Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.09.2022
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.No.1327 of 2022 and
Crl.M.P. Nos.14182 & 14183 of 2022
Srinivasan .. Petitioner
Vs
Murugan .. Respondent
***
Prayer: Criminal Revision filed under Section 397 r/w 401 of the
Criminal Procedure Code against the judgment of the learned
Additional District and Sessions Judge, Ariyalur dated 01.06.2022
made in Crl.A. No.9 of 2021 confirming the judgment of conviction
imposed by the learned Judicial Magistrate I, Jayamkondam dated
23.03.2020 in S.T.C. No.87 of 2018 and set aside the same.
***
For Petitioner : Mr.A.C.R.Malarvannan
ORDER
The revision petitioner/accused has filed this criminal revision case against the concurrent findings of conviction and sentence passed by the Courts below.
https://www.mhc.tn.gov.in/judis 1/14 Crl. R.C. No.1327 of 2016 and Crl.M.P. Nos.14182 & 14183 of 2022
2. The petitioner is the accused. The respondent is the complainant. The respondent filed a complaint against the revision petitioner under Section 200 Cr.P.C. for an offence under Section 138 of the Negotiable Instruments Act, 1881 before the learned Judicial Magistrate - I, Jayamkondam. The learned Judicial Magistrate - I has taken the complaint on file in S.T.C. No.87 of 2018 and after trial, he convicted the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo six months simple imprisonment and pay a fine of Rs.18,00,000/- equivalent to the cheque value.
3. Challenging the said judgment of conviction and sentence, the accused filed an appeal before the learned Principal District and Sessions Judge, Ariyalur and the same was taken on file in Crl. A. No.9 of 2021. When the same was made over to the learned Additional District and Sessions Judge, Ariyalur, he dealt with the appeal. After hearing the arguments of both sides, the appellate court, dismissed the appeal and confirmed the conviction and sentence passed on the petitioner/accused. Challenging the said dismissal of appeal, the petitioner/accused has filed the present criminal revision case.
https://www.mhc.tn.gov.in/judis 2/14 Crl. R.C. No.1327 of 2016 and Crl.M.P. Nos.14182 & 14183 of 2022
4. The learned counsel for the revision petitioner would submit that the petitioner never borrowed any money from the respondent and he never issued a cheque to the respondent. Actually, the petitioner/accused borrowed a sum of Rs.1,00,000/- from the uncle of the respondent one Mr.Mayilvahanam and he demanded exorbitant interest of Rs.5,00,000/- from the petitioner. Since the petitioner refused to budge, he was abducted and forcibly made to sign certain blank papers and promissory notes. The said Mayilvahanam did not return the blank cheque given by the revision petitioner at the time of borrowing of Rs.1,00,000/- from him. The said Mayilvahanam made use of the respondent/complainant to file a complaint against the petitioner using the cheque, which he did not return to the revision petitioner. Both the courts below, have failed to appreciate the evidence that though the respondent has stated that he earns a sum of Rs.10,00,000/- per year, he has not shown the source of lending a huge amount of Rs.18,00,000/- to the petitioner and the respondent has not substantiated that he lent such a huge money even without obtaining any documents and he straight away lent such a huge amount of Rs.18,00,000/- only against a blank cheque, which is not believable. Further, he would submit that already the petitioner gave a complaint against respondent's uncle https://www.mhc.tn.gov.in/judis 3/14 Crl. R.C. No.1327 of 2016 and Crl.M.P. Nos.14182 & 14183 of 2022 just prior to issuing the cheque and that if at all any complaint is lodged against his uncle, how the respondent would have lent such a huge amount of Rs.18,00,000/- to the petitioner and that too only based on the mere cheque. These facts have not been considered by both the courts below. Further he would submit that he gave a complaint against Mayilvahanam, who is none other than the uncle of the respondent on the file of Jayamkondam Police Station, which was registered in Crime No.401/2017 and the FIR was also marked as Ex.P7 and also he has made a statement before the learned Judicial Magistrate - I, Ariyalur under Section 164(5) of the Cr.P.C. These facts have not been considered by both the courts below.
5. It is the duty of the complainant to establish that he has got sufficient means during the relevant point of time to lend such a huge money and he has not proved that without any supporting documents he lent the huge money and the trial court has failed to consider these aspects and convicted the petitioner/accused. Unfortunately, the appellate court, as a final court of fact finding, should have re-appraised the evidence and given a finding independently, but without re-appreciating the evidence, the learned Additional District and Sessions Judge, simply endorsed https://www.mhc.tn.gov.in/judis 4/14 Crl. R.C. No.1327 of 2016 and Crl.M.P. Nos.14182 & 14183 of 2022 the view of the learned Judicial Magistrate. Therefore, the finding of both the courts below are perverse and the revision has to be allowed and both the judgments of conviction and sentence passed by the courts below have to be set aside.
6. In support of his contention, the learned counsel appearing for the petitioner has relied on a judgment of this court in P.Dhanam vs. G.Arjunan reported in MANU/TN/6182/2018.
7. Though the matter is coming under the caption 'For Admission', this court heard the learned counsel for the petitioner and perused the materials available on record and dispose of the criminal revision case at the admission stage itself.
8. The case of the respondent/complainant is that the petitioner borrowed a sum of Rs.18,00,000/- from the respondent to discharge the legally enforceable debt on 12.07.2015 and executed two blank promissory notes with his signature agreeing to pay the interest amount of Re.1/- per Rs.100/- on the fifth day of every calendar month and when the respondent demanded the money, he promised to repay the money but failed to repay. When https://www.mhc.tn.gov.in/judis 5/14 Crl. R.C. No.1327 of 2016 and Crl.M.P. Nos.14182 & 14183 of 2022 the respondent/complainant went to petitioner's house and demanded the money, he got back the promissory notes, which he had given to the respondent/complainant and issued a cheque bearing No.773356 dated 05.12.2017 for a sum of Rs.18,00,000/- and when the respondent presented the cheque for encashment, the same was returned by the bank without honouring the same with an endorsement "88 Accounts dormant". Therefore, the respondent/complainant has issued a statutory notice on 04.01.2018 and the petitioner received the notice and sent a reply on 20.01.2018 with false allegations. Since the petitioner has not repaid the money within the statutory period after receipt of the notice and therefore, the respondent/complainant was constrained to file the complaint.
9. In order to substantiate the case of the respondent, he examined himself as PW1 and the Bank Manager was examined as PW2 and marked as many as 10 documents on his side and proved his case.
10. Though the learned counsel for the revision petitioner vehemently contended that Ex.P1-cheque was not issued to the respondent, which was issued only to the uncle of the respondent, https://www.mhc.tn.gov.in/judis 6/14 Crl. R.C. No.1327 of 2016 and Crl.M.P. Nos.14182 & 14183 of 2022 namely Mayilvahanam, the respondent was also examined as RW1 and marked Ex.R1 - Statement under Section 164(5) of Cr.P.C. Though he has stated that he gave a complaint against Mayilvahanam, but on seeing the FIR, which is marked as Ex.P7 and also Ex.R1, Statement of the revision petitioner under Section 164(5) of Cr.P.C. he has not stated anything about the disputed cheque. If at all the petitioner issued a cheque to Mayilvahanam even much earlier to this, definitely at the time of filing the complaint or the statement made before the learned Judicial Magistrate, he would have stated about the issuance of cheque and he has stated that he has issued the cheque to Mayilvahanam but he has not stated any details about the cheque or the bank name and the amount.
11. When the complainant filed the complaint under Section 138 of the Negotiable Instruments Act, 1881 and filed the cheque before the court, when the accused has not denied the execution of the cheque or the signature in the cheque, there is a presumption under Section 139 of the Negotiable Instruments Act, 1881 that cheque was issued only to discharge the legally enforceable debt, the initial burden has been proved by the complainant. No doubt, the said presumption under Section 139 of the Negotiable https://www.mhc.tn.gov.in/judis 7/14 Crl. R.C. No.1327 of 2016 and Crl.M.P. Nos.14182 & 14183 of 2022 Instruments Act, 1881, is a rebuttable presumption, the accused has to rebut the presumption that the cheque was not issued to discharge the legally enforceable debt. Though the accused need not rebut the presumption by direct evidence, the accused can rebut the presumption by preponderance of probabilities and in this case, as already stated, the signature found in Ex.P1 - Cheque is admitted that of the revision petitioner. The specific case of the respondent is that the revision petitioner borrowed a sum of Rs.18,00,000/- and issued two promissory notes and when he demanded money, he issued a cheque and when it was presented to the banker, the same was returned by the banker without honouring the same and therefore, he issued a notice and then filed the complaint, examined himself and marked all the documents and proved the initial burden.
12. The specific case of the revision petitioner is that he has not borrowed any money from the respondent and he has not issued a cheque to the respondent, but the same was given to one Mayilvahanam, who is none other than uncle of the respondent, then it is for the revision petitioner to prove that the cheque was issued only to Mayilvahanam. Admittedly, in this case, already the petitioner gave a complaint against Mayilvahanam in Crime No.401 https://www.mhc.tn.gov.in/judis 8/14 Crl. R.C. No.1327 of 2016 and Crl.M.P. Nos.14182 & 14183 of 2022 of 2017 on the file Jayamkondam Police Station. Admittedly, it is subsequent to filing of the complaint. Otherwise, even the petitioner would have filed the counterfoil of the cheque leaf, which was given on 05.12.2017 to the respondent and that he has not filed the counterfoil and the number of the cheque, date of issuance of the cheque and the person to whom he issued the cheque.
13. Learned counsel for the petitioner vehemently contended that the source of lending money has not been proved. Though the respondent, during cross examination has clearly stated that he has got agricultural lands of 15.00 Acres and he has agricultural income of Rs.10,00,000/- per year. But it has not been disputed by the revision petitioner. Even they have not put any suggestion that the respondent was not having agricultural land and the respondent is not getting any income from agricultural.
14. In the case relied on by the learned counsel for the petitioner, namely P.Dhanam vs. G.Arjunan reported in MANU/TN/6182/2018, in that case, though the complainant has stated about some specific source of lending money, subsequently, the same was not established. Whereas, in this case, the https://www.mhc.tn.gov.in/judis 9/14 Crl. R.C. No.1327 of 2016 and Crl.M.P. Nos.14182 & 14183 of 2022 complainant has not stated any other specific source except the agricultural income and he has also clearly stated during cross- examination that for agricultural income no income-tax. Therefore he has stated any specific lending source of money except the agricultural income. Therefore, the citation referred to by the learned counsel for the petitioner is not applicable to the present case.
15. Though the learned counsel for the petitioner submitted that without getting any supporting document, the respondent would not have lent such a huge amount of Rs.18,00,000/-in this regard, in the complaint itself, the complainant has stated that at the time of borrowing money, the petitioner gave promissory notes and subsequently, he got back the promissory notes and issued the cheque, that has not been denied by the petitioner. Further, even otherwise, the petitioner himself put a suggestion before the respondent during the cross examination that the accused is a Municipal Councillor for more than 15 years in this area and that be the case, a person well known to the respondent and also in a respectable post in the society, then naturally, would be aware of the happenings. Further he also stated that, at the time of lending money, he also obtained promissory notes, subsequently he https://www.mhc.tn.gov.in/judis 10/14 Crl. R.C. No.1327 of 2016 and Crl.M.P. Nos.14182 & 14183 of 2022 returned back the same and obtained a cheque, then the respondent has proved his case and also there is a legal presumption in favour of the respondent. Therefore, it is for the accused to rebut the presumption. Even though the accused need not rebut the presumption by a direct evidence, at least, he can, by preponderance of probabilities would have rebutted. Whereas, in the case on hand, the petitioner has not rebutted the presumption in the manner known to law, though he has focussed only against Mayilvahanam and the specific case of the revision petitioner is that the disputed cheque is given to Mayilvahanam but, unfortunately, the petitioner has not proved his defence in the manner known to law either by producing the counterfoil of the cheque leaf or he has not stated any cheque number and other details in the reply notice sent by the petitioner and the statement made before the learned Judicial Magistrate. Therefore, under these circumstances, this court does not find any perversity in the judgment of conviction and sentence passed by the courts below.
16. It is well settled proposition of Law that the revision court, cannot sit in the arm chair of the appellate court and re- appreciate the entire materials. What the revision court has to see only if there is any perversity in the appreciation of material https://www.mhc.tn.gov.in/judis 11/14 Crl. R.C. No.1327 of 2016 and Crl.M.P. Nos.14182 & 14183 of 2022 evidence, otherwise, the revision court cannot interfere with the judgments of the courts below. Therefore, on a careful perusal of the materials, this court does not find any perversity in the appreciation of evidence by the courts below and this court finds that the respondent has proved his case before the courts below and also the presumption under Section 139 of the Negotiable Instruments Act, 1881 and this court also does not find that the revision petitioner rebutted the presumption in the manner known to law. Therefore, this court does not find any perversity in the judgments of conviction and sentence passed by the courts below. Therefore, there is no merit in the revision and the revision is liable to be dismissed at the admission stage itself.
17. Accordingly, the criminal revision case is dismissed. Consequently, the connected criminal miscellaneous petitions are also closed.
16.09.2022
Index : Yes/No
Internet : Yes
Asr
To
1.The Additional District and Sessions Judge, Ariyalur.
https://www.mhc.tn.gov.in/judis 12/14 Crl. R.C. No.1327 of 2016 and Crl.M.P. Nos.14182 & 14183 of 2022
2.The Judicial Magistrate I Jayamkondam https://www.mhc.tn.gov.in/judis 13/14 Crl. R.C. No.1327 of 2016 and Crl.M.P. Nos.14182 & 14183 of 2022 P.VELMURUGAN, J.
Asr Crl.R.C.No.1327 of 2022 and Crl.M.P. Nos.14182 & 14183 of 2022 Dated : 16.09.2022 https://www.mhc.tn.gov.in/judis 14/14