A.V.Anbu Chezhian v. P.Ambikadass

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.06.2010CORAMTHE HON'BLE MR.JUSTICE T.SUDANTHIRAMCRL.R.C.No.1016 of 2008A.V.Anbu Chezhian .. Petitioner/accusedVersusP.Ambikadass .. Respondent/complainantRep. by his Power of AttorneyShanmugavelPetition filed under Section 397 r/w 401 of Cr.P.C, againstthe order passed in Crl.M.P.No.1438 of 2008 in C.C.No.11 of 2008,on the file of the District Munsif-cum-Judicial Magistrate, Vedarnayam, Nagapattinam dated 01.07.2008.For Petitioner : Mr.M.VijayakumaranFor Respondent : Mr.S.Sathiamurthi - - - - -ORDERThe revision petitioner herein is an accused in C.C.No.11 of2008, on the file of the District Munsif-cum-Judicial Magistrate, Vedarnayam and the respondent filed a complaint against thepetitioner herein for offence under Section 138 of the NegotiableInstruments Act. The petitioner herein filed an application beforethe trial Court under Section 91 Cr.P.C., summoning documents suchas bills, accounts and income-tax returns relating to the period1995-2004 to be produced by the complainant. The said petition wasdismissed by the learned Magistrate. Aggrieved by the order ofthe learned Magistrate, the petitioner had preferred this criminalrevision petition.

The learned counsel for the petitioner submitted that asper the complaint, the cheque was given by the petitioner to therespondent and the cheque amount was Rs.10,50,000/-. Thepetitioner/accused was doing business with therespondent/complainant for the past ten years and he had paid allthe dues and only a sum of Rs.1,50,000/- is due. The blank chequewhich was given by the petitioner herein to the respondent assecurity had been misused by the complainant. The learned counselfor the petitioner further submitted that though a presumptionunder Section 139 of the Negotiable Instruments Act arises with https://hcservices.ecourts.gov.in/hcservices/ regard to the liability, no presumption could be drawn for theexistence of the legally recoverable debt and the accused is alsoentitled to prove his defence that there is no legally recoverabledebt. To prove the innocence of the accused, the documents arerequired. It is the duty of the complainant to show how there is alegally recoverable debt and he should have maintained an accountfor the business transaction and it should have been reflected inthe income tax account also. As such, duty is cast upon thecomplainant to produce the documents, but the learned Magistrate bydismissing the application filed by the petitioner has caused aprejudice to the accused and it also hinders the defence case.

The learned counsel also relied on the decision of the Honourable Supreme Court reported in 2008(1) Crimes 227 (SC)(Krishna Janardhan Bhat vs. Pattatraya G.Hegde).

The learned counsel appearing for the respondent submittedthat the order passed by the learned Judicial Magistrate being aninterlocutory order, no revision lies before this Court and alsorelied on the decision of the Honourable Supreme Court reported in2009(2) Crimes 1 (SC) (Sethuraman vs. Rajamanickam).

The learned counsel for the respondent further submittedthat the transaction was made in the year 2004, the cheque wasissued in the year 2005 and the case was filed in the year 2006.The petition is filed by the accused under Section 91 Cr.P.C aftera long lapse of two years and only in order to protract the trial, the vexatious petition is filed by the accused. The learnedcounsel for the respondent further submitted that the accused wantsthe bills and other accounts relating to the year 1995 to31.12.2004, but the liability arose due to the transaction after31.12.2004 and it is not possible to produce the bills and accountsfor such a long period from 1995.

This court considered the submissions made by both partiesand perused the records. It is observed by the Honourable SupremeCourt in the decision reported in 2008(1) Crimes 227 (SC) (KrishnaJanardhan Bhat v. Dattatraya G.Hegde) as follows: "19. The courts below failed to notice thatordinarily in terms of Section 269 SS of the Income TaxAct, any advance taken by way of any loan of more thanRs.20,000/- was to be made by way of an account payeecheque only. Section 271 D of the Income Tax Act reads as under: "271D. Penalty for failure to comply with theprovisions of section 269SS. (1) If a person takes oraccepts any loan or deposit in contravention of theprovisions of section 269SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loanor deposit so taken or accepted. https://hcservices.ecourts.gov.in/hcservices/ (2) Any penalty impossible under sub section (1) shall beimposed by the Joint Commissioner. "20. Indisputably, a mandatory presumption is required tobe raised in terms of Section 118(b) and Section 139 ofthe Act. Section 13(1) of the Act defines negotiableinstrument to mean "a promissory note, bill of exchangeor cheque payable either to order or to bearer".Section 138 of the Act has three ingredients, viz.,(i)that there is a legally enforceable debt; (ii)that the cheque was drawn from the account of bankfor discharge in whole or in part of any debt or otherliability which pre-supposes a legally enforceable debt, and(iii)that the cheque so issued had been returned due toinsufficiency of funds.21. The proviso appended to the said sectionprovides for compliance of legal requirements before acomplaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption inregard to the second aspect of the matter. Existence oflegally recoverable debt is not a matter of presumptionunder Section 139 of the Act. It merely raises apresumption in favour of a holder of the cheque that thesame has been issued for discharge of any debt or otherliability. "

Applying the ratio laid down by the Honourable SupremeCourt, it is open to the accused to deny his legally recoverabledebt and no presumption also arises as per Section 139 of the Negotiable Instruments Act. It is only for the trial Court todecide on the basis of the evidence whether there is any legallyrecoverable debt. As such, of course, full opportunity should begiven to the accused to prove his case. It could not be said thatthe accused is not entitled normally to call for the accounts andbill books from the complainant, but in this case, the accusedwants the account books for the period from 1995 to 31.12.2004.According to the accused, he was doing business with thecomplainant for more than ten years, but according to thecomplainant, the cheque was issued only towards the liability whicharose after the period 31.12.2004. Further in the counter filed bythe complainant before the trial Court, it is stated that no billsare available from that period as the accounts are computerized andfurther the individual transactions are not reflected in the incometax. Therefore, the counter filed by the complainant before thetrial Court reflected that it is not possible for the complainantto produce the document. Though the reasoning given by the trialCourt while dismissing the petition filed by the petitioner thatthe accused is not entitled to call for the documents is notcorrect, as it is made clear by the complainant that it is notpossible to produce the records, no useful purpose will be servedby allowing the petition filed by the petitioner under Section 91Cr.P.C. https://hcservices.ecourts.gov.in/hcservices/

Further the Honourable Supreme Court in the decisionreported in 2009(2) Crimes 1 (SC) (Sethuraman vs. Rajamanickam) hasheld as follows: "4. Secondly, what was not realized was that theorder passed by the trial Court refusing to call thedocuments and rejecting the application under Section311 Cr.P.C., were interlocutory orders and a such, therevision against those orders was clearly barredunder Section 397(2) Cr.P.C...........................Therefore, both the orders, i.e., one on theapplication under Section 91 Cr.P.C for production ofdocuments and other on the application under Section311 Cr.P.C., for recalling the witness, were the ordersof interlocutory nature, in which case, under Section397(2), revision was clearly not maintainable. "

For the above said reasons, the revision petition isdismissed.

Of course, it is open to the trial Court to consider allthe arguments of the petitioner finally on the basis of theevidence let in and to be let in by both sides, on taking intoconsideration with regard to the non-availability of the relevantrecords to prove the existence of legally recoverable debt. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarksrToThe District Munsif cum Judicial Magistrate, Vedharnayam.1 cc To Mr.M.Vijayakumaran, Advocate, SR.451721 cc To Mr.S.Sathiamurthi, Advocate, SR.45114CRL.R.C.No.1016 of 2008GV(CO)sra 06/07/2010