Chellammal v. S.Krihnamoorthy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05.08.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.7989 of 2009andM.P.No.1 of 2009Chellammal ..PetitionerVs.S.Krihnamoorthy ..RespondentPRAYER: Criminal Original Petition filed under Section 482 ofCriminal Procedure Code to call for the records in C.C.No.120/2007 onthe file of the Judicial Magistrate, Dharapuram and to quash the same.For Petitioner: Mr.J.R.PrabhakaranFor Respondent : Mr.S.RamajayamO R D E RThe accused in C.C.No.120/2007 pending on the file of thelearned Judicial Magistrate, Dharapuram is the petitioner herein.The above said case was instituted on private complaint by therespondent herein for an alleged offence punishable under Section 138of the Negotiable Instruments Act. The petitioner has come forwardwith the present petition under Section 482 Cr.P.C for quashing theabove said criminal case instituted against her by the respondentherein.2. The arguments advanced by Mr.J.R.Prabhakaran, learned counselfor the petitioner and by Mr.S.Ramajayam, learned counsel for therespondent were heard. The documents produced on either side werealso perused.3. It was alleged in the complaint that the petitioner hereinborrowed a sum of Rs.2,20,000/- from the respondent herein on01.03.2007 and issued a post-dated cheque (dated 08.03.2007) for theabove said amount; that when the cheque was presented on 08.03.2007for encashment, the same was returned unpaid citing insufficiency offunds as the reason; that a notice dated 17.03.2007 demanding paymentof the amount covered by the cheque issued by the respondent hereinthrough his lawyer, was received by the petitioner on 22.03.2007 and https://hcservices.ecourts.gov.in/hcservices/ that there after till the date of filing of the complaint, thepetitioner herein did not care either to make payment or to send areply. The said complaint, after following the procedure for takingcognizance of the offence on private complaint, was numbered asC.C.No.120/2007 on the file of the learned Judicial Magistrate,Dharapuram and the said court issued process to the petitionerherein. Thereafter, the petitioner has approached this court by wayof the present petition under Section 482 Cr.P.C for quashing theabove said criminal proceedings instituted against her on thecomplaint of the respondent herein.4. It is the contention of the petitioner that there was notransaction between the petitioner and the respondent herein; thatthe petitioner's son-in-law by name A.Raj and the father of the saidRaj by name Ayyavu had borrowed a sum of Rs.2,00,000/- on 19.04.2005by mortgaging their house property in favour of one Balakrishnan, thebrother of the respondent herein; that the said Balakrishnan, insteadof getting a mortgage deed executed, obtained an agreement for salefrom the said persons with false and incorrect recitals as if a sumof Rs.2,00,000/- was paid as advance and part of the considerationand that the balance consideration of Rs.25,000/- was to be paid in35 months; that the said Balakrishnan also wanted the petitioner toissue blank cheques bearing cheque Nos.857491, 857492 and 857493pertaining to the account maintained by her in Canara Bank,Dharapuram; that one of the said cheques has been filled up in thename of the respondent herein and the case has been foisted againstthe petitioner herein. It is the further contention of the petitionerthat the amount (Rs.2,00,000/-) borrowed by Raj and his father Ayyavuwas agreed to be repaid in 35 installments and that in the saidcircumstances alone, cheque No.857492 was filled up in the name ofthe respondent and presented for encashment to be eventually returnedunpaid for insufficiency of funds. It is the further contention ofthe petitioner that though the notice dated 17.03.2007 was receivedby the petitioner was promptly replied by a reply notice dated05.04.2007, the respondent in his complaint had falsely stated thatno reply was sent by the petitioner herein. 5. It is the further contention of the petitioner that based onthe agreement for sale obtained only as a security for due repaymentof the amount borrowed by the son-in-law of the petitioner and hisfather, the brother of the respondent has instituted a case forspecific performance of contract in O.S.No.275/2008 on the file ofthe Sub-court, Karur. The petitioner's further contention is thatthe said facts will prove the abuse of process of law and abuse ofprocess of court by the respondent herein and hence the criminal caseinstituted against her in the above said calendar case should bequashed.6. Per contra, the learned counsel for the respondent wouldcontend that the transaction between the petitioner and the https://hcservices.ecourts.gov.in/hcservices/ respondent and the transaction between Balakrishnan and the son-in-law and father of the son-in-law of the petitioner herein aredifferent transaction; that the petitioner wants to create confusionby clubbing two independent transactions and that therefore theprayer made in the petition for quashing the complaint should not beallowed. It is the further contention of the learned counsel for therespondent that the contentions raised by the petitioner in thispetition, shall, at the best, be grounds of defence that can beraised in the calendar case before the trial court and they are notsufficient for quashing the criminal proceedings at the thresholditself. The learned counsel for the respondent argued that thecriminal complaint cannot be quashed taking into account thedocuments produced and relied on by the petitioner/accused.7. This court paid its anxious considerations to the above saidsubmissions made on either side.8. Of course it is true that an FIR or complaint can be quashed,if the averments made therein do not make out the offence alleged.It is well settled that the court dealing with a petition underSection 482 Cr.P.C should not try to appreciate or evaluate theevidence proposed to be adduced in support of the prosecution caseand that the criminal proceedings can be quashed, in case theaverments found in the complaint or the FIR and the supportingdocument, as the case may be, will not make out the offence alleged,even if they are taken on their face value and considered to be true.However, there is one exception to the said rule. If the accused isable to show that the initiation of the criminal proceedings itselfis claimed to be abuse of process of court, then the High Courtdealing with a petition under Section 482 Cr.P.C can decide whetherthe institution of the proceedings itself will amount to abuse ofprocess of court. To arrive at a decision, the court can alsoconsider the materials produced and relied on by the accused. 9. In this case, though it is stated in the complaint that thepetitioner borrowed a sum of Rs.2,20,000/- on 01.03.2007, there is noindication in the complaint as to the purpose for which the same wasborrowed. The amount was allegedly borrowed on 01.03.2007 and thecheque issued for repaying the amount bears the date 08.03.2007. Asrightly pointed out by the learned counsel for the petitioner, therewould have been no necessity for the petitioner to borrow the amount,if the petitioner was able to mobilise funds to such an extent within7 days. The statutory notice issued by the respondent on 17.03.2007was received by the petitioner on 22.03.2007. A reply notice wassent by the petitioner on 05.04.2007. The complaint was preferred on10.04.2007. The petitioner has also produced a copy of the agreementfor sale dated 19.04.2005 between A.Raj & Ayyavu and Balakrishnan,the brother of the respondent herein. The said agreement is aregistered one. The sale consideration quoted therein isRs.2,25,000/-. The agreement recites that, out of the total https://hcservices.ecourts.gov.in/hcservices/ consideration of Rs.2,25,000/-, Rs.2,00,000/- was paid as advance onthe date of agreement itself. However, for payment of the balanceamount of consideration (comparatively smaller amount ofconsideration), namely Rs.25,000/-, three years time has beenstipulated in the said agreement. It is also quite surprising tonote an unusual and unnatural commitment made by the saidBalakrishnan by agreeing that the entire amount of advance whichformed part of the total sale consideration would be forfeited, if hewas not able to pay the balance within the time stipulated in theagreement. Furthermore, there is nothing in the agreement statingthat the property concerned in the agreement was in possession oftenants and that the vendors therein (son-in-law of the petitionerand his father) agreed to vacate the tenants before execution of thesale deed. On the other hand, the said Balakrishnan seems to havefiled a suit O.S.No.275/2008 on the file of the Sub-court, Karuralleging that he was ready and willing to pay the remaining saleconsideration but the vendors therein ignored his request to vacatethe tenants and execute the sale deed. It was also stated thereinthat Balakrishnan had been insisting upon the defendants in the suitto get the tenants vacated. For the notice issued by Balakrishnan,the son-in-law of the petitioner seems to have issued a reply on10.02.2008. However, while filing a suit in the month of November2008, it was averred in the plaint that no reply was sent. 10. For the statutory notice issued under Section 138(b) ofNegotiable Instruments Act, 1881, the petitioner has issued asuitable reply on 05.04.2007, a copy of which has been produced asdocument No.3 in the typed set of papers. In the said reply notice,the petitioner has clearly narrated what transpired. The said replynotice was issued several months prior to the filing of the suit bythe said Balakrishnan, the brother of the respondent herein. In thesaid reply notice, the petitioner has made it clear that she hadgiven blank cheques as guarantor for her son-in-law and his father.If all these aspects are taken into consideration, it will make itclear that the respondent/complainant has not come with clean handsto the court. The above said documents produced by thepetitioner/accused are enough to show that the institution of thecriminal proceedings for an offence under Section 138 of theNegotiable Instruments Act, 1881 is nothing but a sheer abuse ofprocess of law and abuse of process of court.11. Of course, this court is aware of the fact that Section 139of the Negotiable Instruments Act, 1881 gives rise to a presumptionthat such cheque was received in discharge of a debt or liability.But such a presumption cannot be further extended to presume thatthere was such a debt or liability. Even assuming that such a debtor liability can be presumed, such a presumption is only a rebuttablepresumption. The general presumption that a person shall be presumedto be innocent unless he is proved to be guilty is not in any wayaffected. The presumption contemplated in Section 139 of the https://hcservices.ecourts.gov.in/hcservices/ Negotiable Instruments Act, 1881 causes a reverse burden on theaccused and such a reverse burden can be discharged by rebutting suchpresumption. To rebut the presumption under Section 139 of theNegotiable Instruments Act, 1881, it is not necessary for an accusedto adduce evidence capable of proving beyond reasonable doubt. Itshall be sufficient to prove the contra by preponderance ofprobabilities and then such presumption shall stand rebutted. TheHigh Court dealing with the petition under Section 482 Cr.P.C shouldconsider whether the materials relied on by the accused shall beenough to dislodge the presumption under Section 139 of theNegotiable Instruments Act, 1881 and discharge the reverse burden ofproof and thereby cause a reasonable suspicion in the case of thecomplainant, which will make the entire exercise of trial useless asthe same is bound to result in acquittal.12. This court, after taking into consideration all the abovesaid aspects, comes to the conclusion that the materials placedbefore this court by the petitioner are enough to rebut thepresumption and discharge the reverse burden cast on thepetitioner/accused. This court is also of the view that the trialcannot result in conviction as there are enough materials to provethe case of the petitioner/accused on preponderance of probabilities,capable of causing a reasonable suspicion in the case of therespondent/complainant. This court is also of the considered viewthat the petitioner has made out a clear case of abuse of process ofcourt by preponderance of probabilities. Therefore, this court comesto the conclusion that the petition shall succeed and the criminalproceedings instituted against the petitioner by the respondent inC.C.No.120/2007 has got to be quashed.13. In the result this petition is allowed and the criminalproceedings initiated in C.C.No.120/2007 on the file of the JudicialMagistrate, Dharapuram is quashed. Consequently, the connectedMP.No.1 of 2009 is also closed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar asrTo1. The Judicial Magistrate, Dharapuram.2 -do- Through The Chief Judicial Magistrate, Erode.+ 1 c.c. to Mr. J.R. Prabhakaran, Advocate. S.R.No.36263.Crl.O.P.No.7989/2009GG (CO)GSK 25.08.2009.