O.Achuthan v. M.Manoharan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON: 25.10.2019 DELIVERED ON: 04.11.2019

CORAM:

THE HON'BLE MR. JUSTICE P.N. PRAKASH Crl.R.C. No.1172 of 2013 O. Achuthan Petitioner/Appellant/Accused vs.

M. Manoharan Respondent/Respondent/Complainant Prayer:

Criminal Revision filed under Section 397 r/w 401 Cr.P.C. seeking to set aside the judgment and order dated 04.09.2013 passed by the District and Sessions Court, Tiruvarur in Crl.A. No.24 of 2012 confirming the judgment and order dated 22.10.2012 passed by the Judicial Magistrate Court, Tiruvarur in S.T.C. No.429 of 2008.

For petitioner Mr. T. Muruganantham For respondent Mr. J. Nandagopal

ORDER

This criminal revision is directed against the judgment and order dated 04.09.2013 passed by the District and Sessions Court, Tiruvarur in Crl.A.No.24 of 2012, confirming the judgment and order dated 22.10.2012 passed by the Judicial Magistrate Court, Tiruvarur in S.T.C. No.429 of 2008.

For the sake of convenience, the petitioner and the respondent are referred to as accused and complainant respectively.

The facts in brief are as under:

3.1 It is the case of the complainant that he is a friend of the accused and the accused borrowed a sum of Rs.4,50,000/- for meeting some urgent family expenses, towards discharge of which liability, he issued a cheque dated 10.08.2007 (Ex.P.1); when the complainant presented the cheque (Ex.P.1), it was

returned unpaid with the endorsement "funds insufficient" vide bank return memo (Ex.Ps.2 and 3); the complainant issued a statutory demand notice dated 11.08.2007 (Ex.P.4), which was received by the accused on 13.08.2007 vide Acknowledgment Due card (Ex.P.5); the accused issued a reply notice dated 08.09.2007 (Ex.P.6) repudiating the debt; hence, the complainant initiated a prosecution in S.T.C. No.429 of 2008 before the Judicial Magistrate, Thiruvarur under Section 138 of the Negotiable Instruments Act, 1881 (for brevity "the NI Act") against the accused.

3.2 The complainant examined himself as P.W.1 and marked Exs.P.1 to P.6.

3.3 When the accused was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him, he denied the same. The accused examined himself as D.W.1 and did not mark any exhibit.

3.4 After considering the evidence on record and hearing either side, the Trial Court, by judgment and order dated 22.10.2012 in S.T.C. No.429 of 2008, convicted the accused of the offence under Section 138 of the NI Act and sentenced him to undergo six months simple imprisonment and pay a fine of Rs.5,000/-, in default to undergo one month simple imprisonment. 3.5 The appeal in Crl.A.No.24 of 2012 preferred by the accused thereagainst was dismissed by the District and Sessions Court, Tiruvarur on 04.09.2013.

3.6 Calling into question the legality and validity of the concurrent findings of the two Courts below, the accused has preferred this criminal revision invoking Section 397 r/w Section 401 Cr.P.C.

Heard Mr. T. Muruganantham, learned counsel for the accused and Mr.J. Nandagopal, learned counsel for the complainant.

The learned counsel for the accused submitted that the accused has discharged the burden under Section 139 of the NI Act by issuing the reply notice dated 08.09.2007 (Ex.P.6) and also by examining himself as D.W.1.

Per contra, the learned counsel for the complainant refuted the contention put forth by the learned counsel for the accused.

Before adverting to the rival submissions, it may be necessary to state here that, while exercising revisional powers under Section 397 r/w 401 Cr.P.C., this Court is required to find out, if there is any illegality or impropriety in the findings of

the trial Court and the appellate Court warranting interference and it is not open to this Court to exercise the revisional power as a second appellate forum. In this context, it is profitable to allude to the following paragraphs in the judgment of the Supreme Court in State of Maharashtra Vs Jagmohan Singh Kuldip Singh Anand and Others, etc.1 "22.The revisional court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court".

It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power. (emphasis supplied) 23.On this aspect, it is sufficient to refer to and rely on the decision of this Court in Duli Chand v. Delhi Admn.[(1975) 4 SCC 649 : 1975 SCC (Cri) 663 : AIR 1975 SC 1960] in which it is observed thus: (SCC p. 651, para 5) "The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of [(2004)7 SCC 659]

satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse."

The aforesaid legal principle has been reiterated very recently by the Supreme Court in Bir Singh Vs Mukesh Kumar2, wherein, the following question of law was formulated: "(i) whether a Revisional Court can, in exercise of its discretionary jurisdiction, interfere with an order of conviction in the absence of any jurisdictional error or error of law"

The answer of the Supreme Court to the aforesaid question is as under :

"19. It is well settled that in exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to reanalyse and re-interpret the evidence on record. 20.

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 of a jurisdictional error. The answer to the first question is therefore, in the negative." Coming to the case at hand, the complainant, in his evidence, has stated about the loan of Rs.4.50 lakhs borrowed by the accused, issuance of the impugned cheque (Ex.P.1) for the said amount, dishonour of it, issuance of the statutory demand notice (Ex.P.4) to the accused and the reply notice (Ex.P.6) given by the accused. In the reply notice (Ex.P.6), the accused has stated that he had borrowed a sum of Rs.

2,25,000/- from the complainant for the marriage of his daughter and that he had given a blank, but, signed cheque as security and that the said cheque has been misused by the complainant to launch the present proseuction. However, the accused who examined himself as D.W.1, has stated in his evidence that he gave a cheque for Rs.50,000/- to the complainant and that the complainant has added "4" in numerals before the amount in figures i.e., 50,000/- and has initiated the present prosecution. Thus, this Court can perceive the fluctuating stand taken by the accused in the reply notice (Ex.P.6) and in his testimony.

(2019) 4 SCC 197

Further, a perusal of the impugned cheque (Ex.P.1) shows that there is no interpoliation or distortion therein. The amount of Rs.4,50,000/- has been filled up in words as well in figures in such a manner leaving no room for suspicion. In the reply notice (Ex.P.6), the accused has stated that he had given a blank cheque, whereas, in the evidence, he has stated that he gave a cheque for Rs.50,000/-, which was manipulated as Rs.4,50,000/- by the complainant. Though the accused can discharge the burden under Section 139 of the NI Act by preponderance of probability, the accused, by adducing conflicting defence, has not probabalised his assertion that the cheque was not issued for settling the loan of Rs.4,50 000/- availed by him.

In view of the foregoing discussion, this Court does not find any reason to interfere with the well merited judgments and orders of the Courts below convicting the accused of the charge under Section 138 of the NI Act and sentencing him to undergo six months simple imprisonment and pay a fine of Rs.5,000/, in default to undergo one month simple imprisonment. In the upshot, this criminal revision is dismissed as being devoid of merits. The trial Court is directed to secure the presence of the accused and commit him to prison for undergoing the period of sentence. Liberty is given to the accused to approach this Court for compounding the offence under Section 147 of the NI Act, even after he is taken into custody. If any amount has been deposited by the accused either in the appellate Court or in the trial Court in connection with this case, the same shall be disbursed with accrued interest to the complainant or to his legal heirs, as the case may be.

Sd/- Assistant Registrar (CS-IV) //True Copy// Sub Assistant Registrar cad To The Judicial Magistrate Tiruvarur The District and Sessions Judge Tiruvarur

3.The Deputy Registrar (Crl. Side) with a direction to transmit High Court of Madras the original records to the Chennai 600 104 respective Courts, forthwith.

+1cc to Mr.T.Muruganantham, Advocate, S.R.No. 91616 +1cc to Mr.J.Nandagopal, Advocate, S.R.No. 90938 Crl.R.C. No.1172 of 2013 MR(CO) GN(05/12/2019)