Madras High Court
K. Jalandararaju vs R. Chandran on 2 August, 2021
Crl.R.C.No.878 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.08.2021
CORAM:
THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN
Crl.R.C.No.878 of 2015
and
M.P.No.2 of 2015
K. Jalandararaju .. Petitioner
Vs.
R. Chandran .. Respondent
PRAYER : Petition filed under Section 397 & 401 of the Criminal
Procedure Code, to set aside the conviction and sentence passed in
C.A.No.31 of 2014 on the file of the III Additional District Cum Sessions
Court, Salem confirming the conviction made in S.T.C.523/2007 dated
30.01.2014.
For Petitioner : Mr. A. Esakkiappan
For Respondent : Mr. R. Marudhachalamoorthy
ORDER
The matter is heard through "Video Conference".
2. This criminal revision case is filed against the judgment in
C.A.No.31 of 2014 dated 31.03.2015 passed by the III Additional District
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Crl.R.C.No.878 of 2015
cum Sessions Court, Salem confirming the order made in S.T.C.No.523 of
2007 dated 30.01.2014 on the file of the Judicial Magistrate IV, Salem.
3. The convicted accused is the revision petitioner herein. The
petitioner was arrayed as an accused for the alleged offences under Section
138 of the Negotiable Instruments Act, by the respondent herein.
4. The case of the respondent is that
(a) the petitioner borrowed a sum of Rs.5,00,000/- on 10.12.2006
from the respondent as a hand loan and the petitioner on demand issued a
cheque of State Bank of India, Salem, Steel Plant Campus Branch, dated
07.02.2007 for a sum of Rs.5,00,000/- to the respondent for his debt. The
respondent presented the cheque before the Punjab National Bank,
Shevapet, Salem, for collection, which was dishonored with an endorsement
as “Insufficient Funds”. On 15.02.2007 the respondent issued notice and
the petitioner received the same and did not send any reply to the notice and
hence the complaint.
(b) The learned Judicial Magistrate No.IV, Salem failed to appreciate
the evidence in its proper perspective and therefore convicted the petitioner
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Crl.R.C.No.878 of 2015
under Section 138 of Negotiable Instruments Act to undergo rigorous
imprisonment for one year and to pay a fine of Rs.5,000/-, in default, simple
imprisonment for one month. Aggrieved over the same, the petitioner
preferred an appeal in C.A.No.31 of 2014 on the file of III Additional
District cum Sessions Judge, Salem.
5. The learned counsel for the revision petitioner would contend
that there is a contradiction with regard to the date of issuance, date of
borrowal, date of issuance of the cheque, issuance of legal notice and non
issuance of reply notice cannot be a ground to accept the private complaint
and there is no proof regarding the financial capacity of the private
complainant to lend a sum of Rs.5,00,000/-.
6. Per contra, the learned counsel for the respondent / private
complainant would contend that the signature in the cheque was
admitted during the cross examination of P.W.1 and in the absence of
any dispute with regard to the signature, private complainant is
entitled for statutory presumption, under Section 139 of
Negotiable Instruments Act. Further, to rebut the presumption, the
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Crl.R.C.No.878 of 2015
the accused revision/petitioner has not probabilised the case and not chosen
to examine Papathi with whom he alleged to have given the cheque.
7. Heard both sides and perused the records.
8. The case of the respondent/private complainant is that the
revision petitioner had borrowed Rs.5,00,000/- on 10.12.2006 and issued
cheque on 07.06.2007 and the same was deposited on 10.02.2007 and
returned on 13.02.2007. Thereafter, after observing the formalities he had
filed the above S.T.C. In support of the private complaint, he has examined
himself as P.W.1 and other person is examined as P.W.2 and marked Exs.P1
to P5. To probabilise the suggestive case, the accused has examined as
R.W.1 and R.W.2/Logambal, who is the sister-in-law of the petitioner
herein, who is working in Electricity Board Department along with one
Papathi.
9. On evidence of P.W.1 admission with the documentary
evidence of P1 to P4 and also the cross examination, this Court finds that
the signature found in the cheque is not disputed. Cheque is issued from the
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Crl.R.C.No.878 of 2015
account of the petitioner herein. On such deposit, the same was returned for
the reason “Insufficient funds”. Hence, both the Courts below had rightly
come to the conclusion that the private complainant/respondent is entitled
for presumption under Section 139 of Negotiable Instruments Act. The said
presumption is only a rebuttable presumption.
10. The suggestive case of the revision petitioner-accused is that he
had borrowed the amount from one Papathi and gave a cheque to the
Papathi, who is working in Electricity Board Department along with R.W.2 /
Logambal and the cheque was misused and presented. In this connection,
the revision petitioner has examined R.W.2/Logambal, to support the case of
the accused.
11. During the cross examination of the Logambal, she had
categorically admitted that she is not aware of the cheque number issued to
the said Papathi. Admittedly, Logambal, Papathi and accused are working
in the Electricity Board Department. When the revision petitioner has come
forward with the specific case that the cheque was issued to Papathi, by him
has been misused and presented as if, it was issued to the petitioner, the
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Crl.R.C.No.878 of 2015
burden is upon him to prove the cheque by way of probabilising the same.
However, the evidence of R.W.2 does not lend the support to the extent
possible.
12. In view of the admission in the cross examination that she is
not aware of the cheque number issued to the said Papathi. Both the Courts
below have rightly come to the conclusion that the suggestive case of the
defence was not probabilisd to the extent of legal presumption.
Accordingly, negatived the said contention.
13. In view of the admission of R.W.2 as to the cheque in issue, this
Court finds that the finding rendered by both the Courts below does not
suffer from any irregularity or illegality or warranting interference.
Furthermore, with regard to the suggestive case, there was no reply in
respect to the stand that the cheque was originally intended for the purpose
of repaying Papathi, was not taken as evidence from that point of time, this
Court is conscious of the matter, merely because of the fact that non reply
do not lead to conclusion that the contents of the lawyer notice of the
judgment reported in C.T.Devaraja, Proprietor of Jayalakshmi Industries,
and also of 'Vli Ambu' a Tamil Weekly T.Nagar Madras In re. reported in
(2008) 8 M.L.J, 862. However, the non reply of
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Crl.R.C.No.878 of 2015
notice with regard to the suggestive case support with the answer elicited in
the cross examination R.W.2.
14. Both the Courts below have rightly come to the conclusion that
the accused has not probabilise the suggestive case. Consequently, he has
not rebutted the presumption. In the absence of discharge of orders of
Court to rebut the presumption, this case has failed.
15. In this view of the matter, I do not find any merits in this case.
Accordingly, this criminal revision case is partly allowed to the extent
indicated above. Consequently, connected miscellaneous petition is closed.
02.08.2021
AT
Index :Yes/No
Internet :Yes/No
https://www.mhc.tn.gov.in/judis/
Crl.R.C.No.878 of 2015
RMT.TEEKAA RAMAN,J.,
AT
To
1.The III Additional District Cum Sessions Court,
Salem.
Crl.R.C.No.878 of 2015 and
M.P.No.2 of 2015
02.08.2021
https://www.mhc.tn.gov.in/judis/
