Crl.R.C.Nos.613 to 615 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 23.09.2022
Coram:
THE HONOURBLE DR.JUSTICE G.JAYACHANDRAN
Crl.R.C.Nos.613 to 615 of 2017
V.C.Dinesh .. Petitioner in all cases
/versus/
R.Thangavelu .. Respondent in all cases
Prayer in Crl.R.C.No.613 of 2017:-Criminal Revision Petition is filed under
Section 397(1) and 401 of Cr.P.C praying to call for the records and set
aside judgment dated 10.02.2017 made in C.A.No.136 of 2015 on the file of
the learned I Additional District Judge, Erode which was confirming the
judgment of the trial Court in STC.No.111 of 2012 dated 30.09.2012 on the
file of the learned Judicial Magistrate (Fast Track)No.2, Erode.
Prayer in Crl.R.C.No.614 of 2017:-Criminal Revision Petition is filed under
Section 397(1) and 401 of Cr.P.C praying to call for the records and set
aside judgment dated 10.02.2017 made in C.A.No.134 of 2015 on the file of
the learned I Additional District Judge, Erode which was confirming the
judgment of the trial Court in STC.No.96 of 2012 dated 30.09.2012 on the
file of the learned Judicial Magistrate (Fast Track)No.2, Erode.
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.613 to 615 of 2017
Prayer in Crl.R.C.No.615 of 2017:-Criminal Revision Petition is filed under
Section 397(1) and 401 of Cr.P.C praying to call for the records and set
aside judgment dated 10.02.2017 made in C.A.No.135 of 2015 on the file of
the learned I Additional District Judge, Erode which was confirming the
judgment of the trial Court in STC.No.112 of 2012 dated 30.09.2012 on the
file of the learned Judicial Magistrate (Fast Track)No.2, Erode.
For Petitioner :Mr.S.Silambu Selvan
for M/s A.Gokulakrishnan
(in all cases)
For Respondent :Mr.V.Perarasu (in all cases)
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COMMON ORDER These three Criminal Revision Cases are filed by the 1st accused/appellant, being aggrieved by the concurrent findings of the Courts below held him guilty for issuance of cheques, without sufficient fund and instructing the bank 'stop payment' and not to dishonour those cheques. Totally 7 cheques are involved in these three revision petitions, since three complaints were filed before the Judicial Magistrate (Fast Track Court No.2), Erode in S.T.C.No.96 of 2012; S.T.C.No.111 of 2012; and S.T.C.No.112 of 2012.
https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.613 to 615 of 2017
2. The case of the complainant is that the petitioner and his wife were known to the complainant and they had borrowed money from him on various occasion and to discharge the total loan of Rs.3,81,500/-, the cheques were given on different dates and different amounts. However, on presentation, all the cheques were returned with an instruction stating 'stop payment'. The petitioner contested the complaints on the ground that there is no privity of contract between the complainant and the accused. Infact, the petitioner was employed under one Vikram Prakash. The petitioner was running a Multi Level Marketing Company and collected huge deposits from various persons including the complainant herein. Since the said Vikram Prakash defaulted in payment, complaints were given to the police. In the course of the enquiry by the police, the said Vikram Prakash got the cheques of his employees and gave it to the complainant promising that it will be honoured. In the said course of action, seven signed cheques of the petitioner were received by his employer Vikram Prakash and handed over to the petitioner herein.
3. To prove this defence, the petitioner has examined 4 witnesses and marked 6 exhibits. The trial Court, after considering the https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.613 to 615 of 2017 evidence, held that the petitioner herein is the signatory of the subject cheques and there is no dispute regarding these facts that the cheques were issued by the petitioner from the account maintained by him and his wife. Whereas the 2nd accused, who is the wife of the petitioner herein found not guilty, since the complainant has not proved her role in issuance of the subject cheques.
4. Having found so, the trial Court convicted the petitioner to undergo one year SI and to pay a fine of Rs.5,000/- in default to undergo one month SI. Against the said finding, these three appeals have been preferred and each of the cases came to be dismissed by confirming the conviction and sentence imposed by the trial Court.
5. The learned counsel appearing for the petitioner submitted that the Courts below failed to consider the fact that the subject cheques were not given to discharge any legally enforceable debt against the petitioner. The case of the complainant ought to have been disbelieved, since lending money to a person being acquaintance, while travelling in a bus is highly improbable. Further, it is also contended that if really the https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.613 to 615 of 2017 petitioner had borrowed money from the respondent/complainant and owed Rs.3,81,500/-, there is no reason to give seven cheques for different amounts to discharge the said loan. Therefore, his evidence let in by the defence as spoken by DW1 to DW4 and Ex.D1 to Ex.D6 ought to have been considered as probabilise the defence to rebut the statutory presumption.
6. The learned counsel appearing for the respondent submitted that the petitioner having admitted the signatures found in the subject cheques and issuance of the cheques to the complainant, presumption under Section 139 of the Negotiable Instruments Act, 1881, that the cheques were given to discharge the liability, has to be drawn and the Courts below has rightly said that the statutory presumption having issued the cheques; the petitioner has instructed his bank to “stop payment” and also when the statutory notice was issued to him, he did not choose to reply, is only as a weak defence. It is now contended that the cheques were issued as security on the request of one Vikram Prakash. However, there is no material to show that there was any such transaction to probabilise the case of the defence. Hence, the Courts below has rightly convicted the petitioner.
https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.613 to 615 of 2017
7. The Courts below, on considering the evidence and submissions made held that the signatures found in the subject cheques and issuance of the subject cheques were not denied by the petitioner. Therefore, it is the duty of the petitioner to prove, what circumstances the subject cheques were issued to the complainant. However, the evidence let in by the petitioner does not probabilise the case and the manner, in which the cheques were given as contended by the petitioner.
8. Above all, the petitioner admits that all the seven cheques, which are the subject matter of the complaints, were given by the accused to the complainant. If he had no liability to pay, why did he give the cheques to the complainant, has not explained in a convincing manner. Even if it is so, he has given it as security; then what is the reason for instructing the bank to 'stop payment'; and not replying to the statutory notice, was the reason for the Courts below to hold against the petitioner. This Court also concur with the view and reasoning given by the Courts below for holding the petitioner guilty.
https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.613 to 615 of 2017
9. Regarding the sentence, this Court finds that of each of the complaints, the trial Court has sentenced the petitioner to undergo one year SI and fine of Rs.5,000/- in default, to undergo 1 month SI.
10. Instead of committing the petitioner in prison, this Court is of the view that the same may be modified to the effect that:
(i)in Crl.R.C.No.614 of 2017, the petitioner shall pay compensation of Rs.50,000/- being the cheque amount shown in Ex.P1 and Rs.81,500/- being the cheque amount shown in Ex.P2 (totally Rs.1,31,500/-) in S.T.C.No.96 of 2012, within a period of 30 days, failing which 3 months SI;
(ii)in Crl.R.C.No.615 of 2017, the petitioner shall pay compensation of Rs.50,000/- each being the cheques amount shown in Ex.P1 and Ex.P2 (totally Rs.1,00,000/-) in S.T.C.No.112 of 2012, within a period of 30 days, failing which 3 months SI; and
(iii)in Crl.R.C.No.613 of 2017, the petitioner shall pay compensation of Rs.50,000/-each for the three cheques amount shown in Ex.P1 to Ex.P3 (totally Rs.1,50,000/-) in S.T.C.No.111 of 2012, within a period of 30 days failing which 3 months SI.
https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.613 to 615 of 2017
11. Accordingly, these Criminal Revision Cases are partly allowed.
23.09.2022 Index:yes/no Speaking order/non speaking order ari To:
1.The I Additional District Judge, Erode
2. The Judicial Magistrate (Fast Track)No.2, Erode.
2. The Public Prosecutor, High Court, Madras. https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.613 to 615 of 2017 DR.G.JAYACHANDRAN,J.
ari Crl.R.C.Nos.613 to 615 of 2017 23.09.2022 https://www.mhc.tn.gov.in/judis