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2018 Supreme(Mad) 3214
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. Muralidaran, J.
U.K. Thiagarajan - Appellant
Vs.
R. Manikanda Kurup - Respondent
Criminal Revision No. 474 of 2016
Decided On : 09-10-2018
Advocate Appeared:
N.R. Elango, N. Ramesh, M.L. Joseph
Headnote:
Criminal Procedure Code, 1973 - Section 255(2) - Section 357(3) - Negotiable Instruments Act,1881 - Section 118 and 139 - Section 142 - Section 142(b) - Section 138 - Resignation – Cheques - Complainant he submitted his resignation, but accused had forwarded it to Registrar of Companies - It is not known as why respondent complainant remained silent, for more than four years without claiming any amount from petitioner or without lodging any complaint before appropriate authority - Disputes arose between parties and ultimately, respondent submitted his resignation - It is stated that said resignation was forwarded to Registrar of Companies - Respondent complainant asked for settlement as well as materials that he brought in while floating company, which he valued in all at Rs. 60,00,000/- in year - It is stated that in response to same petitioner issued two cheques for Rs. 40,00,000/- and same were returned by bank with an endorsement "insufficient funds" - Thereafter, complainant issued a legal notice – One more factor which needs mentioning here is that even as per complainant he submitted his resignation on, but accused had forwarded it to Registrar of Companies - It is not known as why respondent complainant remained silent, for more than four years without claiming any amount from petitioner or without lodging any complaint before appropriate authority - Held, Basis of existence of liability is set out by complainant in complaint and in evidence, Court would be loathe to raise a presumption regarding existence of a legally enforceable debt against accused - A bald allegation that accused who advanced cheque was under an obligation to honour same is unacceptable - Complainant is required to state before Court that cheque was received by him against some debt or liability - These facts have to be narrated and proved by way of admissible substantive evidence - If such allegations exist then of course, rebuttable burden would shift on to accused to disprove existence of liability - In case at hand, all that was mentioned in complaint was that accused and complainant had been partners and complainant is entitled to equal share and that disputed cheques were advanced for repayment thereof - Accused denied his liability towards disputed cheques – Appeal Allowed.
M.V. Muralidaran, J.
This Criminal Revision Case has been filed by the petitioner challenging the order dated 9.2.2016 passed in Criminal Appeal No.2 of 2013 by the learned VI Additional Sessions Judge, Chennai.
2. The facts in a nutshell are as under: The petitioner is the accused and the respondent is the complainant. As can be deciphered from the order under challenge, the petitioner and the respondent initially started "Integrated Consultants and Foundation Engineers" on 19.10.1988 with equal shares. Thereafter, the same parties agreed to start a limited company and, accordingly, formed a limited company in the name and style of "Integrated Pile Foundations (Madras) Pvt. Ltd." on 1.10.1991.
3. Disputes arose between the parties and ultimately, the respondent submitted his resignation. It is stated that the said resignation was forwarded to the Registrar of Companies on 15.11.2001. The respondent complainant asked for settlement as well as materials that he brought in while floating the company, which he valued in all at Rs. 60,00,000/- in the year 2000.
4. It is stated that in response to the same the petitioner issued two cheques for Rs. 40,00,000/- on 8.12.2003 and the same were returned by the bank with an endorsement "insufficient funds" on 19.12.2003. Thereafter, complainant issued a legal notice to the accused on 13.1.2004, which was received by the accused on 17.1.2004 and a reply was sent on 29.1.2005. Under such circumstances, the respondent filed a private complaint against the accused under Section 138 of the Negotiable Instruments Act, 1881.
5. The learned Metropolitan Magistrate, Fast Track-I, Egmore, Chennai, by judgment dated 11.12.2012, found the petitioner guilty under Section 138 of the said Act and convicted him for the said offence under Section 255(2) of the Criminal Procedure Code and the accused was sentenced to undergo simple imprisonment for one year and was also directed to pay compensation of Rs. 40,00,000/- to the complainant under Section 357(3) of the Cr.P.C within one month, failing which it was directed that he should undergo simple imprisonment for a period of three months.
6. Assailing the said order, the petitioner filed Criminal Appeal No.2 of 2013 and the learned VI Additional Sessions Judge, Chennai, by judgment dated 9.2.2016, confirmed the conviction and sentence imposed by the trial Court.
7. Calling in question the said order, the present criminal revision case is filed.
8. It is the pivotal contention of the learned counsel for the petitioner that the respondent, being a partner and co-director, had access to all documents, including signed cheques of the petitioner, which he had misused and filed a false complaint against the petitioner.
9. He further contended that the complaint was filed by the respondent with three days delay and there was no proper explanation for the said delay, but the trial Court condoned the delay stating that the limitation point was not challenged.
10. He also contended that as per Section 118 and 139 of the Negotiable Instruments Act the standard of proof is not by proof beyond reasonable doubt, and inasmuch as the petitioner had adduced sufficient oral and documentary evidence to rebut the case of the respondent, the Courts below failed to consider the same, more particularly, when the respondent had not proved the legal liability under the cheque.
11. He further contended that when the claim made by the respondent is relating to the liability in a company and/or partnership firm, the petitioner should have issued the cheques from the company and/or partnership firm and the fact that the cheques in question were from the personal account of the petitioner itself shows that the version of the respondent is unbelievable, more so when the same were issued after years of resignation of the complainant.
12. Per contra, the learned counsel appearing on behalf of the respondent complainant reiterated the reasons that weighed with the Courts below and prayed fo
