Crl.R.C.No.1017 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 13.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.No.1017 of 2019
P.Pakirisamy ... Petitioner
Vs.
K.Srinivasan ... Respondent
This Criminal Revision case has been filed under Sections 397 r/w 401 of
Code of Criminal Procedure to call for the records and set aside the order of
conviction and sentence passed in C.A.No.139 of 2015, dated 11.03.2019, on
the file of the learned IV Additional Sessions Judge, Chennai, confirming the
judgment passed by the learned Metropolitan Magistrate, Fast Track Court-II,
Egmore, Chennai in C.C.No.1227 of 2012.
For Petitioner : M/s.R.Murugabharathi
For Respondent : Mr.K.R.Ramesh Kumar
******
ORDER
This Criminal Revision Case has been filed challenging the Judgment passed by the learned IV Additional Sessions Judge, Chennai in C.A.No.139 of 2015, dated 11.03.2019, upholding the conviction and sentence imposed by Page No.1/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1017 of 2019 the learned Metropolitan Magistrate, Fast Track Court-II, Egmore, Chennai, by judgment dated 19.06.2015 in C.C.No.1227 of 2012.
2. The petitioner is the accused and the respondent is the complainant. The respondent / complainant filed a complaint under Section 138 of Negotiable Instruments Act (In short "the Act") for dishonour of cheque. The said case was registered as C.C.No.1227 of 2012. The learned Metropolitan Magistrate, Fast Track Court No.II, Egmore, Chennai, passed an order convicting the petitioner-accused for the offence punishable under Section 138 N.I. Act and directed the petitioner/accused to pay compensation of a sum of Rs.2,00,000/- to the respondent/complainant, in default, to undergo simple imprisonment for one year. The petitioner preferred the appeal against the said order, which was numbered as Criminal Appeal No.139 of 2015. The learned IV Additional Sessions Judge, Chennai, dismissed the appeal confirming the judgment in C.C.No.1227 of 2012 convicting the accused. Against which, the present Criminal Revision.
3. The learned counsel for the petitioner would submit that there was no documentary evidence by the respondent/complainant as to the details of payments made by the petitioner/accused based on the construction Page No.2/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1017 of 2019 agreement (Ex.P1), however, in the absence of the same, the claim of the complainant that the petitioner/accused had paid Rs.8,38,600/- and Rs.2,00,000/- was due to the complainant is not having any substantiating material, however, the Courts below, without appreciating the facts, rejected the claim of the petitioner/accused. It is further contended that pending revision, the revision petitioner has deposited a sum of Rs.1,00,000/- to the credit of C.C.No.1227 of 2012, on the file of Metropolitan Magistrate, Fast Track Court-II, Egmore, Chennai. The respondent/complainant has not proved his case and also he failed to prove the fact that on the date of presentation of cheque for collection, there was legally enforceable debt to be paid by the petitioner. The trial Court has failed to consider the above facts and convicted the petitioner and the lower appellate Court has also without appreciating the above facts has simply confirmed the judgment of the trial Court, which warrants interference.
4. The learned counsel for the respondent/complainant would submit that the petitioner/accused has entered into an agreement on 23.10.2009 for the construction of the building, and after construction, paid Rs.8,38,600/- out of total cost of construction of Rs.10,38,600/- and hence, the petitioner has issued a cheque for the balance sum i.e., Rs.2,00,000/-. When the cheque was Page No.3/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1017 of 2019 presented for collection, the same was dishonored and returned for the reason “insufficient funds”. The complainant/respondent issued a Statutory Notice on 19.04.2011 and the same was acknowledged by the petitioner on 23.04.2011. But, he neither repaid the said amount as mentioned in the Statutory Notice, nor sent any reply. Therefore, the respondent was constrained to file a complaint for the offence under Section 138 of Negotiable Instrument Act. Both the learned Magistrate as well as the learned Appellate Court rightly considered the oral and documentary evidence and had rightly come to the conclusion that the petitioner has committed the offence and hence, there is no merit in the Revision and the same is liable to be dismissed.
5. Heard the learned counsel on either side and perused the materials available on record.
6. The petitioner filed this revision against the concurrent judgment of conviction made by both the Courts below. It is not in dispute that the petitioner/owner and the respondent/builder entered into an agreement (Ex.P1) on 23.10.2009 for the construction of the building. Ex.P2 is an affidavit by the petitioner stating that he would settle the amount of Rs.2,00,000/- to the respondent/complainant and Ex.P3 is the subsequent agreement dated Page No.4/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1017 of 2019 24.01.2011, in which, the petitioner/accused sought further time to pay the sum of Rs.2,00,000/-. Though it is the contention of the learned counsel for the petitioner that there was no documentary evidence produced by the respondent/complainant as to the details of payments made by the petitioner/accused based on the construction agreement (Ex.P1), and Exs.P2 & P3 are fabricated, it is for the accused to rebut the presumption in the manner known to law through documentary evidence. A bare perusal of the entire evidence of the petitioner / accused, it could be seen that the petitioner/ accused had admitted the execution of cheque and the signature in the cheque is not denied by the revision petitioner / accused, and therefore, once the issuance of cheque is admitted, Section 138 of Negotiable Instruments Act would attract and the presumption under Section 118 and 139 of the Negotiable Instruments Act can be drawn and it is for the accused has to rebut the presumption that there is no legally enforceable debt and cheque has not been issued for legally enforceable debt. Though the statutory presumption is rebuttable one, the reading of the entire materials shows that the revision petitioner has not rebutted the presumption in the manner known to law. Further, when the statutory notice was issued to the petitioner, the petitioner has not given any reply to the statutory notice. Page No.5/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1017 of 2019
7. On a reading of the entire materials, both the Courts below have appreciated the evidence in proper perspective and found guilt of the accused and awarded compensation, and in default of payment of compensation, awarded sentence. Therefore, this Court finds that there is no merit in the revision, and there is no ground to interfere with the judgment of the Courts below.
8. In the result, the criminal revision is dismissed and judgment of conviction and sentence passed by the Courts below are hereby confirmed. As the petitioner already deposited a sum of Rs.1,00,000/- to the credit of C.C.No.1227 of 2012, the petitioner is directed to deposit the balance compensation of Rs.1,00,000/- to the credit of C.C.No.1227 of 2012, on the file of Metropolitan Magistrate, Fast Track Court-II, Egmore, Chennai within a period of eight weeks from the date of receipt of a copy of this order. It is made clear, in default of payment of compensation, the order passed by the trial Court shall stand restored.
13.09.2022 Speaking Order : Yes.
Index : Yes.
rns Page No.6/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1017 of 2019 To
1. The IV Additional Sessions Judge, Chennai,
2. The Metropolitan Magistrate, Fast Track Court-II, Egmore, Chennai.
Page No.7/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1017 of 2019 P.VELMURUGAN, J., rns Crl.R.C.No.1017 of 2019 13.09.2022 Page No.8/8 https://www.mhc.tn.gov.in/judis