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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 ..... not be even aware of this - crossexamination has been in Tamil and Gagan Bothra has stated in the crossexamination itself that he does not know to read Tamil, despite which, the answers given by him in respect of the fact in issue militates against the submission of the learned counsel that he was incompetent to depose. The Trial Court and the Appellate Court have appreciated the evidence of Gagan Bothra and have acted on his testimony. Mukanchand has failed to prove the debt - HELD THAT:- The learned Senior Counsel submitted that Mukanchand has failed to prove the debt of ₹ 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. - In this case, apart from the cheque in question, two promissory notes totalling to ₹ 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. Complainant has not filed the income tax returns to show that ₹ 35 lakhs was given as loan - HELD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness enterprise where its Managing Director will have remuneration, the Trustees cannot draw remuneration from the Trust funds. They may only draw some actual expenses incurred by them for the benefit of the Trust. Therefore, there is no question of a paid Trustee or Honorary Trustee in matters of Trust - These clauses themselves show the overarching power and hold of Anbarasu (A2) in the affairs of the Rajiv Gandhi Trust (A1). Mani (A3), in the FIR (Ex.P.13), has stated that he has borrowed in his individual capacity - HELD THAT:- In this case, 2 promissory notes for ₹ 20 lakhs and ₹ 15 lakhs have been executed in favour of Mukanchand. The promissory notes have been signed by Mani (A3) for and on behalf of the Rajiv Gandhi Trust (A1). The rubber stamp of the Rajiv Gandhi Trust (A1) is available in the promissory notes as well in the impugned cheque. The statutory notices sent to the accused were returned on the ground not claimed . In their Section 313 Cr.P.C. statement also, the accused have not explained the circumstances under which the impugned cheque came into the hands of Mukanchand. Mukanchand has not shown the loan in his income tax account and therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 15 lakhs and executed a promissory note (Ex.P.12) in his favour; thus, totally, the Rajiv Gandhi Trust borrowed a sum of ₹ 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 ₹ 50,000/- and another cheque dated 09.09.2002 bearing no.578203 for a sum of ₹ 6,00,000/-, both drawn on Bank of Baroda, K.K.Nagar Branch, Chennai, in favour of Mukanchand. When Mukanchand presented the said cheques, they were dishonoured. Hence, Mukanchand initiated two prosecutions, viz., C.C. 6787 of 2002 in respect of the cheque for ₹ 50,000/- and C.C. No.6788 of 2002 in respect of the cheque for ₹ 6,00,000/- under Section 138 of the Negotiable Instruments Act, 1881 (for brevity the NI Act ) before the VIII Metropolitan Magistrate Court, George Town, Chennai against Mani (A3) who was the signatory to the two cheques. It is pertinent to point out that those two cheques were drawn on the account of the Rajiv Gandhi Tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Anbarasu (A10). 13 In the complaint, Mukanchand has stated the aforesaid facts, including the fact that he sent representations to the Congress high command protesting the nomination of Arul Anbarasu (A9) and Ashok Anbarasu (A10) for the Sholingur Assembly constituency and the circumstance in which the accused gave the impugned cheque dated 12.04.2006 for ₹ 35 lakhs. 14 In the Assembly elections held in May 2006, the DMK-Congress combine bagged more seats than the AIADMK, resulting in late Mr.M.Karunanidhi forming the Government with Congress support. These are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 85 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 ₹ 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 marked as Exs.P.11 and P.12 for proving the debt and the FIR in Cr. No.548 of 2006 was marked as Ex.P.13. 23 Gagan Bothra was subjected to cross-examination by the accused on 14.08.2014, 20.08.2014, 05.01.2015, 27.01.2015, 29.01.2015, 12.02.2015, 18.02.2015, 04.03.2015, 01.04.2015, 08.04.2015 and 15.04.2015. The accused filed an application under Section 91 Cr.P.C. directing production of the income tax returns of Mukanchand Sons from the Income Tax Department, pursuant to which, the documents were sent by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ₹ 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 ₹ 32 lakhs as compensation to Mukanchand. Challenging the said common judgment and order, the present criminal revisions have been preferred. 28 During the pendency of these criminal revisions, Mukanchand breathed his last on 17.04.2019 and this Court, by orders dated 17.06.2019, as detailed in the cause title to this common order, has permitted his son Gagan Bothra to step into the shoes of his deceased father Mukanchand. 29 Heard Mr. B. Kumar, learned Senior Counsel representing Mr.S.Ramachandran, learned counsel on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 of any jurisdictional error or error of law The Supreme Court answered the above question in paragraph nos.19 and 20 as under: 19. It is well settled that in exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 20 lakhs and ₹ 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 has stated in the affirmative. He has further stated that his father has filed the suit in C.S. No.652 of 2014 in the High Court for recovery of money. 38 From a perusal of the original records called for from the Trial Court, it is seen that the deposition of Gagan Bothra, in the crossexamination spanning to 11 days, runs to around 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (₹ 20 lakhs + ₹ 15 lakhs = ₹ 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 ₹ 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 ₹ 35 lakhs was given as loan: 42 The learned Senior Counsel took this Court assiduously through the income tax returns of S. Mukanchand Bothra Sons and demonstrated that the income tax returns show only a sum of ₹ 6,70,000/- as outstanding from Mani (A3) and others and not ₹ 35 lakhs. He contended that this sum of ₹ 6,7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a loan of ₹ 14 lakhs in cash to the accused, for which, the accused gave the impugned cheque. In that case, 2 Court witnesses were examined and the accused examined himself as D.W.1 and marked Exs.D1 to D5. The judgment and order of acquittal passed by the Trial Court was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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, decided cases can be of help if there be a question of law like admissibility of evidence and if the question be about the applicability of some general rule of evidence and that criminal cases cannot be put in a strait jacket: 32. In the context of what value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 admitted that a sum of ₹ 21 lakhs was borrowed from Mukanchand for the purpose of construction of college. The said complaint has been given by Mani (A3) in the capacity of Managing Trustee of the Rajiv Gandhi Trust (A1). He has referred to sever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 35 lakhs in 2004 and if the present prosecution in C.C. No.11127 of 2006 is allowed and ₹ 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 till the raising of the Court without ordering any compensation. If any amount is paid by the accused to the complainant in a prosecution under the NI Act, that can definitely be given credit in the execution of a money decree. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Of course, he has stated that he has repaid the sum of ₹ 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 ₹ 6 lakhs. Therefore, that the in cheque for ₹ 6 lakhs and the cheque for ₹ 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 ₹ 20 lakhs and ₹ 15 lakhs have been executed in favour of Mukanchand. The promissory notes have been signed by Mani (A3) for and on behalf of the Rajiv Gandhi Trust (A1). The rubber stamp of the Rajiv Gandhi Trust (A1) is available in the promissory notes as well in the impugned c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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