M/S Kalamani Tex vs P. Balasubramanian on 10 February, 2021


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Supreme Court of India

M/S Kalamani Tex vs P. Balasubramanian on 10 February, 2021

Author: Surya Kant

Bench: N.V. Ramana, Surya Kant, Aniruddha Bose

                                                                            REPORTABLE


                                   IN THE SUPREME COURT OF INDIA
                                 CRIMINAL APPELLATE JURISDICTION



                                   CRIMINAL APPEAL NO. 123 of 2021
                      [Arising out of Special Leave Petition (Crl.) No. 1876 of 2018]



       M/s. Kalamani Tex & Anr                                        ..... Appellant(s)
                                                VERSUS


       P. Balasubramanian                                             ..... Respondent

                                              JUDGEMENT

Surya Kant, J:

Leave Granted.

2. M/s. Kalamani Tex (Appellant No.1) and its managing partner–

B. Subramanian (Appellant No.2) are in appeal challenging the

judgment dated 09.11.2017 passed by the High Court of Judicature at

Madras, whereby the order of acquittal of the Judicial Magistrate,

Tiruppur was reversed and the appellants have been convicted under

Section 138 of the Negotiable Instruments Act, 1881 (in short, ‘NIA’).
Signature Not Verified

Digitally signed by
Vishal Anand
Date: 2021.02.10
16:51:39 IST
Reason:

Consequently, Appellant No.2 has been sentenced to undergo three

months Simple Imprisonment and a fine of Rs. 5,000/­.

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Facts

3. The instant proceedings have originated out of a complaint

preferred by P. Balasubramanian (Complainant­Respondent) against

the appellants. The respondent is the proprietor of a garment company

named and styled as ‘Growell International’, which along with

Appellant No.1 was engaged in a business arrangement, whereby they

agreed to jointly export garments to France. Certain issues arose

regarding delays in shipment and payment from the buyer, due to

which, the appellants had to pay the respondent a sum of Rs 11.20

lakhs. To that end, Appellant No.2 issued a cheque on behalf of

Appellant No. 1 bearing no.897993 dated 07.11.2000 in favour of the

respondent and also executed a Deed of Undertaking on the same day

wherein Appellant No.2 personally undertook to pay the respondent in

lieu of the initial expenditure incurred by the latter. The respondent

presented the said cheque to the bank on 29.12.2000 for collection

but it was returned with an endorsement that there were insufficient

funds in the account of appellants. In wake of the cheque being

dishonoured, the respondent issued a notice dated 08.01.2001 asking

the appellants to pay the amount within 15 days. The appellants in

their reply dated 27.01.2001 denied their liability and claimed that

blank cheques and signed blank stamp papers were issued to help the

respondent in some debt recovery proceedings, and not because of any

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legally enforceable debt.

4. The respondent then lodged a private complaint under section

138 and 142 of the NIA read with Section 200 of the Code of Criminal

Procedure, 1973 (in short ‘CrPC’) before the Judicial Magistrate,

Tiruppur. In order to substantiate his claim, the respondent himself

entered the witness box and produced documentary evidence such as

the cheque issued by Appellant No.2. The respondent in his chief­

examination initially contended that the subject amount had been

received by the appellants from the foreign buyer. However, when

recalled on a later date, the respondent produced the Deed of

Undertaking dated 07.11.2000, whereunder, the 2nd Appellant had

acknowledged the liability towards respondent. One PS Shanmugham

(PW­2) who was working as Manager in State Bank of India, Tiruppur

Overseas Branch, was also examined by the respondent.

5. Appellant No.2 in his statement under Section 313 CrPC plainly

denied the allegations and disputed the existence of any liability

towards the respondent. The appellants also examined one V.

Rajagopal (DW­1) who at the relevant time was working as Assistant

Manager in State Bank of India, Tiruppur Overseas Branch. DW­1

mainly deposed on the inability of the respondent to pay back the

credit that was advanced to him, and the subsequent debt recovery

proceedings initiated against him. The appellants did not lead any

documentary evidence in their defence.

Page | 3

6. The trial Court disbelieved the respondent’s claim and observed

that he had failed to establish a legally enforceable liability on the date

of issue of cheque. The Court held that since the basic ingredients of

an offence under Section 138 of the NIA were not satisfied, the

complaint was liable to be dismissed.

7. Discontented with the order of the trial Court, the respondent

preferred a criminal appeal before the High Court, wherein, the Court

noted that Appellant No.2 had admitted his signatures on both the

Cheque and the Deed of Undertaking and had thus acknowledged the

appellants’ liability. The High Court therefore vide impugned judgment

allowed the criminal appeal and convicted both the appellants under

Section 138 of NIA. Appellant No. 2 was awarded a sentence of three

months simple imprisonment with a fine of Rs. 5,000/­ (or 20 days

simple imprisonment in lieu thereof). Additionally, Appellant No.1 was

directed to pay a fine of Rs. 5,000/­, in default of which, Appellant

No. 2 would undergo another one­month simple imprisonment.

8. The aggrieved appellants are now before this Court. It may be

mentioned at the outset that when the SLP came up for hearing on

12.03.2018, their learned Counsel agreed to deposit the entire amount

in dispute and in deference thereto, the appellants have on

11.04.2018 deposited a sum of Rs. 11.20 lakhs with the Registry of

this Court.

Page | 4
CONTENTIONS

9. Learned Senior Counsel for the appellants, nonetheless, desired

to argue the case on merits and contended that there was no legally

enforceable liability on the date of issuance of the cheque and that

blank stamp papers signed by Appellant No.2 were misused by the

respondent to forge the Deed of Undertaking dated 07.11.2000.

Placing reliance on Murugesan v. State Through Inspector of

Police1, he urged that the view taken by the trial Court was a possible

view, and the High Court committed patent illegality and exceeded its

jurisdiction in reversing the acquittal. Learned Senior Counsel also

cited Reena Hazarika v. State of Assam2 to argue that the High

Court did not take notice of the defence raised by the appellants which

has caused serious prejudice to them. He passionately put forth the

principles laid down in Basalingappa v. Mudibasapp3 and Kumar

Exports v. Sharma Carpets4, and submitted that the presumption

drawn against an accused under Section 118 and Section 139 of the

NIA is rebuttable through a standard of “preponderance of probability”,

which has been successfully met by the appellants in the present

case.

10. On the other hand, learned Counsel for the respondent

1
(2012) 10 SCC 383, ¶ 32.

2

(2019) 13 SCC 289, ¶ 20.

3

(2019) 5 SCC 418.

4

(2009) 2 SCC 513.

Page | 5
maintained that the decision of the High Court is well reasoned and

founded upon due consideration of all relevant factors of the case.

Laying stress on the undisputed signatures on the cheque and the

Deed of Undertaking dated 07.11.2000, he asserted that the

appellants have admitted their existing liability of Rs.11.20 lakhs.

Lastly, while pointing out the financial loss suffered by the respondent

and the adverse impact on his business, learned Counsel prayed for

suitable compensation.

ANALYSIS

11. The short question which falls for our consideration is whether

the High Court erred in reversing the findings of the trial Court in

exercise of its powers under Section 378 of CrPC?

12. Having given our thoughtful consideration to the rival

submissions, we do not find any valid ground to interfere with the

impugned judgment. It is true that the High Court would not reverse

an order of acquittal merely on formation of an opinion different than

that of the trial Court. It is also trite in law that the High Court ought

to have compelling reasons to tinker with an order of acquittal and no

such interference would be warranted when there were to be two

possible conclusions.5 Nonetheless, there are numerous decisions of

this Court, justifying the invocation of powers by the High Court under

Section 378 CrPC, if the trial Court had, inter alia, committed a patent
5
CK Dasegowda and Others v. State of Karnatak, (2014) 13 SCC 119 ¶14.

Page | 6
error of law or grave miscarriage of justice or it arrived at a perverse

finding of fact.6

13. On a similar analogy, the powers of this Court under Article 136

of the Constitution also do not encompass the re­appreciation of

entirety of record merely on the premise that the High Court has

convicted the appellants for the first time in exercise of its appellate

jurisdiction. This Court in Ram Jag v. State of UP7, Rohtas v. State

of Haryana8 and Raveen Kumar v. State of Himachal Pradesh 9,

evolved its own limitations on the exercise of powers under Article 136

of the Constitution and has reiterated that while entertaining an

appeal by way of special leave, there shall not ordinarily be an attempt

to re­appreciate the evidence on record unless the decision(s) under

challenge are shown to have committed a manifest error of law or

procedure or the conclusion reached is ex­facie perverse.

14. Adverting to the case in hand, we find on a plain reading of its

judgment that the trial Court completely overlooked the provisions

and failed to appreciate the statutory presumption drawn under

Section 118 and Section 139 of NIA. The Statute mandates that once

the signature(s) of an accused on the cheque/negotiable instrument

are established, then these ‘reverse onus’ clauses become operative. In

6
State of UP v. Banne
, (2009) 4 SCC 271,¶ 27; Ghurey Lal v. State of U.P.,
(2008) 10 SCC 450, ¶70.

7

(1974) 4 SCC 201, ¶ 14.

8

(2019) 10 SCC 554, ¶ 12.

9

2020 SCC Online SC 869, ¶ 14.

Page | 7
such a situation, the obligation shifts upon the accused to discharge

the presumption imposed upon him. This point of law has been

crystalized by this Court in Rohitbhai Jivanlal Patel v. State of

Gujarat10 in the following words:

“In the case at hand, even after purportedly drawing the
presumption under Section 139 of the NI Act, the trial court
proceeded to question the want of evidence on the part of the
complainant as regards the source of funds for advancing loan
to the accused and want of examination of relevant witnesses
who allegedly extended him money for advancing it to the
accused. This approach of the trial court had been at variance
with the principles of presumption in law. After such
presumption, the onus shifted to the accused and unless the
accused had discharged the onus by bringing on record such
facts and circumstances as to show the preponderance of
probabilities tilting in his favour, any doubt on the
complainant’s case could not have been raised for want of
evidence regarding the source of funds for advancing loan to
the appellant­accused…..”

15. Once the 2nd Appellant had admitted his signatures on the

cheque and the Deed, the trial Court ought to have presumed that the

cheque was issued as consideration for a legally enforceable debt. The

trial Court fell in error when it called upon the Complainant­

Respondent to explain the circumstances under which the appellants

were liable to pay. Such approach of the trial Court was directly in the

10
(2019) 18 SCC 106, ¶ 18.

Page | 8
teeth of the established legal position as discussed above, and

amounts to a patent error of law.

16. No doubt, and as correctly argued by senior counsel for the

appellants, the presumptions raised under Section 118 and Section

139 are rebuttable in nature. As held in MS Narayana Menon v.

State of Kerela11, which was relied upon in Basalingappa (supra), a

probable defence needs to be raised, which must meet the standard of

“preponderance of probability”, and not mere possibility. These

principles were also affirmed in the case of Kumar Exports (supra),

wherein it was further held that a bare denial of passing of

consideration would not aid the case of accused.

17. The appellants have banked upon the evidence of DW­1 to

dispute the existence of any recoverable debt. However, his deposition

merely highlights that the respondent had an over­extended credit

facility with the bank and his failure to update his account led to debt

recovery proceedings. Such evidence does not disprove the appellants’

liability and has a little bearing on the merits of the respondent’s

complaint. Similarly, the appellants’ mere bald denial regarding

genuineness of the Deed of Undertaking dated 07.11.2000, despite

admitting the signatures of Appellant No. 2 thereupon, does not cast

any doubt on the genuineness of the said document.

18. Even if we take the arguments raised by the appellants at face
11
(2006) 6 SCC 39, ¶ 32.

Page | 9
value that only a blank cheque and signed blank stamp papers were

given to the respondent, yet the statutory presumption cannot be

obliterated. It is useful to cite Bir Singh v. Mukesh Kumar12, where

this court held that:

“Even a blank cheque leaf, voluntarily signed and handed over
by the accused, which is towards some payment, would attract
presumption under Section 139 of the Negotiable Instruments
Act, in the absence of any cogent evidence to show that the
cheque was not issued in discharge of a debt.”

19. Considering the fact that there has been an admitted business

relationship between the parties, we are of the opinion that the

defence raised by the appellants does not inspire confidence or meet

the standard of ‘preponderance of probability’. In the absence of any

other relevant material, it appears to us that the High Court did not

err in discarding the appellants’ defence and upholding the onus

imposed upon them in terms of Section 118 and Section 139 of the

NIA.

20. As regard to the claim of compensation raised on behalf of the

respondent, we are conscious of the settled principles that the object

of Chapter XVII of the NIA is not only punitive but also compensatory

and restitutive. The provisions of NIA envision a single window for

criminal liability for dishonour of cheque as well as civil liability for

realisation of the cheque amount. It is also well settled that there
12
(2019) 4 SCC 197, ¶ 36.

Page | 10
needs to be a consistent approach towards awarding compensation

and unless there exist special circumstances, the Courts should

uniformly levy fine up to twice the cheque amount along with simple

interest at the rate of 9% per annum.13

21. The respondent, nevertheless, cannot take advantage of the

above cited principles so as to seek compensation. The record

indicates that neither did the respondent ask for compensation before

the High Court nor has he chosen to challenge the High Court’s

judgment. Since, he has accepted the High Court’s verdict, his claim

for compensation stands impliedly overturned. The respondent, in any

case, is entitled to receive the cheque amount of Rs.11.20 lakhs which

the appellant has already deposited with the Registry of this Court.

CONCLUSION:

22. For the reasons stated above, the present appeal is liable to be

dismissed. We order accordingly. Ordinarily and as a necessary sequel

thereto, Appellant No.2 would be liable to undergo the sentence of

simple imprisonment as awarded by the High Court. However, given

the peculiar facts and circumstances of the case, namely, that the

appellants volunteered and thereafter have deposited the cheque

amount with the Registry of this Court in the year 2018, we are

inclined to take a lenient view. The impugned judgment of the High

Court dated 09­11­2017 is thus modified, and it is directed that
13
R. Vijian v. Baby, (2012) 1 SCC 260 ¶20.

Page | 11
Appellant No.2 shall not be required to undergo the awarded sentence.

The registry of this Court is directed to transfer the amount of

Rs.11.20 lakhs along with interest accrued thereupon to the

respondent within two weeks.

………………………….. J.

(N.V. RAMANA)

………..………………… J.

(SURYA KANT)

……………………………J.

(ANIRUDDHA BOSE)
NEW DELHI
DATED :10.02.2021

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