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2018 Supreme(Mad) 893
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SURESH KUMAR, J.
G. Nachimuthu Prop. M/s. Ess Pee International (Export Division), Tiruppur - Petitioner
Versus
M/s. Mehala Machineries India Limited Rep. by its Manager/P.A. Holder P. Shanmugham, Tiruppur - Respondent
Crl.R.C. No. 1074 of 2016 & Crl.M.P. No. 9157 of 2016
Decided On : 13-04-2018
For the Petitioner:J. Franklin, Advocate.
For the Respondent:Zeenath Begum, Advocate.
Headnote:
Negotiable Instruments Act – Section 138 – Insufficient Funds – Revision case has been filed against the judgment made in CA on the file of the II Additional District and Sessions Judge, Tiruppur, confirming the judgment made in C.C. on the file of the Judicial Magistrate, Tiruppur – Accused is the revision petitioner herein and the respondent is the complainant – It is the case of the complainant that the complainant M/s. Mehala Machineries India limited is a limited company represented by its Manager and Power of Attorney Holder one Mr. P.Shanmugam. – The complainant company supplied Sewing Machines to the accused one Mr. G.Nachimuthu, Proprietor of M/s. S.P.International (Export Division), Tiruppur. – In the said transaction, according to books of accounts of the complainant, there had been a due of Rs.5,72,800/-. – In order to settle the part of the due, the accused had given three cheques drawn at Canara Bank, SME Branch, Tiruppur in Cheque Nos.699541, 699542 and 699540 dated 15.10.2011, 15.11.2011 and 15.12.2011 respectively, each for a sum of Rs.1,50,000/-.– Held, Though it was claimed that the cheques were issued by the accused and the same has been admitted by him, the alteration made in the cheques was disputed and in this regard, if the signature is disputed by the accused with regard to the alteration of the date, it is for the complainant to prove the same by referring it to the expert, which exercise, since, has not been adopted by the complainant, the complainant has failed in the said aspect. – Moreover, as has been discussed above, since there is no plausible explanation from the side of the complainant to state as to why the complainant had kept the cheques idle for one year without presenting the same and since no explanation has been given either in the notice or in the deposition of P.W.1, the theory projected by the accused side can be accepted and in that case, the said defence theory definitely can be treated as rebuttal to shatter the initial statutory presumption formed in favour of the complainant. – Therefore, this Court is of the considered view that both the trial Court as well as the first appellate Court have not considered these aspects of the issue, in proper perspective by applying the principle laid down by the Honble Apex Court in the judgments cited supra. – Therefore, this Court is of the view that both the trial Court as well as the first appellate Court have erred in coming to the conclusion that the accused is guilty beyond reasonable doubt of the offence punishable under Section 138 of the Act. – Criminal Revision Allowed
This revision case has been filed against the judgment dated 16.12.2015 made in CA No.34/2014 on the file of the II Additional District and Sessions Judge, Tiruppur, confirming the judgment made in C.C.No.41/2012 on the file of the Judicial Magistrate, Tiruppur dated 05.07.2014.
2. The accused is the revision petitioner herein and the respondent is the complainant. For brevity, the parties are referred to as the complainant and accused respectively.
3. It is the case of the complainant that the complainant M/s. Mehala Machineries India limited is a limited company represented by its Manager and Power of Attorney Holder one Mr. P.Shanmugam. The complainant company supplied Sewing Machines to the accused one Mr. G.Nachimuthu, Proprietor of M/s. S.P.International (Export Division), Tiruppur. In the said transaction, according to books of accounts of the complainant, there had been a due of Rs.5,72,800/-. In order to settle the part of the due, the accused had given three cheques drawn at Canara Bank, SME Branch, Tiruppur in Cheque Nos.699541, 699542 and 699540 dated 15.10.2011, 15.11.2011 and 15.12.2011 respectively, each for a sum of Rs.1,50,000/-.
3.1. It is the further case of the complainant that the said cheques were presented for collection at the complainant Bank on 20.12.2011, 20.12.2011 and 17.12.2011 respectively and those cheques were returned by the Bank for insufficient funds. Subsequently, the complainant had issued statutory notice on 07.01.2012, which was received by the accused on 09.01.2012 and issued a reply with different version on 21.01.2012. For the said reply, the complainant had also issued a rejoinder on 20.02.2012. Therefore, the accused, having known to the fact that there is no sufficient funds at his account, had issued the three cheques to the complainant, by thus, he has committed the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). Accordingly, a private complaint was filed before the trial Court, ie., Judicial Magistrate, Fast Track Court, Tiruppur, where the said complaint was taken on file in C.C.No.41/2012.
3.2. After having tried the case, the trial Court has found the accused guilty and accordingly, convicted and sentenced him to undergo simple imprisonment for one year with fine of Rs.5,000/-, in default, to undergo simple imprisonment for two months. Aggrieved over the said conviction and sentence, the accused preferred appeal before the II Additional District and Sessions Judge, Tiruppur in Appeal No.34/2014. The first appellate Court also, after having considered the grounds raised by the accused and having taken into account the judgment of the trial Court, has ultimately come to the conclusion that the conviction and sentence imposed by the trial Court is to be confirmed and accordingly, the conviction and sentence imposed by the trial Court has been confirmed by the first appellate Court by judgment dated 16.12.2015. Aggrieved over the said judgment passed by the first appellate Court confirming the conviction and sentence made by the trial Court as referred to above, the accused preferred the present revision case.
4. Before the trial Court, the power of attorney holder one Mr.P.Shanmugam has been examined as P.W.1 and on behalf of the complainant, 19 documents, ie., Exs.P1 to P19 were marked. On behalf of the accused, the accused one Mr.Gowri Shankar was examined as D.W.1 and 6 documents were marked as Exs.D1 to D6.
5. It is the case of the complainant that, there had been business transaction between the complainant and the accused by way of supplying sewing machines to the accused by the complainant company and in this regard, there had been a due as per books of accounts of the complainant for a sum of Rs..5,72,800/- and in order to pay a part amount of the said due, three cheques each for a sum of Rs.1,50,000/- on the aforesaid dates, ie., on 15.10.2011, 15.11.2011 and 15.12.2011 were issued by the accused and whe
