C.Chandrasekaran v. A.Sivasubramaniam
Case at a glance
Provisions considered
- Code of Criminal Procedure, 1973 ss. 313, 401
- Negotiable Instruments Act, 1881 ss. 138, 139
- Indian Evidence Act, 1872 ss. 4, 114
Key paragraphs
- Para 33. Animadverting upon the judgements of both the Courts below, these revisions have been filed on various grounds, the gist andkernal of them would run thus: Without taking into consideration the basic principle ofevidence that the complainant should prove the case, both the Courts held…
- Para 88. The learned counsel for the revision petitioner would citethe following decision of the Honourable Apex Court reported in CDJ2008 SC 047 – KRISHNA JANARDHAN BHAT VS. DATTATRAYA G.HEGDE,certain excerpts from it would run thus:'25.Furthermore, whereas prosecution must prove theguilt of an accused beyond all…
- Para 1717. At this juncture, my mind is reminiscent and redolent ofthe following decisions of the Honourable Apex Court: (i) 2002 Supreme court cases (crl) 1448 - Bindeshwari PrasadSingh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand)and another; an excerpt from it would run…
Judgment
BAIL SLIPThe Accused, namely, C.Chandrasekaran,S/o.V.G.Chinnasamy Gounder was released on bail as per order ofthis Hon'ble Court dated 9.1.2007 made in M.P.No.1 and 1 of 2007 in Crl.R.c.Nos.17 and 19 of 2007 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:16.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.Nos.17 and 19 of 2007C.Chandrasekaran .. Petitioner in both the revisions/ Accused in both Crl.R.C.vs.A.Sivasubramaniam ... Respondent in both the revisions/ Complainant -do- Petition filed under Section 397 r/w 401 of Cr.P.C. against thejudgements dated 14.11.2006 passed by the First AdditionalSessions Judge, Erode, in C.A.Nos.85 and 86 of 2004 confirming thejudgements dated 15.4.2004 passed by the Judicial Magistrate No.3,Erode, in C.C.Nos.380 and 381 of 2002.For Petitioner : Mr.A.M.Rahamath AliFor Respondent : Mr.C.Palanichamy ORDER Challenging and impugning the judgements dated 14.11.2006passed by the First Additional Sessions Judge, Erode, in C.A.Nos.85and 86 of 2004 confirming the judgements dated 15.4.2004 passed bythe Judicial Magistrate No.3, Erode, in C.C.Nos.380 and 381 of2002, these criminal revision cases are focussed.
Broadly but briefly, narratively but precisely, the factswhich are absolutely necessary and germane for the disposal of thiscriminal revision case would run thus:-The respondent in both the revisions filed complaints under Section 138 of the Negotiable Instruments Act as against therevision petitioner/accused. Inasmuch as the revision petitionerherein pleaded not guilty, the trial was conducted. (b) During trial, the complainant examined himself as P.W.1 https://hcservices.ecourts.gov.in/hcservices/ along with one Tangavel as P.W.2 and Exs.P1 to P8 were marked. Onthe accused's side no oral or documentary evidence was adduced. (c) Ultimately, in both the matters, the trial Court recordedthe convictions and imposed the sentence as under: Case No.OffencePunishmentC.C.No.381 of 2002 Sec.138 r/w.142 ofN.I.ActSix months simpleimprisonment and afine of Rs.5000/-, indefault, simpleimprisonment for sixmonths.C.C.No.380 of 2002 Sec.138 r/w.142 ofN.I.ActSix months simpleimprisonment and afine of Rs.4000/-, indefault, simpleimprisonment for onemonth. (d) Being aggrieved by and disconcerted with the judgements ofthe lower Court, the appeals in C.A.Nos.34 and 35 of 2004 werepreferred before the I Additional Sessions Judge, Erode, fornothing but to be dismissed by the appellate Court, confirming thejudgements of the trial Court.
Animadverting upon the judgements of both the Courts below, these revisions have been filed on various grounds, the gist andkernal of them would run thus: Without taking into consideration the basic principle ofevidence that the complainant should prove the case, both the Courts held as though the burden was on the accused to prove hisinnocence. The pre-existing debt was not proved. Thepreponderance of probabilities are in favour of the plea of theaccused that during the pendency of the civil proceedings, suchimpugned cheques could not have emerged. Accordingly, the revisionpetitioner prayed for setting aside the judgements of both the Courts below and for dismissing the complaints.
Heard both sides.
The point for consideration is as to whether there is anyperversity or non-application of law in convicting the accused andimposing the sentence.
The learned counsel for the revision petitioner, byinviting the attention of this Court to the various portions ofthe evidence, would set forth and put forth his argument to theeffect that the preponderance of probabilities have not beenconsidered by both the Courts below; indubitably and indisputably, https://hcservices.ecourts.gov.in/hcservices/ unarguably and unassailably one civil suit in O.S.No.383 of 2000 ispending in the Sub Court, Erode, for recovery of the same allegeddebt involved in these two criminal revision cases; over and abovethat one IP also was filed by the complainant as against therevision petitioner herein; the impugned cheques were issued inconnection with some unauthorised chit transaction between theparties to the lis and mis-using those cheques, the complaintswere filed.
However, the learned counsel for the respondent/complainantwould submit that absolutely there is nothing wrong in thejudgements passed by the Courts below.
The learned counsel for the revision petitioner would citethe following decision of the Honourable Apex Court reported in CDJ2008 SC 047 – KRISHNA JANARDHAN BHAT VS. DATTATRAYA G.HEGDE,certain excerpts from it would run thus:'25.Furthermore, whereas prosecution must prove theguilt of an accused beyond all reasonable doubt, thestandard of proof so as to prove a defence on the part ofan accused is preponderance of probabilities. Inference ofpreponderance of probabilities can be drawn not only fromthe materials brought on records by the parties but also byreference to the circumstances upon which he relies.26. A statutory presumption has an evidentiary value. The question as to whether the presumption whether stoodrebutted or not, must, therefore, be determined keeping inview the other evidences on record. For the said purpose, stepping into the witness box by the appellant is notimperative. In a case of this nature, where the chances offalse implication cannot be ruled out, the background factand the conduct of the parties together with their legalrequirements are required to be taken into consideration.27.
In M.S.Narayana Menon Alias Mani v. State of Kerala and Another ((2008) 6 SCC 39), it was held that oncethe accused is found to discharge his initial burden, itshifts to the complainant.28. Four cheques, according to the accused, appear tohave been drawn on the same day. The counterfoil of thecheque book, according to the appellant, was in thehandwriting of R.G.Bhat wherein it was shown that apartfrom other payments, a sum of Rs.1500/- was withdrawn on aself-drawn cheque. The courts below proceeded to hold thatthe defence raised by the appellant has not been proved, which, in our opinion, is not correct. He did not knowthat the said cheaque had not been encashed. He replied tothe notice thinking that one of the cheque has beenmisused. There is nothing on record to show that he knew https://hcservices.ecourts.gov.in/hcservices/ that one of the cheques was still with R.G.Bhat.29. Disputes and differences between him and R.G.Bhatstood established by admission of the respondent himself.
Similarh industry was being run by R.G.Bhat although he wasacting as the constituted attorney of the appellant. According to the appellant, R.G.Bhat had cheated him. Thecounterfoil showed that not more than Rs.20,000/- had everbeen withdrawn from that bank at a time. The courts wererequired to draw an inference as to the probability of thecomplainant's advancing a sum of Rs.1.5 lakhs on mereasking and that too without keeping any documentary proof. Even there was no witness. The purported story that theappellant would himself come forward to return the amountby a cheque knowing fully well that he did not havesufficient funds is difficult to believe. "
At this juncture, I recollect and call up the followingdecision of the Honourable Apex Court: (2009) 1 Supreme Court Cases (Cri) 823 – KUMAR EXPORTS VS.SHARMA CARPETS, certain excerpts from it would run thus: "12. Section 138 of the Act is made out against theappellant, it will be necessary to examine the scope andambit of presumptions to be raised as envisaged by theprovisions of Sections 118 and 139 of the Act. In a suit toenforce a simple contract, the plaintiff has to aver in hispleading that it was made for good consideration and mustsubstantiate it by evidence. But to this rule, thenegotiable instruments are an exception.13. In a significant departure from the general ruleapplicable to contracts, Section 118 of the Act providescertain presumptions to be raised. This section lays downsome special rules of evidence relating to presumptions. Thereason for these presumptions is that, negotiable instrumentpasses from hand to hand on endorsement and it would maketrading very difficult and negotiability of the instrumentimpossible, unless certain presumptions are made.
Thepresumption, therefore, is a matter of principle tofacilitate negotiability as well as trade. Section 118 ofthe Act provides presumptions to be raised until thecontrary is proved (i) as to consideration, (ii) as to dateof instrument, (iii) as to time of acceptance, (iv) as totime of transfer, (v) as to order of indorsements, (vi) asto appropriate stamp, and (vii) as to holder being a holderin due course.14. Section 139 of the Act provides that it shall bepresumed, unless the contrary is proved, that the holder ofa cheque received the cheque of the nature referred to in https://hcservices.ecourts.gov.in/hcservices/ Section 138 for the discharge, in whole or in part, of anydebt or other liability.17. Section 118 of the Act, inter alia, directs that itshall be presumed, until the contrary is proved, that everynegotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that unless the contraryis proved, it shall be presumed, that the holder of thecheque received the cheque, for the discharge of whole orpart of any debt or liability.19.
The use of the phrase “until the contrary is proved” in Section 118 of the Act and use of the words “unless thecontrary is proved” in Section 139 of the Act read withdefinitions of “may presume” and “shall presume” as given in Section 4 of the Evidence Act, makes it at once clear thatpresumptions to be raised under both the provisions arerebuttable. When a presumption is rebuttable, it only pointsout that the party on whom lies the duty of going forwardwith evidence, on the fact presumed and when that party hasproduced evidence fairly and reasonably tending to show thatthe real fact is not as presumed, the purpose of thepresumption is over.20. The accused in a trial under Section 138 of the Act hastwo options. He can either show that consideration and debtdid not exist or that under the particular circumstances ofthe case the non-existence of consideration and debt is soprobable that a prudent man ought to suppose that noconsideration and debt existed.
To rebut the statutorypresumptions an accused is not expected to prove his defencebeyond reasonable doubt as is expected of the complainant ina criminal trial. The accused may adduce direct evidence toprove that the note in question was not supported byconsideration and that there was no debt or liability to bedischarged by him. However, the court need not insist inevery case that the accused should disprove the non-existence of consideration and debt by leading directevidence because the existence of negative evidence isneither possible nor contemplated. At the same time, it isclear that bare denial of the passing of the considerationand existence of debt, apparently would not serve thepurpose of the accused. Something which is probable has tobe brought on record for getting the burden of proof shiftedto the complainant. To disprove the presumptions, theaccused should bring on record such facts and circumstances, upon consideration of which, the court may either believethat the consideration and debt did not exist or their non-existence was so probable that a prudent man would under thecircumstances of the case, act upon the plea that they didnot exist.
Apart from adducing direct evidence to prove thatthe note in question was not supported by consideration or https://hcservices.ecourts.gov.in/hcservices/ that he had not incurred any debt or liability, the accusedmay also rely upon circumstantial evidence and if thecircumstances so relied upon are compelling, the burden maylikewise shift again on to the complainant. The accused mayalso rely upon presumptions of fact, for instance, thosementioned in Section 114 of the Evidence Act to rebut thepresumptions arising under Sections 118 and 139 of the Act.21. The accused has also an option to prove the non-existence of consideration and debt or liability either byletting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, theaverments in the complaint, the case set out in thestatutory notice and evidence adduced by the complainantduring the trial.
Once such rebuttal evidence is adduced andaccepted by the court, having regard to all thecircumstances of the case and the preponderance ofprobabilities, the evidential burden shifts back to thecomplainant and, thereafter, the presumptions under Sections118 and 139 of the Act will not again come to thecomplainant’s rescue. "
A plain reading of the above excerpts including the entirejudgements would clearly highlight and spotlight as to what is thecurrent law governing this type of matters.
Presumption as contemplated under Section 139 of the Negotiable Instruments Act cannot be taken as evidence by itself. However, it is a presumption in favour of the complainant. On thecomplainant examining himself as P.W.1 in this case and alsomarking the documents, certainly he attracted the presumptionunder Sections 118 and 139 of the N.I.Act. Whereupon the burdengot shifted on the accused. It has to be seen as to whether suchburden to rebut the presumption was discharged by the accused .
The learned counsel for the revision petitioner byreiterating the grounds of revision would expect this Court to holdthat even though the accused has not examined himself as R.W.1 ormarked any document, by considering preponderance of probabilities, the burden cast on the accused might be held to have been gotfobbed off from the accused's side to the complainant's side.
With great ingenuity, the learned counsel for the revisionpetitioner tried his level best to enable the accused to wriggleout of his criminal liability. However, the alleged preponderanceof probabilities, which the accused relied on are all boomerangedas against him.
At the first instance, it has to be noted that the accusedhas not even chosen to reply to the pre-litigation notice and forwhich, absolutely there is no reason much less valid reason. Hadhe really been not liable under those impugned cheques, he should https://hcservices.ecourts.gov.in/hcservices/ have swung into action and replied to it, but he did not choose todo so. By way of adding fuel to the fire, there is noconsistency in his plea also. I am fully aware of the fact thatthe accused is not expected to utter out anything or proveanything. The following maxim could also be pressed into servicein his favour.'Nemo Tenetur Seipsum Accusare'- which means no mancan be compelled to criminate himself.
However, Section 139 of the special enactment, namely, Negotiable Instruments Act, contemplates that the burden of proofis ambulatory and in that process, when burden of proof gets fobbedoff on the accused, he cannot simply highlight his ownprevaricative versions as probabilities capable of throwing backthe burden on the complainant. In the petition filed by him fordischarge, he would plead as though the impugned cheques wereforged cheques, however, he had a volte face and turned turtle atthe time of cross-examining P.W.1, and suggested that those chequeswere issued by the accused for the purpose of securing the promptrepayment of subscription amounts in connection with some chittransaction, which emerged between the complainant and himself. Assuch, the probabilities are not in his favour. Even duringexamination under Section 313 of Cr.P.C., the accused has notchosen to file any statement explaining his position and he has notexamined himself on oath to discharge the burden cast on him.
Again, to the risk of repetition without beingtautalogous, I would like to point out that the accused is notenjoined to examine himself as a witness, because he happened to beaccused in this case. Even then, for the purpose of dischargingthe burden, not even his sworn statement is available or hisstatement under Section 313 is available. Wherefore, I am of theconsidered view that both the Courts below were right in arrivingat the factual finding that there was pre-existing debt and only inconnection with that, those impugned cheques emerged.
At this juncture, my mind is reminiscent and redolent ofthe following decisions of the Honourable Apex Court: (i) 2002 Supreme court cases (crl) 1448 - Bindeshwari PrasadSingh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand)and another; an excerpt from it would run thus: "13. The instant case is not one where any such illegalitywas committed by the trial court. In the absence of anylegal infirmity either in the procedure or in the conduct ofthe trial, there was no justification for the High Court tointerfere in exercise of its revisional jurisdiction. It hasrepeatedly been held that the High Court should notreappreciate the evidence to reach a finding different fromthe trial court. In the absence of manifest illegalityresulting in grave miscarriage of justice, exercise of https://hcservices.ecourts.gov.in/hcservices/ revisional jurisdiction in such cases is not warranted.14. We are, therefore, satisfied that the High Court was notjustified in interfering with the order of acquittal inexercise of its revisional jurisdiction at the instance ofthe informant. It may be that the High Court on appreciationof the evidence on record may reach a conclusion differentfrom that of the trial court. But that by itself is nojustification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against ajudgment of acquittal. We cannot say that the judgment ofthe trial court in the instant case was perverse. No defectof procedure has been pointed out. There was also noimproper acceptance or rejection of evidence nor was thereany defect of procedure or illegality in the conduct of thetrial vitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjeeand Others vs. State of W.B.and others, an excerpt from it wouldrun thus: "22. The cases cited by the learned counsel show thesettled legal position that the revisional jurisdiction, atthe instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the HighCourt finds defect of procedure or manifest error of lawresulting in flagrant miscarriage of justice. "
A bare perusal of those decisions would exemplify anddemonstrate that the High Court, while exercising its revisionaljurisdiction is not expected to interfere with the finding of factarrived at by both the Courts below simply because one other viewis possible or a different view could be taken.
In the light of the above decisions, the matter has beenanalysed and found that the revisional jurisdiction of this Courtcannot be invoked in favour of the accused, so as to give adifferent factual finding than the one arrived at by the Courtsbelow.
However, regarding the sentence is concerned, six monthssimple imprisonment and fine were imposed by the Courts below. Inthe facts and circumstances of this case, I am of the consideredopinion that six months simple imprisonment is too harsh apunishment and it may be reduced to two months simple imprisonment. Accordingly, the sentence shall stand reduced from six months totwo months simple imprisonment in each of the cases and thosesentences shall run concurrently.
In the result, the criminal revision cases are partlyallowed. The lower Court is directed to issue warrant to therevision petitioner on receipt of a copy of this order, so as tosecure his presence and commit him to jail so as to make him to https://hcservices.ecourts.gov.in/hcservices/ undergo the sentence imposed in these revisions, if he has notalready undergone. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarmskTo1.The First Additional Sessions Judge, Erode.2.-do-Though The Principal, Sessions Judge, Erode. 3. Te Judicial Magistrate No.3, Erode.4.-do- Through The Chief Judicial Magistrate.2 cc To Mr.A.Madhumathi, Advocate, SR.31954& 31955Crl.R.C.Nos.17 and 19 of 2007ksk(co)pmk.30.7.2009.
Questions this judgment answers
Which statutory provisions did this judgment involve?
Code of Criminal Procedure, 1973 — ss. 313, 401; Negotiable Instruments Act, 1881 — ss. 138, 139; Indian Evidence Act, 1872 — ss. 4, 114.
Which court decided this case, and when?
Madras High Court, on 16 Jul 2009. The bench was G RAJASURIA.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.