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2022 DIGILAW 3377 (MAD)

V. Sudhakaran v. M. Rajaa

2022-09-16

D.BHARATHA CHAKRAVARTHY

body2022
JUDGMENT (Prayer: Criminal Revision Case is filed under Section 397 of 401 of the Code of Criminal Procedure, to set aside the order Judgment dated 23.04.2018 made in Crl.A.No.77 of 2018, on the file of the Learned II Additional District and Sessions Judge, Thiruvallur at Poonamallee.) 1.This Criminal Revision is filed aggrieved by the conviction for the offence under Section 138 of the Negotiable Instruments Act, 1881, by Judgment dated 24.04.2018, the learned Fast Track Court Magisterial Level No.II, Poonamalee, Thiruvallur District in S.T.C.No.14 of 2017, and sentencing him to undergo 12 months of Simple Imprisonment and to pay a fine of Rs.15,00,000/- (Rupees Fifteen Lakhs only) as compensation and in default of payment to undergo four weeks of Simple Imprisonment and the conviction and sentence being confirmed by the Judgment dated 23.04.2019 by the II-Additional District and Sessions Judge, Thiruvallur at Poonamallee in C.A.No.77 of 2018. Aggrieved by the same, the present revision is filed before this Court. 2. Heard Mr.A.Nagarajan, learned Counsel for the petitioner and Mr.R.Murali, learned Counsel appearing for the respondent. 3. The learned Counsel for the petitioner would submit that in this case, the statutory notice was issued beyond the period of 30 days from the date of return of the Cheque. According to him, from the perusal of Ex.P-2/ Memo of dishonour filed by the petitioner himself, it is clear that the Cheque was returned on 12.08.2016. Even though the legal notice dated 11.09.2016 was posted only on 14.09.2016 and therefore, it is clearly beyond the period of 30 days. Thus, the conviction of the petitioner is straight away liable to be interfered with. This apart the learned Counsel would submit that in this case, the plea of the petitioner/accused is that the complainant had paid to the accused only a sum of Rs.9 Lakhs, along with interest, and the accused had repaid the sum of Rs.10,24,000/- (Rupees Ten Lakhs Twenty Four thousand only) and therefore, the Cheque issued as security is being misused by the complainant. Therefore, there is no legally enforceable liability. The learned Counsel would further submit that the complainant has been duly cross-examined in this regard and from the fact that the complainant can prove only a sum of Rs.9 Lakhs is only through Bank transaction and he is pleading that another sum of Rs.6 Lakhs being paid as cash by itself would prove the case of the petitioner/accused. The learned Counsel would further submit that the complainant has been duly cross-examined in this regard and from the fact that the complainant can prove only a sum of Rs.9 Lakhs is only through Bank transaction and he is pleading that another sum of Rs.6 Lakhs being paid as cash by itself would prove the case of the petitioner/accused. Therefore, the learned Counsel would submit that this is the case for interference by this Court in the exercise of its power. 4. Per contra, the learned counsel for the respondent would submit that as far as the statutory notice is concerned, as per the return memo, the Cheque was dishonoured on 12.08.2016, and the 13.08.2016 is Saturday, 14.08.2016 is Sunday and 15.08.2016 is the Independence Day holiday, and therefore, the dishonoured Cheque along with return memo was issued to the respondent only on 17.08.2016. Therefore, the statutory notice issued on 14.09.2016, is within the period of 30 days. The learned Counsel further would submit that in fact, Ex.P-18, which is the letter issued by the INDUS IND Bank, which clearly confirms that the branch received the Cheque from the clearing house only on 16.08.2016, and thereafter it was collected by the complainant. Therefore, the learned Counsel further would submit that the complainant has clearly proved that the statutory notice is issued within the time. 5. As far as the other contention is concerned, the learned Counsel would submit that the complainant has clearly pleaded that a sum of Rs.9 Lakhs was paid through a Banking transaction, which is also admitted by the accused/petitioner. The accused only disputing the sum of Rs.6 Lakhs by cash. The complainant is protected by the presumption under Sections 118 and 139 of the NI Act. The accused even though has pleaded that he also repaid the sum of Rs.10,24,000/- absolutely nothing was produced by him before the Court. Therefore, once the signature in the Cheque is admitted, the presumption arises in favour of the complainant and the petitioner/accused has not done anything to rebut the presumption. Therefore, he prays for the dismissal of the revision. 6. In support of his contentions, the learned Counsel would rely upon the Judgment of the High Court of Kerala, in P.J.Thomas Vs. Vijayakumar 2014 (2) MWN (Cr.) DCC 14 (Ker), morefully relying upon paragraph No.17 of the said Judgment, which reads as follows:- “17. Therefore, he prays for the dismissal of the revision. 6. In support of his contentions, the learned Counsel would rely upon the Judgment of the High Court of Kerala, in P.J.Thomas Vs. Vijayakumar 2014 (2) MWN (Cr.) DCC 14 (Ker), morefully relying upon paragraph No.17 of the said Judgment, which reads as follows:- “17. In the circumstances, I am of the view that the expression “the bank” occurring in proviso (b) of Sec. 138 of the Act cannot be given the same meaning as given to that expression in proviso (a). The expression occurring in proviso (b) of Sec. 138 of the Act has to be given a contextual meaning. Giving the expression in the two provisos the same meaning would do violence to the purport of proviso (b) of Sec. 138 of the Act. For, it is open to the payee to present the cheque through his bank and it is to be taken that the date of reckoning the period of 15 days is the date on which the collecting bank received the information, it would mean that even before the information regarding dishonour has reached the payee, he is required to issue a notice intimating that dishonour and demanding payment” 7. The learned Counsel would also rely upon the Judgment of the Hon'ble Supreme Court of India, in Munoth Investment Ltd., Vs. Puttukola Properties Ltd (2001) 6 SCC 582 ., morefully relying paragraph No.4 of the said Judgment, which reads as follows:- “4. It is the contention of the learned counsel for the appellant that the appellant filed criminal complaint  before the Metropolitan Magistrate, Chennai, on the ground that in respect of a liability on a promissory note, a cheque was issued in favour of the complainant on 12.01.1994 for a sum of Rs.5 lakhs. When the cheque was presented in the Bank, it was returned on 13-1-1994 with an endorsement “payment stopped by drawer”. Hence the appellant issued notice on 29-1-1994 which was received by the respondent on 4-2-1994. It is submitted that the appellant was informed about the dishonour of cheque only on 17-1-1994 as there were Pongal holidays between 14-1-1994 to 16-1-1994. When the cheque was presented in the Bank, it was returned on 13-1-1994 with an endorsement “payment stopped by drawer”. Hence the appellant issued notice on 29-1-1994 which was received by the respondent on 4-2-1994. It is submitted that the appellant was informed about the dishonour of cheque only on 17-1-1994 as there were Pongal holidays between 14-1-1994 to 16-1-1994. For this purpose, he has relied upon deposition of PW 1, Gopal Krishnan, Company Secretary of the appellant Company, PW 2 Shri Muralidharan, Manager, Bank of Baroda, who has stated that on 13-1-1994, cheque was received back by the Bank with an endorsement “payment stopped by the drawer” and that debit advice was sent to the complainant on 17-1-1994 as 14th to 16th were holidays for Pongal. 5. In our view, the High Court committed material irregularity in not referring to the aforesaid evidence which was recorded by the Metropolitan Magistrate. Section 138(b) of the Act inter alia provides that the payee has to make demand for the payment of money by giving a notice “to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid”. So fifteen days are to be counted from the receipt of information regarding the return of the cheque as unpaid. In the present case, it is the say of the complainant that the cheque was presented for encashment on 12th; it was returned to the Bank on 13th and information was given to the complainant only on 17th, as 14th, 15th and 16th were Pongal holidays. The learned counsel fairly pointed out that in the complaint it has been stated that the complainant had received intimation with regard to the return of the said cheque from his banker on 13- 1-1994. However, he submitted that this is an apparent mistake and for explaining that mistake the appellant has led the evidence before the trial court. Undisputedly, he pointed out that in the State of Tamil Nadu, 14-1-1994 to 16-1-1994 there were Pongal holidays and, therefore, the appellant came to learn about the dishonour of his cheque on 17-1- 1994.” 8. However, he submitted that this is an apparent mistake and for explaining that mistake the appellant has led the evidence before the trial court. Undisputedly, he pointed out that in the State of Tamil Nadu, 14-1-1994 to 16-1-1994 there were Pongal holidays and, therefore, the appellant came to learn about the dishonour of his cheque on 17-1- 1994.” 8. Further, the learned Counsel would rely upon the Judgment of the Hon'ble Supreme Court of India, in Kalamani Tex vs. P.Balasubramanian (2021) 5 SCC 283 , to press home the point that the complainant has the presumption in his favour by Section 139 of the NI Act and the accused has to rebut the same at the level of preponderance of probability. The learned Counsel would rely upon the Judgment of the Hon'ble Supreme Court of India, in State Vs. Manimaran (2019) 13 SCC 670, to contend that the power of this Court in the revisionary jurisdiction would lie in a narrow compass. 9. In reply to the contention of the learned Counsel of the respondent, Mr.A.Nagarajan, learned Counsel for the petitioner would submit that Ex.P-18, was belatedly produced by the complainant and after the part cross-examination of P.W.1 and therefore, should not be relied upon. He would further submit that unless the complainant had let in evidence to prove the said fact, the contentions cannot be taken into account by this Court. Therefore, he would submit that the revision is to be allowed. 10. I have considered the rival submissions made on either side and perused the material records of this case. 11. As regards the first contention of the petitioner, there can be no quarrel over the mandatory requirement that the statutory notice has to be issued within the period of 30 days, failing which, the offence will not be made out. According to the Return Memo, which is filed as Ex.P-2, it mentions that the date of return as 12.08.2016. It is to be noted that even in the said memo, it is clearly stated that it is a computer generated advice and therefore, it merely stands as testimony that the date of presentation and date of dishonor of the Cheque. Ex.P-2, cannot be taken as confirmation for the date on which the returned Cheque was handed over to the complainant. Ex.P-2, cannot be taken as confirmation for the date on which the returned Cheque was handed over to the complainant. In this regard, the language employed under Section 138 of the NI Act, the statutory notice should be issued within 30 days from the date of receipt of information by him from the bank regarding the return of the Cheque as unpaid and not from the date of return. Therefore, when the complainant has explained that after the date of return, 13.08.2016, 14.08.2016 and 15.08.2016 were being holidays and the Cheque itself was being received by the Bank on 16.08.2016, the case of the complainant is that he received the information i.e., the returned Cheque along with the Return Memo only on 17.08.2016 is very much believable. In this regard, it is clear from paragraph No.7 of the proof affidavit, that the complainant has averred that the cheque was delivered to him only on 17.08.2016. 12. The learned Counsel for the petitioner relied upon the answer of the complainant that the complainant knew that the Cheque bounced on 12.08.2016, which is common knowledge that the moment any Cheque is bounced, information by SMS or push messages are being sent, therefore, the said answer of the complainant cannot be taken as proof that he has received the information. The knowledge of return of a cheque is different from receipt of information including the ground on which the cheque has been returned as dishonored. Only when the returned cheque along with the memo is received by the complainant he is in a position to decide and issue a statutory notice and therefore, the submissions of the learned Counsel are without any merits. 13. As regards the second contention of the learned Counsel, the complainant had in detailed cross-examined P.W.1. The learned Counsel for the petitioner would submit in this regard, the complainant in the crossexamination answers that he had given a sum of Rs.9 Lakhs through Bank account by RTGS transfer. The balance amount of Rs.6 Lakhs is alleged to have been given by him by borrowing from one Veerababu. The learned Counsel would submit that even the Bank account details would show that the accused had the sum of Rs.15 Lakhs in his own account, therefore, the very version that he had borrowed money from Veerababu would itself falsify the case. The learned Counsel would submit that even the Bank account details would show that the accused had the sum of Rs.15 Lakhs in his own account, therefore, the very version that he had borrowed money from Veerababu would itself falsify the case. I am unable to accept the said contention because it is for the complainant to muster his resources even when he had money, there is nothing wrong in borrowing money, and advancing as cash. 14. As far as the accused is concerned, his case is that he had repaid the sum of Rs.10,24,000/-. The person who repaid such a huge amount is unable to produce even a single scrap of paper in the form of any receipt or any bank transaction by which the amount was repaid. Therefore, the case of the petitioner/accused is unbelievable, and the Trial Court as well as the First Appellate Court has rightly appraised the evidence on record and arrived at the finding of guilt. Therefore, I am unable to persuade myself to interfere within the limited scope of revisionary jurisdiction to upturn the finding of guilt into one of acquittal. 15. Now, coming to the sentence considering the age of the accused and the efflux of time, I am inclined to modify the same. The accused can be directed to pay the Cheque amount along with the additional amount as fine and in default, the sentence of imprisonment can be imposed. 15. Now, coming to the sentence considering the age of the accused and the efflux of time, I am inclined to modify the same. The accused can be directed to pay the Cheque amount along with the additional amount as fine and in default, the sentence of imprisonment can be imposed. In view thereof, this Criminal Revision is partly allowed, on the following terms:- (i) The conviction of the petitioner for the offence under Section 138 of the Negotiable Instruments Act, by Judgment dated 24.04.2018 passed in S.T.C.No.14 of 2017, by the Fast Track Court Magisterial Level No.II, Poonamalee, Thiruvallur District, and which was confirmed by the Judgment dated 23.04.2019 passed in C.A.No.77 of 2018 by the II-Additional District and Sessions Judge, Thiruvallur at Poonamalee, is confirmed; (ii) the petitioner shall pay a total fine amount of Rs.15,10,000/-, within a period of eight weeks from the date of receipt of copy of this order; (iii) the petitioner shall be entitled to adjust if any sum which is already paid as fine or deposited by him to the credit to S.T.C.No.14 of 2017 and he will pay the balance amount alone; (iv) It is made clear that there will be no further extension of time for payment of the aforesaid payment of fine of Rs.15,10,000/-, and a sum of Rs.7,50,000/- has already deposited by the petitioner to the credit of S.T.C.No.14 of 2017, on file of the Fast Track Court Magisterial Level No.II, Poonamalee, Thiruvallur District, shall be taken into account and the petitioner shall pay the balance of Rs.7,60,000/-, within the time stipulated above; (v) On such payment of fine of the sum of Rs.15,00,000/-, along with accrued interest, is directed to be paid out to the respondent/complainant without insisting on upon any formal application and only upon verification and identification of the respondent/complainant. (vi) In default of payment of the balance amount, the respondent/complainant will be entitled for the payment out for the sum of Rs.7,50,000/-, which had been already deposited by the petitioner along with the accrued interest; (vii) In default of payment of fine amount within the stipulated time of this Court and the petitioner shall undergo Simple Imprisonment of six months.