in a motor accident case , suppressing the accident on the day , the accident bus was insured and cover note was taken for laying claim. Their Lordships set aside the lower court award = It is established on record that the accident took place on 13.01.1995 at about 12:40 pm. The cover note Ex.RW1/A does not bear any time of issue. The cover note No.240327(Ex.RW1/D) was issued by RW2 prior to Ex.RW1/A. A perusal of Ex.RW1/D reveals that the same was issued at 12:45 pm. Thus, the cover note No.240329 (Ex.RW1/A) could be issued after cover note 240327 and 240328. It is, therefore, evident and as stated by RW2, the cover note Ex.RW1/A could not have been issued before 12:40 pm i.e. before the time of the accident. This is further supported from the fact that the premium amount in respect of the cover note Ex.RW1/A was deposited with the Insurance Company only on 16.01.1995. It is important to note that a written statement dated 02.03.1998 was filed by the Appellant before the Claims Tribunal on 23.03.1998. In para 2 of the preliminary objections, the Appellant stated as under: “II. That the answering respondent has no liability towards the subject claim because the Insured – Respondent No.2, Sanjay Kumar, obtained cover Note No.2403029 for offending vehicle DBP-906 effective for the period 13.1.95 to 12.1.96 (date of accident 13.1.95) by concealment and suppression of material facts re.the accident already occurred on the same day i.e. 13.1.95, of taking Policy. The Policy, so obtained, is therefore void-ab-initio.”FAO. No224/2002 Page 6 of 6 7. Although, the counsel for the Respondent No.8 was present before the Claims Tribunal on 23.03.1998, but the Respondent No.8 preferred not to contradict the averments made in the written statement filed by the Appellant. Rather thereafter, he preferred not to contest the proceedings and was ordered to be proceeded ex-parte. This shows Respondent No.8’s conduct. The Appellant Insurance Company, therefore, established that the cover note Ex.RW1/A was issued after the accident and thus this policy was void as the factum of accident was not disclosed by the Respondent no.8. The Appellant Insurance Company was, therefore, entitled to avoid the policy. It, however, having paid the amount is entitled to recover the same from Respondent No.8, owner of the bus No.DBP-906 involved in the accident. 8. The Appeal is accordingly allowed. It is directed that the Appellant Insurance Company shall be entitled to recover the amount of compensation paid along with interest without undertaking separate proceedings in execution of this very judgment. 9. The statutory amount of `25,000/- shall be refunded to the Appellant Insurance Company. 10. The Appeal is allowed in above terms.

FAO. No224/2002        Page 1 of 6
$~43
* IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI
Date of decision: 1st May, 2012
+  FAO. No.224/2002
ORIENTAL INSURANCE CO. LTD.          ..... Appellant
Through: Mr.  Ram N. Sharma,  Advocate
Versus
SMT. ANARA DEVI & ORS.   ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
J U D G M E N T
G. P. MITTAL, J. (ORAL)
1. The Appellant Oriental Insurance Co. Ltd. impugns a judgment
dated 11.02.2002 whereby a compensation of  `3,58,500/- was
awarded in favour of the Respondents No.1 to 6 for the death
of the deceased  Shitla Prasad Shukla who died in a motor
accident which occurred on 13.01.1995.
2. The ground of challenge is that the cover note Ex.RW1/A in
respect of the offending vehicle bus No.DBP-906 was
fraudulently obtained after the accident and the Insurance
Company had no liability to pay the compensation.
3. It is the admitted case of the parties that the cover note
Ex.RW1/A was issued on 13.09.1994 i.e. on the date of the FAO. No224/2002        Page 2 of 6
accident.  The amount of compensation was released to  the
Claimants by an order of this Court dated 26.04.2002 and
15.09.2003.   Thus, what is required to be seen in the instant
Appeal is whether the cover note was fraudulently  obtained
and if the Appellant Insurance Company is entitled to recovery
rights against the Respondent No.8, owner of the offending
vehicle.
4. A perusal of the Trial Court record reveals that the Respondent
No.8(Respondent No.2 before the Trial Court) initially
appeared through the counsel.  He was ordered to be proceeded
ex parte by an order dated 20.04.1998 and thereafter did not
appear and contest the proceedings.  Section 149 of the Motor
Vehicles Act lays down certain statutory defences.  Section 149
is extracted hereunder:
“149. Duty of insurers to satisfy judgments and
awards against persons insured in respect of third
party risks-
(1) If, after a certificate of insurance has been
issued under sub-section (3) of section 147 in
favour of the person by whom a policy has been
effected, judgment or award in respect of any such
liability as is required to be covered by a policy
under clause (b) of sub-section (1) of section 147
(being a liability covered by the terms of the
policy) [or under the provisions of section 163A] is
obtained against any person insured by the policy,
then, notwithstanding that the insurer may be
entitled to avoid or cancel or may have avoided or
cancelled the policy, the insurer shall, subject to
the provisions of this section, pay to the person
entitled to the benefit of the decree any sum not FAO. No224/2002        Page 3 of 6
exceeding the sum assured payable thereunder, as
if he were the judgment debtor, in respect of the
liability, together with any amount payable in
respect of costs and any sum payable in respect of
interest on that sum by virtue of any enactment
relating to interest on judgments.
(2)  No sum shall be payable by an insurer under
sub-section (1) in respect of any judgment or
award unless, before the commencement of the
proceedings in which the judgment of award is
given the insurer had notice through the Court or,
as the case may be, the Claims Tribunal of the
bringing of the proceedings, or in respect of such
judgment or award so long as execution is stayed
thereon pending an appeal;……………
(a)……………..
(b) that the policy is void on the ground
that it was obtained y the non-disclosure of a
material fact or by a representation of fact
which was false in some material particular.”
5. It is urged by the learned counsel for the Appellant that in this
case the accident took place on 13.01.1995 at about 12:35 pm,
whereas the cover note was issued at about 5:00 pm.  The
Claims Tribunal discussed the testimony of RW2 Anil Kumar
Sethi in detail and disbelieving him held as under:
“30. RW2 Anil Kumar Sethi has stated that he
issued above referred cover note on 13.1.95 at 12.45
p.m. and during his subsequent testimony he
corrected himself by saying that aforesaid cover note
was issued by him at around 5 or 5.15 pm. after the
inspection of the offending vehicle it was parked FAO. No224/2002        Page 4 of 6
outside his office.  The aforesaid version of Anil
Kumar Sethi is firstly contradictory in respect of the
time of issue of cover note.  Otherwise also
aforesaid version is not believable  because perusal
of certified copy of the charge sheet pertaining to the
impugned accident would reveal that as per details
in this charge sheet the accident took place at around
12.40 p.m. on 13.1.95 and  the offending bus was
seized by the Investigation Officer  at the spot of
accident.  As per certified copy of the mechanical
inspection report of the offending bus and the
superdarinama of the bus  offending bus was
mechanically inspected on 15.1.95 and it was
released on superdari to Sanjay Kumar on 18.1.95
This imply that after the accident the offending bus
stopped at the spot of accident from where it was
seized and thereafter it remained in custody of the
police till 18.1.95  That being the case the offending
bus could not have reached the insurance office on
13.1.95 at around 5 or 5.15 p.m.   Therefore, the
version of RW-2 regarding the issue of cover note
pertaining to the offending bus  after  accident  after
the impugned accident is not reliable.  Perusal of the
cover note Ex.RW1/A would reveal that on this
cover note no time is mentioned.  Therefore, it
cannot be concluded that cover note Ex.RW1/A was
issued after the  impugned accident on 13.1.95.
Thus, under the circumstances, I am of the view that
respondent No.3 has failed to establish that cover
note was obtained by the insured Sanjay Kumar
after the accident by concealment of fact.  Thus,
respondent no.3 being the insurer of the offending
vehicle, in my opinion, is also under contractual as
well as statutory obligation to compensate the
petitioners.  In view of my discussion above, I am of
the opinion, that all the three respondents are jointly
and severally liable to pay the award amount to the
petitioners.”FAO. No224/2002        Page 5 of 6
6. It is established on record that the accident took place on
13.01.1995 at about 12:40 pm.  The cover note  Ex.RW1/A
does not bear any time of issue.  The cover note
No.240327(Ex.RW1/D) was issued by RW2 prior to
Ex.RW1/A.  A perusal of Ex.RW1/D reveals that the same was
issued at 12:45 pm.  Thus, the cover note  No.240329
(Ex.RW1/A) could  be issued after cover note 240327 and
240328.  It is, therefore, evident and as stated by RW2, the
cover note Ex.RW1/A could not have been issued before 12:40
pm i.e. before the time of the accident.   This is further
supported from the fact that the premium amount in respect of
the cover note Ex.RW1/A was deposited with the Insurance
Company only on 16.01.1995.   It is important to note that a
written statement dated 02.03.1998 was filed by the Appellant
before the Claims Tribunal on 23.03.1998.  In para 2 of the
preliminary objections, the Appellant stated as under:
“II. That the answering respondent has no liability
towards the subject claim because the Insured  –
Respondent No.2, Sanjay Kumar, obtained cover
Note No.2403029 for offending vehicle DBP-906
effective for the period 13.1.95 to 12.1.96 (date of
accident 13.1.95) by concealment and suppression
of material facts re.the accident already occurred on
the same day i.e. 13.1.95, of taking Policy.  The
Policy, so obtained, is therefore void-ab-initio.”FAO. No224/2002        Page 6 of 6
7. Although, the counsel for the Respondent No.8 was present
before the Claims Tribunal on 23.03.1998, but the Respondent
No.8 preferred not to contradict the averments made in the
written statement filed by the Appellant. Rather thereafter, he
preferred not to contest the proceedings and was ordered to be
proceeded ex-parte.  This shows Respondent No.8’s conduct.
The Appellant Insurance Company, therefore,  established that
the  cover note Ex.RW1/A was issued after the accident and
thus this policy was void as the factum of accident was not
disclosed by the Respondent no.8.  The Appellant Insurance
Company was, therefore, entitled to avoid the policy.  It,
however, having paid the amount is entitled to recover the
same from Respondent No.8, owner of the bus No.DBP-906
involved in the accident.
8. The Appeal is accordingly allowed.  It is directed that the
Appellant Insurance Company shall be entitled to recover the
amount of compensation paid along with interest without
undertaking separate proceedings in execution of this very
judgment.
9. The statutory amount  of  `25,000/- shall be refunded to the
Appellant Insurance Company.
10. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
MAY 01, 2012
pst

in motor accident claim. the deceased is aged 26 years, mother 55 years, father 58 years, salary of deceased Rs.2,40,000/- Their lord ships enhanced compensation = The letter dated 07.09.2006 clearly shows that the deceased was a confirmed employee of India Bulls. Considering that the MAC. APP. 224/2012 Page 3 of 4 deceased was a highly qualified person, aged about 26 years who was at the threshold of his career and was a confirmed employee, the Appellants were therefore entitled to an addition of 50% in the deceased’s income towards future prospects. 7. The Claims Tribunal while making deduction towards personal and living expenses took the average age of the parents to determine the loss of dependency. It was observed that the deceased’s mother was aged 55 years and his father was aged 58 years on the date of the accident. Since father is not considered as a dependant, the age of the deceased’s mother i.e. 55 years would be considered to determine the multiplier which would be ‘11’. The loss of dependency thus comes to `19,05,750/- (2,40,000/- - 9,000/- + 50% x 1/2 x 11). 8. On adding conventional sums of `25,000/- towards Loss of Love and Affection and `10,000/- each towards Funeral Expenses and Loss to Estate, the overall compensation comes to `19,50,750/-. 9. The compensation is thus enhanced from `10,54,500/- to `19,05,750/- which shall carry interest @7.5% per annum from the date of filing of the Petition till the date of deposit. 10. Respondent No.3 United India Insurance Company Limited is directed to make the deposit of the enhanced compensation of `8,51,250/- alongwith interest within six weeks with UCO Bank, Delhi High Court Branch, New Delhi in the proportion as MAC. APP. 224/2012 Page 4 of 4 awarded by the Claims Tribunal in the name of the Appellants. 11. The enhanced compensation shall be released in favour of the Appellants in terms of the Tribunal’s order. 12. The Appeal is allowed in above terms. (G.P. MITTAL) JUDGE

MAC. APP. 224/2012        Page 1 of 4
* IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI
  Date of decision: 1
st
May, 2012
+  MAC.APP. 224/2012
DINESH SINGH & ANR                          ..... Appellant
Through Mr. Manish Maini, Advocate
versus
RAMA NAND SINGH & ORS                         ..... Respondent
Through None
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
J U D G M E N T
G. P. MITTAL, J. (ORAL)
1. The Appeal is for enhancement of compensation of
`10,54,500/- awarded by Motor Accident Claims Tribunal (the
Claims Tribunal) for the death of Rupesh Kumar, who died in a
motor accident which took place on 01.09.2008.
2. The deceased was B.Sc. (Hons.) and held a Postgraduate
Diploma in Management. He was employed as a Relationship
Manager with India Bulls Securities Limited.  He was earning a
sum of  `2,40,000/- per annum and was confirmed by a
Confirmation letter dated 07.09.2006.
3. Following contentions are raised on behalf of the Appellants:-
(i) The future prospects were not considered inspite of the MAC. APP. 224/2012        Page 2 of 4
fact that he was a highly qualified person and was in
permanent employment.
(ii) The multiplier should have been ‘11’instead of ‘9’as per
the age of the deceased’s mother who was 55 years.
4. The Claims Tribunal on the question of the assessment of loss
of dependency held as under:-
“12. The income of the deceased is taken as
Rs.2,40,000/- per annum.  The petitioner failed to
disclose the amount deducted towards income tax
therefore after deduction of RS.9,000/- towards income
tax, the net income comes to Rs.2,31,000/- per annum.
Interest of justice in the present case would be met if ½
i.e. Rs.1,15,500/- is deducted as the personal and living
expenses of the deceased (as the deceased was bachelor).
After such deduction the contribution to the family
(dependants) is determined as Rs.1,15,500/- per annum.
The multiplier applicable would be 9 (As age of mother
was stated to be 55 years at the time of accident while the
age of the father of the deceased as mentioned in PAN
card as 09.07.1950 i.e. 58 years at the time of accident.
Multiplier taken at the average age of mother i.e. 55
years and father’s age i.e. 58 years at the time of
accident.  Therefore, the total loss on dependency would
be RS.1,15,500/- x 9 = 10,39,500/-.”    
5. The Claims Tribunal while declining the future prospects held
that the deceased had just about two months of service and there
was nothing on record to prove the future prospects.
6. The letter dated 07.09.2006 clearly shows that the deceased was
a confirmed employee of India Bulls.  Considering that the MAC. APP. 224/2012        Page 3 of 4
deceased was a highly  qualified person, aged about 26 years
who was at the threshold of his career and was a confirmed
employee, the Appellants were therefore entitled to an addition
of 50% in the deceased’s income towards future prospects.
7. The Claims Tribunal while making deduction towards personal
and living expenses  took the  average  age of the parents to
determine the loss of dependency.  It was observed that the
deceased’s mother was aged 55 years and his father was aged
58 years on the date of the accident. Since father is not
considered as a dependant, the age of the deceased’s mother i.e.
55 years would be considered to determine the multiplier which
would be ‘11’.  The loss of dependency thus comes to
`19,05,750/- (2,40,000/- - 9,000/- + 50% x 1/2 x 11).
8. On adding conventional sums of  `25,000/- towards Loss of
Love and Affection and  `10,000/- each towards Funeral
Expenses and Loss to Estate, the overall compensation comes to
`19,50,750/-.
9. The  compensation is thus enhanced from  `10,54,500/- to
`19,05,750/-  which shall carry interest @7.5% per annum from
the date of filing of the Petition till the date of deposit.    
10. Respondent No.3 United India Insurance Company Limited  is
directed to make the deposit of the enhanced compensation  of
`8,51,250/- alongwith interest within six weeks with UCO
Bank, Delhi High Court Branch, New Delhi in the proportion as MAC. APP. 224/2012        Page 4 of 4
awarded by the Claims Tribunal in the name of the Appellants.
11. The enhanced compensation shall be released in favour of the
Appellants in terms of the Tribunal’s order.
12. The Appeal is allowed in above terms.
(G.P. MITTAL)
JUDGE
MAY 01, 2012
vk

The question as to whether it is competent for the Municipal Corporation to insist on production of TSLR Certificate and “No Objection Certificate” from revenue authority is no longer res integra. In Hyderabad Potteries Private Limited Vs. Collector, Hyderabad[1], this Court dealt with that very question and held that a local authority cannot insist on production of TSLR Certificate and “No Objection Certificate” from the revenue authority.

IN THE HIGH COURT JUDICATURE, ANDHRA PRADESH

AT HYDERABAD

FRIDAY, THE SECOND DAY OF MARCH

TWO THOUSAND AND TWELVE

PRESENT

THE HONOURABLE SRI JUSTICE G.CHANDRAIAH

W.P. No.5843 of 2012

Between:

Gumma Jagannadha Rao

                                                                   …       Petitioner

And

The Greater Hyderabad Municipal Corporation,

Rep.by its Chief Commissioner,

Tank Bund Road, Hyderabad and another.

                                                                   …       Respondents

THE HONOURABLE SRI JUSTICE G.CHANDRAIAH

W.P. No.5843 of 2012

ORDER:                                                

          The petitioner intended to make construction of a residential house on house bearing H.No.12-10-664/A, on Plot No.14/A, in Survey No.167/1, situated at IndiraNagar Colony, Zamisthanpur, Sitafalmandi, Secunderabad.  For that purpose, the petitioner approached the respondents with an application seeking building permission for construction in the said property.  The grievance of the petitioner is that the respondents are not receiving the application, on the ground that his application was not accompanied with TSLR Certificate and “No Objection Certificate” from the revenue authority.  Therefore, he seeks appropriate directions in this regard.

          The learned counsel for the petitioner placed a copy of the order dated 07.02.2012 passed in W.P. No.3010 of 2012 by this Court and submitted that this matter is squarely covered with the said order.  Therefore, he requested to pass similar order for which, the learned standing counsel does not dispute the same.

          Heard the learned counsel for the petitioner and the learned standing counsel for the respondents and perused the material on record.

          The question as to whether it is competent for the Municipal Corporation to insist on production of TSLR Certificate and
“No Objection Certificate” from revenue authority is no longer
res integra.  In Hyderabad Potteries Private Limited Vs. Collector, Hyderabad[1], this Court dealt with that very question and held that a local authority cannot insist on production of TSLR Certificate and “No Objection Certificate” from the revenue authority.

          Since the subject matter of this writ petition is squarely covered by the said order, following the same, this writ petition is also disposed of, in terms of the said order directing the respondents to receive and process the application of the petitioner for building permission, in accordance with the provisions of the HyderabadMunicipal Corporation Act, 1955  and the Building Rules and Regulations made thereunder, without insisting on production of TSLR Certificate and “No Objection Certificate” from the revenue authority. 

With the above direction, this writ petitioner is disposed of. 
There shall be no order as to costs.

_________________________

JUSTICE G.CHANDRAIAH

Date: 02.03.2012

LSK

---

[1] 2001(3) ALT 200

OFFICIAL RECEIVER OBJECTIONS NOT TENABLE FOR EXECUTING MORTGAGE DECREE AS IT IS SECURED DECREEe instant case, it is not in dispute that the petitioner is a secured creditor being a mortgagee. A perusal of decree, dated 16-03-2007, shows that the same is in the nature of a mortgage decree. Therefore, the petitioner falls within the exception carved out to Section 28 of the Act. This Court, in the judgments referred to above, has held in no uncertain terms that a secured creditor is entitled to recover the money payable under a decree notwithstanding pendency of insolvency petition under the Act. The Court below has, therefore, committed serious jurisdictional error in raising the attachment and closing the EP. In the premises as above, Order, dated 20-12-2007, in E.P.No.14 of 2007 in OP.No.7 of 2005, on the file of the Court of the learned II Additional District Judge, Kadapa at Proddutur, is set aside. Consequently, E.P.No.14 of 2007 stands restored to file. The lower Court is directed to proceed with the EP regardless of the pendency or outcome of the Insolvency Petition filed by respondent No.2. Accordingly, the Civil Revision Petition is allowed. As a sequel, CMP.No.564 of 2008 is disposed of as infructuous

The Hon'ble Sri Justice C.V.Nagarjuna Reddy

Civil Revision Petition No.430 of  2008

19-01-2012

 K.Vijaya Bhaskar Reddy

The Official Receiver of Entire Kadapa District,
District Court Compound, Kadapa and another

^Counsel for the petitioner:    Mr.V.V.Subrahmanyam for Sri S.V.Bhatt

!Counsel for the respondent:    -----

? Cases referred:
1. 1998 (1) ALT 740
2. 1999 (2) ALT 305
3. 1999 (2) ALT 305

Order:
Feeling aggrieved by Order, dated 20-12-2007, in E.P.No.14 of 2007 in OP.No.7 of
2005, on the file of the learned II Additional District Judge, Kadapa at
Proddatur, the present Civil Revision Petition is filed by the petitioner.
The petitioner, who is a mortgagee, secured a decree for recovery of certain
amounts from respondent No.2 in OS.No.7 of 2005.  In order to execute the said
decree, the petitioner filed EP.No.14 of 2007.  While the said EP was pending,
respondent No.2 instituted insolvency proceedings, under the provisions of the
Provincial Insolvency Act, 1920 (for short 'the Act') in the Court of the
learned Senior Civil Judge, Rayachoty, which was registered as IP.No.5 of 2002.
The Court below, by its Order, which is assailed in this Civil Revision
Petition, closed the EP on the ground that the Insolvency Petition filed by
respondent No.2 is pending and that the petitioner shall appear before the
Court, in which the Insolvency Petition is pending, and make his claim before
the Official Receiver.  While so holding, the lower Court has raised the
attachment.
At the hearing, Mr.V.V.Subrahmanyam, learned Counsel, representing Sri
S.V.Bhatt, learned Counsel for the petitioner, submitted that the lower Court
has committed a serious error of jurisdiction in raising the attachment and
closing the EP.  He placed reliance on the provisions of Section 28 (6) of the
Act to bring home his submission that, being secured creditor, the petitioner is
entitled to execute the decree obtained by him without reference to the
insolvency proceedings.  In support of his submission, the learned Counsel
placed reliance on the judgments of this Court in Kadimsetti Somaraju vs.
Chekker Lakshmi Satyanarayana1, Vasavi and Company vs.  Nampally Padma2  and    
Kolla Subbaiah vs.  Nerella Chandrasekhara Rao3.
At the hearing, there is no representation for respondent No.2-judgment debtor.
Section 28 of the Act deals with the effect of an order of adjudication.  This
provision adumbrates that, on the making of an order of adjudication, the whole
of the property of the insolvent shall vest in the Court or in a Receiver, and
shall become divisible among the creditors, and thereafter, except as provided
by the Act, no creditor to whom the insolvent is indebted in respect of any debt
provable   under this Act shall during the pendency of the insolvency
proceedings shall have any remedy against the property of the insolvent in
respect of the debt or commence any suit or other legal proceedings, except with
the leave of the Court and on such terms as the Court may impose.
Sub-Section 6 of Section 28, however, carved out an exception in respect to the
right of the secured creditor to realize or otherwise deal with security in the
same manner as he would have been entitled to realize or deal with it if Section
28 has not been enacted.
In the instant case, it is not in dispute that the petitioner is a secured
creditor being a mortgagee.  A perusal of decree, dated
16-03-2007, shows that the same is in the nature of a mortgage decree.
Therefore, the petitioner falls within the exception carved out to Section 28 of
the Act.  This Court, in the judgments referred to above, has held in no
uncertain terms that a secured creditor is entitled to recover the money payable
under a decree notwithstanding pendency of insolvency petition under the Act.
The Court below has, therefore, committed serious jurisdictional error in
raising the attachment and closing the EP.
In the premises as above, Order, dated 20-12-2007, in E.P.No.14 of 2007 in
OP.No.7 of 2005, on the file of the Court of the learned II Additional District
Judge, Kadapa at Proddutur, is set aside.  Consequently, E.P.No.14 of 2007
stands restored to file.  The lower Court is directed to proceed with the EP
regardless of the pendency or outcome of the Insolvency Petition filed by
respondent No.2.
Accordingly, the Civil Revision Petition is allowed.
As a sequel, CMP.No.564 of 2008 is disposed of as infructuous.
______________________  
(C.V.Nagarjuna Reddy, J)
19th January, 2012

RESERVING A RIGHT TO ADDUCE REBUTAL EVIDENCE MUST BE DONE BEFORE THE COMMENCEMENT OF THE DEFENDANT'S EVIDENCE=The Judgment in S. Chandra Keerti (1-supra) does not help the petitioner, because, in that case, it was held that that when the law does not prescribe a stage at which a party should apprise the Court of his exercising the option under Rule 3 of Order XVIII of the Code, it is reasonable that the same should be done before he begins to adduce his evidence and in any case before the other party begins his evidence so that it might be borne in mind that the party beginning has not closed his evidence. Even this Judgment recognized the right of the plaintiff to reserve his right to lead further evidence after closure of the evidence of the defendant. All that the said Judgment laid down was that such an option should be exercised by the plaintiff before the defendant begins his evidence. In the present case, it is not the pleaded case of the petitioner that the respondent has exercised such an option before the petitioner commenced his evidence. For the above mentioned reasons, I do not find any merit in the Civil Revision Petition and the same is accordingly dismissed. As a sequel, CRP.M.P.No.7250/2011 is disposed of as infructuous.

HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY        

C.R.P.No.5110 of 2011

20-1-2012

Mangala Pagadala Subbamma    

M. Narayanappa

 Counsel for petitioner : Sri N. Aswarthanarayana

 Counsel for respondent : --

?CASES REFERRED:    
1. AIR 1971 Mysore 17


ORDER:
        This Civil Revision Petition arises out of order dated 23-6-2011 of the
learned Junior Civil Judge, Dharmavaram whereby he has allowed the Memo filed by
the respondent, who is the plaintiff in O.S.No.73/2008, to close the evidence on
his side reserving his right to let in further evidence after the petitioner-
defendant completing his evidence.
        I have heard Sri N. Aswarthanarayana, learned counsel for the petitioner
and perused the record.
        The respondent filed the above mentioned suit for declaration of his title
to the suit property against the petitioner.  After adducing evidence on his
side, the respondent filed the above mentioned Memo with a request to the Court
below to close the evidence on his side with liberty to him to lead further
evidence after completion of the rebuttal evidence of the petitioner.  The
learned counsel appearing for the petitioner before the Court below has taken
notice of the said Memo on 9-6-2010, but no counter-affidavit was filed opposing
the same.  The Court below, by the order under revision, allowed the said Memo
filed by the respondent.  The petitioner filed the present Civil Revision
Petition assailing the said order.
        At the hearing, the learned counsel for the petitioner submitted that the
order allowing the Memo filed by the respondent is contrary to the procedure
stipulated under Order XVIII Rules 1 and 2 of the Code of Civil Procedure, 1908
(for short "the Code").  In support of his submission, the learned counsel
placed reliance on the Judgment in       S. Chandra Keerti Vs. Abdul Gaffar1.
        Order XVIII Rule 1 of the Code confers right on the plaintiff to begin the
case unless the defendant admits the facts alleged by the plaintiff and contends
that either in point of law or on some additional facts alleged by the
defendant, the former is not entitled to any part of the relief which he seeks
and in which case the latter has the right to begin the case.  Rule 2 of Order
XVIII of the Code sets out the sequence in which the parties have to proceed
with the case by producing evidence.  Under this provision, the plaintiff has to
begin the case and produce his evidence and thereafter the opposite party shall
state its case and produce evidence, with the party beginning the case having
the right to reply.  Rule 3 of Order XVIII of the Code, however, carves out an
exception.  It postulates that where there are several issues and the burden of
proving the same lies on the other party, the party beginning may, at his
option, either produce his evidence on those issues or reserve it by way of
answer to the evidence produced by the other party and in such a case the party
beginning may produce evidence on those issues after the other party has
produced all his evidence and the other party may, then reply specifically on
the evidence so produced by the party beginning; but the party beginning will
then be entitled to reply generally on the whole case.
        While the right of the plaintiff to begin the case is conferred by the
provisions of Order XVIII of the Code, as noted above, Rule 3 thereof, operates
as an exception to the same.  Therefore, whether a case falls under Rule 3 or
not depends upon the issues arising therein.  In the instant case, when the
respondent made a request by way of a Memo to allow him to close his evidence
with liberty to adduce further evidence depending upon the rebuttal evidence
that may be produced by the petitioner, the latter has not raised an objection
by filing a counter-affidavit.  Unless the petitioner has contested the Memo
filed by the respondent and pleaded that the case does not fall under Rule 3 of
Order XVIII of the Code, it is not permissible for her to challenge the decision
of the Court below.
        The Judgment in S. Chandra Keerti (1-supra) does not help the petitioner,
because, in that case, it was held that that when the law does not prescribe a
stage at which a party should apprise the Court of his exercising the option
under Rule 3 of Order XVIII of the Code, it is reasonable that the same should
be done before he begins to adduce his evidence and in any case before the other
party begins his evidence so that it might be borne in mind that the party
beginning has not closed his evidence.  Even this Judgment recognized the right
of the plaintiff to reserve his right to lead further evidence after closure of
the evidence of the defendant.  All that the said Judgment laid down was that
such an option should be exercised by the plaintiff before the defendant begins
his evidence.  In the present case, it is not the pleaded case of the petitioner
that the respondent has exercised such an option before the petitioner commenced
his evidence.
        For the above mentioned reasons, I do not find any merit in the Civil
Revision Petition and the same is accordingly dismissed.
        As a sequel, CRP.M.P.No.7250/2011 is disposed of as infructuous.
________________________  
Justice C.V. Nagarjuna Reddy
Date : 20-1-2012

LESS ATTENDANCE IN COLLEGE DEBARS FROM WRITING EXAMS=The petitioner by the time of filing of the Writ Petition was in IV year 1st semester B.Tech (Bio-technology) course studying in the 2nd respondent's college i.e. Sreenidhi Institute of Science and Technology, Ghatkesar, Hyderabad, which is affiliated to 1st respondent University. She was not allowed to take IV year 1st semester examinations scheduled from 08.11.2010, on the ground that she was not having required percentage of attendance.

THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU          

WRIT PETITION No.27426 of 2010

20.01.2012

Ms.Udari Lata Maisaiah

The Jawaharlal Nehru Technological University & another

Counsel for the Petitioner: Sri Parsa Anantha Nageswara Rao

Counsel for Respondent No.1: K.Rathanga Pani Reddy

^Counsel for Respondent No.2: Mohan Vinod & Associates

? Cases referred:
2008 (2) ALT 529 (D.B.)

ORDER:

The petitioner by the time of filing of the Writ Petition was in IV year 1st
semester B.Tech (Bio-technology) course studying in the 2nd respondent's college
i.e. Sreenidhi Institute of Science and Technology, Ghatkesar, Hyderabad, which
is affiliated to 1st respondent University.  She was not allowed to take IV year
1st semester examinations scheduled from 08.11.2010, on the ground that she was
not having required percentage of attendance.  Questioning the same, the
petitioner approached this Court with this Writ Petition under Article 226 of
the Constitution of India seeking 'Writ of Mandamus.' At the outset, Sri L.Ravi
Chander, advocate who submitted arguments on behalf of the petitioner, fairly
conceded that in case the petitioner did not have 65% of attendance, then she is
not eligible for appearing for the examinations and that the petitioner has no
remedy before this Court.
2.      The 1st respondent's counsel placed reliance on B.Yugandhar Vs. Principal,
Kuppam Engineering College, Kuppam, Chittoor District1 of this Court, wherein
Division Bench of this Court while confirming order passed by Single Judge of
this Court in a Writ Petition held that no direction can be given to the
University to violate mandate of academic regulations on a plea of sympathy.
Therefore, it has to be seen whether the petitioner's case falls within academic
regulations of the University for the course.

3.      Academic regulations of Bio Medical Engineering for B.Tech 4 year degree
course of the 1st respondent University prescribe regulations regarding
attendance to the following effect:
"6.     Attendance:

(i) A student has to put in a minimum of 75% of attendance in aggregate of all
the subjects for acquiring credits in the I year and/or each semester
thereafter.
(ii) Condonation of shortage of attendance in aggregate upto 10% (65% and above
and below 75%) in each semester or I year may     be granted by the college
academic committee.
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------
(vi) Condonation of shortage of attendance as stipulated in 6(ii) above shall be
granted on genuine and valid grounds with supporting evidence."

4.      It is contended for the petitioner that the petitioner did project work
from 10.06.2010 to 30.07.2010 in Centre for Liver Research and Diagnostics and
that if the said period is taken into account as attendance, since doing mini
project work is part of academic regulations of the course, then the petitioner
will fall within regulation 6(ii) of the above regulations.

5.      As per contention of the petitioner in the affidavit filed in support of
this petition, the petitioner had put up 52.95% of attendance.  But, the 1st
respondent in the counter averred that the petitioner was having 62% of
attendance for that semester in question.  It is stated by the Standing Counsel
for the 1st respondent that if presumptive attendance is given for the candidate
for preparation holidays, etc., then  total percentage of the petitioner's
attendance comes to 62%.  Since the percentage of attendance given by the 1st
respondent is beneficial to the petitioner, the petitioner's attendance is taken
as 62% during the relevant semester.

6.      In Para 3 of the affidavit filed in support of this petition, it is
pleaded by the petitioner that she completed her project work in Owaisi Hospital
for the duration of 01.06.2010 to 11.07.2010.  Contrary to the said averment in
the petitioner's affidavit, certificate is filed by the petitioner from
Scientist and Lab Supervisor of Centre for Liver Research and Diagnostics, to
the effect that the petitioner completed the project work at that center and
Allied Hospitals in Kanchanbagh, Hyderabad, under his guidance and supervision
from 10.06.2010 to 30.07.2010.  The said certificate is filed along with
W.P.M.P.No.22589 of 2011 in this Writ Petition.  It is evident that the
petitioner is going on changing her stand from stage to stage and going on
giving dates of her choice which are suitable to her case.  Inspite of filing
the said certificate, it is not the petitioner's allegation in any affidavit
that she did project work from 10.06.2010 to 30.07.2010.  To repeat, as per Para
3 of the affidavit filed in support of this Writ Petition, she did  project work
and completed the same during the period from 01.06.2010 to 11.07.2010.  The
period of 01.06.2010 to 11.07.2010 falls within summer vacation.  Any alleged
project work stated to have been done by the petitioner during summer vacation
cannot be taken into consideration for reckoning attendance to classes.
According to the petitioner, as alleged in Para 4 of the affidavit filed in
support of the Writ Petition, she was suffering from viral fever from 12.07.2010
to 31.07.2010.  It is contended for the petitioner that in case it is relegated
to the academic counsel of the 1st respondent-University to consider whether the
period from 12.07.2010 to 31.07.2010 has to be reckoned as attendance to the
classes, then it will help the petitioner in case the said period is reckoned as
attendance to classes.  As per Regulation 6(vi), the University has power to
condone shortage of attendance as stipulated in Regulation 6(ii) for genuine and
valid grounds with supporting evidence.  Condonation of shortage of attendance
as per Regulation 6(ii) arises only to the extent of aggregate upto 10% i.e. 65%
and above and below 75%.  In this case, the petitioner as per her case was
having 52.95% of attendance and as per the 1st respondent's case was having 62%
of attendance.  In any event, Regulation 6(vi) cannot be invoked either by the
petitioner or by the University authorities for condonation of attendance, since
the petitioner's attendance is admittedly below 65%.  Therefore, both on facts
as well as on Rule position, the 1st respondent has no jurisdiction to consider
condonation of attendance of the petitioner; and the question of relegating the
decision to the University authorities in this case will not arise.  In the
circumstances, the petitioner has no right and is not eligible for attending IV
year 1st semester examinations of B.Tech course.

7.      Accordingly, the Writ Petition is dismissed.  No costs.
______________________________  
JUSTICE SAMUDRALA GOVINDARAJULU        
Dt:20.01.2012

Delay in fling cheque bounce complaint = But the acknowledgment card evidencing the receipt of the notice by the accused was not received by the petitioner and he has preferred complaints before the postal authorities and made personal enquiries also. He obtained a letter on 16/4/2005 from the Manager, Customer Care center, Ernakulam whereby he was informed that the matter is being enquired into. Subsequently, he persuaded the matter through his lawyer by filing complaint on 04/05/2005 to the Senior Superintendent of Post Offices, Ernakulam. Then on 28/5/2005, he received a letter from the Customer Care centre, Ernakulam that the registered letter issued to the accused was delivered on 01/03/2005. After receipt of information from the postal authorities that the notice was delivered to the accused on 01/03/2005 which was intimated to the complainant only on 28/5/2005, the complaint was filed before the concerned court on 02/06/2005 along with petition to condone the delay. 4. As per the proviso to Section 142(b) of the N.I.Act which was inserted by Act 55 of 2002 came into effect from 06/02/2003, cognizance of a complaint under Section 138 of the Negotiable Instruments Act may be taken by the court even after Crl.R.P.No.2043/2005 3 the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making the complaint within the period specified in Section 142(b). In the present case sufficient reasons for the delay in filing the complaint were specifically stated by the petitioner in the affidavit filed in support of the petition. But the learned Chief Judicial Magistrate mistakenly overlooked the reasons stated therein and also the amended provisions of Section 142(b). It is not proper rather justifiable to dismiss the complaint for the fault on the part of the postal department and without any willful default on the part of the petitioner/complainant.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2043 of 2005()


1. KARUNAKARAN, S/O. VELU,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

2. SUNILKUMAR, S/O. KUMARAN,

                For Petitioner  :SRI.P.N.SUKUMARAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :22/06/2011

 O R D E R
                            M.C.HARI RANI, J
                            * * * * * * * * * * * *
                     Crl.R.P.No.2043 of 2005
                    ----------------------------------------
               Dated this the 22nd day of June 2011

                               O R D E R

      Petitioner  in    Crl.M.P.No.2678/2005                is the revision

petitioner. That petition was filed to condone the delay of 46

days in lodging the complaint. The complaint was filed under

Section 138 of the Negotiable Instruments Act. The learned

Chief Judicial Magistrate, Ernakulam dismissed the petition as

per order dated 08/07/2005. That order is challenged by the

revision petitioner by filing this revision petition.

      2.    Heard the learned counsel for the revision petitioner

and the learned Public Prosecutor.

      3.    The learned counsel for the revision petitioner

contended that the reasons for the delay in filing the complaint

were properly explained by the petitioner in the affidavit filed in

support of the petition which were not considered by the learned

Magistrate in a proper perspective which lead to miscarriage of

justice. It was sworn in the affidavit that after the receipt of the

dishonoured memo from the bank, he send a registered notice to

the accused on 26/2/2005 through the Head Post Office,

Crl.R.P.No.2043/2005             2


Ernakulam.        But the acknowledgment card evidencing the

receipt of the notice by the accused was not received by the

petitioner and he has preferred complaints before the postal

authorities and made personal enquiries also. He obtained a

letter on 16/4/2005 from the Manager, Customer Care center,

Ernakulam whereby he was informed that the matter is being

enquired into. Subsequently, he persuaded the matter through

his lawyer by filing complaint on 04/05/2005 to the Senior

Superintendent of Post Offices, Ernakulam. Then on 28/5/2005,

he received a letter from the Customer Care centre, Ernakulam

that the registered letter issued to the accused was delivered on

01/03/2005.       After receipt of information from the postal

authorities that the notice was delivered to the accused on

01/03/2005 which was intimated to the complainant only on

28/5/2005, the complaint was filed before the concerned court on

02/06/2005 along with petition to condone the delay.

      4.     As per the proviso to Section 142(b) of the N.I.Act

which was inserted by Act 55 of 2002 came into effect from

06/02/2003, cognizance of a complaint under Section 138 of the

Negotiable Instruments Act may be taken by the court even after

Crl.R.P.No.2043/2005             3


the prescribed period, if the complainant satisfies the court that

he had sufficient cause for not making the complaint within the

period specified in Section 142(b). In the present case sufficient

reasons for the delay in filing the complaint were specifically

stated by the petitioner in the affidavit filed in support of the

petition. But the learned Chief Judicial Magistrate mistakenly

overlooked the reasons stated therein and also the amended

provisions of Section 142(b). It is not proper rather justifiable to

dismiss the complaint for the fault on the part of the postal

department and without any willful default on the part of the

petitioner/complainant.

      5.     Accordingly, I found that this Court should definitely

interfere with the order passed by the learned Chief Judicial

Magistrate in Crl.M.P.No.2678/2005 and that order is set aside.

The matter is remanded to the court of the Chief Judicial

Magistrate, Ernakulam and is directed to proceed with the

complaint in accordance with law. The complainant shall appear

before that court on 25/7/2011.

                                      (M.C.HARI RANI, JUDGE)

jsr
             // True Copy//     PA to Judge

Crl.R.P.No.2043/2005    4

Crl.R.P.No.2043/2005    5

Crl.R.P.No.2043/2005    6

Crl.R.P.No.2043/2005    7




                                M.C.HARI RANI, J




                             Crl.R.P.No.504 of 2001




                                          ORDER




                            17th DAY OF JUNE 2001

Crl.R.P.No.2043/2005    8

THE ACCUSED PROVED THAT THE CHEQUE WAS OBTAINED BY FORCE=18. It is also pertinent to note that the petitioner herein/accused, complaining harassment at the instance of the respondent herein/complainant by the police personnel, filed a petition seeking anticipatory bail before this court in Crl.O.P.No.8913/2006 and the same was dismissed based on the representation of the police that the complaint was treated as a petition and the same was closed on 12.04.2006 itself after enquiry. A certified copy of the order passed by this court on 17.04.2006 in the above said Criminal Original Petition has been produced and marked as Ex.D1. After having the said anticipatory bail petition dismissed on the premise that no case was pending as the complaint itself was closed after enquiry, the respondent herein/complainant seems to have waited for four more months, then presented the cheque for collection and thereafter preferred the private complaint for the offence under Section 138 of the Negotiable Instruments Act, 1881. In this regard, no acceptable explanation explaining the sequence of the said events is forthcoming from the respondent herein/complainant. On the other hand, the petitioner herein/accused has come forward with an explanation that, since it was represented by the police before the High Court itself that the complaint had been closed after enquiry and the Assistant Commissioner of Police promised him to get back the cheque in question, he did not prefer any complaint against the police personnel and did not issue any notice. It is true that for the statutory notice issued by the respondent herein/complainant under Ex.P4, the petitioner herein/accused did not issue any reply. The mere fact that no reply was issued, will not amount to an admission of the case of the respondent herein/complainant. 20. In the result, the Criminal Revision Case succeeds and the conviction recorded and the sentence imposed by the trial court and confirmed by the lower appellate court, for the offence under Section 138 of the Negotiable Instruments Act, 1881, is hereby set aside. The petitioner herein/accused is acquitted of the offence with which he stood charged. The fine amount paid, if any, is to be refunded to him. Consequently, the connected Criminal Miscellaneous Petitions are closed.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :  11.03.2011

CORAM

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

Crl.R.C.No.972 of 2010
and
M.P.Nos.1 and 2 of 2010


D.Karthikeyan .. Petitioner

Vs

M.Selvaraj .. Respondent


PRAYER: Criminal Revision Case filed under Sections 397 r/w 401 of Cr.P.C. to set aside the judgment dated 16.08.2010 made in C.A.No.46 of 2008 on the file of the Additional District Sessions Judge (Fast Track Court No.2), Poonamallee confirming the order of conviction dated 29.10.2008 made in C.C.No.693/2006 on the file of the Judicial Magistrate No.II, Poonamallee and acquit the petitioner/accused herein.


For Petitioner :  Mr.A.Laxmi Raj Rathnam

For Respondent :  Mr.C.N.Raman
-----

O R D E R
The accused in C.C.No.693/2006 on the file of the learned Judicial Magistrate No.II, Poonamallee, a case instituted on a private complaint for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, which ended in conviction resulting in the imposition of a sentence of six months simple imprisonment and a fine of Rs.5,000/- and a simple imprisonment for two months in case of default in payment of fine, which also came to be confirmed by the appellate court, namely the Additional District and Sessions Judge (Fast Track Court No.2), Poonamallee in C.A.No.46/2008, has come forward with the present Criminal Revision Case questioning the correctness and legality of the said judgment of the appellate court confirming the conviction recorded and sentence awarded by the trial court.

2. The respondent herein preferred a complaint on the file of the learned Judicial Magistrate No.II, Poonamallee, making the following allegations:

The respondent herein/complainant lent a sum of Rs.4,30,000/- to the petitioner herein/accused on 18.12.2004 on behalf of the son of the respondent herein for the supply of kunnam granite stones for which the petitioner herein/accused issued a valid receipt on the said date itself in favour of M/s.Andavar Granites, run by the son of the respondent herein/complainant.  After receiving the said amount, the petitioner herein/accused supplied granite stones to the tune of Rs.2,10,860/- alone.  For the balance amount, namely Rs.2,19,140/-, the petitioner herein/accused did not supply granite stones as agreed to. When repeated demands were made, the petitioner herein/accused issued a cheque bearing cheque No.717982 dated 27.03.2006 in favour of the respondent herein/complainant drawn on Corporation Bank, Indira Nagar branch, Chennai-20. As requested by the petitioner herein/accused, the same was not presented till 20th of August 2006 and only thereafter the cheque was presented for collection through Canara Bank, Poonamallee branch, Chennai 56 on 22.08.2006, but the same was returned dishonoured on 23.08.2006 with an endorsement "insufficient funds".  After receiving the intimation from the banker on 24.08.2006, within a period of one week i.e. on 01.09.2006 itself, the respondent/complainant caused the issuance of a statutory notice calling upon the petitioner herein/accused to pay the cheque amount within 15 days of the receipt of the said notice.  Though the petitioner herein/accused received the said notice on 04.09.2006, the demand made in the said notice was not complied with.  Therefore, the petitioner herein/accused was liable to be punished for committing an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

3. The said private complaint was taken on file as C.C.No.693 of 2006 on the file of the learned Judicial Magistrate No.II, Poonamallee, after following the procedure for taking cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and process came to be issued to the petitioner herein/accused.  On appearance, the petitioner herein/accused denied having committed any such offence as alleged in the complaint and hence a trial was conducted, in which the respondent herein/complainant figured as the sole witness (P.W.1) and produced eight documents as Exs.P1 to P8 on his side.  After the completion of recording of the evidence on the side of the respondent herein/complainant, the attention of the petitioner herein/accused was drawn to the incriminating materials found in the evidence adduced on the side of the complainant and he was examined under Section 313(1)(b) of Cr.P.C.  The petitioner herein/accused denied the evidence to be false and once again reiterated his stand that he was not guilty of the offence alleged.  The petitioner herein/accused  figured as the sole witness (D.W.1) and two documents were marked as Exs.D1 and D2 on his side.

4. After the evidence on the side of the accused was over, the learned Judicial Magistrate No.II, Poonamallee heard the arguments and considered the evidence and upon such consideration, came to the conclusion that the respondent herein/complainant had proved the charge, against the petitioner herein/accused, of having committed the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.   Accordingly, the learned Judiial Magistrate No.II, Poonamallee, convicted the petitioner herein/accused for the said offence and imposed a sentence of simple imprisonment for six months and a fine of Rs.5,000/-.  A default sentence of two months simple imprisonment has also been imposed in case of default in payment of fine.

5. The said judgment of the trial court was challenged before the Additional District and Sessions Judge (Fast Track Court No.2), Poonamallee in C.A.No.46/2008, both in respect of conviction and sentence. The learned Additional District and Sessions Judge (Fast Track Court No.2), Poonamallee, concurred with the view taken by the trial court, confirmed the judgment of the trial court regarding  conviction as well as the sentence and ultimately dismissed the appeal. Therefore, the petitioner has approached this court by filing the present Criminal Revision Case under Section 397 Cr.P.C questioning the correctness and legality of the judgment of the appellate court confirming the conviction recorded and sentence awarded by the trial court.

6. This court heard the arguments advanced by Mr.A.Laxmi Raj Rathnam,learned counsel for the petitioner and by Mr.C.N.Raman, learned counsel for the respondent/complainant.  The copy of the judgments of the trial court as well as the lower appellate court and the other materials available on record were also perused by this court.

7. After suffering a conviction for an offence under Section 138 of the Negotiable Instruments Act,1881 in the hands of the trial court, which came to be confirmed by the appellate court, the petitioner herein/accused has filed the present Criminal Revision Case.  Of course the present Criminal Revision Case has been filed against the concurrent findings of the courts below. Though the power of revision is conferred on the High Court and the Sessions Judge under Section 397 Cr.P.C, Section 401 of Cr.P.C makes it abundantly clear that the High Court, while exercising the revisional power, can exercise any of the powers conferred on a court of appeal, with only one restriction that by the exercise of the revisional power, it cannot convert a finding of acquittal into one of conviction.  But the converse is permissible.  As the High Court in exercise of its power of revision is conferred with all the powers conferred on a court of appeal, it has to re-appraise the evidence and arrive at a decision as to whether the judgment of the courts below, against which the revision has been filed can legally be sustained.  Only in case of an appeal against acquittal or a revision against acquittal, the presumption of innocence shall stand doubly strengthened. But, no such presumption in favour of the prosecution or complainant shall be available in case of an appeal or revision against conviction.  Keeping the above said legal proposition in mind, the sustainability of the conviction recorded by the trial court and confirmed by the appellate court has to be considered.

8. The learned counsel for the petitioner submitted that the judgment of the lower appellate court confirming the conviction recorded and the sentence awarded by the trial court could not be sustained in law; that the trial court and the appellate court had not properly appreciated the evidence adduced on both sides; that the courts below failed to consider the fact that the petitioner herein/accused was able to rebut the presumption contemplated in Section 139 of the Negotiable Instruments Act, 1881 and thereby the burden of proving the case of the complainant beyond reasonable doubt, stood recast on the complainant; that the courts below failed to note that the proof required to be made by the accused to rebut the presumption is not a proof beyond reasonable doubt and that if the accused is able to prove his defence theory by preponderance of probabilities, the same would be enough to shift the burden and cast the burden of proof of the complaint allegations beyond reasonable doubt on the complainant and that the courts below, without properly appreciating material evidence, had chosen to arrive at a mechanical conclusion that the petitioner herein/accused had committed the offence under Section 138 of the Negotiable Instruments Act, 1881.

9. Per contra, the learned counsel for the respondent would contend that both the courts below meticulously analysed the evidence and arrived at a concurrent finding holding the petitioner herein/accused guilt of the offence under Section 138 of the Negotiable Instruments Act, 1881; that no defect or infirmity could be found in them and that therefore the Revision should be dismissed holding that the same does not have any merit in it.

10. This court paid its anxious considerations to the above said submissions made on either side.

11. It is not in dispute that the cheque produced in this case as Ex.P1 before the trial court is one pertaining to the account maintained by the petitioner herein/accused in Corporation Bank, Indira Nagar branch, Chennai-20.  It is also not in dispute that the signature found therein is that of the petitioner herein/accused.  It is also not in dispute that the cheque in question was issued in the name of the respondent herein/complainant.  The respondent herein/ complainant has also proved by adducing oral and documentary evidence that, the cheque when presented for collection, was returned unpaid with an endorsement "funds insufficient".  The memo issued by the bank returning the cheque unpaid, citing insufficient funds as the reason for such dishonour has been marked as Ex.P2.  Debit Advice issued by the banker of the respondent herein/complainant pursuant to the dishonour of the said cheque has been marked as Ex.P3.  The Return Memo is dated 23.08.2006.  The Debit Advice is dated 24.08.2006.  Within a period of one month from the date of receipt of the intimation regarding the dishonour of the cheque, the respondent herein/complainant seems to have issued statutory notice contemplated under Section 138 of the Negotiable Instruments Act, 1881 and a copy of the same has been marked as Ex.P4.  Since the acknowledgment for the said notice sent on Registered Post was not received, the petitioner herein/complainant seems to have issued a letter to the Postmaster, Poonamallee Post Office on 18.09.2006, a copy of which has been marked as Ex.P5.  Thereafter, Ex.P6 - letter dated 16.10.2006 came to be received by the counsel for the respondent herein/complainant informing that the notice was served on the petitioner herein/accused on 04.09.2006 by Adyar Post Office.  After receipt of the said letter, the private complaint came to be filed on 18th October 2006.  As per Ex.P6, the statutory notice was served on the petitioner herein/accused on 04.09.2006.  15 days time expired on 19.09.2006.  Within a month therefrom the complaint happened to be filed.  Therefore, there cannot be any dispute that the complaint was filed within time stipulated in Section 138 of the Negotiable Instruments Act, 1881. Since the cheque in question is admitted to be one issued by the petitioner herein/accused and the same was drawn on Corporation Bank, Indira Nagar branch, Chennai-20 in respect of an account maintained by the petitioner herein/accused, the presumption contemplated under Section 138 of the Negotiable Instruments Act, 1881 that the cheque was received by the respondent herein/complainant in discharge of a debt or other liability in part or whole stands attracted.  When the presumption under Section 139 of the Negotiable Instruments Act, 1881 is attracted, then the burden shall be shifted on the accused to prove the contrary, namely that the cheque was not issued for the discharge of a debt or other liability.

12. In this case, the petitioner herein/accused has taken a categorical plea that there was no transaction between the petitioner herein/accused and the respondent herein/complainant; that for a sum of Rs.4,30,000/- received by the petitioner herein/accused from Andavar Granites, he had issued a receipt; that subsequently on completion of supply of granite stones to the above said amount, the said receipt was returned by Andavar Granites to the petitioner herein/accused; that thereafter the respondent herein/complainant, taking advantage of his acquaintance with the police officials as he himself was a retired police personnel, gave a complaint to the police on 29.03.2006 and an ante-dated cheque was obtained by duress as if the same was issued on 27.03.2006; that thereafter the petitioner herein/accused approached this court for the relief of anticipatory bail and all the above said facts had been set out in the petition seeking anticipatory bail; that before the High Court, in the anticipatory bail petition, it was informed by the police that the case was closed and hence the anticipatory bail petition was dismissed as unnecessary and that only thereafter using the above said cheque extracted with the help of the police, the present complaint has been preferred by the respondent herein/complainant.

13. In this regard, certain important aspects have been pointed out by the learned counsel for the petitioner herein/accused, which could be seen in the following discussions.  The respondent herein/complainant himself, in his complaint, has not stated that he lent any amount to the petitioner herein/accused and in repayment of the said loan the said cheque in question was issued.  On the other hand, the case of the respondent herein/complainant himself is that a sum of Rs.4,30,000/- was paid to the petitioner herein/accused for supplying granite stones to Andavar Granites, which was run by the son of the respondent herein/complainant.  It is the further averment made in the complaint that, out of the above said sum of Rs.4,30,000/-, granite stones worth Rs.2,10,000/- had been supplied and since granite stones for the balance amount could not be supplied, the petitioner herein/accused issued Ex.P1 -  in favour of the respondent herein/complainant. When it is the case of the complainant that a receipt was issued for the entire amount paid on behalf of Andavar Granites, it is quite improbable that a cheque would have been issued in favour of the respondent herein/complainant rather than Andavar Granites for the balance amount after deducting the value of granites supplied to it.  It is also pertinent to note that, though the respondent herein/complainant might have stated that the receipt for a sum of Rs.4,30,000/- issued by the petitioner herein/accused in favour of Andavar Granites was available with the complainant and the same was being produced, in fact the receipt in original has not been produced and only a xerox copy of the same has been produced.  On the other hand, it is obvious from the fact that the said original was produced as Ex.D2 by the petitioner herein/accused and that the said receipt was not available either with Andavar Granites or with the respondent herein/complainant on the date of filing of the complaint.  The said receipt dated 18.12.2004 issued by the petitioner herein/accused in favour of M/s.Andavar Granites, admitting the receipt of Rs.4,30,000/- as advance for the supply of granites on behalf of M/s.Sokar Product (Pvt.) Ltd. signed by the petitioner herein as Managing Director, has been produced by the petitioner herein/accused and marked as Ex.D2.  Of course, it is true that there is nothing in Ex.D2 to show that the receipt was cancelled and handed over to the petitioner herein/accused. On the other hand, it shall be quite obvious to note that the respondent herein/complainant himself has produced Ex.P7 as the receipt issued by the petitioner herein/accused for the receipt of the above said amount (Rs.4,30,000/-) towards advance for the supply of granites to M/s.Andavar Granites.  A comparison of Ex.P7 with Ex.D2 will show that Ex.P7 is nothing but the xerox copy of Ex.D2, which is the original.  No explanation has been given in the complaint as to how the original receipt came to be in the hands of the petitioner herein/accused.  Even in the chief examination evidence of P.W.1, in the form of proof affidavit, nothing has been mentioned about the circumstances under which the original receipt came to be handed over to the petitioner herein/accused.

14. On the other hand, during cross-examination, P.W.1 made an attempt to show that the receipt was handed over to the petitioner herein/accused when he issued Ex.P1 - cheque.  The same is a new case sought to be put forward as an afterthought.  Ex.P7 was introduced only during the cross-examination of D.W.1.  On his admission only Ex.P7 was marked.  As pointed out supra, Ex.P7 is not the original and it is only a xerox copy.  On the other hand, the original of Ex.P7 was available with the petitioner herein/accused and the same was produced by him and marked as Ex.D2. The same will make probable the case of the petitioner herein/accused that for the entire amount covered by Ex.D2-receipt, granite stones were supplied and only on completion of such supply, the receipt was returned to the petitioner herein/accused.

15. It is the clear case of the petitioner herein/accused that the son of the respondent herein/complainant, who was running Andavar Granites, has refused to take delivery of the granite stones which were made ready for being delivered to them, on the contention that the stones were not up to the standard expected by them; that subsequently, when the petitioner herein/accused had made arrangements for selling the said granite stones to another company, Andavar Granites people again wanted to take delivery of those granite stones which were sought to be rejected by them earlier; that even at that point of time, the people of M/s.Andavar Granites insisted upon a condition that all the granite stones excavated by the petitioner's company in his quarry should be supplied only to Andavar Graites; that under such circumstances company run by the petitioner herein/accused supplied balance granite stones and thus made the supplies to cover the total amount covered by Ex.D2-receipt and received back Ex.D2-receipt and that thereafter, the petitioner's company closed its business with Andavar Granites and that the same happened to be the reason for extracting the cheque from the petitioner herein/accused with the help of the police personnel and filing the false complaint.

16. Apart from the fact that the presence of original receipt in the hands of the petitioner herein/accused would make the defence theory of the petitioner herein/accused probable,  there are also other factors, which will go to show that the case of the petitioner herein/accused is probable.  Admittedly, the respondent herein/complainant lodged a complaint with police and the police conducted an enquiry.  The said complaint was lodged on 29.03.2006. P.W.1 himself, during cross-examination, has admitted that he lodged a complaint with the police in the Office of the Commissioner of Police on 29.03.2006.  It is pertinent to note that, according to P.W.1's version, for the balance amount after deducting the value of the granite stones supplied from the amount covered by the receipt, Ex.P1 - cheque was issued by the petitioner herein/accused on 27.03.2006 itself. If it was so, there would not have been any necessity to lodge a complaint with the police within two days thereafter, namely on 29.03.2006.  What were the contents of the complaint, is not known.  Copy of the complaint has not been produced by the respondent herein/complainant.  Admittedly, no FIR was registered based on the said complaint.  Had an FIR been registered, then the petitioner herein/accused would have got a copy of the FIR and he would be in a position to produce the same to show under what circumstances and with what averments the complaint was given.  On the other hand, the evidence of P.W.1 goes contra to the pleading made in the complaint.

17. It is the further case of the complainant that the petitioner herein/accused issued Ex.P1-cheque and requested the respondent herein/complainant not to present it before 20.08.2006 and that hence the same was presented in bank for collection on 22.08.2006.  If it was so, there was no necessity for the respondent herein/complainant to lodge a complaint with the police on 29.03.2006.  The said aspect was not properly considered by the courts below.  Had it been properly considered, then the only conclusion that could have been arrived at is that the defence case of the petitioner herein/accused that the cheque was extracted from the petitioner herein/accused with the help of the police personnel using the respondent's/complainant's acquaintance with them as he himself happened to be a retired police personnel and that the cheque was thus obtained by coercion on 29.03.2006 ante-dating the same to 27.03.2006, is more probable than the complainant's version.

18. It is also pertinent to note that the petitioner herein/accused, complaining harassment at the instance of the respondent herein/complainant by the police personnel, filed a petition seeking anticipatory bail before this court in Crl.O.P.No.8913/2006 and the same was dismissed based on the representation of the police that the complaint was treated as a petition and the same was closed on 12.04.2006 itself after enquiry.  A certified copy of the order passed by this court on 17.04.2006 in the above said Criminal Original Petition has been produced and marked as Ex.D1.  After having the said anticipatory bail petition dismissed on the premise that no case was pending as the complaint itself was closed after enquiry, the respondent herein/complainant seems to have waited for four more months, then presented the cheque for collection and thereafter preferred the private complaint for the offence under Section 138 of the Negotiable Instruments Act, 1881.  In this regard, no acceptable explanation explaining the sequence of the said events is forthcoming from the respondent herein/complainant.  On the other hand, the petitioner herein/accused has come forward with an explanation that, since it was represented by the police before the High Court itself that the complaint had been closed after enquiry and the Assistant Commissioner of Police promised him to get back the cheque in question, he did not prefer any complaint against the police personnel and did not issue any notice.  It is true that for the statutory notice issued by the respondent herein/complainant under Ex.P4, the petitioner herein/accused did not issue any reply.  The mere fact that no reply was issued, will not amount to an admission of the case of the respondent herein/complainant.

19. If all the evidence, both oral and documentary, adduced on both sides, are considered in proper perspective, the only conclusion that can be arrived at is that the petitioner herein/accused has adduced more than sufficient evidence to rebut the presumption contemplated under Section 139 of the Negotiable Instruments Act, 1881; that the burden once again stands shifted on the respondent herein/complainant to prove the charge beyond reasonable doubt and that the respondent herein/complainant has failed to prove the charge beyond reasonable doubt. Not even on preponderance of probabilities the respondent/complainant has proved his case. Both the courts below have committed a grave error in not properly considering the above said aspect and hence this court does have no hesitation to hold that the conviction recorded by the trial court and its confirmation by the appellate court are infirm and defective and the same cannot be sustained.  For all the reasons stated above, this court comes to the conclusion that the the conviction of the petitioner/accused for an offence under Section 138 of the Negotiable Instruments Act, 1881 and the sentence imposed thereon do not withstand the scrutiny of this court and this court, does have no hesitation in setting aside the same.

20. In the result, the Criminal Revision Case succeeds and the conviction recorded and the sentence imposed by the trial court and confirmed by the lower appellate court, for the offence under Section 138 of the Negotiable Instruments Act, 1881, is hereby set aside.  The petitioner herein/accused is acquitted of the offence with which he stood charged. The fine amount paid, if any, is to be refunded to him.   Consequently, the connected Criminal Miscellaneous Petitions are closed.









asr/


To
1. The Additional District Sessions Judge
    (Fast Track Court No.2),
    Poonamallee

2. The Judicial Magistrate No.II,
   Poonamallee

THE NOTICNOTICE WAS ISSUED TO WHOM ? WHETHER IT IS VALID ? I49. As stated earlier, in C.A.Nos.321 and 326, the notice was issued to the tenant as well as to the drawer of the cheque, but he is described as Chairman and Managing Director of the tennent. The body of the notice would explain that for the rent due and payable by the first party, the second party had issued the cheque. The complaint was filed against the second party with a description 'Managing Director, Jewel Base Target Private Limited'. In my considered view, when the drawer has been addressed with or without any description of his position and when the intention of the holder of the cheque was to make a demand for the payment of the dishonored cheque from such drawer, the provision under section 138 (b) of the Act is satisfied. Sec.138(b) contemplates issuance of notice to the drawer demanding payment and the notice and its content is important then the address. When a person has issued the cheque towards the legally enforceable debt of a company, merely describing the drawer of the cheque by his position as Chairman and Managing Director of the Company, will not invalidate the notice.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :     1.02.2011

CORAM

THE HON'BLE MR.JUSTICE G.M. AKBAR ALI

CRIMINAL APPEAL Nos.321, 323, 324 and 326 of 2007



S.M. Omar ..Appellant in C.A.Nos.321 and 326/2007

P. Mohaideen Candu      ..Appellant in C.A.No.323/2007
by Power of Attorney

Basheer Ahamed ..Appellant in C.A.No.324/2006

vs

Zackaria Thomas         ..Respondent in all the appeals



Appeals filed under Sec.378 Cr.P.C against the Judgment dated 26.4.2006 on the file of the learned XVII M.M., Saidpet, Chennai  made in Special C.C.Nos.15 of 2003, 4220 of 2004, 4223 of 2004 and 1618 of 2004.


For appellants :  Mr. S. Natana Rajan

For respondent :  Mr.Ganesh Rajan for
 M/s Gita Asokan



COMMON JUDGMENT

Appellants in these  appeals are the complainants before the  learned XVII M.M., Saidapet, Chennai who preferred  private complaints under Sec.138 of Negotiable Instruments Act and all the appeals are preferred against the judgment of the learned  XVII M.M., Saidapet, Chennai.

2. Since all these matters have arisen under similar circumstances involving similar questions of fact and law, they all have been taken up together and are being disposed of by this common judgment.

3. C.A.No.321/2007
The brief facts of the case are as follows:

The appellant filed a complaint stating that the respondent herein issued a cheque dated 9.4.2001 for a sum of Rs.30,000/- towards the rent payable for the month of October 2010 and also issued a cheque dated 21.10.2003 for a sum of Rs10,50,000/- towards the rent for the period 1.11.2000- 28.2.2003 in his favour. According to the appellant, both the cheques were presented for payment through his banker viz., Indian Bank, T.Nagar, Chennai, on 31.10.2003 and they were returned by the bank on 1.11.2003 with an endorsement "Funds Insufficient". Therefore, the appellant issued a statutory notice dated 8.11.2003 which was received by the respondent on 10.11.2003. Since  no payment was made by the respondent, the  appellant herein had initiated the proceedings under Sec.138 of the Negotiable Instruments Act (hereinafter referred to as "Act") before the Court below in C.C.No.505 of 2004.

4. The defence taken by the respondent was that there was no landlord - tenant relationship between the appellant and the respondent;  that the statutory notice was issued  to  one M/S.Jewel Base Target Private Limited and to the respondent with a description  that he is the Chairman and Managing Director;  while the cheque was issued by the respondent in his personal capacity and the complaint was filed against the respondent in his personal capacity, the   statutory notice issued in the name of the respondent in his official capacity as Chairman and Managing Director of the Company is not valid.

5.  On analysing the evidence of the appellant and the defence taken in the cross-examination, the learned Judicial Magistrate found that the statutory notice was issued to the above said Jewel Base Target Private Limited and to the respondent, who was described as chairman and Managing Director, but the drawer of the cheque was   the respondent himself in his personal capacity and therefore, the notice issued under Sec.138(b) of the Act is not proper and valid and has dismissed the complaint,  thereby acquitting the respondent,  against which, the present appeal has been filed by the complainant.

6. C.A.NO.326 of 2007
The brief facts of the case in this appeal are  as follows:

The appellant has filed a complaint under Sec.138 of Negotiable Instruments  Act stating that towards arrears of the rent payable to the complainant, the respondent issued a cheque for Rs.3,15,000/- dated 21.12.2003 and when the same was presented for payment  on 22.12.2003 by the appellant/complainant, through his banker, it was returned on 24.12.2003 with an endorsement "insufficient funds". Statutory  notice was issued on 27.12.2003 by the complainant and the same was received on 29.12.2003 by the respondent/accused.   Since no payment was made, complaint has been filed before the Court below.

 7.  The respondent took a similar defence as in C.A.No.321 of 2007. While analysing the evidence, the learned Magistrate dismissed the complaint under similar ground as in the earlier case, against which the present appeal has been preferred.

8. C.A.No.323 of 2007

The complainant filed a private complaint under Sec.138 of NI Act stating that the respondent received a hand loan of Rs.7,00,000/- and issued a cheque dated 21.2.2004 drawn on Indian Bank, Alwarpet, Chennai. The said cheque was presented for payment by the appellant through Indian Bank, T. Nagar, Chennai on 21.2.2004 and the same was returned by the drawers bank with an endorsement "Funds insufficient" on 23.2.2004.  The notice was issued on 3.3.2004 which was received by the respondent on 5.3.2004. Since there was no payment, the complaint was filed.


9. The appellant was represented by his power agent one Basheer Ahamed who was examined as P.W.1.  The defence taken was that there was no legally enforceable debt and the appellant has not advanced any amount to the respondent and P.W.1 was also not able to give particulars about the loan transaction and also failed to produce  any evidence for such hand loan and the power of attorney given in favour of P.W.1 is also not valid.

10. While considering the evidence of power of attorney, the trial court held that the document evidencing the power of attorney is not valid and P.W.1 could not give the particulars about the hand loan and substantiate the case that it is a legally enforceable debt. Further,  the trial court also decided that the notice was not given in the personal capacity and therefore, the complaint is not proper and dismissed the complaint on the same grounds as in the earlier cases, against which the present appeal has been filed by the complainant.

Crl.Appeal No.324/2007

11. The appellant has filed a private complaint under Sec.138 of the Act stating that the respondent had received hand loan of Rs.1,25,000/- and issued a cheque dated 21.2.2004. When the said cheque was presented for payment on 21.2.2004, the same was returned with an endorsement "funds insufficient".  The appellant issued statutory notice dated 3.3.2004 and the same was received by the respondent on 5.3.2004.  The respondent took the similar plea that there was no loan transaction with the appellant  and the appellant has not furnished any accounts and also not produced any documents evidencing the hand loan and the cheque was issued as  security to  loan obtained by the father of the appellant who is the appellant in C.A.Nos.321 and 326 of 2007.

12. The learned Magistrate dismissed the complaint on the similar ground as in earlier cases and more particularly on the ground that the notice sent u/s 138(b) is not valid, against which the present appeal has been filed.

13. In all these cases, the learned Magistrate has relied on the following three judgments:
Gummudi Industries Ltd., Chennai-17 and another vs Khushroo (1999 (2) MWN (Cr.) 263)

M/s Mayfair Knitting Industries Limited, etc., vs G.P. Vijayakumar, M/s Rainbow Creations Private Limited etc.(2000 (2) LW (Crl.) 918 )

S. Badhusha Bibi vs Anandakumar Trading Co (1991) (2) MWN (Cr.)

14. Aggrieved by the dismissal of the private complaints, the present appeals are preferred on the ground that the learned Magistrate is wrong in holding that the notices are not valid and the presumption under section 139 of the act of was not considered.

15. The points for consideration that arise in all these appeals are
i) whether  the notice under Sec.138(b) was  issued in the personal capacity of the drawer?

ii) Whether the reasons given by the learned Magistrate in dismissing the private complaints filed under Sec.138 of the Act are sustainable?


16. Mr.S. Natana Rajan, learned counsel for the appellants would submit that one Jewel Base Target Private Limited  was the lessee under the appeals in C.A.Nos.321 of 2007 and 326 of 2007 and  the said company is represented by the respondent, who is the Chairman and Managing Director. The learned counsel pointed out that towards arrears of rent  the respondent had issued cheques and they  bounced giving rise to initiation of proceedings under the Act and notices were issued to the respondent addressing him as the Chairman and Managing Director.

17. The learned counsel further pointed out that in C.A Nos.323 and 324 of 2007 the respondent had issued cheques towards the hand loan which  also bounced giving rise to initiation of proceedings under the Act.

18. The learned counsel pointed out that when the statutory notice was served, the respondent failed to reply and never denied the liability. According to the learned counsel for the appellant, the presumption under Sec.139 is that the cheques were issued for the legally enforceable debt and the respondent has failed to rebut the presumption. The learned counsel further pointed that the notices were issued only in the personal capacity of the respondent and the description was given as he is the Chairman and Managing Director and the complaints were filed  only against the drawer of the cheque in his personal capacity.  The learned counsel submitted that the trial court was wrong in dismissing all the complaints on the same ground. The learned counsel also submitted that the trial court has erred in holding that the appellant in C.A.Nos.323 and 324 of 2007 failed to prove the passing of consideration under the instrument when the presumption is in favour of the complainant.

19. On the contrary, Mr.Ganesh Rajan, learned counsel for the respondent  submitted that there is no legally enforceable debt between the appellants and the respondent. The learned counsel pointed out that the appellant in C.A.Nos.321 and 326 of 2007 is  not the owner of the property and it is the admitted case that he has already settled the property in favour of his daughters and therefore, there is no question of issuing cheque for arrears of rent.

20. The learned counsel further pointed out that in C.A.No.323 of 2007 the power of agent, who was examined as P.W.1, admitted in his cross-examination that he knew nothing about the transaction and therefore, the legally enforceable debt is also not proved. The learned counsel further submitted that in C.A.No.324 of 2007, P.W.1 would admit that only under the instruction of his father, who is the appellant in C.A.Nos.321 and 326 of 2007, he is deposing as witness and he is not aware of any transaction.

21. The learned counsel for the respondent also submitted that in all the statutory notices the respondent was shown as Managing Director of the company named  Jewel Base Target Limited and the said Company  is not a party in the proceedings.  The learned counsel further submitted that when the cheques were signed by the respondent in his personal capacity, the notices were not issued against the respondent in his personal capacity and therefore, the notices are not valid.  The learned counsel further submitted that though there is a presumption under Sec.139 of the Act, the rebuttable evidence need not be a strong one and it is only necessary to establish preponderance of probabilities.

22. The learned counsel for the respondent relied on a decision reported in 2006 (3) SCC (Crl) 30 (M.S. Narayana Menon Alias Mani vs State of Kerala and another, in which the Apex Court has held as follows:
"Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon."

23. The learned counsel also relied on a decision reported in 2007 1 LW (Crl) 579 (Ramakanth vs V.A. Rahim), wherein this Court in paragraph 8 has held as follows:
".......So the explanation of Section 138 of NI Act clearly indicates that "debt or other liability" means a legally enforceable debt or other liability.  The learned counsel for the appellant would advance an argument that a legally enforceable debt means that it should not be for an illegal or immoral purposes.  I am afraid that a legally enforceable debt does not mean only illegal or immoral in nature but also that it must be supported by some evidence to show that the debt was in subsistence on the date of drawal of Ex.P.1 cheque.".

24. He also relied on a decision reported in 2007 1 LW (Crl) 579 (Ramakanth vs V.A. Rahim) wherein the Apex Court has held as follows:
"9. Although, ordinarily a judgment of acquittal should not be reversed when two views are possible, the High Court opined that the trial Judge had proceeded and adjudged the evidence on an incorrect premise that it was for the complainant to establish the details of the transaction. The High Court recorded a judgment of conviction and sentenced the appellant to undergo imprisonment till the rising of the Court and to pay a sum of Rs.3,16,000/- by way of compensation".

25. He further relied on a decision reported in 2004 (2) MWN (Crl.) 99 (Mad), (Sri Murugan Financiers vs P.V. Perumal), wherein this Court has held as follows:
"11. In an appeal against order of acquittal, the High Court would be very slow to interfere in the order. Unless the appreciation of evidence and the findings suffer from patent erroneous approach and the findings are perverse, the High Court would not reverse an order of acquittal...."

26. Heard and perused the materials available on record.

27.  All the appellants are the complainants before the trial court initiated under Sec.138 of the Negotiable Instruments Act  against the respondent. Their case is that the respondent has issued cheques in their favour in discharge of rental arrears and in discharge of hand loan obtained by him on different dates.  When the said cheques were presented for payment through their bankers, all of them were returned on the ground of "Insufficient Funds" leading to initiation of the proceedings by them under Sec.138 of the Act before the Court below.

28. Sec.138 of the Act would indicate that the debt or liability towards which the cheque is issued should be a legally enforceable debt or liability.   This debt or liability would have the reference against such debt and not to the persons against whom it would be enforced. In other words, one person can issue the cheque towards the legally enforceable debt of another person. This includes a person who  is in charge of and is responsible to the conduct of business of a company or a firm or a proprietorship, who issues the cheque on behalf of such company or firm.  If such a drawer of cheque fails to make payment, the holder of the cheque in due course  is entitled to initiate proceedings under Sec.138 of the Act.

 29. Sec.7 of the Act defines "drawer" as the maker of   bill of exchange or cheque. The person thereby directed to pay is called the "drawer".

 30. Once the drawer has issued the cheque  and the same has been presented for payment and if it returns with an endorsement of "insufficient fund", the holder in due course is to issue notice to the drawer  demanding payment and on service of such notice,  the drawer fails to make such payment within fifteen days, the offence is said to have been committed.

31.  Sec.139 of the Act reads as follows
Presumption in favour of holder:
      "It shall be presumed unless the contrary is proved  that the holder of a cheque received the cheque of the nature referred to in Sec.138 for the discharge in whole or in part of any debt or other liability".

  32. Sec.138(b) contemplates demand for payment by giving a notice in writing to the drawer of the cheque. If the drawer of the cheque had issued the cheque towards any legally enforceable debt or liability in his personal capacity or if he has issued the cheque for such a debt of an another person or a Company or a Firm and if he fails to make the payment,  the offence is said to have been committed. If the demand is not made to the drawer, the notice is invalid. Under Sec.139 of the Act, the presumption is in favour of the holder. Therefore, the initial burden is upon the drawer to rebut the presumption.


 33. In the following cases, the Apex Court has outlined the conditions to be complied with before a case under Sec.138 of the Act can be taken cognizance of by the trial court.

 34.  In the case of Shamshad Begum vs Mohammed  which was reported in  (2008(13) SCC 77), the Apex Court held thus:

As was noted in K. Bhaskaran case1 the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The acts which are components are as follows:

(1)    drawing of the cheque;
(2)   presentation of the cheque to the             bank;
(3)   returning the cheque unpaid by the drawee bank;
(4)  giving notice in writing to the   drawer of the cheque   demanding payment of the cheque amount;
(5) failure of the drawer to make payment within 15 days of the receipt of the notice.


 35.  In the case of Subodh S. Salaskar vs Jayaprakash M.Shah (2008(13) SCC 689), the Apex Court has held as follows:

138. Dishonour of cheque for insufficiency, etc. of funds in the account. * * *

Provided that nothing contained in this section shall apply unless

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

36. Section 142 of the Act also puts a limitation on the power of the court to take cognizance of the offences, which reads as under:
142 .Cognizance of offences. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974 ),

(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138:

Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period.


(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138.

14. A complaint petition alleging commission of an offence under Section 138 of the Act must demonstrate that the following ingredients exist i.e.:
(a) a cheque was issued;
(b)   the same was presented;
(c)   but, it was dishonoured;
(d)  a notice in terms of the said provision was served on the person sought to be made liable; and
(e)  despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice.

         37.  Therefore it is very clear that if (a) a cheque was issued;(b) the same was presented;(c)   but, it was dishonoured;(d)  a notice in terms of the said provision was served on the drawer and (e) if he fails to comply, then  the offence is said to have been committed. Whether the drawer is served are not is a question of fact. This being the legal position let us analyse the cases on hand.

 38.    In C.A.No.321 of 2007, the holder of the cheque has issued a notice. This notice was addressed to one M/s Jewel Base Target Private Limited and to one Zackria Thomas, Chairman and Managing Director. Paragraph 1 of the Notice would show that the first party was a tenant under the holder of the cheque and there was  arrears of rent and the second party had issued two cheques towards arrears.  The cheques were issued and signed by the second party. There is no dispute that this notice has been issued and served to the respondent.  On failure of payment, the complaint has been filed.  The accused is described as "Zackria Thomas, Managing Director, Jewel Base Target Limited". The defence taken by the accused is that the cheque has been issued in his individual capacity and notice was issued to the tenant, which is a Company, represented by the Managing Director. In other words in the capacity of Chairman and Managing Director of a company.

39.  The point is that the notice was not issued to Sri Zackria Thomas, who has issued the cheque.   Accepting the contention of the respondent, the trial court has stated which reads as follows:



VERNACULAR (TAMIL) PORTION DELETED



40.    The learned Magistrate has held that the respondent has issued the cheque in his personal capacity but the notice was issued in the capacity of the Managing Director of the Company. Therefore, it is not a valid notice under Sec.138(b) of the Act.

 41.   In C.A.No.326 of 2007  the notice has been issued to Sri Zackria Thomas , Chairman and Managing Director of Jewel Base Target Limited and in  the body of the notice, the appellant has described that the said Jewel Base Target Limited was a tenant and there was arrears of rent and the respondent had issued the cheque which on presentation, returned dishonoured. In the complaint, the accused has been shown as Zackria Thomas, S/o K.P.S. Thomas.

42.   In this case also, the learned Magistrate has held that the cheque was issued in the individual capacity and the notice was not issued to the respondent in his individual capacity and therefore, the notice is invalid  under Sec.138(b) of the Act.

 43.  In C.A.No.323 of 2007, the transaction involved a personal loan of Rs.7,00,000/- from the appellant Mohideen Chandu rep by his power of agent.  The cheque was issued by the respondent. The notice was issued to Sri Zackria Thomas, Chairman and Managing Director of Jewel Base Target Private Limited. In the complaint, the accused is described as Zackria Thomas, S/o K.P. S. Thomas.   In this case also, the learned Magistrate has held that the cheque was issued in the individual capacity but the notice was issued to the respondent as the Chairman cum Managing Director of the Company and therefore, the notice is invalid under Sec.138(b) of the Act.

  44.  In C.A.No.324 of 2007, the transaction involved a personal loan of Rs.1,25,000/- from the appellant Basheer Ahamed.  The cheque was issued by the respondent. The notice was issued to Sri Zackria Thomas, Chairman and Managing Director of Jewel Base Target Limited. In the complaint, the accused is described as Zackria Thomas, S/o K.P. S. Thomas.   In this case also, the learned Magistrate has held that the cheque was issued in the individual capacity but the notice was issued to the respondent as the Chairman cum Managing Director of the Company and therefore, the notice is invalid under Sec.138(b) of the Act.

 45.   The learned Magistrate has relied on a decision reported in 1999 (2) MWN (Cr.) 263 (Gummudi Industries Ltd., Chennai-17 and another vs Khushroo) . The facts in that case was that  the second accused was the drawer and the first accused was the Company. When the company challenged that it was the drawer, this Court held the proceedings against the second accused who has signed the cheque are maintainable ( as per para 29)  and has quashed the proceedings against the first accused Company as the company was not the drawer of the cheque (as per para 32 and 33). Therefore, the above decision cannot be relied on to decide the validity of the notice issued under Sec.138(b) of the Act in the case on hand.

 46. The learned Magistrate has also relied on a decision reported in (1991) (2) MWN (Cr.)1999 (S. Badhusha Bibi vs Anandakumar Trading Co).  In this case,  the law laid down was that the drawer of the cheque alone can  be proceeded with for offence under the Act and not an indorser.

  47.  We have no quarrel with the ratio laid down, but this decision is also not relevant to decide the validity of the notice issued under Sec.138(b) of the Act in the case on hand.

  48. The learned Magistrate has further relied on a decision reported in M/s Mayfair Knitting Industries Limited, etc., vs G.P. Vijayakumar, M/s Rainbow Creations Private Limited etc.(2000 (2) LW (Crl.) 918 ). It is a case where the cheque was issued by one G.P. Vijayakumar but the notice was addressed to one M/s Rainbow Creations who is not the drawer of the cheque. Therefore, this Court has held that the notice was not issued to the drawer of the cheque.

  49.  As stated earlier, in C.A.Nos.321 and 326, the notice was issued to the tenant as well as to the drawer of the cheque, but he is described as Chairman and Managing Director of the tennent. The body of the notice would explain that for the rent due and payable by the first party, the second party had issued the cheque.  The complaint was filed against  the second party with a description 'Managing Director, Jewel Base Target Private Limited'. In my considered view, when the drawer has been  addressed with or without any description of his position and when the intention of the holder of the cheque was  to make a demand for the payment of the dishonored cheque from such  drawer, the provision under section 138 (b) of the Act is satisfied.  Sec.138(b) contemplates issuance of notice to the drawer demanding payment and the notice and its content is important then the address. When a person has issued the cheque towards the legally enforceable debt of  a company, merely describing the drawer of the cheque by his position as Chairman and Managing Director of the Company, will not invalidate the notice.

50.    Therefore, the trial court is wrong in concluding that the cheque has been issued by the respondent in his individual capacity but the notice was was not issued to the respondent in hisindividual capacity and therefore, the notice is invalid  under Sec.138(b) of the Act.

51.  In C.A.No.326 of 2007 the notice was issued only to the respondent describing him as Chairman and Managing Director of Jewel Base Target Private Limited. The reasons stated above will also apply to the present case.

52. In C.A.Nos.323 and 324 of 2007,  the cheque was issued towards hand loan by the respondent. The notice was issued to the respondent again with a description as the Chairman and Managing Director of Jewel Base Target Private Limited.  There is no allegation in the notice that he has taken the loan on behalf of the company and the notice was also not issued to the said company.

53.  The learned Magistrate has applied the same reasons, relied on the same decisions and has stated that the notice was not issued in the individual capacity.
54.   As already held if a notice is addressed to the drawer by name and describing him by his position as Chairman and Managing Director of a particular company or firm, it is valid. Therefore, the  reasons stated above will also apply to these cases.

55. In all these criminal appeals, the trial court has shifted the burden on the complainant to prove the legally enforceable debt.

56. As stated earlier, under Sec.139 of the Act, the presumption is in favour of the holder and the initial burden is on the drawer to rebut the presumption.

57. The learned counsel for the respondent relied on the following decisions for the proposition that "for rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon" and "in an appeal against order of acquittal, the High Court would be very slow to interfere in the order. Unless the appreciation of evidence and the findings suffer from patent erroneous approach and the findings are perverse, the High Court would not reverse an order of acquittal":

1. 2006 (3) SCC (Crl) 30 (M.S. Narayana Menon Alias Mani vs           State of Kerala and another
2. 2007 1 LW (Crl) 579 (Ramakanth vs V.A. Rahim)
3. 2007 1 LW (Crl) 579 (Ramakanth vs V.A. Rahim)

58. We do agree that the burden of proof lying on the accused required to be discharged by preponderance of probability and nothing more. However, the learned Judicial Magistrate has not discussed any evidence relating to the legal presumption and infact has shifted the burden on the holder.

59.  In C.A.No.323 of 2007 having accepted the complaint to be presented by a power of attorney the trial court has observed that there is suspicious circumstances in executing the document.    In my opinion, the trial court has not given any finding on the other issues but has mainly considered the validity of the notice under Sec.138(b) of the Act.  The respondent has also not gone into the box or examined any witnesses  to rebut the presumption. As rightly pointed out he has not even replied to the notice.  When  the appreciation of evidence and the findings suffer from patent erroneous approach and the findings are perverse, the High Court can surely interfere.

60.  However, I am of the considered view that as the trail court has dismissed the complaints mainly on the ground that the notices are not valid,  these are the fit cases which have to be remanded back to the trial court for a fresh disposal.

61. In the result, all the criminal appeals are allowed and judgments of the learned Metropolitan magistrate are set aside and  all the matters are remitted back to the trial court for fresh disposal in the light of the observations made above. Needless to mention that the parties are at liberty to adduce additional evidence. The learned Metropolitan Magistrate is directed to dispose of the cases within four months from the date of receipt of the this order and the Registry is directed to return the records immediately.

   








sr

To

The XVII M.M., Saidpet,
Chennai