Crl.R.C.No.1013 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 16.09.2022
CORAM
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.1013 of 2018
K.Selvakumar, ... Petitioner/Appellant/Accused
/versus/
1. B.Balan,
2. The State,
Rep. by the Public Prosecutor,
Coimbatore.
(R2 Given up) ... 1st respondent/1st respondent/Complainant
Prayer: Criminal Revision Petition is filed under Section 397 & 401 of Cr.P.C.,
against the judgment passed in C.A.No.186 of 2016, on the file of IV Additional
District and Sessions Judge, Coimbatore, dated 06.07.2018 confirming the
judgment passed in C.C.No.385 of 2014 on the file of the Judicial Magistrate, Fast
Track Court, Magisterial Level-I, Coimbatore, dated 02.12.2016.
For Petitioner : Mr.K.Ponmani,
Legal Aid Counsel
For R1 : Mr.P.Sesubalan Raja.
For R2 : Given up
ORDER
Page No.1/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1013 of 2018 Heard the Learned Legal Aid Counsel appointed by the Court to represent the petitioner/accused and the Learned Counsel for the respondents/defacto complainant.
2. This Criminal Revision Petition is filed against the concurrent finding of the Courts below holding the petitioner guilty of offence under Section 138 of Negotiable Instrument Act, 1881 and sentenced to undergo 6 months S.I and to pay fine of Rs.4,10,000/- being the cheque amount within 2 months, failing which, to undergo 2 months S.I.
3. The conviction and sentence passed by the Trial Court confirmed by the Lower Appellate Court in C.C.No.385 of 2014 dated 02.12.2016. The present Criminal Revision Petition is filed on the ground that the subject cheque was issued only as a security. The petitioner not borrowed any money from the 1st respondent and there is no legally enforceable debt. Further, the respondent/complainant has not established that he is capable of giving a huge sum of Rs.4,10,000/- to the petitioner.
4. The Learned Counsel for the petitioner submitted that there was an unregistered agreement between the petitioner and the 1st respondent in respect of Page No.2/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1013 of 2018 construction of a house in the vacant site. Since the petitioner been realtor engaged in promoting land and construction of building agreed to construct house measuring 1500 sq.ft located at S.No.563/3 in Kurudampalayam Village in the name and style of “Green Avenue”. Pursuant to the said agreement, the respondent advance sum of Rs.4,10,000/-. The petitioner agreed to arrange bank loan for the balance amount, provided the petitioner furnish the necessary documents for arising loan. In the said context, the subject cheque was given as a security for the money received. While so, the petitioner not able to raise loan since the respondent was not able to produce necessary document to the satisfaction of bank authority to advance loan. In the said circumstances, to recover the money advanced without intimation, the cheque given as security was filed and presented for collection. When the petitioner came to know about the unilateral act of presenting the cheque without intimation, he caused notice on 09.01.2014 calling upon the complainant/respondent not to proceed with any complaint under Section 138 of Negotiable Instrument but to handover all the necessary documents and expenses to him in order to get loan and pursue the unregistered agreement on 24.10.2013. While fact being so, the complainant, who is at fault and breach of the agreement had misused the blank cheque given as security by filling up the amount and date. Therefore, the conviction and sentence liable to be set aside. Page No.3/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1013 of 2018
5. Per contra, the Learned Counsel for the 1st respondent submitted that even according to the petitioner receipt of Rs.4,10,000/- as advance for the site and construction is admitted and the cheque was given by the petitioner since he was not able to perform his part of contract of arranging the loan. However, without making arrangement to honour the cheque, he has given the cheque with dishonest intention and hence, the complaint. To prove, the complaint, the complainant examined herself and marked 15 documents. Whereas, the accused, who mounted the witness box and tried to rebut the presumption against him was unsuccessful. Therefore, the trial Court as well as 1st Appellate Court has held the petitioner guilty and there is no error to interfere the said judgment under this Revision Petition.
6. Heard the Learned Counsel for the petitioner and the Learned Counsel for the respondent. Records Perused.
7. The case of the complainant is that the cheque marked as Ex.P.1 for sum of Rs.4,10,000/- was given by the accused/petitioner herein to discharge Page No.4/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1013 of 2018 the debt incurred earlier. In support of this contention, the agreement (Ex.P.7) and receipts Ex.P.8, Ex.P.9, Ex.P.10, Ex.P.11 and Ex.P.12 are marked. These receipts along with the recital found in the agreement establishes the fact that the petitioner received Rs.4,10,000/- towards part consideration of the agreement marked as Ex.P.7. In fact, the petitioner himself admits the receipt of this amount in the notice dated 09.01.2014, which is marked as Ex.P.3. The only defence to rebut the presumption against him is the plea of not enforceable debt and the cheque was given only as security. These two grounds are not sustainable for the reason that the debt of Rs.4,10,000/- is explicitly admitted by the petitioner both in the agreement marked as Ex.P.7 as well as the notice issued by him marked as Ex.P.3.
8. The plea that the cheque was issued only as a security also does not hold any ground when the fact that the responsibility of arranging loan was casted upon the petitioner herein and admittedly, he could not arrange the loan and as per terms found in Ex.P.7, the petitioner is bound to return the money which is reflected in the cheque marked as Ex.P.1. They are also other documents Ex.P.14 & Ex.P.15, which are joint memos filed by the petitioner and the respondent before the Court and statement given by the petitioner before the Race Course Police, Coimbatore. For the said reasons, this Court finds no merit in the Revision Page No.5/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1013 of 2018 Petition.
9. The Learned Counsel for the respondent submits that pursuant to the petition filed for suspension of sentence, this Court directed the petitioner to deposit 50% of the cheque amount i.e., Rs.2,05,000/- and same has been deposited by the petitioner in the account of C.C.No.385 of 2014, on the file of Judicial Magistrate, Fast Track Court-I, Coimbatore and seek permission of this Court to withdraw the same and to proceed against the petitioner for recovery of the balance compensation amount.
10. The permission sought by the respondent/complainant to withdraw Rs.2,05,000/- deposited in the account of C.C.No.385 of 2014 is allowed. Further, this Court directs the petitioner herein to deposit the remaining compensation amount of Rs.2,05,000/- within period 30 days from today. If, the petitioner fails to pay the said amount within the said period, and default, he shall undergo 2 months S.I beside the substantive sentence of 6 months S.I. However, liberty is given to the petitioner herein if he pays the balance compensation of Rs.2,05,000/- within the time prescribed by this Court, the petitioner can seek for compounding the offence before the trial Court under Section 147 of Negotiable Page No.6/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1013 of 2018 Instrument Act and the trial Court shall consider the prayer on merits and pass appropriate order.
11. With the above modification, this Criminal Revision Petition is disposed of.
16.09.2022
Index : Yes/No.
Internet : Yes/No.
bsm
To,
1. The IV Additional District and Sessions Judge, Coimbatore.
2. The Judicial Magistrate, Fast Track Court, Magisterial Level-I, Coimbatore. Page No.7/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1013 of 2018 Dr.G.JAYACHANDRAN,J.
bsm Crl.R.C.No.1013 of 2018 16.09.2022 Page No.8/8 https://www.mhc.tn.gov.in/judis