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2022 DIGILAW 2593 (MAD)

N. Senthil Kumar v. M. Kalaiselvi Ramanikanth

2022-08-08

G.JAYACHANDRAN

body2022
JUDGMENT (Prayer: Criminal Revision Case has been filed under Section 397 and 401 of Cr.P.C., to set aside the order dated 22.07.2015 made in C.A.No.129 of 2014 on the file of the V Additional District and Sessions Judge, Coimbatore confirmed the judgment passed in S.T.C.No.310 of 2012 dated 28.08.2014 on the file of the Judicial Magistrate, Fast Track Court No.II, Coimbatore.) 1. The Revision Petitioner is the accused in S.T.C.No.310/2012 on the file of the Judicial Magistrate, Fast Track Court No.II, Coimbatore. In the private complaint filed against the petitioner for dishonouring the cheque issued by him for Rs.5,00,000/-, dated 20/06/2008 to discharge his liability to pay the complainant towards the sale consideration of polythene bags sold and delivered, he was found guilty and convicted under Section 138 of Negotiable Instruments Act, 1881 to undergo 10 months SI and to pay a fine of Rs.4000/- in default, to undergo 2 months SI. 2. Aggreived by the conviction and sentence imposed on him by the trial Court, he preferred an appeal in C.A.No.129 of 2014 before the V Additional District and Sessions Court, Coimbatore and the same came to be dismissed upholding the trial Court judgment of conviction and sentence. 3. The revision petition is filed on the premise that, the Courts below had not properly applied its mind to arrive at conclusion of holding him guilty. The complainant failed to mention the vehicle number through which the goods alleged to have been delivered to the accused. The invoice does not contain the signature to prove the delivery of goods. The documents called for production on summon issued under Section 91 of Cr.P.C was marked as prosecution side document instead of Court document. The owner of the complainant company, who knows about the business transaction was not examined as witness. The evidence of the power of attorney is not legally sustainable. The business transaction between the accused and the complainant stopped in the year 2006. The subject cheque given as security was misused by the complainant after two years. 4. The learned counsel appearing for the revision petitioner relying on the judgment of the Hon'ble Supreme Court in A.C.Narayanan –vs- State of Maharashtra and another reported in [(2016)1 SCC (Cri) 67, submitted that, complaint is filed through the power of attorney, who does not know about the transaction in connection with the subject cheque. Therefore, the complaint is not maintainable. The learned counsel appearing for the revision petitioner relying on the judgment of the Hon'ble Supreme Court in A.C.Narayanan –vs- State of Maharashtra and another reported in [(2016)1 SCC (Cri) 67, submitted that, complaint is filed through the power of attorney, who does not know about the transaction in connection with the subject cheque. Therefore, the complaint is not maintainable. He also relied upon the judgment of this Court rendered in Pandurangan –vs- Sivakami reported in [2017(2) MWN (Cr.) DCC 113 (Mad)] and submitted that, the name of the complainant in the cheque is written in different ink and handwriting, therefore the Court should have entertained doubt about the consideration alleged to have passed to the payee. The burden is shifted to prove the debt. Since the complainant has failed to prove the enforceable debt, the judgments of the Courts below are erroneous. 5. The Learned counsel for the respondent/complainant submitted that, the accused running a properitory concern by name M/s Sun Poly Pack used to purchase polythene products from the complainant Firm M/s Rishaba Poly Packs on credit basis. As on 04/06/2008 a sum of Rs.6,35,677/- was due and payable. To discharge the said debt, Ex.P-2, the cheque No:930645 dated 20/06/2008 drawn by the accused from his account maintained at Karnataka Bank, Perumanallur Branch was given. The said cheque was presented for collection 02/07/2008 but returned on 09/07/2008 with the memo [Ex.P-3], stating ‘payment stopped by drawer’. The statutory notice [Ex.P-5] informing about the return of the cheque and calling upon the accused to pay the cheque amount was sent on 25/07/2008. The accused received the notice sent through RPAD. The RPAD receipt and the postal acknowledgment card to prove the issuance of notice and delivery to the accused are marked as Ex.P-6 and Ex.P-7. The ledger account to prove the transaction and due payable marked as Ex.P-8. 6. The complaint was filed by the payee represented by the Power Agent. The Power of Attorney deed marked as Ex.P-1 and he has deposed about the transactions and also proved through documentary evidence namely, ledger account Ex.P-8. This ledger extract indicates that as on 04/06/2008, the accused was liable to pay a due of Rs.6,35,677/-. 7. 6. The complaint was filed by the payee represented by the Power Agent. The Power of Attorney deed marked as Ex.P-1 and he has deposed about the transactions and also proved through documentary evidence namely, ledger account Ex.P-8. This ledger extract indicates that as on 04/06/2008, the accused was liable to pay a due of Rs.6,35,677/-. 7. Therefore, the facts of the A.C. Narayanan case (cited supra), which was filed by the company through power agent without any supporting document like power of attorney or resolution by the Directors of the Company is different and the dictum of that judgment will not apply to the case in hand. Similarly, the name of the payee in the cheque being written in different ink alone is not the reason for this Court to suspect the case of the complainant as in Pandurangan case (cited supra) by the petitioner counsel. In that case, the complainant failed to establish the foundational fact of privity of contract between her and the accused. Whereas, in the present case, the accused admits the signature and the trade relationship. His only defence was that the business transaction stopped two years prior to the alleged date of cheque. This plea has been disproved through Ex.P-8. Having issued the cheque for the debt payable, the accused took unsustainable defence before the trial Court, which was negative in view of the law settled in Rangappa –vs- Srimohan reported in [ AIR 2010 SC 1898 ] regarding the standard of proof. The accused failed to rebut the statutory presumption not even by preponderance of probability. Hence, the trial Court found him guilty of offence under Section 138 of the Negotiable Instruments Act, 1881. In the appeal preferred by the accused, the lower Appellate Court confirmed to trial Court judgment. The grounds raised in the revision are not sustainable. Since, there is no error in the finding of the Courts below, the revision has to be dismissed. 8. Considering the rival submissions and the records of the lower Courts, this Court finds that the complainant firm M/s Rishaba Poly Packs is owned by one M.Kalaiselvi Ramanikanth. She through her power agent S.Rajesh has filed the complaint. The power of attorney deed is Ex.P-1. He has deposed before the Court and has marked Ex.P-1 to Ex.P-8, to prove that the cheque Ex.P2 was issued for the debt payable as per the ledger account Ex.P-8. She through her power agent S.Rajesh has filed the complaint. The power of attorney deed is Ex.P-1. He has deposed before the Court and has marked Ex.P-1 to Ex.P-8, to prove that the cheque Ex.P2 was issued for the debt payable as per the ledger account Ex.P-8. The revision petitioner herein though received statutory notice has not replied to it. He has not filed any document to rebut the evidence relied by the complainant. The grounds of revision, which are extracted above does not disclose any error or illegality to interfere the judgment of the Courts below under the revisional jurisdiction. The two judgments cited are factually different to the facts of the case in hand. The name of the payee written in different ink will not per se render the cheque invali in view of Section 118 of the Negotiable Instruments Act, 1881 and Section 20 of the Negotiable Instruments Act, 1881. Moreso, in this case, Ex.P-8 the ledger accounts extract maintained in the course of business proves the debt payable by the accused to the complainant. Therefore, this Court finds no merit in this revision petition. 9. In the result, this Criminal Revision Case is dismissed. The findings of the Courts below are confirmed. Bail bond if any executed by the petitioner shall stands cancelled. The trial Court is directed to secure the accused and commit him in prison for the remaining period of sentence if any.