Crl.R.C.No.953 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.09.2022
CORAM:
THE HON'BLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.No.953 of 2022
and
Crl.M.P.No.10148 of 2022
1.M/s.Thulasi Suppliers,
Rep.by its Proprietor,
Mr.Ravi.
2.R.Ravi ... Petitioners
..vs..
M/s.Power Caar Care Center,
Rep.by its Proprietor
S.Senthil ... Respondent
Criminal Revision Case filed under Sections 397 r/w 401 Cr.P.C to
call for the records in C.A.No.132 of 2016 dated 23.10.2018 on the file of
the XVII Additional Sessions Judge, City Civil Court, Chennai confirming
the judgment passed by the Metropolitan Magistrate (Fast Track Court
No.III) Saidapet, Chennai in C.C.No.10725 of 2010 dated 22.04.2016 to
undergo 6 months of simple imprisonment and to pay compensation sum of
Rs.25,00,000/- to the complainant for the offences under Section 138 of
NI Act and set aside the same.
Page No.1/8
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.953 of 2022
For Petitioners : Mr.S.Saranraj
For Respondent : Mr.J.William Shakesphere
ORDER
This revision has been preferred challenging the judgment dated 23.10.2018 passed in Crl.A.No.132 of 2016 by the learned XVII Additional Sessions Judge, City Civil Court, Chennai.
2. The revision petitioners are accused, against whom, the respondent/complainant filed a private complaint in C.C.No.10725 of 2010 before the learned Metropolitan Magistrate (Fast Track Court No.III) Saidapet, Chennai. After trial, the learned Magistrate found that the petitioners are guilty of the offence under Section 138 of The Negotiable Instruments Act, 1881 [hereinafter referred to as 'N.I.Act' for the sake convenience] and convicted and sentenced the second petitioner/A2 to undergo simple imprisonment for a period of six months and directed the first petitioner/A1 to pay the cheque amount as compensation. Challenging the said order, the petitioners have preferred an appeal in Crl.A.No.132 of 2016 before the learned XVII Additional Judge, City Civil Court, Chennai. Page No.2/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.953 of 2022 The learned Appellate Judge confirmed the order of the trial Court and dismissed the appeal. Aggrieved by the same, the petitioners have preferred the present revision case.
3.The learned counsel for the petitioners/accused submitted that the respondent/complainant has no means to lend such a huge amount of Rs.25,00,000/-. The respondent/complainant is a tenant of the second petitioner’s wife and she has also taken eviction proceedings against the respondent. During their tenancy, the petitioners borrowed a sum of Rs.10,000/- and in order to discharge the said liability, the petitioners issued a cheque for collateral purpose. Even after repayment of the said loan amount, the respondent did not return the cheque and discharge the petitioners from the said transaction. He further submitted that second petitioner’s wife had issued a legal notice dated 13.05.2010 to the respondent seeking to evict the leased premises. Thereafter, the respondent/complainant issued a legal notice dated 21.05.2010 to the petitioners for repayment of the alleged cheque amount of Rs.25,00,000/-, Page No.3/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.953 of 2022 for which, the petitioners/accused also sent a reply notice by denying the said allegations. The trial Court failed to consider the facts and allowed the petition, even though the respondent/complainant has not filed any document to show that the petitioners lent the huge sum of Rs.25,00,000/-, which would clearly show that the respondent has not come with clean hands. In order to counter blast to the notice sent by the petitioner's wife, the respondent filled the blank cheque which was given by the petitioners for collateral purpose and filed a complaint against the petitioners.
4. The learned counsel for the petitioners further submitted that, even during the cross examination, P.W.1 clearly stated that for the past three years, he could not have borrowed any money and issued cheque within the strange relationship between the petitioners and the respondent. Except the filled cheque, the respondent has not produced any document to substantiate their claim. Both the Courts below failed to consider the facts and circumstances and convicted and sentenced the petitioners for the alleged offence, which warrants interference of this Court. Page No.4/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.953 of 2022
5.The learned counsel for the respondent submitted that the petitioners have admitted the signature and execution of the disputed cheque and hence, the petitioners have not approached the Court with clean hands and hence, the judgments of the Court below do not require any interference by this Court.
6.Admittedly, the respondent filed a complaint against the revision petitioners for the offence under Section 138 of N.I.Act. Further, the petitioners have admitted that they have executed the cheque to the complainant towards security purpose and also admitted the signature found in the cheque.
7.It is a settled proposition of law that when once the execution of the cheque is admitted, Section 139 of N.I.Act mandates a presumption that the cheque was issued for discharge of legally enforceable debt or other liability. No doubt, the presumption under Section 139 is a rebuttable Page No.5/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.953 of 2022 presumption and the onus is on the accused to raise the probable defence, wherein the existence of a legally enforceable debt or liability can be contested. The standard of proof for rebutting the presumption is not as that of the complaint.
8.In the case on hand, the petitioner has admitted the execution of the cheque, but the defence taken by the petitioners/accused is that they have borrowed only a sum of Rs.10,000/-, but, even after repayment of the same, the respondent did not return back cheque. In this regard, the petitioners have not taken any steps, even though the wife of the accused sent a notice on 13.05.2020 for some other purpose. However, the petitioners have not sent any notice or any complaint against the respondent for the above allegation. Therefore, the petitioners have not rebutted the presumption in the manner know to law.
9.The scope of revision is very limited. The Trial Court and the Appellate Court had already appreciated the entire evidence and also given Page No.6/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.953 of 2022 findings and while exercising the revisional jurisdiction, this Court cannot sit in the arm chair of the Appellate Court and re-appreciate the evidence. However, this Court has to see whether there is any perversity in appreciation of evidence by the Courts below.
10.On a combined reading of the entire materials and judgments of both the Courts below, this Court does not find any perversity in the judgments of the Courts below. Accordingly, this Criminal Revision Case is dismissed. Consequently, connected miscellaneous petition is closed.
12.09.2022 Index: Yes/No Speaking Order/Non-Speaking Order ms Page No.7/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.953 of 2022 P.VELMURUGAN, J.
ms To
1.The XVII Additional Sessions Judge, City Civil Court, Chennai.
2.The Metropolitan Magistrate (Fast Track Court No.III) Saidapet, Chennai.
Crl.R.C.No.953 of 2022 and Crl.M.P.No.10148 of 2022 12.09.2022 Page No.8/8 https://www.mhc.tn.gov.in/judis