IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 24.08.2017

CORAM

THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

RESERVED ON :27.07.2017 PRONOUNCED ON : 24.08.2017 CRL.RC. No.1315 of 2012 Neminathan Managing Director, Lakshmi Priya Coconut Powder Company, Manjakampatti, Komarapalayam Village, Moolanur(via), Dharapuram Taluk, Erode District. .. Petitioner ..Vs.. Subramaniam .. Respondent

Prayer:- Criminal Revision Petition filed under Section 397 and 401 Cr.P.C., against the order dated 20.09.2012 made in Crl.Appeal No.105 of 2011, on the file of the III Additional (District and Sessions Court), Coimbatore, modifying the order dated 27.04.2011, passed in C.C.No.272 of 2005, on the file of Judicial Magistrate No.2, Pollachi.

For Petitioner :Mr.J.Jayendra Krishnan For Respondent :Mr.K.Selvakumarasamy

ORDER

This Criminal Revision Petition is filed under Section 397 read with Section 401 of Cr.P.C, against the order dated 20.09.2012 made in Crl.Appeal No.105 of 2011, on the file of the III Additional (District and Sessions Court), Coimbatore, modifying the order dated 27.04.2011, passed in C.C.No.272 of 2005, on the file of Judicial Magistrate No.2, Pollachi.

2. The brief facts of the case leading to the filing of this Revision Petition is that the complainant and the petitioner/accused had coconut business transaction during course of such business transaction the appellant/accused had to settle the dues and hence, had executed a Faisal agreement deed dated 3.5.2004 and had issued seven cheques, which totals to R.3,75,000/- actually due by the appellant/accused.

3.This complaint relates to cheque No.885590 issued for a sum of Rs.50,000/- of Karur Vysya Bank Ltd Mulanoor Branch. The cheque dated 01.07.2004 bearing No.385586 for sum of Rs.75,000/- was encashed and the cheque dated 01.11.2004 having No.885590 for Rs.50,000/- when presented for payment at Indian Overseas Bank, Kottur Branch on 01.11.2004, the cheque returned for insufficient funds on 03.11.2004 and hence, complainant had issued legal notice on 10.11.2004 and that the accused received the same on 16.11.2004 and failed to send reply notice or settle cash and therefore, filed this private complaint under Section 138 N.I.Act.

4. The trial Court after following the procedure has examined P.W.1 and marked Exhibits P1 to P5 on behalf of the accused. While, attestor of the Exhibit P1,mutual agreement is examined as D.W.1, notary public who has attested Exhibit P1, Advocate is examined as D.W.2 and the accused examined himself as D.W.3 and no documents have been marked.

5. During the course of the cross examination, P.W's the suggestive case projected by the revision petitioner/accused is that, the Ex.P1 agreement was obtained by force and coercion in the Kottur police station and settlement was effected by the police in the Kottur police station and blank cheques have been obtained from him and subsequent filled up and fabricate the present case and hence, he has not liable to pay the amount.

6.The trial Court after consideration of oral and documentary evidence have come to the conclusion that, there is a legally enforceable debt for issuance of the cheque-in-issue and on its dishonour statutory notice contemplated under Section 138 of Negotiable Instruments Act has been issued in time. However, the accused has not given any reply or paid the amount and hence, the complainant is entitled for presumption under the Negotiable Instruments Act. Though, the accused made a faint attempt to probablize the suggestive case he has failed to do so and accordingly, laid the

conviction and passed the sentence by an order dated.27.04.2011. http://www.judis.nic.in

7.Aggrieved against said conviction and sentence, the accused/the revision petitioner preferred Crl.A.No.105 of 2011, before the IIIrd Additional District and Sessions Judge, Coimbatore.

8.After hearing, both the parties by a judgment dated.27.04.2011,the lower Appellate Court has confirmed the conviction laid therein. However, modified the sentence from imprisonment to that of fine only to the tune of Rs.60,000/- of which Rs.55,000/- each to be paid as a compensation to the complainant and balance to be treated as a fine.

9.Challenging the correctness of the said order, the accused has filed this revision petition.

10. The learned Senior Advocate J.Raja Kalifulla who is appearing for the revision petitioner has raised 3 points as follows:-

(a) the cheques and signatures in blank stamp papers were obtained under duress by threat and coercion in the police station. When this fact is admitted and accepted, the burden is on the complainant/1st respondent to prove the existence on debt.

(b) The 1st respondent had not produce any material to substantiate or prove that there was a legally enforceable debt or liability against the petitioner and the cheques were issued in discharge of a debt.

(c) In the absence of any material or evidence there cannot be any presumption against the petitioner/accused under Negotiable Instruments Act.

11.The learned counsel appearing for the respondent made

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submissions in support of the judgment of the lower Courts.

12.Heard both sides and perused the records.

13.The only point that needs to be addressed in this case is:

i) whether the order of conviction and sentence passed by the lower Courts are sustainable? and

ii)Whether the sentence is exorbitant?

14.As stated supra, before the trial Court, the complainant examined himself as P.W.1 and also marked the Exhibit P1 to P5.

15.On analysising of the admission made in the cross-examination of the D.W.3/accused herein, the trial Court has come to the conclusion that Exhibit P1 is not disputed and hence, arrayed at a conclusion that Exhibit P1, mutual agreement dated 03.05.2004 is legally valid and consequently, held that there exist legal enforceable debt between the parties.

16.The lower Appellate Court has also gone into the evidence of D.W.3 as well as the D.W.2, the notary public who had attested the Exhibit P1 and concurred with the finding of the trial Court. It is relevant to state that D.W.3,admitted in cross that "rhl;rpahf ifbahg;gk; bra;jpUf;Fk; egh;fs; Kf;fpakhdth;fs; vd;why; rhpjhd;/ rhl;rpfs; kpul;o ifbahg;gk; th';ftpy;iy/ uhkrhkp ek;gpahh; vd;dplk; nfl;lhh;/ ehd; brhd;djpd; nghpy; ifbahg;gk; nghl;lhh;/ mtiu ahUk; kpul;ltpy;iy/ kpul;o ifbahg;gk; th';fpajhf ehd; mthplk; Twtpy;iy".

17.Thus, D.W.3(petitioner/accused) admitted his signature in the cheque. Further, admitted none in the police station for compelled him or the witnesses, to sign the cheque. Further, it is the brother of the accused who http://www.judis.nic.in

has preferred a complaint in Moolanur Police Station regarding seizure of the car by the parties and the enquiry of the police station for this seizure of vehicle of the brother and therefore, the finding of the Court below that in view of the admission made by the accused in the witness box as D.W.3 regarding the factum of signature in the cheque and absence of any force and coercion alleged to have been exercised at the Police Station is found to be negative and the same does not call for any interference by this Court.

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18.It remains to be stated that though, D.W.3 have taken a stand that the entire amount due to the complainant namely Rs.1,35,000/- has been paid by way of cash. Rs.60,000/- balance through a cheque of Rs.75,000/ and hence, it is for the accused to explain circumstance leading to the issue of 5 more cheques and to probablize its suggestive case and however, there is no paubible explanation is forthcoming, much less explanation to dispel, the fact in issue as to why he has issued six more cheques to the tune of Rs.50,000/- each and in the absence of any explanation to that effect, adverse inference is to drawn against the accused.

19.In view of the finding that there was no coercion or force in obtaining a cheque as projected by the defence, this Court is of the considered view that the defence has been raised for the purpose of case only and the same is otherwise found to be without any substance. Though,the accused as a D.W.3 claimed that,he has given the cheques six more cheques for Rs.50,000/-. He has not taken any legal requisition by issuance any legal notice for return of the those cheques assumes significance.

20.To add that for the Exhibit P1, legal notice, the accused/revision petitioner has not given any reply and hence, this Court is of the considered view that, it is only an after thought to raise a defence without any substance.

21. The trial Court, based upon, the admission in the cross examination as D.W.1 has come to the correct conclusion that there is legally enforceable debt, as could be seen from Exhibit P1, mutual agreement dated 03.05.2004 and the defence raised by the accused that the cheques have been obtained by force and coercion in the Police Station was found to be otherwise even as per the admission in the witness box and therefore, the trial Court has correctly come to the conclusion that the complainant is entitled to presumption under Section 138 of Negotiable Instruments Act is well found and well merited and hence, the first submission made by the Senior Advocate Mr.J.Raja Kalifulla, on behalf of the revision petitioner, on the above factual ground is not sustainable and stands rejected and the finding given by both the Courts below that the complainant is entitled for presumption under Section 138 of Negotiable Instruments Act is sustainable in law and this point is answered accordingly.

22.In order to rebut the presumption, the accused has entered a witness box as D.W.3 and also called the one of the attestor of the Exhibit P1 as D.W.1 and Advocate notary public as D.W.2. However, on going through the evidence of the D.W.1 and D.W.2 and the answer elicited in the crossexamination that while D.W.1 admitted his signature in the Exhibit P1 and also specifically stated that he has signed the same in Moolanur Police Station

and also other explanation and never whispered anything regarding any force or coercion has spoken by the D.W.3 assumes significance.

23. So also D.W.2 have stated that both the complainant and accused have signed before him and therefore, the attestor of the exhibit P1 and also the D.W.2 have clearly spoken to about the execution of Exhibit P1 and hence,both Courts below has come to the correct conclusion that Exhibit P1 and the cheque have been signed and issued by the D.W.3/accused and there is no force or coercion for singing the signature has projected by the accused and hence, the finding of the trial Court that the revision petitioner/accused failed to probablize to suggestive case is well merited and well considered does not warrant any interference by this Court.

24.Based upon the admission in the cross examination of D.W.1 coupled with a fact that he has not taken any steps to issue any legal notice in connection with issuance of cheque which is a subject matter in issue in the case and also non-issuance of reply notice to the Exhibit P4 Statutory notice of the complainant and as the accused has foisted to probablize to suggestive case, both courts below has come to the conclusion that he has committed the offence under Section 138 and conviction laid by the Courts below is found to be legally sustainable.

25.On the point of sentence, the Senior Advocate could contend that the imposition of fine of Rs.60,000/- is exorbitant. This Court has given to anxious consideration for the said contention of the learned Senior Advocate appearing for the revision petitioner.

26.Considering the quantum of amount involved in the cheque, this Court is of the considered view that the sentence imposed by the lower Appellate Court is in consumerate with the cheque amount and hence, I am not inclined to differ or to take a different view at this issue.

27. In view of the reasons stated in the forgoing paragraphs, the case of the complainant has been duly corroborately by legal evidence. On the contrary, the revision petitioner/accused has failed to probablize the suggestive case in the manner known to law. This Court finds that the judgment of conviction and sentence passed by both the Courts below are in conformity with the law laid down by the Apex Court.

26.Accordingly, this Criminal Revision Petition is devoid of merits is liable to be dismissed and the sentence passed by the lower Appellate Court is hereby confirmed.

24.08.2017

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To

1.The III Additional (District and Sessions Court), Coimbatore

2.The Judicial Magistrate No.2, Pollachi.

3.The Public Prosecutor, High Court, Madras.

RMT.TEEKAA RAMAN,J.,

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24.08.2017