THE HONOURABLE MR v. A.Padmanabhan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 30.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.797 of 2001S.P.Shanmugam .. Appellant/Complainantvs.A.Padmanabhan .. Respondent/Accused This appeal is filed against the Judgment dated 09-08-2001, inC.C.No.685/99 on the file of the Judicial Magistrate No.2, Salem.For Appellant : Mr.A.Ramesh for M/s.Ram & Ram For Respondent : Mr.N.A.Ravindran JUDGMENTThis appeal has been preferred against the judgment inC.C.No.685/1999 on the file of the Judicial Magistrate No.2, Salem. 2.The complainant has preferred a complaint against the accused underSection 138 of the Negotiable Instruments Act,1881(hereinafter referred toas "the Act") on the ground that the impugned cheque for Rs.7,66,820/-drawn by the accused in favour of the complainant under Ex P4 wasdishonoured on presentation in the bank. A statutory notice was issued bythe complainant under the original of Ex P8, which was received by theaccused under Ex P9 and the reply notice was sent by the accused is Ex P10.3. After taking cognizance of the offence, the learned JudicialMagistrate had taken the complaint on file under Section 138 of the Actand on appearance of the accused on summons, furnished copies underSection 207 of Cr.P.C. and when offence was explained to the accused andquestioned the accused pleaded not guilty.4. On the side of the complainant, P.Ws 1 to 5 were examined and ExsP1 to P15 were exhibited.4a. P.W.1 is the complainant. According to him, in order to executea sale deed in favour of one Saradha and her relatives by him and hisbrothers, a sale agreement was entered into between the parties on14.8.1998 under Ex P1 and on 12.2.1999, there was a sale agreement entered https://hcservices.ecourts.gov.in/hcservices/ into between the accused Padmanabhan and Saradha and her relatives underExP2. He would admit that he and his brothers and sisters have signed inEx P2 sale agreement and that he was managing the said property on behalfof his brothers and sisters. Ex P3 is the power of attorney dated25.3.1999 executed by his brothers and sisters in favour of him(P.W.1). Asper the sale agreement, according to the complainant, a sum ofRs.7,66,820/- is the amount due from the accused. In order to dischargethe said balance amount of sale consideration of Rs.7,66,820/- , theaccused had drawn a cheque for Rs.7,66,820/- in favour of the complainantunder Ex P4 dated 20.5.1999, a post dated cheque. As per the request ofthe accused, a general power of attorney was executed in favour of oneSaravanan,(son of the accused) on 25.3.1999. When the said cheque Ex P4was deposited in the bank for collection on 31.8.1999, the same wasreturned with an endorsement that there is no sufficient funds in theaccount of the accused. Ex P5 is the counterfoil chalan and Ex P6 is thereturned memo issued by the bank along with the impugned cheque Ex P4. ExP7 is the debit advise by the Bharath Overseas Bank, Salem Town branch inwhich the complainant is having his account. Under the original of Ex P8,a notice dated 11.9.1999 was issued by the complainant to the accused,which was received by the accused on 14.9.1999 under ExP9 acknowledgment.Ex P10 is the copy of the notice dated 1.10.1999. Ex P 11 is telegraphicnotice issued by the accused on 29.9.1999. According to P.W.1, theaccused had admitted for having drawn the impugned cheque Ex P4, in Ex P11reply notice itself. ExP12 is the family arrangement entered into betweenhim and his brothers and sisters. The brothers and sisters of thecomplainant, according to P.W.1(the complainant) had insisted him (P.W.1)to pay the amount due from the accused and in lieu of that they havereceived the amount of the impugned cheque from the complainant.4b. P.W.2 is the Accountant in Bharath Overseas Bank, Salem TownBranch. According to P.W.2, the complainant Thiru S.P.Shanmugam is havingsavings bank account No.3115 with his branch and that on 31.8.1999, he haddeposited a cheque for Rs.7,66,820/- for collection. Ex P5 is thecounterfoil chalan relating to Ex P4 impugned cheque. The said cheque wasforwarded to Canara Bank,Erumapalayam branch in which the accused ishaving his account. The said cheque was returned with ExP6 memo fromCanara Bank stating that there is no sufficient funds in the account ofthe accused to honour the same. Ex P7 is the debit advise given by BharathOverseas Bank, Salem Town Branch.4c. P.W.3 is the Manager of Canara Bank, Erumapalayam Branch, Salem.He would admit that the accused Padmanabhan is having his current accountNo. 497 in the said Bank and that Ex P4 cheque was given along with thecheque book to Padmanabhan/the accused herein by the Canara Bank,Erumapalayam Branch, Salem, who would admit that Ex P4 cheque wasforwarded to Bharath Overseas Bank, Salem Town Branch to Canara Bank,Erumapalayam branch, Salem for collection on 31.8.1999. Since the amountof Rs.2779/20ps alone was in the credit of the account of the accused ason 31.8.1999, the said impugned cheque Ex P4 was returned with anendorsement that there is no sufficient funds to honour the cheque under https://hcservices.ecourts.gov.in/hcservices/ ExP6 returned memo. Ex P13 is the copy of the statement of accountrelating to the period from 19.5.1998 to 24.9.1999 for the account of theaccused. Ex P14 is the relevant entries in the cheque returned ledgermaintained in his bank. He would further depose that the accusedPadmanabhan had closed his account.4d. P.W.4 is the witness in Ex D20 in favour of Saravanan(the son ofthe accused). According to him, in his presence, Banumathy had handed overRs 1,00,000/- to Saravanan and that Banumathy had also signed in hispresence in Ex D20. According to him, on 25.7.1999 ie., the date of ExD20 , Banumathy had received only a sum of Rs.1,00,000/- from the accusedand Kumarasamy.4e. P.W.5 is a witness in Ex P3 power of attorney executed in favourof the accused. On the date of execution of the said power of attorney on25.3.1999, the complainant's son Angappan had demanded a sum ofRs.1,00,000/- towards his share in the property intended to be sold andthe accused handed over a sum of Rs.1,00,000/- to Angappan and obtained ExD19 in which he(P.W.5) is a witness.5. When the incriminating circumstances were put to the accused, hewould deny his complicity with the crime. He has examined Thiru Saravananas D.W.1 and marked Exs D1 to D21. Saravanan as D.W.1, would depose thatthe accused Padmanabhan is his father and the complainant had executed apower of attorney in his favour under Ex P3 and as per the terms of thepower of attorney, he has to sell the lands and hand over the saleproceeds to the complainant. He would admit that Ex P4 is the chequedrawn by his father/the accused in favour of the complainant. He alsospeaks about Exs D19 and D20 receipts. On the basis of the above saiddocumentary and oral evidence, the learned trial Judge has come to aconclusion that the complainant has miserably failed to prove that theimpugned cheque Ex P4 was drawn by the accused in favour of thecomplainant only in order to discharge a subsisting liability andaccordingly dismissed the complaint thereby acquitting the accused againstwhich the complainant has preferred this appeal.6. Now the point for determination in this appeal is whether thefindings of the learned trial Court is manifestly illegal and perverse towarrant any interference from this Court?.7. Heard Mr.A.Ramesh, learned counsel appearing for the appellant andMr.N.A.Ravindran, learned counsel appearing for the respondent andconsidered their respective submissions.8.The point:-According to the complainant, in order to sell the properties belonging tohim and his brothers and sisters, there was an agreement entered intobetween the accused and the complainant and his brothers and sisters underEx P1 and Ex P2 and in lieu of those sale agreements, a power of attorneydeed was executed in favour of the son of the accused viz., Saravanan andin the said transactions, a sum of Rs.7,66,820/- was due from the accused https://hcservices.ecourts.gov.in/hcservices/ towards the value of the share of the property intended to be sold throughthe accused and that only to discharge the said liability, the accused haddrawn Ex P4 impugned cheque dated 20.5.1999 in favour of the complainant.9. Mr.A.Ramesh, the learned counsel appearing for the appellant wouldfocus the attention of this Court to Ex P10 reply notice issued by theaccused for the notice he had received under the original of Ex P8. ExP10 reply notice was preceded by Ex P11 a telegraphic notice under whichthe accused had asked for three days time to reply the notice sent by thecomplainant under Ex P8. Under Ex P10, the accused has specificallyadmitted having drawn the impugned cheque dated 20.5.1999 bearing chequeNo.642334 for a sum of Rs.7,66,820/- in favour of the complainant. Thedefence taken in the said reply notice is that apart from the impugnedcheque under Ex P4, he had also handed over another blank cheque bearingcheque No.642335. He would further admit that the said cheque alsocontain his signature,and that he had made a request to the complainantnot to present the impugned cheque Ex P4 till last week of August 1999. Hewould further admit that the said amount under Ex P4 impugned cheque wastowards part of the sale price for the lands belonging to the complainantsold under the sale agreement. But he would contend that in the replynotice Ex P10 the said cheque amount is more than the sale proceeds. Butthere is absolutely no evidence to show that the accused owes a lessoramount than what he had mentioned in Ex P4 impugned cheque . Even though21 documents were produced on the side of the accused, there is nodocument produced by the accused to show that he had demanded the excesspayment under Ex P4 impugned cheque from the complainant. So the defencetaken under Ex P10 reply notice that Ex P4 impugned cheque was drawn formore than the amount due from the accused to the complainant cannot besustainable.10. A perusal of Exs D19 and D20 will go to show that those chequeswere not drawn in favour of the complainant. Admittedly, the landsbelonging to the complainant as well as his brothers and sisters wereagreed to be sold by the accused as seen from Ex P1 and Ex P2. Ex P3 isthe power of attorney in favour of Saravanan, the son of the accused. ExsD19 and D20 were issued by Saravanan, the son of the accused and not bythe accused himself. Once the accused admits Ex P4 impugned cheque underEx P10 reply notice, then he cannot wriggle out of his liability underSections 138 and 139 of the Act. A presumption under Section 139 of theAct is that the holder of a cheque had received the cheque for the purposeof discharging in whole or in part of any debt or other liability, unlessthe contrary is proved . The defence taken by the accused under his replynotice Ex P10 was not proved by the accused. On the other hand, theaccused had admitted the drawal of the impugned cheque Ex P4 in favour ofthe complainant. 11. The learned counsel appearing for the respondent relying on adecision reported in Crl.A.No.873 of 2004 State of Goa-vs- SanjayThaskran and another, with Crl.A.No.874 of 2004 Subhash Chandra Nanda-vs-Sanjay Thakran and another(2007)2 Supreme Court Cases (cri) 162)and https://hcservices.ecourts.gov.in/hcservices/ contended that a Court sitting in an appeal over acquittal cannotinterfere with the findings of the trial Court, unless it is proved thatthe findings of the trial Court is manifestly erroneous and demonstrablyunsustainable and perverse in nature. The exact observation in the abovesaid ratio relied on by the learned counsel appearing for the respondentruns as follows:" The jurisdiction of the appellate Court in dealingwith an appeal against an order of acquittal iscircumscribed by the limitation that no interference isto be made with the order of acquittal unless theapproach made by the lower Court to the considerationof the evidence in the case is vitiated by somemanifest illegality or the conclusion recorded by theCourt below is such which could not have been possiblyarrived at by any Court acting reasonably andjudiciously and is, therefore, liable to becharacterised as perverse. Where two views are possibleon an appraisal of the evidence adduced in the case andthe Court below has taken a view which is plausibleone, the appellate Court cannot legally interfere withan order of acquittal even if it is of the opinion thatthe view taken by the Court below on its considerationof the evidence is erroneous.It is further observed by the Honourable Apex Court relying on a Judgmentin Ramesh Babulal Doshi-v- State of Gujarat (1996) 9 SCC 225: 1996 SCC(cri) 972)as follows.". . . . . This Court has repeatedly laid down that themere fact that a view other than the one taken by thetrial Court can be legitimately arrived at by theappellate Court on reappraisal of the evidence cannotconstitute a valid and sufficient ground to interferewith an order of acquittal unless it comes to theconclusion that the entire approach of the trial Courtin dealing with the evidence was patently illegal orthe conclusions arrived at by it were wholly untenable.While sitting in judgment over an acquittal theappellate Court is first required to seek an answer tothe question whether the findings of the trial Courtare palpably wrong, manifestly erroneous ordemonstrably unsustainable. If the appellate Courtanswers the above question in the negative the order ofacquittal is not to be disturbed. Conversely, if theappellate Court holds, for reasons to be recorded, thatthe order of acquittal cannot at all be sustained inview of any of the above infirmities it can then- andthen only-reappraise the evidence to arrive at its ownconclusions".The Honourable Apex Court, after emphasising the principle laid down inanother Judgment in State of Rajasthan-v- Raja Ram(2003)8 SCC 180: 2003 https://hcservices.ecourts.gov.in/hcservices/ SCC (cri) 1965) has observed as follows:" There is no embargo on the appellate Court reviewingthe evidence upon which an order of acquittal isbased. Generally, the order of acquittal shall not beinterfered with because the presumption of innocenceof the accused is further strengthened by acquittal.The golden thread which runs through the web ofadministration of justice in criminal cases is that iftwo views are possible on the evidence adduced in thecase, one pointing to the guilt of the accused andthe other to his innocence, the view which isfavourable to the accused should be adopted. Theparamount consideration of the Court is to ensure thatmiscarriage of justice is prevented. A miscarriage ofjustice which may arise from acquittal of the guiltyis no less than from the conviction of an innocent.In a case where admissible evidence is ignored, a dutyis cast upon the appellate Court to re-appreciate theevidence in a case where the accused has beenacquitted, for the purpose of ascertaining as towhether any of the accused committed any offence ornot".There cannot be two opinion with regard to the principles laid down in theabove said ratio decidenti of the Honourable Apex Court. In this casealso, we have to consider whether the findings of the trial Court arepalpably wrong, manifestly erroneous or demonstrably unsustainable. Thelearned trial Judge carried away by the receipts Ex D19 and Ex D20executed by Saravanan, the son of the accused, forgetting for a moment,the admission made by the accused Padmanabhan in Ex P10 reply notice thatthe impugned cheque Ex P4 was drawn by him in favour of the complainant,has come to an erroneous conclusion that Ex P4 impugned cheque was notdrawn to discharge the subsisting liability. The learned trial Judge hascompletely given a go by to Sections 118 and 139 of the Act. There isabsolutely no rebuttal evidence let in to discredit Ex P4 impugned cheque.Under such circumstances, I am of the view that it is a fit case for whichthe findings of the learned trial Judge is to be interfered with since thetrial Court Judgment is manifestly erroneous and demonstrablyunsustainable and perverse in nature.12. The other decision relied on is a decision reported inChandrappa and others-v- State of Karnataka(2007)2 Supreme Court Cases,(cri) 325) by the learned counsel appearing for the respondent is alsofor the same point which does not have any bearing to the facts of thecase.13 Coming to the question of sentence, I am of the view that theyardstick taken by the Honourable Apex Court in Goa Plasts (P) Ltd-v-Chico Ursula D' Souza(2004)2 Supreme Court Cases,235)can be applied tothe present facts of the case, while awarding the sentence to the accused. https://hcservices.ecourts.gov.in/hcservices/ The relevant observation in the said dictum runs as follows:" We have no doubt that the respondent has committed anoffence punishable under the provisions of Section 138of the Act an is liable to be punished. Thetransaction in question took plalce between the partiesin the year 1993, therefore, Section 138 , as it stoodat the relevant time, would be applicable to thepresent case. Section 138 provides imprisonment for aterm which may extend to one year, or with fine whichmay extend to twice the amount of the cheque, or withboth. Section 138 has now been amended and the penaltyof imprisonment for a term which may extend to one yearhas been substituted by two years as provided by theamending Act 2002 and the fine which may extend totwice the amount of the cheque. This has beenprescribed as the punishment for the offence underSection 138 of the Act.The object and the ingredients under theprovisions, in particular, Sections 138 and 139 of theAct cannot be ignored. Proper and smooth functioningof all business transactions, particularly, of chequesas instruments, primarily depends upon the integrityand honesty of the parties. In our country, in a largenumber of commercial transactions, it was noted thatthe cheques were issued even merely as a device notonly to stall but even to defraud the creditors. Thesancity and credibility of issuance of cheques incommercial transactions was eroded to a large extent.Undoubtely, dishonour of a cheque by the bank causesincalculable loss, injury and inconvenience to thepayee and the entire credibility of the businesstransactions within and outside the country suffers aserious set back. Parliament, in order to restore thecredibility of cheques as a trustworthy substitute forcash payment enacted the aforesaid provisions. Theremedy available in a Civil Court is a long drawn materand an unscrupulous drawer normally takes various pleasto defect the genuine claim of the payee".14 Following the principle enunciated in the above said dictum, I amof the view that instead of giving any sentence, the accused can bedirected to pay twice the amount of the cheque in this case also. Thepoint is answered accordingly.15.In the result, the revision is disposed of as hereunder. Thefindings of the first appellate Court in C.A.No.685 of 1999 on the file ofJudicial Magistrate No.2, Salem is set aside. While convicting theaccused under Section 138 of the Act, three months time from this date isgiven to the respondent/accused herein to pay a sum of Rs.15,33,640/-(Rupees Fifteen Lakhs thirty three thousand and six hundred forty ) only https://hcservices.ecourts.gov.in/hcservices/ (twice the amount of cheque) towards compensation to the revisionpetitioner/ complainant. In default, thereof, the respondent/accused shallsuffer simple imprisonment for one year.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarsgTo, 1. The Judicial Magistrate No.2, Salem2. -do-through the Chief Judicial Magistrate, Salem+ 1 cc to Mr.Ram & Ram Advocate SR.NO.47078+ 1 cc to Mr.N.A.Ravindran Advocate SR.NO.47171ASM(co)RD 6.8.07Crl.A.No.797 of 2001