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2023 DIGILAW 1791 (MAD)

M. Thiyagarajan v. G. Pasupathy

2023-04-25

RMT.TEEKAA RAMAN

body2023
JUDGMENT (Prayer: Criminal Revision Case filed under Sections 397 and 401 of Cr.P.C., to set aside the order passed by the learned Principal Sessions Judge, Chennai made in C.A.No.318 of 2017, dated 28.09.2018, confirming the judgment of acquittal passed by the learned Metropolitan Magistrate, Fast Track Court-III, Saidapet, Chennai in C.C.No.5804 of 2006, by judgment dated 05.09.2017.) 1. The complainant is the revision petitioner herein. 2. For the sake of convenience, the parties are referred to as per the ranking before the trial Court. 3. The brief facts of this case is as follows:- (a) The petitioner herein had filed a private complaint as against the respondent for an offence under Section 138 of the Negotiable Instruments Act and the same had been taken on file by the learned XVII Metropolitan Magistrate in C.C.No.5804 of 2006 and later had been transferred to the learned Metropolitan Magistrate, Fast Track Court-III, Saidapet, Chennai. (b) The petitioner and the respondent were good friends for quite a long time and the respondent had approached the petitioner and represented that he intend to sell his property situated at Thanjavur and the respondent had expressed his willingness to sell the said property to the petitioner, if the petitioner is interested to buy for which the petitioner had offered to purchase the same and the offer was accepted by the respondent and after negotiations, the respondent had agreed to sell the property for a sale consideration of Rs.10,00,000/- and the petitioner had paid an advance of Rs.9,00,000/- which was duly received by the respondent and the Sale Agreement Payment Receipt was executed by the respondent (Ex.P9). (c) Later, the respondent having received the advance amount had not come forward to execute the sale deed and after much persuasion from the petitioner, the respondent assured to repay the advance amount by citing a reason that due to certain personal problems, he is not willing to sell the property and the petitioner had agreed, since the respondent was a good friend of the petitioner and the respondent had assured him that he shall repay the advance amount together with interest. (d) The further case of the petitioner is that, the respondent has represented towards his liability to the petitioner for the return of the advance amount had issued a cheque (Ex.P1) dated 29.03.2006, bearing No.763825, drawn on City Union Bank Ltd, South Main Road, Tanjore Branch, for Rs.9,00,000/- (Rupees Nine Lakhs only), and when the petitioner as requested by the respondent, when presented the said cheque in his bank on 29.03.2006, i.e., Indian Bank, Kodambakkam Branch, Chennai, the same was returned unpaid for the reason "Account closed", and the same was intimated to the petitioner by his banker''s through their Return memo dated 13.04.2006 (Ex.P2) and Debit advice dated 19.04.2006 (Ex.P3) (e)The petitioner had issued a legal notice on 09.05.2006 (Ex.P4) and the same was received by the respondent on 11.05.2006, and the acknowledgment card is Ex.P5. The respondent even after the expiry of fifteen days had not chosen to make the payment of the amount covered by the cheque and the respondent had chosen to issue a reply notice 24.05.2006 (Ex.P6) and the petitioner had duly send a rejoinder dated 07.06.2006 (Ex.P7) to the respondent and the Acknowledgment due card in respect of the rejoinder is Ex.P8. Thereafter the petitioner had filed the complaint on 14.06.2006. 4. The petitioner had examined himself as P.W.1 and marked Ex.P1 to Ex.P12, in support of his case and the respondent had examined himself as D.W.1 and further examined defense witnesses D.W.2 K.Baskaran and D.W.3 Manager, City Union Bank were examined and marked Exs.D1 to D11. 5. After conclusion of trial, the trial Court had found that, the respondent is not guilty of the offence under Section 138 of the Negotiable Instruments Act, and had acquitted the respondent by judgment dated 05.09.2017. 6. Aggrieved by the same, the petitioner had preferred an appeal before the learned Principal Sessions Judge, Chennai in C.A.No.318 of 2017, and after hearing both the parties, the learned Principal Sessions Judge, Chennai was pleased to confirm the judgment of acquittal and hence the revision. 7. Heard the learned counsel appearing for the revision petitioner and the respondent. 8. On perusal of the evidence of P.W.1 and Ex.P4 goes to show that it is on the lines of the averments made in the complaint. 9. 7. Heard the learned counsel appearing for the revision petitioner and the respondent. 8. On perusal of the evidence of P.W.1 and Ex.P4 goes to show that it is on the lines of the averments made in the complaint. 9. On a careful perusal of the oral evidence of D.W.1 along with Ex.P6 reply notice dated 24.05.2006 and Exs.D1 to D3 and D8, this Court finds that the accused denied the evidence of the complainant as false and examined three witnesses on his side. G.Pasupathy was examined as D.W.1 through him 10 documents were marked. The Sale agreement dated 04.12.2002 executed in between the accused and complainant brother''s son Senthil Kumar was marked as Ex.D1; copy of Police Complaint copy dated 28.08.2003 was marked as Ex.D2; Cancellation Deed of Sale Agreement (Ex.D1) dated 29.09.2003 was marked as Ex.D3; Visitors Pass was marked as Ex.D4 dated 22.11.2003, Legal Notice dated 19.12.2006 issued by Santhanakrishnan against the accused and his mother was marked as Ex.D5, Police Complaint copy dated 17.03.2007 preferred by the accused against the complainant''s brother kumar @ Pappykumar and santhanakrishnan was marked as Ex.D7, Stop Payment letter dated 22.01.2001 issued by the accused regarding the alleged case cheque was marked as Ex.D8, Kumutham reporter Interview dated 05.10.2003 was marked as Ex.D9, Santhanakrishnan''s affidavit was marked as Ex.D10. Baskaran voter list, Ration card were marked as Ex.D11. 10. At this juncture, it is pertinent to note that the complainant P.W.1 in his legal notice Ex.P4, stated the accused received 9 lakhs in the year of 2005 and executed a document. But no such document i.e., sale agreement is produced by the complainant. From the beginning till the fag end of the case, the complainant stated that the transaction took place in the year 2005. All of a sudden, after the defense side evidence was produced, the complainant introduced a new version that accused received Rs.9 lakhs and executed sale agreement payment receipt dated 5.10.2003 (Ex.P9). Further P.W.1 in his evidence answered that if the recitals found in legal notice, complaint that transaction took place in the year 2005 is a clerical mistake. 11. D.W.2 K.Baskaran in his evidence deposed that, he lost this case petition cheque on 25.12.2020 and issued an undertaking letter Ex.D7. On the basis of D7, accused issued a stop payment through a letter dated 22.01.2001 mentioned that his alleged petition cheque was lost by D.W.2. 11. D.W.2 K.Baskaran in his evidence deposed that, he lost this case petition cheque on 25.12.2020 and issued an undertaking letter Ex.D7. On the basis of D7, accused issued a stop payment through a letter dated 22.01.2001 mentioned that his alleged petition cheque was lost by D.W.2. In this regard, the version of D.W.1 and D.W.2 was duly corroborated by D.W.3 bank official and Ex.D8. 12. The sum and substance of the submissions of the revision petitioner is that the respondent and the appellant entered into a sale agreement for Rs.10 lakhs and the respondent paid Rs.9 lakhs. The sale agreement was not executed by the respondent. The revision petitioner demanded the amount of advance money for which the respondent alleged to have issued a cheque dated 29.03.2006 for Rs.9 lakhs. The revision petitioner presented the said cheque in his bank and the same was returned as "account closed". The complainant issued notice dated 9.5.2006. The respondent issued a reply notice dated 24.05.2006 and the appellant issued a rejoinder dated 7.6.2006. 13. As stated supra, the case of the complainant is that, the accused had approached the complainant and intended to sell his property situated in Thanjavur and the accused had expressed his willingness to sell the same for Rs.10 lakhs and the complainant paid Rs.9 lakhs as advance. He had executed the sale agreement, after payment of balance of sale consideration, the sale deed is to be executed and since the sale agreement was cancelled he is asked for Rs.9 lakhs for which the said petition was said to have been issued. 14. Per contra, it is a specific case of the defense that, both in his reply notice dated 24.05.2006 Ex.P6, the respondent denied the transaction and also stated that for collateral purpose only, a cheque has been issued to the relative of the accused and also a promissory note was executed on 06.04.2000 and issued a signed blank cheque in City Union Bank and account has been closed in the year 2006. 15(a) It is the specific case of the accused in the reply notice under Ex.P6 that, which demolishes the case of the complainant. On perusal of the cross examination of D.W.1 and D.W.2, I find that the evidence of D.W.2 duly corroborates the evidence of D.W.1 and the petitioner / complainant has not tested the credibility of the evidence of D.W.1 and D.W.2. On perusal of the cross examination of D.W.1 and D.W.2, I find that the evidence of D.W.2 duly corroborates the evidence of D.W.1 and the petitioner / complainant has not tested the credibility of the evidence of D.W.1 and D.W.2. (b) Besides the version of D.W.1 and D.W.2 version is duly corroborated by the oral and documentary evidence Ex.D8 and the statement of the bank official namely D.W.3. Hence, based upon Ex.D1 and Ex.P6 reply notice and oral evidence of D.W.1, D.W.2 and D.W.3 both the Courts below has rightly come to the conclusion that the case of the respondent/accused is mere probable. (c) Though the signature in the cheque was admitted and the complainant is entitled for presumption under Section 139 of the N.I.Act, in view of the specific reply under Ex.P6 and the evidence of D.W.1 and D.W.2 coupled with Ex.D8, both the Courts below has rightly come to the conclusion that the respondent/accused have successfully rebutted the presumption and hence again it reversed back to the private complainant to prove passing off consideration upto the level of burden of proof. To the dismay, the petitioner/private complainant has not proved the same. 16. It remains to be stated that Ex.P3 Debit Advise, clearly reveals that the respondent/accused closed the account in the year 2006, whereas, the stop payment Ex.D8 has been issued by the accused on 22.01.2001 itself. The cheque was alleged to have been issued on 29.03.2006. The documents clearly reveals that the stop payment made before issuing cheque. In the evidence, D.W.3, stated that he was working as Branch Manager in City Union Bank, Thanjavur Branch and it has been mentioned in the cheque in the year 19, which means from 1990 to 1999 and the cheque issued after that period it was mentioned as 20. He further stated that Ex.D8 stop payment letter was issued by the accused. 17. In his cross-examination, it clearly states that, as per the evidence of D.W.3 and also the documents, the accused account was closed in the year 2001 itself and the cheque was subsequently issued. The appellant has failed to prove the cheque issued for the alleged transaction is unbelievable. 18. 17. In his cross-examination, it clearly states that, as per the evidence of D.W.3 and also the documents, the accused account was closed in the year 2001 itself and the cheque was subsequently issued. The appellant has failed to prove the cheque issued for the alleged transaction is unbelievable. 18. Hence, I find that the stop payment of the petition cheque was issued under Ex.D8 as early as on 22.01.2001, whereas, the petition cheque appears to have been issued on 29.03.2006 and this clearly demonstrates that the stop payment of the cheque was made much before issuance of the cheque. Therefore, I find that the alleged issuance of the chqeue appears to be more improbable. Hence, I find that the case of the complainant does not disclose an offence under Section 138 of the N.I Act filed by the defendant has successfully rebutted the presumption for the reasons stated in the preceding paragraphs. 19. In view of the discussion of the preceding paragraphs, this Court has no hesitation to hold that the onus of proof has been duly discharged by the respondent/accused and the complainant/petitioner has failed to prove the passing off for consideration under the cheque viz., the cheque was issued for legally enforceable debt. 20. In the absence of any positive evidence that the cheque is supported by legal enforceable debt, I am not inclined to interfere with the judgment of acquittal passed by the trial Court, for the above mentioned reasons. 21. In this view of the matter, this Criminal Revision petition is dismissed.