Madras High Court
M.Sahina Parveen vs Johnson on 6 August, 2021
Crl.R.C.No.293 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
Crl.R.C.No.293 of 2015
M.Sahina Parveen ... Petitioner/Accused
Vs.
1.Johnson
2.The State represented by,
The Public Prosecutor, Erode.
(R2 Given up) ... Respondents
PRAYER: This Criminal Revision Case has been filed under Section 397
and 401 of Cr.P.C., against the judgment passed in C.A.No.34 of 2014,
on the file of the learned II Additional Sessions Judge, Erode, dated
29.01.2015, confirming the judgment passed in S.T.C.No.501 of 2012 on
the file of the Fast Track Court No.II, (Magisterial Level), Erode, dated
25.03.2014.
For Petitioner : Mr.C.Veeraraghavan
For R1 : Mr.S.N.Chinnaraj
For R2 : Mr.R.Vinoth Raja
Government Advocate
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Crl.R.C.No.293 of 2015
ORDER
The convicted accused is the revision petitioner herein.
2.This Criminal Revision Case has been filed by the accused to
challenge the judgment passed in C.A.No.34 of 2014, on the file of the
learned II Additional Sessions Judge, Erode, dated 29.01.2015, wherein
the learned judge has confirmed the judgment passed in S.T.C.No.501 of
2012, on the file of the Fast Track Court No.II, (Magisterial level),
Erode, dated 25.03.2014, wherein, the learned Judge has held that the
accused was found guilty of an offence under Section 138 of the
Negotiable Instruments Act, 1881 and sentenced the accused under
Section 255(2) of Cr.P.C to undergo rigorous imprisonment for one year
and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment
of one month.
3.The first respondent herein has filed a complaint before the
learned Judicial Magistrate No.2, Erode, in STC.No.501 of 2012,
alleging that the accused has committed the offence under Section 138 of
the Negotiable Instruments Act.
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Crl.R.C.No.293 of 2015
4.During the trial, on the side of the complainant
PW1/K.J.Johnson was examined and Exs.P1 to P6 were marked and on
behalf of the accused, her husband viz., Mansoon Ahamed was examined
as DW1 and no document was marked.
5.The learned Magistrate has held that the offence under
Section 138 of Negotiable Instruments Act was proved in the manner
known to law and accordingly, laid the conviction and sentence as stated
supra.
6.Aggrieved against the order of conviction and sentence, the
accused has preferred an appeal in C.A.No.34 of 2014 to before the
learned II Additional Sessions Judge, Erode, and the learned Judge has
dismissed the same on 29.01.2015. Hence, the Criminal Revision Case
has been filed by the convicted accused/revision petitioner herein before
this Court.
7.The learned counsel for the convicted accused would contend
that complaint itself is premature and no notice was served as required
under the Negotiable Instruments Act and that the respondent does not
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Crl.R.C.No.293 of 2015
have any financial capacity to lend Rs.5,00,000/- and neither he has
received any amount from the complainant nor he has deposited any
cheque to the complainant and accordingly seeks to set aside the above
said order of conviction and sentence.
8.Heard the learned counsel for the respondent.
9.From the evidence of PW1 and Exs.P1 to P5, it is seen that
Ex.P1/cheque was issued from the account of the complainant and the
complainant has sent a legal notice of demand on 14.08.2012, which was
marked as Ex.P3 and the same was served on the accused on 16.08.2012,
the acknowledgment card duly signed by the accused was marked as
Ex.P4 and the accused has sent a reply notice on 21.08.2012, which was
marked as Ex.P5 alleging that the complainant was stranger to her and
demanded the xerox copy of cheque, in compliance of the reply notice
the complainant counsel has sent a notice addressing the counsel for the
accused on 04.09.2012, which was a rejoinder and not a notice of
demand. If the complainant wants to send a notice of demand for the
dishonoured cheque, he would have addressed the notice to the accused
not to the counsel for accused. Hence, the notice dated 04.09.2012,
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Crl.R.C.No.293 of 2015
which was marked as Ex.P6, addressed to the counsel for the accused
was not a demand notice but it was the rejoinder for the legal notice. The
complainant was not premature.
10.Hence, this Court finds that the legal notice was issued in a
proper manner and the suit was instituted on 11.09.2012 after fifteen
days of the notice served upon the accused on 16.08.2012 and hence, the
computation for the period of filing of the complaint from the
acknowledgment namely date of service of statutory notice on the
accused and not the rejoinder, as contended by the learned counsel for the
accused. Accordingly, this Court held that the accused has issued a
cheque being dated 27.06.2012 returned on 28.07.2012 with an
endorsement “Existing balance insufficient”, statutory notice dated
14.08.2012 was duly served upon the accused under the acknowledgment
Ex.P4 on 16.08.2012 and reply notice by the accused was dated
21.08.2012 and the complaint was instituted on 11.09.2012 and hence,
taking the computation from the date of the acknowledgment/Ex.P4 viz,.
16.08.2012, the complaint is in time.
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Crl.R.C.No.293 of 2015
11.The next case contention is that it was not served. From the
contents of Ex.P5/reply notice, dated 21.08.2012, it is seen that the legal
notice has remitted xerox copy of the dishonored cheque and the same
was given under the rejoinder. Therefore, the acknowledgment card duly
reflected the fact that the accused was duly served upon the statutory
notice as contemplated under Section 138 of the Negotiable Instruments
Act.
12.The next point that was urged by the learned counsel for the
revision petitioner is that the signature found in Ex.P1/cheque is forged
one and in this regard, the accused has not entered the witnesses box her
and husband viz., Mansoor Ahamed, was examined as RW1, he could
deposed that in the business transaction they have deposited Ex.P1 as a
blank cheque without filling but duly signed, as a security towards
business transaction and hence, under the Negotiable Instructs Act it is
open to the payee to fill up the document and hence, the contention
raised by the revision petitioner that it was written by her is of no avail
and further contention is that the accused has not signed on Ex.P1.
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Crl.R.C.No.293 of 2015
13.Both the Courts below have concurrently taken the view that
the bank has compared the signature found in the cheque with the
specimen signature and the cheuqe was returned on the ground of
“insufficient amount” but not on the signature differs. Furthermore,
nothing has not prevented the accused for filing application for sending
cheque for comparison of the signature to the Forensic Department. Both
the Courts below have concurrently held that in the absence of any
positive steps taken by the accused to send the cheque in issue for
comparison of signature by the Forensic Department by the accused, the
Courts below have rightly rejected the said plea.
14.Furthermore, the Bank has returned cheque only on the point
of insufficient of funds, but not on the point of signature differs.
15.Yet another point is that whether the first
respondent/complainant has financial capacity to lend a sum of
Rs.5,00,000/-. It is stated by RW1 in the cross examination that there
was a business transaction between them and he readily accepted the
suggestions made to PW1. During the cross examination no positive
steps has been taken to probablise the suggestive case that the first
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Crl.R.C.No.293 of 2015
respondent/complainant lacks financial ability to lend a sum of
Rs.5,00,000/-. Both the Courts below have accordingly taken the view
that since the cheque has been proved in the manner known to law and
the same is returned for insufficiency of funds, the private complainant is
entitled to the presumption under Section 139 of the Negotiable
Instruments Act and accordingly, held that it is for the defence to rebut
presumption. Except the bare denial, which was discussed supra, no
positive evidence has been let in by the accused, besides she has not
entered into the witness box and furthermore, her husband has admitted
handing over of the cheque to the private complainant, through he raised
the plea of security, which was discussed in the preceding paragraphs and
the same was rejected.
16.Furthermore, in view of the fact that the revision
petitioner/accused has failed to probablise the suggestive case, the
question does not arise for consideration. Accordingly, this Court does
not find any reason to interfere with the concurrent finding rendered by
the Courts below on the point of conviction. Taking into consideration
the fact that the revision petitioner is a woman, sentence is reduced to
three months, fine is kept in tact.
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Crl.R.C.No.293 of 2015
17.With the above observations, this Criminal Revision Case
stands partly allowed to the limited extent as indicated above.
06.08.2021
Index : Yes/No
Internet : Yes/No
dua
To
1.The II Additional Sessions Judge, Erode.
2.The Fast Track Court No.II, (Magisterial Level), Erode.
3.The Public Prosecutor, Erode.
4.The Public Prosecutor,
High Court, Madras.
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Crl.R.C.No.293 of 2015
RMT.TEEKAA RAMAN, J.
dua
Crl.R.C.No.293 of 2015
06.08.2021
https://www.mhc.tn.gov.in/judis/
