Babu @ Shahabudeen v. S.M. Rizwannul Hug

Bail SlipThe Petitioner / Accused namely Babu @ Shahabudeen was directedto be released on bail made in Crl.MP.No.1/2008 dated 29.11.2012 inCrl.RC.No.568/2008 on the file of the High Court, Madras.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.11.2012CORAM:THE HONOURABLE MR.JUSTICE B. RAJENDRANCRL. RC. No. 568 of 2008Babu @ Shahabudeen.. PetitionerVersus S.M. Rizwannul Hug.. Respondent Petition filed under Sections 397 read with 401 of the CriminalProcedure Code against the Judgment dated 04.04.2008 made in CriminalAppeal No. 118 of 2007 on the file of the First Additional District &Sessions Court, Erode, confirming the order dated 25.04.2007 made inC.C. No. 468 of 2006 on the file of the Second Additional DistrictMunsif Court, Erode.For Petitioner: Mr. N. ManokaranFor Respondent: Mr. A.K. KumarasamyORDERIn the proceedings initiated by the respondent herein underSection 138 of the Negotiable Instruments Act in C.C. No. 468 of 2006on the file of the Second Additional District Munsif Court, Erode. byjudgment dated 25.04.2007, the petitioner suffered conviction underSection 138 of the Negotiable Instruments Act and sentenced toundergo six months simple imprisonment with fine of Rs.5,000/-, indefault to undergo three months simple imprisonment. The petitionerunsuccessfully appealed thereagainst by filing Criminal Appeal No.118 of 2007 before the Appellate Court, as it was dismissed on04.04.2008 confirming the conviction and sentence imposed on him. Asagainst the same, the present Criminal Revision case is filed.2. According to the respondent, the petitioner borrowed a sumof Rs.1,40,000/- from him on 02.05.2001 and issued a post datedcheque dated 02.07.2001 for the said amount, drawn on ICICI BankLimited, Gobichettipalayam. The respondent presented the cheque onbeing assured by the petitioner that the cheque would be honoured onits presentation, however, when the cheque was presented forcollection on 18.12.2001, it was returned on 19.12.2001 with anendorsement 'funds insufficient'. The respondent issued a statutory https://hcservices.ecourts.gov.in/hcservices/ notice on 31.12.2001, Ex.P3, but the same was returned with anendorsement 'not claimed'. Thereafter, the respondent filed thecomplaint before the trial court, which was taken on file as C.C. No.468 of 2006.3. The learned counsel for the petitioner would contend thatthe petitioner was a stranger to the proceedings before the courtsbelow and he had no transaction with the respondent in the matter ofborrowing money or he had ever issued the cheque in favour of therespondent. The petitioner used to sign only in English but thecheque in question was signed in Tamil and therefore it is clear thatthe cheque was not signed by the petitioner. Further, there is noneed or necessity for the petitioner to borrow money from therespondent inasmuch as the petitioner is having sufficient incomefrom his agricultural lands. The respondent and his son were stayingwith the petitioner during the relevant period to secure admissionfor the son of the respondent and during such stay, they have stolenthe cheque of the petitioner and misused it. Further, the respondenthas no means at all to advance such a huge sum of Rs.1,40,000/- tothe petitioner. According to the learned counsel for the petitioner,as per the decision of the Honourable Supreme Court reported in(Krishna Janardhan Bhat vs. Dattatraya G. Hegde) 2008 4 SCC 54whenever a sum of Rs.20,000/- and above are paid as loan, it shouldbe paid only by means of cheque. In the present case, the respondenthas paid the sum of Rs.1,40,000/- allegedly by cash and therefore,the alleged lending of the amount by the respondent is contrary tothe decision of the Honourable Supreme Court. The learned counselfor the petitioner also relied on the decision of the HonourableSupreme Court reported in (Rev. Mother Marykutty vs. Reni C. Kottaramand another) 2012 (10) Scale 149 to contend that the liability on thepart of the accused has to be proved by the respondent himself and inthe absence of proof of the same, the petitioner is entitled foracquittal.4. On the other hand, the learned counsel for the complainant/respondent would mainly contend that the allegation that the chequehas been misused or forged by the respondent has not been proved bythe petitioner or the petitioner has not taken any steps thereof.The petitioner and the respondent are closely related to each otherand there were previous transaction between them. In order todisprove that the petitioner only signs in Tamil, the learned counselfor the respondent relied on Ex.D9, a document filed by thepetitioner himself, wherein the petitioner has signed his name inTamil before the revenue authorities at the time of paying taxreceipt for his lands. Therefore it is clear that it is thepetitioner who had signed the cheque and consequently he is liable topay the cheque amount. The courts below also compared the signaturesfound in the cheque as well as Ex.D9 and arrived at a conclusion thatthe signatures found in both Ex.D9 as well as the cheque areidentical. Therefore, the contention of the petitioner that he usedto sign only in English, that the cheque was not issued by him forany legally enforceable debt or that the respondent has forged orstolen his cheque does not stand to scrutiny. The learned counselfor the respondent further contends that the cheque issued by thepetitioner was returned by the bankers only for want of funds and noton the ground that the signature in the cheque does not tally with https://hcservices.ecourts.gov.in/hcservices/ the specimen signature available with their records. If really thepetitioner used to sign the cheque in English, but the signature ofthe petitioner is found in Tamil in the cheque in question, the bankwould have rejected the cheque on the ground that the signature doesnot tally, but the bank, which is the competent authorities,entertained the cheque and returned it only on the ground that thereare insufficient funds in the account to honour the cheque. In anyevent, the courts below have given a detailed analysis for convictingthe petitioner under Section 138 of the Negotiable Instruments Actand it need not be interfered with.5. I heard the counsel for both sides and perused the materialson record. The main argument of the counsel for the petitioner isthat the petitioner only used to sign in English and not in Tamil.The cheque in question was signed in Tamil after being stolen andmisused by the respondent and therefore it can be construed that thecheque was not issued by the petitioner for any legally enforceabledebt. These contentions of the counsel for the petitioner cannot becountenanced in view of Ex.D9, a kist receipt marked by none otherthan the petitioner before the trial court wherein the petitioner hasclearly and legibly signed in Tamil. According to the counsel forthe petitioner, there is no need to sign a kist receipt and thereforethe signature appearing in Ex.D9 cannot be given much credence. Ithas to be stated that Ex.D9 was filed by none other than thepetitioner. It cannot be said that the petitioner need not sign akist receipt. Whenever amount is collected towards tax, the remitterof the amount will be required to sign the receipt as a token ofacknowlodgment of the tax receipt. Even other wise, on a carefulperusal of the signature of the petitioner found in the cheque aswell as Ex.D9, it can be safely concluded that the signatures in boththe cheque as well as Ex.D9 are signed by the petitioner inasmuch asboth the signatures, signed in Tamil, are identical with each other. 6. Further, the contention of the counsel for the respondentthat the cheque was returned only for want of funds and not for anydifference in the signature in the cheque is well founded. Thecheque in question was entertained by the bank and it was dishonouredonly for want of funds, meaning thereby, the signature in the chequewas identical or similar with the specimen signature available withthe bank for comparision. Further, the petitioner would contend thatthe cheques were stolen or misused by the respondent, while so, thepetitioner, being a person working in the Police Department, couldnot have remained silent without giving a formal complaint regardingstolen of the cheques. The petitioner did not do so. Even beforethe trial court, the petitioner did not take any steps to get thesignature in the cheque compared with his admitted signature.Therefore it is futile on the part of the respondent to contend thatthe cheque in question was not signed by him or it was not issued forany legally enforceable debt. 7. The learned counsel for the petitioner next contends thatthe statutory notice was not served on the petitioner. According tothe counsel for the petitioner, the name and address of thepetitioner were not correctly indicated in the notice to see that thepetitioner do not receive the same. The name of the petitioner wasmentioned in the notice, but the door number or street name were not https://hcservices.ecourts.gov.in/hcservices/ indicated therein, except the name of the Village. In this context,the postal cover, which was returned by the petitioner, has beenenclosed in the typed set of papers and it is required to beexamined. In the postal cover, the postman had made an endorsementon the backside that he had taken the cover on two occasion and onboth the occasion, intimation was delivered to the person availablein the address to collect the registered cover. Since the person towhom the registered letter was addressed did not come forward tocollect the registered cover, it was returned to the sender. It isalso seen from the postal cover that the name of the petitioner isclearly mentioned, as also his father's name. Similarly, the name ofthe Village, via., etc., have been clearly mentioned. When such anintimation was given to the petitioner, it is for the petitioner tocollect the registered cover within 7 days from the date ofdeliverance of such intimation. In such event, the General ClausesAct will come into play. It is also seen that the registered coverwas not returned for any other reason namely the address was notclear or the door number or street numbers were not given. Theregistered cover was in fact attempted to be delivered by the postmanto the address mentioned therein which would only indicate that theaddress given was clear and correct, especially when the petitionerwas employed in the Police Department in the Village and his addressmay be familiar for the postman in the Village. Therefore, in viewof the endorsement made by the postman in the registered letter andthe fact that the petitioner did not collect the registered letter,it cannot be said that the address to which notice was sent isincorrect, hence, the argument of the counsel for the petitioner thatthe statutory notice was not served on the petitioner is rejected. 8. The learned counsel for the petitioner, relying on thedecision of the Honourable Supreme Court reported in (Rev. MotherMarykutty vs. Reni C. Kottaram and another) 2012 (10) Scale 149,would contend that there is no legal or enforceable liability on thepart of the petitioner to pay the cheque amount. As discussed above,the cheque was issued by the petitioner and when the signature in thecheque is found to be that of the petitioner, the presumption is thatthe cheque was issued for a legally enforceable debt and therefore,the decision of the Honourable Supreme Court cannot be madeapplicable to the facts of the present case.9. At this stage, the learned counsel for the petitionersubmitted that already the petitioner has deposited Rs.40,000/-pursuant to the order dated 17.04.2008 passed by this Court in MP No.1 of 2008 in Crl.R.C. No. 568 of 2008 and therefore he prayed thisCourt to modify the conviction and sentence imposed on the petitionerby directing him to pay a reasonable amount towards compensation.The learned counsel for the respondent fairly submitted that therespondent is not interested in sending the petitioner to jail and ifany reasonable amount is awarded towards compensation, it will servethe ends of justice. Taking into consideration that the petitionerhas already deposited Rs.40,000/- as per the direction of this Court,the conviction imposed on the petitioner is confirmed and thepetitioner is directed to pay a sum of Rs.75,000/- towardscompensation to the credit of C.C. No. 468 of 2006 on the file of thelearned II Additional District Munsif, Erode, within a period of twomonths and on such deposit, the respondent shall withdraw the amount https://hcservices.ecourts.gov.in/hcservices/ as compensation together with the amount of Rs.40,000/- alreadydeposited by the petitioner. In such event, the petitioner will beexonerated of the charges. However, on failure to pay the amount, asmentioned above, within the stipulated time, the petitioner has toundergo the sentence imposed on him by the Courts below.10. Subject to the aforesaid modification in the sentence, theCriminal Revision Case is partly allowed. Consequently, connected MPNo. 1 of 2008 is closed.Sd/-Assistant Registrar/True Copy/Sub Assistant Registrar rshTo1. First Additional District and Sessions Court, Erode.2. Second Additional District Munsif Court, Erode.3. The Public Prosecutor, High Court, Madras.4. The Criminal Section, High Court, Madras. +1 CC to M/s. A.K.Kumaraswamy, Advocate, SR.No.72905 +1 CC to M/s. N.Manokaran, Advocate, SR.No.73240CRL.RC.No. 568 of 2008 TRM(CO)DRL : 24/01/2013