Crl.RC.No.1393 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.1393 of 2019
J.Manikandan ... Petitioner
Vs.
R.Anand ... Respondent
Prayer: Criminal Revision filed under Section 397 read with 401 of
Criminal Procedure Code, praying to set aside the order made in
Crl.A.No.24 of 2016 on the file of Principal Sessions Court, Kancheepuram
District at Chengalpattu dated 11.02.2019 confirming the order in the
C.C.No.767 of 2011 on the file of Judicial Magistrate, Tambaram dated
06.07.2016.
For Petitioner : Mr.A.Sundaravadhanan
For Respondent : Mr.J.Arockia Dass
for M/s. Dass and Viswa Associates
1
https://www.mhc.tn.gov.in/judis
Crl.RC.No.1393 of 2019
ORDER
The Criminal Revision Case has been filed seeking to set aside the order made in Crl.A.No.24 of 2016 on the file of Principal Sessions Court, Kancheepuram at Chengalpattu dated 11.02.2019 confirming the order in C.C.No.767 of 2011 on the file of Judicial Magistrate, Tambaram dated 06.07.2016.
2. The petitioner is accused and the respondent is the complainant.
3. The case of the respondent is that the petitioner had borrowed a sum of Rs.4,83,000/- from the respondent in order to start a business, after executing promissory notes. Thereafter, when the respondent demanded the petitioner for repayment, the petitioner had issued a cheque bearing No.077465 dated 29.08.2010 drawn at Syndicate bank, Selaiyur Branch, Chennai for a sum of Rs.4,83,000/- and when the respondent presented the said cheque for collection with his banker, the same was returned with a return memo dated 31.08.2010 stating “Fund Insufficient.” Hence, the respondent sent a legal notice to the petitioner on 27.09.2010 and same was 2 https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019 also received by the petitioner. However, he neither repaid the money nor given any reply to the same. Hence, the respondent had no other option except to file the case under 138 of Negotiable Instruments Act.
4. Accordingly, the respondent filed a complaint against the petitioner under Section 138 of Negotiable Instruments Act before the learned Judicial Magistrate, Tambaram, and the same was taken on file in C.C. No.767 of 2011. The learned Magistrate after trial, convicted the revision petitioner for the offence under Section 138 of Negotiable Instruments Act and sentenced to undergo six months rigorous imprisonment and to pay a sum of Rs.4,85,000/- to the respondent as compensation. Challenging the said Judgment of conviction and sentence, the petitioner filed appeal before the learned Principal Sessions Judge in C.A.No.24 of 2016. After arguments, the learned Sessions Judge dismissed the appeal confirming the conviction and sentence passed by the learned Judicial Magistrate. Now challenging the Judgment of dismissal of the appellate Court, the petitioner has filed the present revision before this Court.
3 https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019
5. The learned counsel for the revision petitioner would submit that the respondent has not proved that he is having financial capacity to lend such a huge amount of Rs.4,83,000/- and he has also not produced any supportive document to substantiate the date of borrowal or any other document obtained from the petitioner for the alleged borrowal and therefore, in the absence of the same, the respondent has not proved that the cheque was supported with valuable consideration. Further, the respondent has not proved that the cheque was issued to discharge the legally enforcible debt. Unfortunately, both the Courts below have failed to appreciate the evidence and allowed the complaint and convicted the revision petitioner which warrants interference of this Court.
6.The learned counsel for the respondent would submit that the revision petitioner has admitted the execution and also the signature found in the cheque. Further, in one place he has stated that he has partially discharged the debt and in another place he has stated fully discharged. However, he has not produced any document to substantiate the same. Therefore, both the Courts below rightly appreciated the evidence and convicted the petitioner and there is no ground to interfere with the judgments of the Courts below.
4 https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019
7. Heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the materials on record.
8. Admittedly the petitioner is the accused and the respondent is the complainant. It is a matter of complaint under Section 138 of Negotiable Instruments Act. In this case, the respondent had filed the complaint against the revision petitioner for the offence under Section 138 of Negotiable Instruments Act and both the Courts below have found that the respondent has proved his case and the revision petitioner has committed the offence under under Section 138 of Negotiable Instruments Act and thereby, convicted the petitioner and sentenced as stated above.
9. A careful perusal of the entire records shows that the revision petitioner has admitted the signature and also the execution of cheque. As contended by the learned counsel for the respondent, the revision petitioner in one place has stated that he has partially discharge the cheque amount and in another place, he has stated that he has totally discharged the cheque amount. However, no material was produced except Ex.R1. Even Ex.R1 does not say anything about the discharge of the cheque amount. Once the 5 https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019 execution is admitted, the Court can draw the statutory presumption under Section 139 of Negotiable Instruments Act that the cheque has been issued to discharge the legally enforcible debt. Therefore, the Courts below have rightly drawn the statutory presumption, whereas the revision petitioner has not rebutted the presumption under Section 139 of Negotiable Instruments Act. No doubt, the accused need not rebut the presumption by direct evidence. He can also rebut the presumption by preponderance of probabilities, whereas as already stated, in the said notice, the revision petitioner admitted the execution and the signature found in the cheque. Further, the plea of discharge itself has not been substantiated by the revision petitioner by letting direct or circumstantial evidence or atleast by getting admission from P.W.1. Further, the revision petitioner has not rebutted the presumption either by direct evidence or by preponderance of probabilities.
10. The scope of the revision is very limited. The revision Court cannot sit in the Arm chair of the appellate Court and cannot re-appreciate or re-assess the evidence as trial Court and appellate Court. As a revision Court, this Court while exercising its power, has to find out is there any 6 https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019 perversity in the appreciation of evidence in the Judgments passed by the Courts below. Unless there is a perversity, the revision Court cannot interfere with the Judgments of the Courts below.
11. On a careful perusal of the materials, this Court does not find any perversity in appreciation of evidence by the Courts below. Though the revision petitioner has taken the stand that the respondent has not proved his financial capacity and no supportive document was produced by the respondent, on receipt of notice, the revision petitioner has not sent any reply for the statutory notice sent by the respondent. Though non sending of reply, may not be a sole ground to discard the defence of the accused, once the complainant has proved the initial burden that the cheque was issued by the accused to discharge the legally enforcible debt, then it is the duty of the accused to rebut the presumption in the manner known to law. In this case, the revision petitioner has not rebutted the statutory presumption in the manner known to law. Therefore, there is no merit in this revision and the revision is liable to be dismissed.
7 https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019
12. Accordingly, this Criminal Revision Case is dismissed. The trial Court is directed to secure the petitioner to undergo the remaining period of sentence if any.
15.09.2022 ksa-2 8 https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019 To
1. The Principal Sessions Court, Kancheepuram, Chengalpattu
2. The Judicial Magistrate, Tambaram 9 https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019 P.VELMURUGAN,J.
Ksa-2 Criminal Revision Case No.1393 of 2019 15.09.2022 10 https://www.mhc.tn.gov.in/judis