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2023 DIGILAW 1050 (MAD)

K. S. Dhakshinamoorthy v. H. Damodar

2023-03-14

V.SIVAGNANAM

body2023
JUDGMENT (Prayer: This Criminal Appeal has been filed under Section 378 of Code of Criminal Procedure against the judgment passed by the IV Additional District & Sessions Judge at Coimbatore in Criminal Appeal No.163 of 2020 dated 04.10.2021 in reversing the well considered judgment of the Judicial Magistrate, Fast Track Court No.2, Magisterial Level at Coimbatore in C.C.No.93 of 2018 dated 06.08.2020.) 1. Challenging the impugned judgment dated 04.10.2021 passed in Criminal Appeal No.163 of 2020 by the IV Additional District & Sessions Judge at Coimbatore reversing the judgment dated 06.08.2020 passed in C.C.No.93 of 2018 by the Judicial Magistrate, Fast Track Court No.2, Magisterial Level at Coimbatore. 2. The case of the complainant is that the complainant is the fatherin- law of one deceased Chandrasekar. His wife Chandra is the daughter of the complainant. After his death, his wife Chandra and her daughter Ishwarya are the legal heirs of the deceased Chandrasekar. The accused has to pay a huge sum of money to the deceased Chandrasekar. After his death, this fact came to the knowledge of the complainant and his daughter Chandra. When they contacted the accused, the accused admitting his liability issued a cheque bearing No.795380 dated 17.08.2017 drawn on Andhara Bank, P.N.Pudur Branch, Coimbatore for a sum of Rs.25,00,000/-. On 24.08.2017, the cheque was presented for collection and the same was returned as insufficient funds. Again at the request of the accused, the complainant presented the cheque on 27.09.2017 and the same was returned again on 28.09.2017 as insufficient funds. After issuing legal notice, the complainant filed a complaint in C.C.No.93 of 2018 before the Judicial Magistrate, Fast Track Court No.2 @ Magisterial Level, Coimbatore, for the offence under Section 138 of the Negotiable Instruments Act. 3. Before the trial Court, the complainant examined himself as PW1 and filed six documents as Ex.P1 to Ex.P6. On the side of the accused, no oral evidence has been examined and filed one document as Ex.D1. 4. 3. Before the trial Court, the complainant examined himself as PW1 and filed six documents as Ex.P1 to Ex.P6. On the side of the accused, no oral evidence has been examined and filed one document as Ex.D1. 4. The trial Court, after trial on considering the evidence of the parties, found guilty and convicted the accused for the offence under Section 138 of N.I.Act and sentenced to undergo Simple Imprisonment for a period of six months and also directed to pay a compensation of Rs.25,00,000/- with interest at the rate of 6% per annum from the date of cheque to the complainant within one month from the date of judgment, in default, to undergo simple imprisonment for a period of three months. Aggrieved against the same, the accused prepared an appeal in C.A.No.163 of 2020 before the IV Additional District and Sessions Court, Coimbatore. The learned IV Additional District and Sessions Judge, after considering the records and the evidence adduced by the parties, acquitted the accused and set aside the order passed by the trial Court in C.C.No.93 of 2018. 5. The learned counsel appearing for the appellant submitted that the Judgment of the appellate judge is contrary to the facts and law. The signature in the cheque is not disputed by the accused. Section 139 of N.I Act raises presumptions of law that the cheque duly drawn was in discharge of debt or liability. The appellate Court acquitted the accused on the ground that the disputed cheque was issued at Katoor Police Station and there was no evidence adduced by the accused to show any undue influence or coercion. Further, contended that login of police report allowed is not enough, there should be acceptable proof for undue influence and coercion having not properly appreciated the evidence, acquitted the accused which is unsustainable, hence, it is liable to be set aside and the order of the trial Court has to be restored and thus, pleaded to allow this criminal appeal. To support his argument, the learned counsel for the appellant placed reliance upon the judgment of the Telangana High Court dated 11.11.2022 in V.Ramachandra Rao Vs. V.Manohar Another. 6. To support his argument, the learned counsel for the appellant placed reliance upon the judgment of the Telangana High Court dated 11.11.2022 in V.Ramachandra Rao Vs. V.Manohar Another. 6. The learned counsel appearing for the first respondent/accused supported the judgment of the appellate Court and further, contended to rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. Rather, something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Therefore, to bring home the guilt of the accused under Section 138 of N.I.Act the complainant is bound to discharge the initial burden cast upon him that the cheque was given by the accused in discharge of a legally enforceable liability. The complainant failed to discharge the initial burden that there is a legal enforceable liability upon the accused for payment of Rs.25,00,000/- and there is no merit in the appeal and thus, pleaded to dismiss the criminal appeal. 7. I have considered the matter in the light of the submissions made by the parties. 8. On perusal of records, it is seen that this criminal appeal is against the acquittal order passed by the appellate Court in Criminal Appeal No.163 of 2020. The appellant is the complainant. The case of the complainant is that he is the father-in-law of the deceased Chandrasekar. His daughter Chandra is the wife of the deceased Chandrasekar and her daughter is Ishwarya. Both of them had executed a power of attorney in favour of the complainant Ex.P6 dated 28.07.2017. The accused has to pay a huge sum of money to the deceased Chandrasekar. This fact came to them later. Thereafter, the complainant and his daughter Chandra contacted the accused and the accused, after admitting his liability, issued the disputed cheque bearing No.795380 dated 17.08.2017 for a sum of Rs.25,00,000/-drawn on Andhara Bank, P.N.Pudur Branch, Coimbatore. When the cheque was presented for collection, it was returned as insufficient funds. This fact came to them later. Thereafter, the complainant and his daughter Chandra contacted the accused and the accused, after admitting his liability, issued the disputed cheque bearing No.795380 dated 17.08.2017 for a sum of Rs.25,00,000/-drawn on Andhara Bank, P.N.Pudur Branch, Coimbatore. When the cheque was presented for collection, it was returned as insufficient funds. After issuing legal notice, the complaint has been filed. Before the trial Court, the complainant examined himself as PW1 and filed six documents. Accused did not examine any evidence and filed one document. After considering the evidence, the trial Court found guilty and convicted the accused for the offence under Section 138 N.I.Act and sentenced to undergo simple imprisonment for a period of six months. Aggrieved by this, the accused preferred an appeal in C.A.No.163 of 2020, before the IV Additional District and Sessions Court, Coimbatore and the learned IV Additional District and Sessions Judge allowed the appeal and acquitted the accused. Aggrieved against the same, this present criminal appeal has been filed against the acquittal. 9. I have gone through the material evidence and documents in this case. It is not disputed that the disputed cheque is issued by the accused. Further, there is evidence on the side of the complainant to show that the cheque was drawn on 17.08.2017, on which date, the drawer was maintaining account with the Andhara Bank, P.N.Pudur Branch, Coimbatore, but the defence taken by the accused is, by using force of the police with undue influence and coercion, the cheque was obtained at Katoor Police Station. Therefore, there is no legal enforceable debt. Hence, offence under Section 138 of N.I.Act did not attract. Section 139 of N.I. Act creates a statutory presumption that a cheque received in the nature referred to under Section 138 N.I. Act is always issued in discharge of debt or other liability. 10. To rebut the statutory presumptions, an accused is not expected to prove his defence beyond reasonable doubt as he is expected of the complainant in a criminal trial, it is enough, something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances to show the cheque was obtained by undue influence or coercion. 11. To disprove the presumptions, the accused should bring on record such facts and circumstances to show the cheque was obtained by undue influence or coercion. 11. In this case, it is not disputed by the parties that the complainant also gave a police complaint against the accused in crime No.108 of 2017 for the offence under Section 420 IPC registered by crime branch Coimbatore in that case, charge sheet also filed in C.C.No.2330 of 2019 on the file of the learned Judicial Magistrate No.7, Coimbatore. In C.C.No.2330 of 2019, the complainant was examined as PW1 and her daughter Chandra was examined as PW2. Chandra (PW2) in her evidence deposed that the accused gave the disputed cheque bearing No.795380 dated 17.08.2017 at the police station and her evidence runs as follows; “TAMIL” 12. The complainant was examined in that case as PW1. During the cross examination, he admitted that the accused gave the cheque for a sum of Rs.25,00,000/- out of fear upon the police complaint and during his cross examination, his evidence runs as follows: “TAMIL1” 13. These above evidences were given by the complainant and his daughter Chandra as PW1 & PW2 in C.C.No.2330 of 2019 on the file of the learned Judicial Magistrate No.7, Coimbatore, which was brought to the notice of the appellate Court. Further, the complainant, during his cross examination in that case, stated that the accused received 1 ½ crores from Chandrasekar on the assurance of repaying with 3 crores which is not proved by the complainant. It is reproduced by the appellate Court in para 17 (r) and in para – 17(ff) of the judgment recorded the finding that the accused suggested to the complainant that the cheque was issued at Katoor police station, which was not denied by the complainant and finally held that the cheque was received from the accused by coercion through police at Katoor police station. Therefore, the offence under Section 138 is not made out. 14. The judgment of the Talangana High Court dated 11.11.2022 in V.Ramachandra Rao Vs. V.Manohar Another placed upon by the learned counsel for the appellant factually distinguishable from this case on hand. In that case, the accused raised the defence that he was kidnapped and obtained the cheque and failed to give the particulars as to where, when and how, he was kidnapped and in which circumstances, he had executed the documents. V.Manohar Another placed upon by the learned counsel for the appellant factually distinguishable from this case on hand. In that case, the accused raised the defence that he was kidnapped and obtained the cheque and failed to give the particulars as to where, when and how, he was kidnapped and in which circumstances, he had executed the documents. Therefore, the decision rejected the defence, but in this case, the cheque was executed at Katoor police station. It is not denied by the parties. Further, after giving the criminal case in Crime No.108 of 2017 in C.C.No.2330 of 2019, the disputed cheque came into picture. Therefore, the decision is not helpful to the complainant. 15. The Hon’ble Supreme Court in the case of Kanhaiya Lal and ors Vs. State of Rajasthan reported in (2013) 5 SCC 655 held that while dealing with the appeal against the acquittals unless there are substantial and compelling reasons, good and sufficient grounds and very strong circumstances interference is not called for. 16. Under these circumstances, the findings of the appellate Court upon the fact based on the evidence is right. I find no reason to take different view the evidence on record and also no ground to interfere with the findings of the appellate Court and no merit in the criminal appeal. Accordingly, the criminal appeal is dismissed.