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TMI Blog2019 (7) TMI 1642X X X X Extracts X X X X X X X X Extracts X X X X ..... d (for brevity "Mukanchand") is a financier and R.Anbarasu (A2) is a prominent politician (as per his statement under Section 313 Cr.P.C.) and Founder- Chairman of the Rajiv Gandhi Memorial Educational Charitable Trust (for brevity "the Rajiv Gandhi Trust"). 5 The Trust Deed of the Rajiv Gandhi Trust (Ex.P.14) shows that the Trust was founded by Anbarasu (A2) with 7 members, including Kamala A4 - Anbarasu's wife) and P. Mani (A3). Admittedly, the Managing Trustee of the Rajiv Gandhi Trust was Mani (A3). 6 It is the case of Mukanchand that on 03.04.2002, the Rajiv Gandhi Trust borrowed a sum of Rs. 20 lakhs from him and a promissory note (Ex.P.11) was executed in his favour; again on 05.07.2002, the Rajiv Gandhi Trust borrowed a sum of Rs. 15 lakhs and executed a promissory note (Ex.P.12) in his favour; thus, totally, the Rajiv Gandhi Trust borrowed a sum of Rs. 35 lakhs from him. 7 When Mukanchand demanded return of the borrowed amount, the Rajiv Gandhi Trust gave a cheque dated 04.09.2002 bearing no.578204 for a sum of Rs. 50,000/- and another cheque dated 09.09.2002 bearing no.578203 for a sum of Rs. 6,00,000/-, both drawn on Bank of Baroda, K.K.Nagar Branch, Chennai, in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid. After sending such representations, Mukanchand also released them to the Press and gave wide publicity to his objections. 11 At that juncture, a fresh cheque dated 12.04.2006 bearing no.578202 drawn on Bank of Baroda (Ex.P.1) for a sum of Rs. 35 lakhs signed by Mani (A3), the Managing Trustee, was given to Mukanchand by the Rajiv Gandhi Trust. When Mukanchand presented the cheque, it was returned unpaid on 13.04.2006 vide cheque return memo (Ex.P.2) with the endorsement "insufficient funds". Mukanchand issued a statutory demand notice dated 15.04.2006 (Ex.P.3) to the Rajiv Gandhi Trust and its 7 Trustees, including Anbarasu (A2), Mani (A3), Kamala (A4), et al. All the covers returned unserved with the postal endorsement "not claimed". 12 Therefore, Mukanchand filed a fresh complaint on 29.05.2006 on the new cause of action in C.C. No.11127 of 2006 before the Metropolitan Magistrate Court, George Town, Chennai, against the Rajiv Gandhi Trust (A1) and its Board of Trustees, viz., Anbarasu (A2), Mani (A3), Kamala (A4), Paramasivam Pillai (A5), T.K.T. Nathan (A6), Shanmuga Selvi (A7) and Paramasivam (A8) and the two sons of Anbarasu (A2), viz., Arul Anbarasu (A9) and Ashok Anba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - and Rs. 50,000/- respectively are ordered to be paid as compensation to the appellant/complainant." 19 It is reported that the appeal preferred thereagainst by Mani (A3) before the Supreme Court was also dismissed. 20 Challenging the third prosecution in C.C. No.11127 of 2006 relating to Rs. 35 lakhs cheque, the Rajiv Gandhi Trust (A2), Anbarasu (A2) and Kamala Anbarasu (A4) preferred Crl.O.P. No.26785 of 2012 under Section 482 Cr.P.C. on various grounds. A learned Single Judge of this Court dismissed Crl.O.P. No.26785 of 2012 on 29.01.2013 and it is stated at the Bar that the appeal filed thereagainst before the Supreme Court in S.L.P. No.3716 of 2013 was dismissed as withdrawn vide order dated 04.02.2014. 21 Trial commenced in C.C. No.11127 of 2006 in respect of Rs. 35 lakhs cheque before the Fast Track Court No. IV, George Town, Chennai. Mukanchand gave power of attorney appointing his son Gagan Bothra as his power agent to prosecute the case on his behalf. 22 Accordingly, Gagan Bothra filed proof affidavit dated 13.05.2014 and marked exhibits P.1 to P.14. The certified copies of the two promissory notes that were filed in C.S. No.652 of 2004 were obtained and they were ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 27 Challenging the aforesaid conviction and sentence, three appeals were filed in the Court of Session, viz., Crl.A. No.225 of 2016 by the Rajiv Gandhi Trust (A1), Crl.A. No.106 of 2015 by Mani (A3) and Crl.A.No.110 of 2015 by Anbarasu (A2) and Kamala Anbarasu (A4). All the three appeals were heard by the IV Additional Sessions Judge, Chennai and a common judgment and order was passed on 22.06.2017, in which, Crl.A.No. 106 of 2015 filed by Mani (A3) and Crl.A. No.110 of 2015 filed by Anbarasu (A2) and Kamala Anbarasu (A4) were dismissed. However, since Kamala (A4) had breathed her last during the pendency of Crl.A. No.110 of 2015, it has been recorded that the appeal abates against her. Coming to Crl.A. No.225 of 2016 filed by the Rajiv Gandhi Trust (A1), the Appellate Court has permitted Mukanchand to withdraw Rs. 3 lakhs that was deposited by the accused in the Court at the time of admission of the appeal and after giving credit to that amount, has directed the Rajiv Gandhi Trust (A1) to pay the balance amount of Rs. 32 lakhs as compensation to Mukanchand. Challenging the said common judgment and order, the present criminal revisions have been preferred. 28 During the penden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te power. (emphasis supplied) 23. On this aspect, it is sufficient to refer to and rely on the decision of this Court in Duli Chand v. Delhi Admn.[(1975) 4 SCC 649 : 1975 SCC (Cri) 663 : AIR 1975 SC 1960] in which it is observed thus: (SCC p. 651, para 5) "The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse." 31 The aforesaid legal principle has been reiterated very recently by the Supreme Court in Bir Singh vs. Mukesh Kumar (2019) 4 SCC 197, wherein, the Supreme Court formulated the following question of law : "(i) whether a Revisional Court can, in exercise of its discretionary jurisdiction, interfere with an order of conviction in the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minor boy has seen a murder, he can very well depose as to what he saw, in a Court of law. The law expects the Trial judge to first examine the mental capability of the deponent to understand and answer the questions that may be put to him. In this case, Gagan Bothra was not a minor when he gave evidence before the Trial Court, but was aged 25 years. It is his contention that even when he was a minor, he used to accompany his father and get involved in his father's business. The question is whether the defence was able to make any dent in the testimony of Gagan Bothra to show that he was not aware of the transactions in question. In the cross-examination on 14.08.2014, he has clearly stated that he was around 15 years in 2002 and that he had personal knowledge about the business transactions his father had. When he was asked as to how the loan was given, he has stated that the loan was given in cash. He has further stated that the loan was given in two instalments of Rs. 20 lakhs and Rs. 15 lakhs and that he will be able to say the exact dates on seeing the records. When he was further asked as to whether he knows as to what had transpired after this case was filed, he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has satisfied the test laid down in A.C.Narayanan (supra) and by his answers, it is limpid that he had personal knowledge about the transactions in question and the facts in issue. II Mukanchand has failed to prove the debt: 41 The learned Senior Counsel submitted that Mukanchand has failed to prove the debt of Rs. 35 lakhs and ergo, the prosecution should fail. As alluded to above, Mukanchand has obtained the certified copies of the two promissory notes, the originals of which, he has filed in C.S. No.652 of 2004 and has marked their certified copies as Exs.P.11 and P.12. (Rs. 20 lakhs + Rs. 15 lakhs = Rs. 35 lakhs). In Rangappa vs. Sri Mohan (2010) 11 SCC 441, the Supreme Court has held that the issuance of a cheque, by itself, will lead to the presumption under Section 139 of the NI Act that it was issued for discharging a liability. In this case, apart from the cheque in question, two promissory notes totalling to Rs. 35 lakhs have also been marked as exhibits (Exs.P.11 and P.12) and this Court is unable to understand as to beyond that, what proof is required. III Complainant has not filed the income tax returns to show that Rs. 35 lakhs was given as loan: 42 The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt by showing the source of income even though the execution of the cheque is admitted by the accused. The Supreme Court has not held so, nor will it hold so in the future as well, unless Section 139 of the NI Act is amended or repealed. 45 In Krishna Janardhan Bhat (supra), Krishna Janardhan Bhat and R.G. Bhat were jointly running a business and at that time, Krishna Janardhan Bhat had given a power of attorney to R.G. Bhat and had also given certain signed cheques for business purposes. Some dispute arose between them, pursuant to which, R.G. Bhat handed over the signed cheques to his brother-in-law Hegde, who, in turn, prosecuted Krishna Janardhan Bhat under Section 138 of the NI Act. In that case, after receiving the statutory notice, a reply notice was given by Krishna Janardhan Bhat narrating the circumstances under which the impugned cheque had gone into the hands of Hegde. On those facts, the Supreme Court held that it was incumbent upon Hegde to prove that he had the necessary source of income to give the loan. 46 In K. Subramani (supra), the complainant and the accused were working as teachers in a Government college and it was alleged that the complainant had given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have been raised for want of evidence regarding the source of funds for advancing loan to the accusedappellant. The aspect relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence." (emphasis supplied) 49 In Bir Singh (supra), the Supreme Court has considered Krishna Janardhan Bhat (supra) in paragraph no.29 and has held as under: "29. In Krishna Janardhan Bhat v.Dattatraya G. Hegde [Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166], cited on behalf of the respondent-accused, this Court reaffirmed that Section 139 of the Act raises a presumption that a cheque duly drawn was towards a debt or liability. However, keeping in view the peculiar facts and circumstances of the case, this Court was of the opinion that the courts below had approached the case from a wholly different angle by wrong application of legal principles." 50 At this juncture, It may be apposite to refer to the following sapient passage in Charan Singh and others vs. State of Punjab (1975) 3 SCC 39 wherein, it has been held that in Criminal law, deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded labourers hailing from a far flung hamlet who have been caught in a debt trap set by an affluent Sowcar. Contrarily, Anbarasu (A2) is a frontline politician who has founded the Rajiv Gandhi Trust (A1) and wields sufficient influence in the society. The complainant in this case is a professional financier. To say that the accused group were intimidated by Mukanchand to execute the promissory notes and cheques under threat and coercion defies credulity. Of course, that is also not the case of the accused. Their case is one of simple denial of the very debt itself. It is not a case where the accused had given a stop payment request to their banker, but, a case of return of the cheque on the ground of "insufficiency of funds". 52 Gagan Bothra brought to the notice of this Court the complaint given by Mani (A3) to the police which formed the registration of the FIR in Cr. No.548 of 2006 and submitted that even in that complaint, there is no mention that the impugned cheque bearing no.578202 was given as security to Mukanchand which he has misused. The admissions of Mani (A3) in the FIR (Ex.P.13) can be used against him under Section 21 of the Evidence Act. In that complaint, he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e argument on the debt being time barred does not cut ice with this Court and accordingly, this Court has no hesitation in holding that the impugned cheque was not towards a time-barred debt, but was towards a live debt and has given a new cause of action for Mukanchand to initiate a prosecution. 54 At this juncture, it may be necessary to answer yet another argument advanced by the learned Senior Counsel, who submitted that Mukanchand has already filed a suit for recovery of Rs. 35 lakhs in 2004 and if the present prosecution in C.C. No.11127 of 2006 is allowed and Rs. 35 lakhs is awarded to him, it would amount to double payment. The submission of the learned Senior Counsel that a civil suit and a prosecution under Section 138 of the NI Act are akin to each other is legally fallacious. The ambit and scope of both are different. While the former, as the name itself implies, is civil in nature, the latter is penal in nature. Section 138 NI Act prosecution is not intended for money recovery, but, to instill fear in the mind of the drawer of a cheque to ensure that cheques are not indiscriminately issued. In a given case, the Court can merely sentence the accused to imprisonment til ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e capacity of the Managing Trustee of the Rajiv Gandhi Trust (A1) and that he has clearly stated that a sum of Rs. 21 lakhs was borrowed from Mukanchand for the purpose of construction of college building. Of course, he has stated that he has repaid the sum of Rs. 21 lakhs, but, those averments are admissions which cannot be used in favour of the maker. It is trite that under Section 21 of the Evidence Act, admission of a party can be used only against him and it can be used by him only under certain circumstances enumerated therein, which circumstances do not exist in the case at hand. This Court perused the complaint in C.C. No.6788 of 2002 (Ex.D.1). In that complaint (Ex.D1), Mukanchand has clearly stated that in order to pay the due amount as a part of liability, the accused had issued the cheque dated 09.09.2002 for an amount of Rs. 6 lakhs. Therefore, that the in cheque for Rs. 6 lakhs and the cheque for Rs. 50,000/- have been given towards part liability and not in discharge of the whole liability is manifest. 57 Be that as it may, in this case, 2 promissory notes for Rs. 20 lakhs and Rs. 15 lakhs have been executed in favour of Mukanchand. The promissory notes have b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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