since the petitioner/accused paid only a sum of Rs.1,40,000/- and there was a balance sum of Rs.1,60,000/- being financed by the respondent/complainant, the subject matter cheque was obtained by him in the year 2009 as security. To fortify the said contention, P.W.2, the Branch Manager of the bank, was cross-examined, in and by which, he proved that only in the year 2009, the subject matter cheque was issued by the bank to the accused when the Branch office was at No.152, Burgur Road, Opposite to G.H.Anthiyur, Erode District, while, at the time of transaction, as mentioned by the respondent/complainant, in the year 2014, the bank was shifted to some other premises. Therefore, according to the learned Counsel, the witness may lie, but, the circumstances will not lie and therefore, in this case, the petitioner/accused has categorically proved that this cheque ought to have issued only in the year 2009 and therefore, he would submit that when the case of the respondent/complainant can be doubted, it has to be held that the petitioner/accused has rebutted the presumption and in the absence of any other positive proof for advancement of the said sum of Rs.2,50,000/- either by way of promissory note or by examining any other witness, who have seen the respondent/complainant by giving money as cash, the Trial Court as well as the first Appellate Court ought not to have convicted the petitioner/accused. 5. The learned Counsel for the petitioner/accused would also rely upon the judgment of the High Court of Andhra Pradesh in M/s. Sri Sai Karuna Finance & Enterprises Rep. by its Managing Partner G. Gangadhar Vs. N.Sandhyarani & Another (CDJ 2018 APHC 879), more specifically paragraph No.11, which reads as follows:- “11) POINT No.2: Since point No.1 is held affirmatively, it has now to be seen whether the accused could dispel the presumption. In Rangappa-s case (1 supra), while observing that Section 139 of N.I Act casts a reverse onus on the accused, the Apex Court has narrated as to how the said reverse burden can be discharged. It was observed thus: Para 14: x x x x .... While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities-. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. (Emphasis supplied). As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.“ Similarly, in M.S. Narayana Menon alias Mani v. State of Kerala and another3, the Apex Court observed that the presumption under Section 139 of N.I Act can be discharged by raising preponderance of probabilities and the burden of proof on accused is not heavy and he need not disprove the prosecution case on its entirety, rather, he can discharge his burden through direct or circumstantial evidence, for which, he can also rely upon the evidence adduced by the complainant.“ Therefore, he would submit that in this case, it is only the level of preponderance of probability, which is expected of the petitioner/accused to rebut the presumption and when the petitioner/accused has, by the cross-examination of the respondent/complainant, by the cross-examination of P.W.2/Bank Manager, by the examination of the vendor of the Car, namely Rajesh Kanna, as D.W.1 and examining himself as D.W.2 and by marking Exs.D-1 to D-3, has let in ample evidence to rebut the presumption in favour of the respondent/complainant and therefore, he would submit that the Revision Case is liable to be allowed. 6. 6. Per contra, the learned Counsel appearing for the respondent/complainant, pointing out the cross-examination of the petitioner/accused as D.W.2, would submit that, in his cross-examination, he has categorically admitted that he did not know whether the said Rajesh Kanna sold the Cars through Thangam Cars or not and therefore, when the accused had issued an old cheque of the year 2009 in discharge of his liability, the same cannot be put against the respondent/complainant. He would submit that if it is the case of the petitioner/accused that the borrowal was only in respect of the purchase of the Car in the year 2009 and if he had paid the entire amount, and if the Car has also been taken back and the RC book was also not given to him, he would not have kept quiet. Therefore, in the absence of any other material or receipt from the petitioner/accused for any dealing with the Thangam Cars, the alleged defence, proved to be a futile exercise much less to the level of preponderance of probability. 7. I have considered the rival submissions made on behalf of both the sides and perused the material records of the case. In this case, as extracted above, it is the defence of the petitioner/accused that the cheque was given in respect of a Car purchase transaction, but, however, when the alleged owner of the Car was examined as D.W.1, the defence had specifically refrained from questioning him as to through which broker, the Car was sold and therefore, there is absolutely no material to infer that the Car transaction was with Thangam Cars. When the defence examined the witnesses for the particular purpose and refrained from making a very relevant question to the concerned witness, then this Court has to take appropriate adverse inference. This apart, from the evidence of D.W.1, it is stated that he purchased a Car for a sum of Rs.3,00,000/-, of which, he paid a sum of Rs.1,40,000/-. He submits that the Car financers had given a sum of Rs.1,60,000/-. He has stated in his chief evidence that he has paid all the monthly installments of Rs.7,000/- for 48 months. That amount totally comes to Rs.3,36,000/-. He has further stated that the Car was also taken back, neither cheque was returned to him nor the RC book. He submits that the Car financers had given a sum of Rs.1,60,000/-. He has stated in his chief evidence that he has paid all the monthly installments of Rs.7,000/- for 48 months. That amount totally comes to Rs.3,36,000/-. He has further stated that the Car was also taken back, neither cheque was returned to him nor the RC book. If that has been the situation, it is very unreasonable that the petitioner/accused would have left the matter as such and would not have been taken any further steps. Therefore, the defence of the petitioner/accused is unbelievable on the face of it and when the Trial Court as well as the first Appellate Court have appraised the evidence on record and come to a conclusion that the petitioner/accused failed to rebut the presumption, such a finding cannot be upturned by this Court in exercise of the revisional jurisdiction and accordingly, I confirm the finding of guilt as against the petitioner/accused. 8. Now, coming to the sentence, the Trial Court has sentenced the petitioner/accused for Simple Imprisonment for a period of one year and to pay a fine of Rs.5,000/-. The said sentence does not serve the purpose either to the petitioner/accused or the respondent/complainant. Therefore, I am inclined to modify the same by directing the petitioner/accused to pay the cheque amount as a fine amount. It is also represented by the learned Counsel for the petitioner/accused that already, a sum of Rs.1,25,000/- is deposited to the credit of S.T.C.No.26 of 2018 on the file of the Trial Court. 9. Therefore, I am inclined to modify the same by directing the petitioner/accused to pay the cheque amount as a fine amount. It is also represented by the learned Counsel for the petitioner/accused that already, a sum of Rs.1,25,000/- is deposited to the credit of S.T.C.No.26 of 2018 on the file of the Trial Court. 9. In that view of the matter, this Criminal Revision Case is partly allowed on the following terms:- (i) the conviction of the petitioner/accused for the offence under Section 138 of the Negotiable Instruments Act is upheld, however, the sentence, as awarded by the Trial Court and confirmed by the lower Appellate Court, is modified to the effect that petitioner/accused shall pay a total fine amount of Rs.2,55,000/-; (ii) the petitioner/accused is entitled to count the sum of Rs.1,25,000/- already deposited by him and deposited the balance fine amount of Rs.1,30,000/- within a period of eight weeks from the date of receipt of a copy of the order and in default of payment of fine, the petitioner/accused shall undergo Simple Imprisonment for a period of six months; (iii) upon such deposit, a sum of Rs.2,50,000/- shall be paid out to the respondent/complainant without insisting upon any formal application, upon verification of identity/identification by the learned Counsel for the respondent/complainant; (iv) even if the petitioner/accused fails to pay the balance sum of Rs.1,30,000/-, the existing amount of Rs.1,25,000/- shall be paid out to the respondent/complainant.