Babulal Surana vs T.P. Selva Rayan

Ms. R. Mala, J.—Challenge in this petition is to the order dated 07.07.2015 made in Crl.M.P.No.5778 of 2015 in C.C. No.236 of 2006, whereby and where under, the learned Judicial Magistrate, Vallioor, dismissed the application filed by the petitioner under Section 91 of Code of Criminal Procedure.

Heard both sides.

The learned counsel for the petitioner would submit that one T.P. Selva Rayan, since deceased, as a complainant, preferred a complaint for the offences punishable under Sections 138 and 142 of Negotiable Instruments Act, stating that the petitioner herein has borrowed a sum of Rs.20,00,000/- on 01.04.2006 for the purpose of business development, by giving an undertaking that he will repay the said amount, within a month and for discharging the legally subsisting liability, he issued a post-dated cheque for a sum of Rs.10,00,000/- and when it was presented for encashment, it was returned as ''funds insufficient''. Hence, after issuance of statutory notice, he preferred a complaint. During the pendency of the complaint, the petitioner filed an application in Cr.M.P. No.5778 of 2015 under Section 91 Cr.P.C., to send for some documents from the Income Tax Department to know as to whether the lending of money has been mentioned in the Income Tax returns. The Trial Court, without considering the same, has dismissed the application.

To substantiate his argument, the learned counsel for the petitioner relied upon a decision reported in K. Subramani v. K. Damodara Naidu, 2014 (3) MWN (Cr.) DCC 129 (SC) : 2015(1) SCC 99 and more particularly, paragraph No.9, wherein it was stated that there is no document to show that the amount has been paid. Since both the parties were governed by Government Servants'' Conduct Rules, which prescribes the mode of lending and borrowing and there is nothing on record to show that the prescribed mode was followed. Therefore, the said judgment is applicable to the facts of the present case.

He also relied upon paragraph No.27 of the decision rendered by this Court in Muthukumaran v. Periyasamy, 2012 (2) MWN (Cr.) (DCC) 113 (Mad) : Crl.R.C. (MD) No. 764 of 2010, dated 29.3.2012, and Vijay v. Laxman, 2013 (3) SCC 86, more particularly, paragraph Nos.9, 11 and 15 and prayed to set aside the impugned order.

Resisting the same, the learned counsel for the respondents would submit that the case is of the year 2006 and only with a view to drag on the proceedings, the application under Section 91 Cr.P.C., has been filed. When the complainant was alive, he was examined as P.W.1, but he was not cross-examined till his death. The learned counsel would also submit that the application has been filed, after dismissal of 9 applications filed for various reliefs.

Relying upon a judgment reported in C. Magesh and Ors. etc. v. State of Karnataka, AIR 2010 (1) SC 2768, and more particularly, paragraph No.53, the learned counsel for the respondents would submit that the application under Sections 91 and 233 Cr.P.c., has been filed after lapse of time will be a reason for dismissing the application. Hence, he prayed for dismissal.

I have considered the rival submissions made on both sides and perused the typed-set of papers and the decisions relied upon by the learned counsel appearing on either side.

The deceased T.P. Selva Rayan has filed a complaint for the offences punishable under Sections 138 and 142 of Negotiable Instruments Act, stating that the petitioner herein has borrowed a sum of Rs.20,00,000/- for business purpose on 01.04.2006 with an undertaking to repay the same, within a month and to discharge the partial liability, he issued a post-dated cheque dated 01.05.2006 for Rs.10,00,000/- and when it was presented for encashment, that has been returned as ''funds insufficient'' and statutory notice has been given, for which, no reply has been given. Then, the present complaint has been preferred.

Now, the petitioner would dispute the financial capacity of the deceased complainant to pay Rs.40,00,000/-. But, in the complaint, it was stated that Rs.20,00,000/- has been borrowed and for discharging the partial liability, the disputed cheque has been issued.

It is the well settled dictum of the Apex Court that once the issuance of cheque and signature in cheque has been admitted, the presumption under Section 139 of Negotiable Instruments Act can be invoked and the cheque has been given for discharging the legally subsisting liability. Even though it is a rebuttable presumption, the burden is upon the person to rebut the presumption by preponderance of probabilities and then only, the burden is shifted to the complainant to prove that the cheque has been issued for discharging the legally subsisting liability.

Admittedly, in the present case, as soon as the petitioner received notice, he has not sent any reply. Case has been taken on file in 2006 and furthermore, it is admitted that he filed document in Ex.D.1. Ex.D.1 is alleged to be a discharge receipt and that has been sent to Forensic Department for analysis, wherein it was held that the document is a fabricated one. Furthermore, it is also admitted that the petitioner has not pressed some of the applications filed by him. It is also admitted fact that he has filed another application, which was dismissed as withdrawn on 11.08.2014 and after that only, he has come forward with the application under Section 91 Cr.P.C., for sending for documents from the Income Tax Department, after the death of the original complainant, which shows his mala fide intention to drag on the proceedings by filing application one after another.

Now, coming to the decision relied upon by the learned counsel for the petitioner in K. Subramani v. K. Damodara Naidu, 2014 (3) MWN (Cr.) DCC 129 (SC) : 2015(1) SCC 99 the above citation is not applicable to the facts of the present case, since in the said case, both the complainant and accused were working as Lecturers in a Government College and they were governed by the Government Servants'' Conduct Rules, which prescribes the mode of lending and borrowing and on that basis, the order has been passed, but, whereas, the facts of the present case is entirely different.

The decision relied on by the petitioner in Vijay v. Laxman, 2013 (1) MWN (Cr.) DCC 161 (SC) : 2013 (3) SCC 86, is also not applicable to the facts of the present case, wherein the presumption under Section 139 of Negotiable Instruments Act has been specifically mentioned. As such, it is the duty of the accused to probabilise his defence stating that the cheque has been issued only as a security for his business.

He also relied upon a decision of this Court in Muthukumaran v. Periyasamy, 2012 (2) MWN (Cr.) (DCC) 113 (Mad) : Crl.R.C. (MD) No. 764 of 2010, dated 29.03.2012, wherein, the accused was convicted by both the trial as well as the first appellate Court and in the revision only, he was acquitted of the charges and the application under Section 91 Cr.P.C., has not been filed and, therefore, the said decision also is not applicable to the case of the petitioner.

Coming to the decision relied upon by the learned counsel for the respondents in C. Magesh and Ors. etc. v. State of Karnataka, AIR 2010 SC (1) 2768, the same is squarely applicable to the facts of the present case. At paragraph No.53, it was held thus:

"53. It would be apt to mention herein that interlocutory applications were filed by some of the accused in the trial court under Sections 91 and 233 of the Cr.P.C. The applications mainly pertained to securing of certain materials, documents and witnesses to establish their defence. At the very outset it is pertinent to mention that in this particular matter there has been an inordinate delay, despite the High Court granting six months for the completion of the trial and thereafter another three months'' extension was sought by the trial court. As per Section 233, the trial court can refuse securing of defence evidence if it so feels that the same is being done to further delay the trial. The trial court had considered the judgment of the High Court of Karnataka in Crl.Rev. Petition No.677/03, touching almost the identical issue, wherein it was held that the defence evidence has to be led without summoning of any documents and the counsel for the defence has conceded to the said point. Thus, we are of the opinion that trial court has committed no error in rejecting the above applications. Even otherwise there seems to be no prejudice caused to the accused by mere rejection of these applications."

In the case on hand, the petitioner has taken different views and he admitted the issuance of cheque and the signature found therein, but, he has stated that the cheque has been issued as security for his business with the deceased complainant and he filed a document in Ex.D.1, which was alleged to be given by the deceased T.P. Selva Rayan and that has been found to be forged, after the document was sent for getting opinion from the Forensic Department. It is also admitted fact that he filed several applications one after another. Now, he has come forward with the application under Section 91 Cr.P.C., to send for some documents from the Income Tax Department.

In such circumstances, I am of the view that the petitioner has every right to rebut the presumption under Section 139 of Negotiable Instruments Act and instead of doing so, he filed so many documents and series of applications, which shows his mala fide intention to drag on the proceedings. Hence, I do not find any merit in this petition. The order passed by the Trial Court does not suffer from any error or illegality and the same does not warrant any interference at the hands of this Court. Therefore, finding no merit, this petition is dismissed. However, since the case is of the year 2006, the learned Judicial Magistrate, Valllioor, is directed to dispose of the case in C.C. No.236 of 2006, on merits and as per law, within a period of two months from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petition is also dismissed.