IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.09.2022
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
CRL.R.C.No.1010 of 2016
S. Muthumariselvam ... Petitioner/Accused
Vs.
Boopathy ... Respondent/Complainant
PRAYER: Criminal Revision Case is filed under Section 397 r/w 401 of the
Code of Criminal Procedure, to set aside the conviction imposed in the
judgment dated 28.01.2016 made in CA.No.39 of 2014 on the file of the II
Additional Sessions Judge, Erode, confirming the conviction imposed in
Judgment dated 30.04.2014 made in STC.No.17 of 2013 on the file of the
Judicial Magistrate, Fast Track Court (Magistrate Level-I), Erode.
For Petitioner : Mr.M.Guruprasad
For Respondent : No appearance
ORDER
The revision petition filed against the concurrent findings of the court below holding that the petitioner is guilty of offence under Section 138 of the Negotiable Instrument Act.
2. According to the complaint, on 03.08.2012, the petitioner herein Page 1 of 6 https://www.mhc.tn.gov.in/judis borrowed a sum of Rs.2,00,000/- from the complainant and promised to repay it in due course. He gave a post-dated cheque dated 03.10.2012 for the said sum drawn on Dhanalakshmi Bank, Veerappanchatram Branch, Erode. When the said cheque was presented for collection, the same was returned with an endorsement 'funds insufficient' enclosed to the memorandum dated 03.10.2012. The accused thereafter caused statutory notice on 05.10.2012. The accused received it and gave a reply on 16.10.2012 denying the liability. Hence the complaint under Section 138 of the Negotiable Instruments Act.
3. To prove the complaint prosecution, the complainant was examined as PW1, marked 5 exhibits. On the side of the accused, neither document nor witness examined. The trial court on appreciating the ocular evidence, PW1 and Exs.P1 to P5 held that the accused is guilt of the offence under Section 138 of the Negotiable Instruments Act, sentenced him to undergo 6 months Simple Imprisonment and fine of Rs.5000, in default of fine amount, to undergo 30 days Simple Imprisonment. The petitioner, being aggrieved by the judgment of conviction and sentence imposed by the trial court, preferred an appeal before the II Additional Sessions Judge, Erode, in Crl.A.No.39 of 2014. The lower appellate court, on appreciating the evidence, confirmed the Page 2 of 6 https://www.mhc.tn.gov.in/judis trial court judgment and dismissed the appeal.
4. Aggrieved accused is before this court under revisional jurisdiction challenging the judgment of the court below, on the ground that the complainant has not proved the fundamental fact of issuance of the cheque for any liability. Signature in the cheque and the writings on the cheque defers both in writing as well as in language. PW1, the complainant had specifically stated that the cheque was written, signed and handed over to him by the accused. Whereas the accused is a person who cannot read or write English. The lower appellate court has given a very weird explanation for this deficiency which is not sustainable. Subject cheque was given to the son and wife of the complainant who were running unregistered chit and in the said course of chit transaction, blank cheque was given to the son and wife of the complainant. The said cheque has been grossly misused by the complainant by filling it for Rs. 2,00,000/- and presented the same for collection.
5. The learned counsel for the petitioners submitted that the accused has discharged the burden by preponderance of probability. However, the court below has negatived the defence. This court, on perusing the records and the Page 3 of 6 https://www.mhc.tn.gov.in/judis depositions and judgment of the court below, finds that the cheque/Ex.P1 is dated 03.10.2012. It is signed by the accused in Tamil. Though it is contended by the accused that the said signature was not affixed by him, comparison of the signature in the cheque and the signatures found in the depositions and in the Section 313 questioning, this Court finds that there is no difference on scrutinizing by naked eye. Anyhow, if the accused intended to rebut the presumption ought to have taken necessary steps to send the disputed cheque for hand written comparison which he has failed. The accused admits the issuance of cheque but denies the liability. In the reply notice/Ex.P5, the accused has narrated how the said cheque came to the hands of the deacto complainant. It is stated in the reply that the accused and Santhi, wife of the complainant, had chit transaction during the period 2010-2011. The subject cheque is dated 03.10.2012. The petitioner/accused had not placed any evidence to show that the blank cheque given to Santhi and Karthik were misused by the complainant and there is no explanation why he had not taken any steps to recover the said cheque for more than a year. Therefore, it is clear that the defence taken is only a formal. Further, it is not sufficient to rebut statutory presumption against the petitioner. Hence, the court below had rightly convicted the petitioner for the offence under Section 138 of the Page 4 of 6 https://www.mhc.tn.gov.in/judis Negotiable Instruments Act. As far as sentence is concerned, since the petitioner was found guilty of offence under Section 138 of the Negotiable Instruments Act for issuing the cheque for Rs.2,00,000/- knowing well that he has no sufficient funds, he was convicted to undergo 6 months Simple Imprisonment and fine amount of Rs.5000/-, in default, 30 days of Simple Imprisonment.
6. Taking note of the value of the cheque, the sentence is modified from 6 months Simple Imprisonment to 3 months Simple Imprisonment. However, the fine amount of Rs.5000/-, in default, sentence of 30 days Simple Imprisonment, is confirmed.
7. Accordingly, this Criminal Revision Case is partly allowed modifying the sentence.
15.09.2022 Index: Yes/No Internet: Yes/No gv Page 5 of 6 https://www.mhc.tn.gov.in/judis DR. G. JAYACHANDRAN., J.
gv To
1. The II Additional Sessions Judge, Erode.
2. The Judicial Magistrate, Fast Track Court (Magistrate Level-I), Erode.
CRL.R.C.No.1010 of 2016 15.09.2022 Page 6 of 6 https://www.mhc.tn.gov.in/judis