M.Vinayagam, M/A.35 Years v. A.Sivakumar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 12.07.2017

CORAM

THE HONOURABLE MR.JUSTICE C.T.SELVAM Criminal Appeal No.728 of 2017 M.Vinayagam S/o.Mani ... Appellant vs 1.A.Sivakumar S/o.Arumugam 2.Anugraha Properties Management (India) Pvt. Ltd., represented by R.Dhayalan ... Respondents Criminal Appeal filed u/s.374 of the Code of Criminal Procedure against the judgment of learned Judicial Magistrate II, Kancheepuram, passed in C.C.No.142 of 2010 on 06.08.2010. For Appellant : Mr.G.Anabayachozhan For Respondents: Mr.Ravi Kumar[R1] Mr.P.Sivamani [R2] Mr.A.Raghunathan, senior counsel Amicus Curiae

JUDGMENT

Originally, appellant filed a revision against the judgment of learned Judicial Magistrate II, Kancheepuram, passed in C.C.No.142 of 2010 on 06.08.2010. This Court, under orders dated 12.07.2017, ordered as follows:

'This Court gratefully acknowledges the contribution of Sri.Raghunathan, learned senior counsel, who informed that the effect of dismissal of complaint by Court below would be that of a finding of acquittal and upon a finding of acquittal in a criminal case, only, an appeal would lie. Learned senior counsel submits that Section 401(4) of the Code of Criminal Procedure, stipulates that where there is a provision for an appeal, no revision would be entertained by this Court. Even while acknowledging the said position informed by learned senior counsel,

this Court would treat the present revision as an appeal and affirm the finding of the trial Court. Registry is directed to number the present revision as an appeal.'

2. Appellant/complainant moved a prosecution informing that first respondent on behalf of second respondent approached appellant towards purchase of a land and total sale consideration was fixed at Rs.30,12,500/-. Accused had paid a sum of Rs.14,12,500/- towards sale consideration and undertook to pay the balance sum within two months. After lapse of two months, appellant/complainant approached accused for payment of balance sale consideration and accused issued a post dated cheque dated 09.03.2010 for Rs.16,00,000/- drawn on Punjab National Bank, Chennai, which upon presentation was returned unpaid for the reason 'Funds Insufficient'. Respondent, following the procedure envisaged u/s.138 of the Negotiable Instruments Act, preferred a complaint and the same was taken on file in C.C.No.142 of 2010 on the file of learned Judicial Magistrate II, Kancheepuram.

3. Before trial Court none were examined and no exhibits were marked. On appreciation of materials before it, trial Court, under judgment dated 06.08.2010, dismissed the complaint. There against, appellant/complainant has preferred the present appeal.

4. Heard learned counsel for appellant and learned senior counsel [Amicus Curiae] and learned counsel for respondents.

5. In dismissing the complaint, Court below has found as follows:

(i)Though appellant/complainant has stated that the agreed sale consideration was Rs.30,12,500/-, the sale deed informs price at Rs.2,000/- per cent only and appellant/complainant himself has admitted that he has already received a sum of Rs.14,12,500/-. Thus, even as per version of complainant, he has received the entire sale consideration specified in the sale deed.

(ii)Appellant/complainant himself has admitted that towards avoiding higher registration charges, a lesser amount has been mentioned in the sale deed. Thus, it was clear that in order to evade payment of tax, both parties have chosen to show a lesser amount as sale consideration.

(iii)In the absence of any proof to show that the subject cheque was issued towards payment of balance sale consideration, it was not for the Court to come to the conclusion that the same was issued towards a legally enforceable debt. As such, offence u/s.138 of the Negotiable Instruments Act could not be attracted.

For the aforesaid reasons and for other reasons, Court below has found that appellant/complainant has failed to establish his case through proper oral and documentary evidence and accordingly, dismissed the complaint. This Court finds no error in the judgment under challenge. Even taken as true, appellant/complainant's case would offend Section 23 of the Contracts Act and hence, the complaint would not lie. The Criminal Appeal shall stand dismissed.

Sd/- Assistant Registrar(CS VII) //True Copy// Sub Assistant Registrar gm To 1.The Judicial Magistrate II, Kancheepuram.

2.Do Thro The Chief Judicial Magistrate, Kanchepuram.

Copy to:

The Section Officer, Criminal Section, High Court, Madras-104.

Criminal Appeal No.728 of 2017 sv(co) nr 15/11/2018