Crl.R.C.No.990 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.09.2022
CORAM
THE HON'BLE Dr.JUSTICE G.JAYACHANDRAN
Crl.R.C.No.990 of 2016
and
Crl.M.P.Nos.7943 & 7944 of 2016
P.Krishnasamy
... Petitioner
-Vs.-
R.Anbu
.. Respondent
Criminal Revision Petition filed under Section 397 of Code of
Criminal Procedure to set aside the conviction and sentence imposed on
the petitioner by the Principal District and Sessions Court, Dharmapuri in
C.A.No.14 of 2015 dated 27.04.2016 confirming the judgment passed by
the learned Judicial Magistrate, Fast Track Court, Dharmapuri in
S.T.C.No.57 of 2013 dated 29.04.2015 by allowing this Criminal
Revision Petition.
For Petitioner : Mr.C.Munusamy
For Respondent : Mr.V.Rajamohan
https://www.mhc.tn.gov.in/judis
1/9
Crl.R.C.No.990 of 2016
ORDER
This revision petition has been filed challenging the concurrent findings of the Court below in the complaint arising out of Section 138 of the Negotiable Instruments Act.
2. The facts of the case is that the complainant and the accused are related to each other. At the time of Panchayat President Election, the accused, who contested for the post of President, to meet out his election expenses, borrowed a sum of Rs.6,00,000/- from the complainant as a hand loan, during the first week of March 2013, with an assurance that he will repay the money within 15 days. To discharge the said loan amount of Rs.6,00,000/-, accused issued a cheque dated 15.04.2013 for Rs.6,00,000/-, drawn on Axis Bank Limited, Dharmapuri Branch. When the cheque was presented for collection on 17.04.2014, the same was returned with memo stating that “funds insufficient”. Immediately, the complainant contacted the accused and informed about the return of the cheque. The accused requested the complainant to represent the cheque during the second week of May 2013, so as to enable him to arrange https://www.mhc.tn.gov.in/judis 2/9 Crl.R.C.No.990 of 2016 funds. Accordingly, complainant presented the cheque again on 11.05.2013. However, the cheque was bounced again for want of fund. Thereafter, the Statutory notice dated 18.05.2013, was caused to the accused calling upon him to pay the cheque amount or to face consequences. The accused refused to receive the notice and the notice was returned as refused. Therefore, a complaint was filed under Section 138 of the Negotiable Instruments Act read with Section 200 of Code of Criminal Procedure.
3. To prove the complaint, the complainant has examined two witnesses and the five exhibits were marked on the side of the accused. To rebut the case of the complainant, the accused himself has mounted the witness box.
4. The trail Court after appreciating the evidence such as Cheque/Ex.P1 and the return memo/Ex.P2, the statutory notice, postal endorsement and the cover stating Refused, which are marked as Ex.P3 and Ex.P4, held that the complainant has proved the fact that Rs.6,00,000/- was borrowed by the accused and issued the cheque/Ex.P1. https://www.mhc.tn.gov.in/judis 3/9 Crl.R.C.No.990 of 2016 When this statutory notice issued regarding the return of cheque, the accused refused to receive the notice and thereby cognizance to take the complaint under Section 138 of the Negotiable Instruments Act is commenced. The evidence of the accused, that he was running a unregistered chit and the blank cheque was given as a security for the prize amount, the same was misused by the complainant, was disbelieved by the trial Court, since except his ocular evidence, there is no evidence to corroborate or substantiate the default. The trial Court had also taken note of the fact that the accused admitted that he owe Rs.3,50,000/- to the complainant and for that debt, he give him a blank cheque which indicates that there is an enforceable debt and pursuant to that, the subject cheque was issued. Having found the accused guilty, the trial Court convicted him to undergo one year simple imprisonment and pay a sum of Rs.6,00,000/- as compensation, in default one month simple imprisonment.
5. Aggrieved by the conviction and sentence, the accused preferred Crl.A.No.14 of 2015 before the learned Principal District and Sessions Judge, Dharmapuri. Before the appellate Court, the accused contended https://www.mhc.tn.gov.in/judis 4/9 Crl.R.C.No.990 of 2016 that the trial Court failed to consider the fact that the cheque was not issued for discharge of any debt or liability and also no cash was received from the complainant as hand loan, as stated by the complainant. The accused evidence that, in pursuant to the cheque transaction, he was liable to pay only a sum of Rs.2,00,000/- whereas, a blank cheque that was given as a security has been filled up for a sum of Rs.6,00,000/- without any proof to show the source of the money and the same had been ignored by the Court below.
6. However, the appellate Court on re-appreciating the evidence, in the light of grounds of the appeal, dismissed the appeal recording that if facts stated by the accused in his evidence are true, then the same should have been disclosed at the earliest opportunity when the statutory notice was issued to him but the accused, instead of receiving statutory notice and reply the same, he refused receiving it. Having admitted the issuance of cheque, presumption under Sections 139, 139 and 118 of the Negotiable Instruments Act, falls against the accused. Therefore, the judgment of the Court below was confirmed by the appellate Court. https://www.mhc.tn.gov.in/judis 5/9 Crl.R.C.No.990 of 2016
7. In the revision, the grounds that are canvassed before the Lower Appellate Court has been reiterated. The learned counsel for the revision petitioner states that the complainant had not produced any documents to show his capacity to lend Rs.6,00,000/- and his income tax returns were not filed to prove the fundamental fact.
8.The learned counsel for respondent/complainant would submit that the admission of issuance of the cheque and the admission of money transaction between the accused and the complainant fortifies the case of the complainant that the cheque was issued for legally enforceable debt. It is an admitted fact that the complainant and the accused are related to each other and carrying on similar business. Therefore, there is no reason to issue the cheque by filling up an amount more and above what is liable to repay.
9. This Court after careful consideration of the rival submission and records, particularly the deposition of the PW1/accused, finds that cheque/Ex.P1 was issued for discharge of enforceable debt. The point disputed by the accused is that the debt is not Rs.6,00,000/- but less than https://www.mhc.tn.gov.in/judis 6/9 Crl.R.C.No.990 of 2016 Rs.6,00,000/-. For that purpose, the accused should have adduced evidence. In the absence of evidence, Ex.P1 cannot be doubted. More so, when there is a statutory presumption in favour of the complainant, that the cheque was issued for discharge of the debt, the said document can be rebutted only by equally reliable document evidence and not by oral evidence. Hence this Court finds no error in the judgments of the Courts below, holding the accused guilty.
10. As far as sentence is concerned, the learned counsel for the revision petitioner submit that the petitioner is not in financial position to pay the compensation amount and also the imprisonment of one year for the offences will cause irreparable loss to the petitioner and his family.
11. This Court considering the said submission modify the sentence of one year simple imprisonment as six months. Insofar as compensation amount is concerned if the accused fails to pay the compensation of Rs.6,00,000/-, the default sentence shall be 2 months.
12. With these modifications, this Criminal Revision Petition is https://www.mhc.tn.gov.in/judis 7/9 Crl.R.C.No.990 of 2016 disposed of. Consequently connected miscellaneous petitions are also closed.
08.09.2022 Speaking/Non-speaking order Index: Yes/No Internet : Yes/No nsa To
1.The Principal District Sessions Court, Dharmapuri
2.The Judicial Magistrate, Fast Track Court, Dharmapuri
3.The Public Prosecutor, High Court of Madras, Chennai.
https://www.mhc.tn.gov.in/judis 8/9 Crl.R.C.No.990 of 2016 Dr.G.JAYACHANDRAN.J., nsa Crl.R.C.No.990 of 2016 & Crl.M.P.Nos.7943 and 7944 of 2016 08.09.2022 https://www.mhc.tn.gov.in/judis 9/9