The validity of a cheque and the grounds for prosecution under Section 138 of the NI Act, as well as the limitations of revisional jurisdiction in cases involving concurrent findings of fact.

JUDGMENT :

(Prayer: Criminal Revision preferred under Section 397 r/w 401 Cr.P.C. to set aside the judgment and order dated 25.08.2012 passed by the District and Sessions Judge, Tiruvarur in C.A.No.13 of 2008 confirming the judgment and order dated 19.04.2006 passed by the Judicial Magistrate, Tiruvarur in C.C.No.755 of 2004.)

1. For the sake of convenience, the petitioner and the first respondent will be referred to as accused and complainant respectively.

2. It is the case of the complainant that the accused was his close friend; the accused borrowed Rs.70,000/- as hand loan on 30.10.2003, towards which, he gave a cheque dated 03.02.2004 for Rs.70,000/- (Ex.P1) drawn on Indian Bank, Tiruvarur branch; the complainant presented the cheuqe (Ex.P1) on 22.06.2004 in Indian Bank, Pulivalam branch and it was returned with the endorsement “account closed” on the same day vide return memo (Ex.P2); the complainant issued a statutory demand notice dated 19.07.2004 (Ex.P3), which was received by the accused on 22.07.2004 (Ex.P4). Since the accused did not comply with the demand, the complainant initiated a prosecution C.C.No.755 of 2004 before the Judicial Magistrate, Tiruvarur against the accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for brevity “the NI Act”).

3. On appearance, the accused was questioned under Section 251 Cr.P.C. and he denied the accusation.

4. To prove the case, the complainant examined himself as P.W.1 and examined one Vadivel, Manager, Indian Bank, Tiruvarur branch as P.W.2 and Ramu, Manager, Indian Bank, Pulivalam branch as P.W.3. and marked Exs.P1 to P4.

5. When the accused was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him, he denied the same. Surprisingly, the accused summoned Vadivel (P.W.2) and Ramu (P.W.3) and examined them as D.W.1 and D.W.2, which practice is indeed very strange. At the most, the trial Court should have recalled Vadivel (P.W.2) and Ramu (P.W.3) and should have permitted the accused to cross-examine them and not examined them in-chief. It is indeed very sad that the trial Court Judge had permitted a practice, that is unknown to law. On the side of the accused, Exs.D1 and D2 were marked.

6. After considering the evidence on record and hearing either side, the trial Court, by judgment and order dated 19.04.2006 in C.C.No.755 of 2004, convicted the accused of the offence under Section 138 of the NI Act and sentenced him to undergo six months rigorous imprisonment and pay a fine of Rs.5,000/-, in default to undergo six months simple imprisonment and further directed to pay Rs.73,650/- as compensation and costs to the complainant. The appeal in C.A.No.13 of 2008 that was filed by the accused was dismissed by the Sessions Court, Tiruvarur on 25.08.2012. Aggrieved by the concurrent findings of fact arrived at by the two Courts below, the accused has filed the present criminal revision under Section 397 read with 401 Cr.P.C.

7. Notice was served on the complainant, but, he did not enter appearance. His name was printed in the cause list. Therefore, this Court appointed Mr.V.T.Narendiran, Advocate (E.No.802/1996) as Amicus Curiae for the complainant.

8. Heard Mr.K.Sridhar, learned counsel for the accused and Mr.V.T.Narendiran, learned counsel for the complainant.

9. It is trite that while exercising revisional jurisdiction in a case involving concurrent findings of fact arrived at by two Courts below, the High Court cannot act as a second appellate Court [See State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and Others, etc. (2004) 7 SCC 659]. Very recently, in Bir Singh Vs. Mukesh Kumar [(2019) 4 SCC 197], the Supreme Court has held as under:

17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH, (2008) 14 SCC 457, it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence o