(Prayer: This Criminal Revision Case filed under Section 397(1) r/w 401 of the Code of Criminal Procedure, to call for the records of the learned Principal Sessions Judge, Virudhunagar District at Srivilliputhur in Crl.A.No.163 of 2008 by judgment dated 03.06.2016 confirming the conviction and sentence of imprisonment of 1 year simple imprisonment and to pay a fine of Rs.5,000/- in default, to undergo 3 months simple imprisonment for an offence under Section 138 of Negotiable Instrument Act, imposed by the learned Judicial Magistrate No.I, Srivilliputhur in C.C.No.75 of 2006 by the judgment dated 18.03.2008 and set aside the same.)
1. These Criminal Revision Cases are filed to set aside the judgment passed by the learned Principal Sessions Judge, Virudhunagar District at Srivilliputhur in Crl.A.Nos.163, 158 to 160, 162, 164, 165 and 161 of 2008 dated 03.06.2016.
The brief facts of these cases are as follows:
2. One Purushothaman, S/o.late.Balakrishnan, is the proprietor of Global India International Thread and Fabric Company Limited. The complainant is a registered private limited company and it is running Spinning Mills at Rajapalaym. The complainant represented by its Office Manager, who is aware of the day-to-day affairs of the company and its business transactions. The complaint had been filed through its Authorized Agent, Mohanram, who had been authorized by the Board of Directors of the complainant company to represent it in the Court of law.
3. The accused is running yarn business under the name and style of Global India International Thread and Fabric Company Limited. The accused had business dealings with the complainant company between 18.10.2001 and 28.02.2002. The yarn price shall be payable immediately after the delivery and if there is default of payment of yarn rice, it will carry interest at 24% per annum. The accused had to pay some outstanding amount to the complainant company. The complainant company had repeatedly requested the accused to settle the dues. Thereafter, the accused had admitted that he had been liable to pay some amount to the complainant company. Thereafter, in order to discharge the above said loan amount, the accused had issued a cheque bearing Cheque No.511148 dated 06.04.2003 for a sum of Rs.8,00,000/- payable at ICICI Bank Limited along with 7 other cheques. The accused asked the complainant to present the cheques on the respective dates. The dates and amounts of each one of the cheque were mentioned by the accused himself in his registered letter dated 24.02.2003.
4. As requested by the accused, though the complainant presented the cheques for collection before the Bank concerned, the same was returned as unpaid due to “insufficiency of funds” in the bank accounts of the accused. This was intimated to the complainant by the Bank on 27.03.2003. On 31.03.2003, the complainant sent a notice to the accused through its lawyer requiring the amount payable under the cheques.
5. The accused had received the notice on 01.04.2003. However, the accused filed to pay the cheque amount to the complainant. The accused knowing fully well that he had no sufficient funds in his bank account had issued the cheques and asked the complainant to present the same for collection. Therefore, the complainant had filed a private complaint. Thereafter, the sworn statement of the complainant, Mohanram, Power Agent of M/s.Jai Renga Mills Private Limited, Rajapalayam was taken on file and numbered as C.C.Nos.75, 70 to 72, 74, 76, 77 and 73 of 2006 by the learned Judicial Magistrate No.I, Srivilliputhur.
6. After taking the private complaint on file and after taking cognizance of the offence under Section 138 of the Negotiable Instrument Act, the learned Judicial Magistrate No.I, Srivilliputhur, had issued summons to the accused. On appearance of the accused before the learned Judicial Magistrate No.I, Srivilliputhur, copies were furnished to him and when he was questioned, he pleaded not guilty to the charge and claimed to be tried. Therefore, the learned trial Judge ordered trial.
7. In the trial, the Authorized Agent of M/s.Jai Renga Mills Private Limited, Rajapalayam , Mohanram, had examined himself as P.W1 and documents were marked as Ex.P1 to Ex.P16. The Assistant Manager of the ICICI Bank, Rajapalayam, Sriram, was examined as P.W2 regarding the accounts maintained by the accused, Purushothaman.
8. P.W3, Suresh, is the Assistant Manager of the same bank. The incriminating evidences from the evidence of P.W1, Mohanram, P.W2, Sriram and P.W3, Suresh were put to the accused under Section 313 of Cr.P.C. The accused denied the charges and therefore, the case was posted for crossexamination of the defence witnesses.
9. One Muralidharan, who was serving as Sub Inspector of Police, Rajapalayam North Police Station, was examined as D.W1. He had spoken about the complaint preferred by the petitioner, Purushothaman, regarding the dispute between him and one Perumalraja, who is connected with the administration of Sri Rengaperumal Raja of Jairenga Mills and Auditor Sridhar, which was subsequently closed based on the undertaking given by the accused/Purushothaman that they will solve their dispute amicably.
10. One Karuppasamy was examined as D.W2, who was serving as Assistant Commercial Tax Officer in Singanallur Branch, Coimbatore District. He had spoken about the registration of the company, Global India International Thread and Fabric Co.Ltd with the Commercial Tax Officer at Coimbatore. The owner of the said company is one Chinna Palaichamy, S/o.Rengaiah Gounder. The copies of Form A and From D are maintained with the office of the Commercial Tax Officer, Singanallur and through him, the copies of Forms A and D of the company operated by the accused were marked.
11. After hearing the arguments of the learned counsel for the complainant and the learned counsel for the accused and on appreciation of evidences, the learned Judicial Magistrate No.I, Srivilliputtur, by his judgment dated 18.03.2008 had convicted the accused in each cases for the offence under Section 138 of Negotiable Instrument Act, sentencing him to undergo one year simple imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for 3 months in each case.
12. Aggrieved by the judgment of conviction and sentence of imprisonment, the accused had preferred the appeals in Crl.A.Nos.163, 158 to 160, 162, 164, 165 and 161 of 2008 before the Court of the learned Principal Sessions Judge, Srivilliputhur, Virudhunagar District. On hearing the learned counsel for the petitioner/accused and the learned counsel for the respondent/complainant, the learned Principal Sessions Judge, Srivilliputhur, Virudhunagar District had, by his judgment dated 03.06.2016, dismissed the appeal and confirmed the judgment of the trial Court.
13. Aggrieved by the dismissal of the appeal by the appellate Court and the confirmation of the judgment of conviction recorded by the learned trial Judge, the accused had filed these Criminal Revision Cases.
14. As per the grounds of appeals, marking of documents, Exs.P1 to P16 was not followed properly as per the procedures regarding marking of documents, whereas, Ex.P1 to Ex.P9 filed by the complainant along with the complaint were not marked while taking sworn statement.
15. The other documents, Ex.P10 to Ex.P16 were furnished by the complainant only during trial at the time of defence arguments. The unmarking documents under Ex.P1 to Ex.P9 were admitted by P.W1 during his crossexamination. The trial Court had already decided to convict the accused/petitioner and decided the case ignoring the un-marking of documents, Ex.P1 to Ex.P9, which was caused prejudice to the petitioner/accused.
16. It is a well known procedure that the documents could be marked only on taking sworn statement from the complainant. In this case, P.W1 had not deposed sworn statement and failed to mark the documents, Ex.P1 to Ex.P9. Therefore, the finding of the learned Judicial Magistrate No.I, Srivilliputtur by ignoring the provisions of law regarding sworn statement of the complainant, regarding marking of documents, which were not produced along with the complaint at the earliest point of time and considering those documents, which were subsequent to the sworn statement recorded by the complainant and arrived at a finding based on the presumption that the accused is guilty is perverse.
17. Also, the learned Judicial Magistrate No.I, Srivilliputtur, failed to consider the fact that Ex.P2, statement of accounts are not tallied with the complaint averments. The trial Court ought to have considered that the statutory notice was not served on the petitioner/accused. Ex.P9, acknowledgment card shows the address of the accused as B.Purushothaman, Vinayaga Appan Illam, Ezhil Nagar, Banker.s Colony, thiruvalluvar Nagar, Rajapalayam. There was no averments regarding the Proprietor, Global India International Thread and Fabric Company Limited and where from it is operating. In the statutory notice no such address was stated. No further explanation was also offered to the complainant regarding his complaint. Therefore, it could be decide that the statutory notice was served on the petitioner/accused at Rajapalayam.
18. The trial Court failed to appreciate the objection by the learned counsel for the petitioner/accused regarding the marking of documents, Ex.P10 to Ex.P16. The trial Court failed to consider that D.W1 turned hostile and was cross-examined by the petitioner/accused. The trial Court illegally decided that P.W1 had been given authorization by the complainant concern through their document No.1, which is only fabricated document. No original authorization was produced. The trial Court ought to have decided that the petitioner/accused is not a Proprietor for M/S.Global India International Thread and Fabric Company Limited on the basis of the evidence by D.W2 and Ex.D3 and Ex.D4.
19. The trial Court failed to note that the authorization letter by the complainant's side document No.1 dated 23.03.2003 was created for the future occurrence ie., for filing a complaint against the cheques. Therefore, the learned counsel for the petitioner seeks to set aside the judgments of the trial Judge, dated 18.03.2008 and acquit the accused from the charges.
20. The point for consideration is whether the judgment of conviction recorded by the learned Judicial Magistrate No.I, Srivilliputtur in C.C.Nos.75, 70 to 72, 74, 76, 77 and 73 of 2006 dated 18.03.2008 is to be set aside as it is perverse. 21.It is a general rule that when there is a concurrent finding, the Revision Court shall not go into appreciation of evidence. Only if there is an error regarding violation of procedures or violation of laid down rules in the judgment of either the learned trial Judge or the appellate Judge, the Revision Court/High Court has the powers to consider the grounds of revision.
22. Here, the petitioner, who is the accused, had raised objections ie.,
i) the complainant had not produced all the documents when the complaint was taken on file by the learned Judicial Magistrate No.I, Srivilliputtur and after recording the sworn statement, the documents Ex.P1 to Ex.P9 were furnished by the complainant. When he had given sworn statement, the documents, Ex.P10 to Ex.P16 were not produced during sworn statement. Therefore, the learned counsel for the accused had vehemently objected to mark the documents, Ex.P10 to Ex.P16. His objection was ignored by the learned Judicial Magistrate No.I, Srivilliputtur. The learned trial Judge had not offered any explanation regarding the objections by the learned counsel for the accused.
ii) The learned counsel for the accused submits that One Karuppasamy, who was examined as D.W2 and was serving as Assistant Commercial Tax Officer in Singanallur Branch, Coimbatore District, had clearly stated that the name of the owner of the Mill is Chinna Palaichamy, S/o.Rengaiah Gounder and the Forms A and B are being maintained in the office of the Assistant Commercial Tax Officer in Singanallur. The learned Judicial Magistrate No.I, Srivilliputtur had not considered the evidence of D.W2 and the documents marked under Ex.D3 and Ex.D4.
iii) The authorization alleged to have been issued to the Authorized Agent, Mohanram, P.W1 is not in tune with the legal position regarding a registered complaint. A registered Company has to give authorization through resolution of the Board of Directors of the Company. No such resolution had been accompanied the authorized letter, authorising P.W1, Mohanram is a person to proceed with a case.
23. The contentions raised by the learned counsel for the petitioner/accused that the statutory notice was not sent to the address of the accused. The learned counsel for the petitioner had in his arguments submitted that notice to the accused was sent to the address at Coimbatore, whereas, the accused was residing as per the complaint in the local limits of Rajapalayam. Therefore, it is defective. In such circumstances, the complaint ought not to have been taken on file as a statutory notice was not served on him. It was returned as “addressee not in the address”.
24. The learned counsel for the 1st respondent/complainant in his written submissions replied to the arguments of the learned counsel for the petitioner/accused by relying on the reported rulings of the Hon'ble Supreme Court of India, which was relied on that the learned trial Judge had replied to the said contention of the learned counsel for the petitioner/accused appeared before the trial Court. The learned trial Judge placed reliance on the rulings of the Hon'ble Supreme Court in the case of Alavi Haji Vs. Palapetti Mohamed reported in 2007 (6) SCC 555 and rejected the objections raised by the learned counsel for the accused during trial regarding not service of statutory notice.
25. Further, the learned trial Judge had observed that as per the reported ruling of the Hon'ble Supreme Court, if the accused, who claims that he did not receive the notice sent by post, can within 15 days of receipt of summons from the Court in respect of complaint under Section 138 of the Act make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons. In this case, the accused even though made such defence, he had not settled the dues. Therefore the learned trial Judge had rejected the arguments of the learned counsel for the petitioner/accused.
26. Further, it is observed that the accused had received the notice sent to his residence at Rajapalayam and by way of abandon caution, the complainant had sent the notice to the office address of the accused at Coimbatore. Ex.P9, acknowledgment of the receipt of notice at the residential address was relied on by the learned trial Judge. Ex.P16 was the return cover for the office address of the Coimbatore along with endorsement on the said envelop. Therefore, the learned trial Judge had rejected the defence of the accused.
27. Further, the learned Judge had placed reliance on the ruling of the Hon'ble Supreme Court reported in 2007 (3) SCC (Criminal) 236, which had been adverted to by the learned counsel for the 1st respondent/complainant in his written submissions. Considering the discussion of the learned trial Judge, the arguments of the learned counsel for the petitioner/accused cannot at all be accepted. The learned trial Judge had discussed this point in detail and arrived at a just conclusion rejecting the said contentions.
28. The authorization letter was furnished by the complainant, but by inadvertence, the learned trial Judge did not written it in the notes paper. For the error that occurred in the procedure of the Court, no one shall be prejudiced. The said principles will apply to this case also. The learned trial Judge had discussed that also in his judgment. It was clearly discussed by the learned trial Judge that original documents were not produced in the complaint as already the same had been marked in a different complaint before the very same Judge. The learned trial Judge had discussed it in his judgment in paragraph No.16 regarding authorization and the resolution of the Board of Directors and arrived at a logical conclusion that the complaint lodged by the Authorized Agent, Mohanram is maintainable. The same had been discussed and the defence of the accused had been rejected.
29. The procedure of the Court shall prejudice none for the error that occurred in the procedure of the Court. The complainant shall not be punished, thereby, the learned trial Judge had rejected the contention raised regarding the documents Ex.P10 to Ex.P16. The same is now agitated. When the learned trial Judge had given reasoned judgment meeting out the points raised by the accused in this revision case, the Revision Court cannot consider the same.
30. The further contention is that there is no records produced by the complainant that the accused is the owner of the company, Global India International Thread and Fabric Co.Ltd. The Commercial Tax Officer was summoned by the accused as D.W1. He had clearly stated that Ex.D4 and Ex.D5 had been maintained till date regarding the company, Global India International Thread and Fabric Co.Ltd. The cheque issued by the accused was proved through the examination of P.W2 and P.W3. While so, the claim made by the accused that he had not issued the cheque cannot be accepted and he is not liable also cannot be accepted.
31. D.W2, Karuppasamy, in his cross-examinaiton had clearly stated that the owner of the company, Global India International Thread and Fabric Co.Ltd is Chinna Palaichamy, S/o.Rengaiah Gounder and the Form A and Form D are maintained till date.
32. By the principles of Section 138 of Negotiable Instrument Act, the rebuttal evidence have to be furnished by the accused when the complainant had proved the case through cogent evidence, if not, then the burden to disbelieve the case of the complainant is on the accused under Section 118 of the Negotiable Instrument Act. Instead of, the accused enter into the witness box and he had examined the Sub Inspector of Police regarding the complaint given by the wife of the accused regarding the cheques missing.
33. The Sub Inspector of Police, who was examined as D.W1, submitted that the accused himself came to the police station and gave a written undertaking that he will settle the dispute with the complainant company and its Auditor amicably. Therefore, the evidence of D.W1 is not in favour of the accused. D.W2 who was the Assistant Commercial Tax Officer was also not in favour of the accused. Applying the principles under Section 118 of the Act, the accused had not let in evidence of disproving the case of the complainant. Therefore, what had been proved through P.Ws1 to 3 and Exs.P1 to 16, was disproved by the evidence of D.Ws1 and 2. When that be the case, nothing survives for the learned trial Judge to dismiss the complaint. Not only that in the cases under Negotiable Instrument Act, based on the business dealings between the complainant and the company, the accused prepared the firm over a period of years and there are personal knowledge between the complainant side and the accused.
34. Once the complaint had been registered and taken on file, the learned trial Judge ought to have issued summons. Even for the sake of arguments if the accused had not received the statutory notice, he had accepted the service of summons from the Court, then the purpose of statutory notice is served, he can act as per the statutory notice taking time from the Court to settle his dues, but he had not done so. As per the rulings of the Hon'ble Supreme Court relied on by the learned trial Judge, the finding of the learned trial Judge cannot at all be considered by the Revision Court.
35. The learned appellate Judge on appeal by the accused rejected all the contentions raised in the grounds of appeals. The same is agitated in these revision cases also. The Revision Court cannot go into the evidence. The discretion of the Revision Court is only limited. If either the trial Court or the appellate Court had violated the settled principles of law or had given a finding i
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gnoring the provisions of Indian Evidence Act in appreciating the evidence, then the Revision Court can interfere with the findings of either the trial Judge or the appellate Judge. Here, the learned trial Judge had given a cogent and logical findings on proper appreciation of evidence and the entire materials available before him. He had considered the rulings relied on by both side counsels. While so, the finding of the learned trial Judge is not perverse. The learned appellate Judge had also rejected the contention raised in the grounds of appeal. 36. In view of the above, if the same grounds are raised in this revision, the Revision Court cannot exercise its discretion in setting aside the finding of the learned trial Judge. Hence, the contention raised by the learned counsel for the petitioner/accused is rejected. The point for consideration is answered in favour of the respondent/complainant and against the petitioner/accused. In the result, these Criminal Revision Cases are dismissed. In the light of the judgment of the Hon'ble Supreme Court in the case of Anil Kumar Vs. State of Punjab reported in (2017) 5 Supreme Court Cases 53, [Criminal Procedure Code, 1973-S.427(1)-Person already undergoing a sentence of imprisonment sentenced on a subsequent conviction to imprisonment-when may such subsequent sentence be directed to run concurrently with earlier sentence-Normal rule and exceptional cases- Explained], the sentence of imprisonment imposed upon the petitioner in C.C.Nos.75, 70 to 72, 74, 76, 77 and 73 of 2006 passed by the learned Judicial Magistrate No.I, Srivilliputhur, is hereby confirmed and the period of sentence is to be undergone by the accused concurrently. The learned trial Judge/Judicial Magistrate No.I, Srivilliputtur, is directed to issue warrant against the accused to undergo the remaining period of sentence and to pay the total cheque amount of Rs.64,00,000/- instead of paying fine of Rs.5,000/- as awarded by the trial Court in each case. A copy of this order is to be sent to the learned Judicial Magistrate No.I, Srivilliputtur, learned Principal Sessions Judge, Srivilliputhur, Virudhunagar District and to the learned Chief Judicial Magistrate, Virudhunagar for follow up.