Crl.RC.No.435 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.09.2022
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Criminal Revision Case No.435 of 2019
S.Dhandapani ... Petitioner
Vs.
R.Thirupathi ... Respondent
Prayer: Criminal Revision filed under Section 397 read with 401 of
Criminal Procedure Code, praying to set aside the Judgement of conviction
imposed in C.A.No.112 of 2018 on the file of the III Additional Sessions
Judge, Salem, confirming the Judgment in S.T.C.No.469 of 2015 on the file
of the Judicial Magistrate No.IV, Salem dated 20.06.2018.
For Petitioner : Mr.C.K.M.Appaji
For Respondent : Mr.V.Gunasekar
ORDER
The Criminal Revision Case has been file seeking to set aside the Judgement in C.A.No.112 of 2018 on the file of the III Additional Sessions Judge, Salem, confirming the Judgment of conviction and sentence imposed in S.T.C.No.469 of 2015 on the file of the Judicial Magistrate No.IV, Salem dated 20.06.2018.
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2. The petitioner is the accused and the respondent is the complainant. The respondent had registered a private complaint against the petitioner under Section 138 of Negotiable Instruments Act before the learned Judicial Magistrate No.IV, Salem. The learned Magistrate taken the case on file in S.T.C.No.469 of 2015 and after trial, convicted the petitioner for the offence under Section 138 of Negotiable Instruments Act and sentenced to undergo one year Simple Imprisonment and to pay the cheque amount of Rs.3 lakhs as compensation to the defacto complainant. Challenging the said Judgment of conviction and sentence, the petitioner filed appeal before the III Additional Sessions Judge, Salem, in C.A.No.112 of 2018. The learned Sessions Judge after hearing the arguments, dismissed the appeal and confirmed the conviction and sentence passed by the trial Court. Aggrieved over the same, the petitioner has filed the present revision before this Court.
3. The learned counsel for the petitioner would submit that the petitioner has not borrowed any money from the respondent. Infact the respondent was running a chit in which, the petitioner was a subscriber and towards the settlement of his chit amount, the petitioner had issued two blank cheques to the respondent for security purpose in the year 2008. But 2/10 https://www.mhc.tn.gov.in/judis Crl.RC.No.435 of 2019 even after settling the chit amount, the respondent conveniently retained the cheques and after lapse of 6 years, he has misused the cheque and filed the complaint as if, it was issued in the year 2014 towards the amount borrowed from him. He would further submit that the respondent has no financial capacity to lend such a huge amount of Rs.2,70,000/- and he has not stated anything as to how he arranged the said amount in the year 2014. He would further submit that the petitioner issued the said cheque in the year 2008, whereas the cheque has been filled and presented in the year 2014. Further, he has not filed the promissory note at the time of filing the complaint or till he was examined as P.W.1. and only after the cross examination, he produced the promissory note which itself shows that the petitioner had not borrowed any money from the respondent and executed the disputed cheque towards the legally enforceable debt. He would further submit that no notice was served to the petitioner. Only after service of the notice, if the petitioner not repaid the cheque amount within the statutory period, then the cause of action would arise for filing complaint under Section 138 of Negotiable Instruments Act. But the respondent has not proved that the statutory notice was served on the petitioner and simply stated that the mother of the petitioner had received the notice. Further the respondent has altered the 3/10 https://www.mhc.tn.gov.in/judis Crl.RC.No.435 of 2019 year in the cheque which is a material altercation. Therefore, the respondent has not approached the Court with clean hands and even he has not complied with the statutory provision under Section 138 of Negotiable Instruments Act, whereas both the Courts below have failed to consider the same and arrived at a conclusion as if, the petitioner had borrowed money from the respondent and issued the cheque to discharge the legally enforceable debt without having sufficient funds in his account and subsequently, the cheque was dishonoured. The findings of the Courts below are perverse which warrants interference of this Court.
4. The learned counsel for the respondent would submit that the petitioner admitted the signature and he has also admitted the earlier chit transaction with the respondent and therefore, both the Courts below have rightly appreciated the evidence. Further, the petitioner himself has admitted that the respondent is working and getting salary of Rs.25,000/- which clearly shows that the respondent has got means to lend money. Therefore, once the signature and execution of cheque are also admitted, then the initial burden of the complainant is proved and sit is for the accused to rebut the presumption in the manner known to law. Therefore, both the 4/10 https://www.mhc.tn.gov.in/judis Crl.RC.No.435 of 2019 Courts below have rightly appreciated the evidence and convicted the petitioner and there is no merit in the revision.
5. Heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the materials on record.
6. The case of respondent is that petitioner had borrowed a sum of Rs.2,70,000/- from the respondent on 26.04.2014 for his urgent family expenses and agreed to repay the same with interest of Rs.1/- per hundred, per month, within 15 months period and executed a pronote on the same. Thereafter, in order to discharge the debt, the petitioner issued the cheque bearing No.001140 on 06.04.2015 for a sum of Rs.3 lakhs on 06.04.2015 and requested to present the same for collection after 10 days. Thereafter, when the cheque was presented for collection on 18.04.2015, the same was dishonoured with a return memo for the reasons “Funds insufficient.” Thereafter, the respondent issued notice to the petitioner under Section 138 of Negotiable Instruments Act on 29.04.2015 and the mother of the petitioner has received the said notice. However, the petitioner neither repaid the money nor sent any reply. Therefore, the respondent was 5/10 https://www.mhc.tn.gov.in/judis Crl.RC.No.435 of 2019 constrained to file the complainant under Section 138 of Negotiable Instruments Act. In order to substantiate his case, the respondent was examined as P.W.1 and marked 7 documents.
7. A careful perusal of the entire materials shows that the petitioner has admitted the signature found in the cheque and his only defence is that he issued the said cheque towards a chit transaction in the year 2008. Once the respondent produced the cheque stating that the petitioner had borrowed money by way of promissory notice and subsequently, to discharge the loan, the cheque was issued, then the respondent has discharge his initial burden. Once the signature found in the cheque is admitted and execution is also admitted, then there is a presumption under Section 139 of Negotiable Instruments Act that the cheque was issued to discharge the legally enforceable debt and it is for the accused to rebut the presumption in the manner known to law. As contended by the counsel for the petitioner if at all, the cheque was issued in the year 2008 for a chit transaction and it has been misused by the respondent in the year 2014, the petitioner could have filed the counter foil of the cheque leaf and proved the same or he could have proved the same through bank statement of the year 2008 with previous or subsequent cheque numbers. But he has not do so. 6/10 https://www.mhc.tn.gov.in/judis Crl.RC.No.435 of 2019
8. In this case, the signature is admitted and the execution is also admitted. The petitioner has not proved his defence that the cheque was not issued to the respondent as stated by him in the year 2014 and it was issued only in the year 2008 towards chit transaction. Further, as far as, the financial capacity of the respondent is concerned, the petitioner himself as admitted that the respondent is working and earning a sum of Rs.25,000/- per month and he is working for more than 15 years and therefore, the defence regarding the financial capacity is also not sustainable. As far as service of notice is concerned, the respondent has stated the the mother of the petitioner had received the statutory notice. But the petitioner has stated that none of his family members had received the notice. When the respondent states that the mother of the petitioner received the notice and marks the acknowledgement card and when the petitioner disputed the same, he should have taken steps to send the signature and the acknowledgement card for expert opinion with the admitted signature of his mother to prove his defence. Atleast, he should have examined his mother so that she would have denied the signature. But he has not done so. Therefore, the petitioner has not substantiated the defence taken by him, 7/10 https://www.mhc.tn.gov.in/judis Crl.RC.No.435 of 2019 whereas during trial, the respondent was examined as P.W.1 and marked 7 documents and thereby, the respondent has proved his case with cogent evidence. Therefore, both the Courts below rightly appreciated the evidence and convicted the petitioner under Section 138 of Negotiable Instruments Act.
9. The scope of revision is very limited and this Court as a revision Court cannot sit in the Arm chair of the Appellate Court and re-appreciate the entire evidences unless the Court finds that there is perversity in the appreciation of evidence.
10. This Court does not find any perversity in the Judgments of the Courts below and there is no merit in the revision. The petitioner has not made out any grounds to allow this revision and therefore, the revision petition is liable to be dismissed.
11. Accordingly, this Criminal Revision Case is dismissed. 8/10 https://www.mhc.tn.gov.in/judis Crl.RC.No.435 of 2019
12. The petitioner is directed to pay the compensation amount of Rs.3 lakhs to the respondent within a period of one month from the date of receipt of a copy of this order failing which, the trial Court is directed to execute the warrant against the petitioner.
15.09.2022 ksa-2 To
1. The III Additional Sessions Judge, Salem
2. The Judicial Magistrate No.IV, Salem 9/10 https://www.mhc.tn.gov.in/judis Crl.RC.No.435 of 2019 P.VELMURUGAN,J.
ksa-2 Criminal Revision Case No.435 of 2019 15.09.2022 10/10 https://www.mhc.tn.gov.in/judis