Madras High Court
B.Nanjan vs M.Kanagaraj on 22 April, 2021
Crl.R.C.No.221 of 2021
and Crl.M.P.Nos.4983,4985 and 4986 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.04.2021
CORAM:
THE HON'BLE Mr. JUSTICE P.VELMURUGAN
Criminal Revision Case No.221 of 2021
and
Crl.M.P.Nos.4983,4985 and 4986 of 2021
B.Nanjan ... Petitioner
..vs..
M.Kanagaraj ... Respondent
Criminal Revision Case filed under Section 397 r/w 401 Cr.P.C, to
call for the records and set aside the order passed in Crl.A.No.14 of 2018
on the file of the learned Sessions Judge, Magalir Neethimandram (Fast
Track Mahila Court) Uthagamandalam, The Nilgiris District dated
19.01.2021 confirming the order of the trial Court in S.T.C.No.96 of
2013 on the file of the learned Judicial Magistrate, Kothagiri, The Nilgiris
District dated 22.02.2018 by allowing the revision.
For Petitioner : Mr.V.Chinnasamy
ORDER
By consent of the learned counsel for the petitioner, the matter is
taken up today for final disposal at the admission stage itself, without
issuing notice to the respondent.
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and Crl.M.P.Nos.4983,4985 and 4986 of 2021
2.This Criminal Revision Case has been filed against the order
dated 19.01.2021 in C.A.No.14 of 2018 on the file of the Magalir
Neethimandram (Fast Track Mahila Court) Uthagamandalam, The
Nilgiris District, by confirming the order dated 22.02.2018 in
S.T.C.No.96 of 2013 on the file of the learned Judicial Magistrate,
Kothagiri, The Nilgiris District dated 22.02.2018.
3.The case of the petitioner/accused is that the respondent/
complainant filed a complaint against the petitioner for the offence under
Section 138 of Negotiable Instruments Act (herein after referred to as
'N.I.Act') before the learned Judicial Magistrate, Kothagiri, The Nilgiris
District and the same was taken on file in S.T.C.No.96 of 2013. After due
enquiry, the trial Court found the accused guilty under Section 138 of
N.I.Act and convicted and sentenced to undergo rigorous imprisonment
for a period of one year and to pay the compensation of Rs.1,50,000/-, in
default, to undergo simple imprisonment for a period of three months.
Aggrieved over the said order, the petitioner/accused preferred an appeal
in C.A.No.14 of 2018 before the learned Sessions Judge, Magalir
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and Crl.M.P.Nos.4983,4985 and 4986 of 2021
Neethimandram (Fast Track Mahila Court) Uthagamandalam, The
Nilgiris District. After arguments, the learned Sessions Judge by an order
dated 19.01.2021 dismissed the appeal and confirmed the conviction and
sentence passed by the trial Court. Challenging the said judgment, the
present Criminal Revision Case.
4.The learned counsel for the petitioner would submit that the
petitioner borrowed a sum of Rs.70,000/- from the respondent and
executed a blank cheque and promissory note in favour of the respondent
for the purpose of security. Thereafter, the petitioner repaid the said
amount, but, the respondent did not return the cheque and filed a
complaint against the petitioner. In order to substantiate his defence, the
petitioner examined one witness as D.W.1 and he has categorically
deposed that on the date of execution of cheque i.e. on 17.04.2013, he
went along with the petitioner to Chennai and stayed there from
10.04.2013 to 20.04.2013, therefore, it was not possible to receive the
sum of Rs.1,50,000/- on 17.04.2013 and also not executed the disputed
cheque. Both the Courts below are failed to appreciate the evidence of
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and Crl.M.P.Nos.4983,4985 and 4986 of 2021
D.W.1 and convicted and sentenced the petitioner, since the petitioner
has rebutted the presumption by way of examining D.W.1. Hence, the
conviction and sentence passed against the petitioner are liable to be set
aside.
5.It is a specific case of the respondent/complainant that on
17.03.2013, the petitioner/accused borrowed a sum of Rs.1,50,000/- and
issued a cheque dated 14.04.2013 drawn on I.C.I.C.I Bank, Coonoor
Branch. On 17.04.2013, the respondent presented the cheque for
collection through his Bank viz., M/s.Central Bank of India, Kattabettu
Branch, but, on 19.04.2013, the cheque was returned with an
endorsement 'Account Closed'. Hence, the respondent sent a statutory
notice to the petitioner on 27.04.2013 and the petitioner sent a reply and
denied the averments made against him. Subsequently, the respondent
filed a complaint in S.T.C.No.96 of 2013. After enquiry, the learned
Magistrate allowed the petition and convicted and sentenced the
petitioner and the same was confirmed by the learned Sessions Judge in
C.A.No.14 of 2018.
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and Crl.M.P.Nos.4983,4985 and 4986 of 2021
6.It is seen from the records that the main defence taken by the
petitioner/accused is that he borrowed a sum of Rs.70,000/- from the
respondent/complaint on 11.09.2011 and he repaid the said amount on
01.04.2012, but, the respondent did not return the cheque. In order to
prove the same, the petitioner examined one witness as D.W.1, who is
the brother-in-law of the petitioner. D.W.1 also denied the execution of
the disputed cheque. The evidence of D.W.1 and reply notice, clearly
show that the petitioner admitted the execution of the cheque and
the signature found in the cheque is of the petitioner, but, the only
defence taken by the petitioner is that he has not borrowed a sum of
Rs.1,50,000/-. Further, the petitioner admitted that he executed cheque to
the complainant towards security purpose and not to discharge his
liabilities. Since the petitioner admitted the execution of the cheque, he
has to prove that there is no legally enforceable debt.
7.It is a settled proposition of law that once the execution of cheque
is admitted, Section 139 of N.I.Act mandates a presumption that the
cheque was issued for discharge of legally enforceable debt or other
liability. No doubt, the presumption under Section 139 is a rebuttable
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and Crl.M.P.Nos.4983,4985 and 4986 of 2021
presumption and the onus is on the accused to raise the probable defence,
wherein the existence of a legally enforceable debt or liability can be
contested. The standard of proof for rebutting the presumption is not as
that of the complainant.
8. In the present case, the petitioner/accused attempted to rebut the
presumption that he has borrowed a sum of Rs.70,000/- and issued a
blank cheque and repaid the said amount, but the
respondent/complainant did not return the cheque. Further, the alleged
date of issuance of cheque i.e. on 17.04.2013, at that time, the petitioner
was not in the place of occurrence. In order to prove the same, the
petitioner examined D.W.1 as one of the witness and he has also denied
the execution of the said cheque. However, the petitioner has failed to
produce the documents before the Court below that he has repaid the said
amount and also taken steps to get back the cheque and promissory note
and also not proved that on the date of execution of the cheque i.e.
17.04.2013 he was not in the station.
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and Crl.M.P.Nos.4983,4985 and 4986 of 2021
9. The revision is coming out of the concurrent findings of the both
the trial Court and the appellate Court. Both the Courts below had
already appreciated the entire evidence and also given a finding that the
respondent proved his case beyond reasonable doubt and the petitioner
has not rebutted the presumption in the manner known to law. This
Court, while exercising the revisional jurisdiction, cannot re appreciate
the evidence and take another view. However, this Court has to see
whether there is any perversity or infirmity in the order of the Courts
below.
10.In the light of the above facts, this Court does not find any
perversity or infirmity in the order of the Courts below. Accordingly, this
Criminal Revision Case is dismissed. Consequently, connected
miscellaneous petitions are closed.
22.04.2021
Index: Yes/No
Speaking Order/Non Speaking Order
ms
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Crl.R.C.No.221 of 2021
and Crl.M.P.Nos.4983,4985 and 4986 of 2021
P.VELMURUGAN, J.
ms
To
1.The Sessions Judge, Magalir Neethimandram
(Fast Track Mahila Court) Uthagamandalam,
The Nilgiris District.
2.The Judicial Magistrate, Kothagiri,
The Nilgiris District.
Crl.R.C.No.221 of 2021
and
Crl.M.P.No.4983,4985 and 4986 of 2021
22.04.2021
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