Bail Slip The Petitioner/Accused namely R. Thangavel, (C.C.No.336/03 dated 27.11.2006 on the file of Judicial Magistrate No.III, Erode was directed to be released on bail as per the order of this court dated 18.12.2007 made in M.P.No.1/07 in Crl.R.C.No.1935/07) IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.04.2011 CORAM THE HON'BLE MS. JUSTICE R. MALA Crl.R.C.No.1935 of 2007 R.Thangavel .. Petitioner/Accused ..Vs.. S.P.Murugesan .. Respondent/Complainant Prayer:This Criminal Revision is filed under Sections 397 read with 401 Cr.P.C. against the Judgment dated 18.10.2007 made in C.A.No.345 of 2006 by the learned Additional District and Sessions Judge, Fast Track Court No.I, Erode by confirming the conviction and sentence of simple imprisonment for 2 years and set aside the compensation award of judgment dated 27.11.2006 made in C.C.No.336 of 2003 by the learned Judicial Magistrate No.III, Erode for the offences under Sections 138 read with 142 of Negotiable Instruments Act. For Petitioner : Mr.C.D.Johnson For Respondent : Mrs.N.Amudhavalli O R D E R This criminal revision arises out of the conviction and sentence passed by the learned Additional District and Sessions Judge, Fast Track Court No.1, Erode, in C.A.No.345 of 2006, dated 18.10.2007, confirming the conviction and sentence of simple imprisonment for two years and set aside the compensation award passed in C.C.No.336 of 2003, dated 27.11.2006, by the learned Judicial Magistrate No.III, Erode, for the offences under Sections 138 read with 142 of Negotiable Instruments Act. https://hcservices.ecourts.gov.in/hcservices/ 2.The skeleton of the complaint is as follows: (i)The revision petitioner/accused borrowed a sum of Rs.50,000/- each on 01.09.2002 and 02.09.2002, totaling Rs.1,00,000/- from the respondent/complainant. He issued two cheques bearing Nos.328626 and 328628 dated 02.11.2002 in respect of the said amounts and the same were presented in the Bank on 15.03.2003, but it was returned as 'insufficient funds'. Immediately, the respondent/complainant issued a statutory notice on 08.04.2003 and the revision petitioner/accused received the same on 12.04.2003 and he gave a reply with false allegations. Since he has not repaid the cheque amounts, the respondent/complainant has come forward with the complaint under Sections 138 read with 142 of Negotiable Instruments Act. (ii) The trial Court, after following the procedure, since the revision petitioner/accused has pleaded not guilty, he examined the witnesses P.W.1, P.W.2, D.W.1 and D.W.2 and perused the documentary evidence Exs.P1 to P12 and Exs.D1 to D9, convicted the revision petitioner/accused for the offences under Sections 138 read with 142 of Negotiable Instruments Act and sentenced him for two years simple imprisonment and also directed him to pay the cheque amount as a compensation, against which, the revision petitioner/accused preferred an appeal in C.A.No.345 of 2006 on the file of the Additional District and Sessions Court-cum-Fast Track Court No.1, Erode. The learned Additional District and Sessions Judge, after hearing the arguments, set aside the compensation, but confirmed the conviction and sentence passed by the trial Court, against which, the present revision has been preferred by the revision petitioner/accused. 3. The learned counsel for the revision petitioner/accused submitted that nearly seven cases have been filed. The revision petitioner/accused is running power looms factory in the name and style of 'Tamilarasi Tex'. He is manufacturing kada clothes. He further submitted that one Manoharan is doing clothe business by way of purchasing clothes from various persons in Erode and other Districts and supplying clothes to various states. He has also entered into an oral agreement and gave an order for manufacturing clothes, after supplying yarns and he paid coolie of Rs.2/- per meter of kada piece. He gave an order for manufacturing kada piece in the month of January 2002 and supplying yarns for making clothes and at that time, he obtained 10 signed empty pro-notes from the revision petitioner/accused. The learned counsel further submitted that since the revision petitioner/accused has missed his cheque book contains 15 leaves, the said Manoharan has filled up the empty cheque and forged the signature of the revision https://hcservices.ecourts.gov.in/hcservices/ petitioner/accused and seal of his business name and style and utilised the same and filed the complaint by himself and his relatives. Hence he prayed for setting aside the conviction and sentence passed by both the courts below. 4.Refuting the same, the learned counsel for the respondent/complainant submitted that the revision petitioner/accused in his reply notice under Ex.P8, his candid admission is that Exs.P1 and P2-cheques are not contained his signature. His signature and his concern seal was forged by the said Manoharan and utilised by his relatives. It shows that to avoid the repayment of Rs.1,00,000/-, he come forward with such an inconsistent defence. Since the revision petitioner/accused borrowed a sum of Rs.50,000/- each on 01.09.2002 and 02.09.2002, totaling Rs.1,00,000/- from the respondent/complainant for his business purpose, he issued two cheques for discharging existing enforceable legal liability. To substantiate his arguments, he relied upon the decision reported in AIR 2010 SC 1898 (Rangappa v. Sri Mohan) and submitted that since appellant did admit that signature on cheque was his and statutory presumption comes into play and same has not been rebutted even with regard to materials submitted by respondent. Once the accused admitted the signature in the documents are his, the respondent/complainant is having presumption under Sections 118 and 139 of Negotiable Instruments Act. It is rebuttable presumption. So the revision petitioner/accused ought to have rebutted the presumption by evidence, but he has not rebutted the presumption. Hence the trial Court and the first Appellate Court considered this aspect and came to the correct conclusion, so the conviction and sentence passed by the courts below does not warrant any interference. Hence he prayed for the dismissal of the revision. 5. Considered the rival submissions made on both sides. 6. The revision petitioner/accused has borrowed a sum of Rs.50,000/- each on 01.09.2002 and 02.09.2002, totaling Rs.1,00,000/- from the respondent/complainant and issued two cheques bearing Nos.328626 and 328628 dated 02.11.2002 in respect of the said amounts under Exs.P1 and P2. When they were presented in the Bank on 15.03.2003, they were returned as 'insufficient funds', which was evidenced by Exs.P3 and P4. So the respondent/complainant issued a statutory notice under Ex.P5 on 08.04.2003 and the postal receipt was marked as Ex.P6 and an acknowledgment card was received on 12.04.2003 under Ex.P7. Ex.P8 is the reply notice sent by the revision petitioner/accused. https://hcservices.ecourts.gov.in/hcservices/ 7.When P.W.1-S.P.Murugesan, who is the respondent/complainant herein, in his cross-examination, a suggestion was posed to him that the cheque book was taken away by the said Manoharan and then he was filled up the name of P.W.1 and utilised by him to file this case, but it was denied by him. One more suggestion was also posed to him that himself and one Gurusakthivel have joined together and filed a false case against this revision petitioner/accused, which was also denied by him. Further, P.W.1, in his cross-examination, stated that he is the owner of Rajeshwari Textiles. The money lend by the revision petitioner/accused also finds place in the statement of accounts in the Income-tax document. P.W.2 is the Bank Manager, who deposed in his evidence that the cheques were returned as 'insufficient funds'. 8.D.W.1/the revision petitioner/accused, in his chief- examination, he stated that he does not know about the respondent/complainant herein. In his cross-examination, a suggestion was posed to him that after the receipt of the said amounts, he had issued filled up cheques to the respondent/complainant, but it was denied by him. 9.While considering the evidence of P.W.1 and D.W.1, it is clearly proved that D.W.1 has given contra version. In paragraphs- 9 and 11 of his reply notice under Ex.P8, he stated that the cheque book, which was left by him was later fabricated by the said Manoharan and he alone filled up the empty cheques by putting his signature and using the seal of his business name and style 'Tamilarasi Tex' and filed the case against him along with his relatives. But whereas in his chief-examination, D.W.1 stated that when he has gone out of station for business purpose, at that time, he handed over the signed cheques to the said Manoharan for meet out the expenses and the same were utilised for this purpose. So both the statements given by the revision petitioner/accused are entirely inconsistent plea. Moreover, he admitted that the cheques under Exs.P1 and P2 were contained his signature. 10.At this juncture, it is appropriate to consider the presumption under Sections 118 and 139 of Negotiable Instruments Act, so it is incorporated here. "118-Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made:- (a) of consideration--that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been https://hcservices.ecourts.gov.in/hcservices/ accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date-- that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance—that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer—that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsement--that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamp—that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course—that the holder of a negotiable instrument is a holder in due course: provided that where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 139.Presumption in favour of holder-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability." In a reply notice, he has averred that the cheque book was taken away by one Manoharan. The said Manoharan forged his signature and his concern seal and filled up the empty cheques and utilised the same by himself, his friends and his relatives for filing the complaint against him under Section 138 of Negotiable Instruments Act. But, when D.W.1 was in witness box, he deposed that when he gone out of station for business purpose, he handed over the signed un-filled cheques to the said Manoharan and the same were utilised for filing the case against him by the said Manoharan, his friends and his relatives. It shows that the revision petitioner/accused has taken inconsistent defence and his version is a false one. However, in his chief-examination, he fairly conceded that the cheques under Exs.P1 and P2 contained his https://hcservices.ecourts.gov.in/hcservices/ signatures. So he has not let in any evidence to rebutt the presumption under Sections 118 and 139 of Negotiable Instruments Act. So the evidence of D.W.1 is not sufficient to rebutt the presumption under Sections 118 and 139 of Negotiable Instruments Act. Hence I am of the view that Exs.P1 and P2-cheques were issued for discharging the subsisting liability and that has been proved by P.W.1/the respondent/complainant. A statutory notice under Ex.P5 was issued by P.W.1, after the cheques have been dishonored. Even though the revision petitioner/accused has given his reply under Ex.P8, he has not repaid the said amounts. In such circumstances, I am of the view that the revision petitioner/accused is guilty for the offence under Section 138 of Negotiable Instruments Act. Therefore, I am of the view that the trial Court and the first Appellate Court have considered all the aspects in proper perspective and came to the correct conclusion that the revision petitioner/accused is guilty under Sections 138 read with 142 of Negotiable Instruments Act. Since I do not find any illegality or infirmity in the conviction and sentence passed by the Courts below, the conviction and sentence passed by both the courts below are liable to be confirmed and hence they are hereby confirmed. 11.In fine, • This criminal revision is dismissed. • The conviction and sentence passed by both the courts below are confirmed. • The trial Court is directed to take steps to secure the custody of the revision petitioner/accused to undergone the remaining period of sentence. At the time of pronouncing the orders, the learned counsel appearing for the petitioner submitted that the sentences imposed in all cases (7 nos.) may be ordered to run concurrently, as ordered by the Trial Court. 2. Considering his representation, the revision petitioner/ accused is directed to undergo the sentences imposed in all cases ( 7 nos.) concurrently. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. kj https://hcservices.ecourts.gov.in/hcservices/ To 1.The learned Judicial Magistrate No.III Erode. 2. do thro Chief Judicial Magistrate Erode 3.The Additional District and Sessions Court Fast Track Court No.I, Erode. Crl.R.C.No.1935 of 2007 KU (CO) kk 27/4 https://hcservices.ecourts.gov.in/hcservices/