Madras High Court
Boominathan vs Prema on 11 August, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.08.2021
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.RC(MD)No.670 of 2021
Boominathan : Petitioner/Appellant/Accused
Vs.
Prema : Respondent/Respondent/
Complainant
Prayer: Criminal Revision has been filed under section
397 r/w 401 of the Code of Criminal Procedure, against the
judgment, dated 11.06.2020 passed in C.A No.20 of 2019 by the
Principal District and Sessions Judge, Ramanathapuram, confirming
the judgment made in STC No.967 of 2017, dated 11.10.2019
passed by the Judicial Magistrate No.1, Ramanathapuram.
For Petitioner : Mr.R.Senthil Kumar
For Respondent : Mr.R.Gandhi
ORDER
This Criminal Revision is filed against the judgment, dated
11.06.2020 passed in C.A No.20 of 2019 by the Principal District
and Sessions Judge, Ramanathapuram, confirming the judgment
made in STC No.967 of 2017, dated 11.10.2019 passed by the
Judicial Magistrate No.1, Ramanathapuram.
https://www.mhc.tn.gov.in/judis/
2.According to the de-facto complainant, the
petitioner/accused borrowed a sum of Rs.8,00,000/- for his urgent
need and for discharging the said loan, he issued a post-dated
cheque bearing No.993646, dated 07.03.2017 for Rs.8,00,000/-
drawn on City Union Bank, Ramanathapuram and on presentation
of the cheque for collection on 08.03.2017, it was dishonoured with
the endorsement that insufficient fund. The
respondent/complainant sent a legal notice, dated 15.03.2017 to
the petitioner/accused and after receipt of the notice, the petitioner
gave reply on 27.03.2017 denying the allegations found in the
notice. Hence, the case.
3.The accused was summoned. Notice under Section 251
Cr.P.C was served upon the accused to which he pleaded not guilty
and claimed trial. After completing trial, vide order, dated
11.10.2019, in STC No.967 of 2017, learned Judicial Magistrate
No.I, Ramanathapuram, convicted the petitioner under section 138
of the Negotiable Instruments Act and sentenced him to undergo
one year Simple Imprisonment and to pay a compensation of Rs.
8,00,000/- and in default for paying compensation, additional
imprisonment for one month. Challenging the same, the petitioner
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preferred appeal in C.A No.20 of 2019 on the file of the Principal
District Sessions Judge, Ramanathapuram. The learned First
Appellate Judge, by judgement, dated 11.06.2020 confirmed the
findings of the trial court. Aggrieved by the findings of the courts
below, the petitioner is before this court.
4.Heard the learned counsel appearing on either side and
perused the materials available on record.
5.The main contention raised on the side of the
petitioner/accused is that he already received Rs.2,00,000/- from
the complainant and he repaid the amount with interest and the
respondent demanded additional interest and for that, he gave the
disputed cheque, but the respondent concealed the above facts and
falsely filed this case and the respondent stated that the accused
borrowed money for constructing the house and for the marriage of
his sons, but his one son's marriage was held on 30.08.2012 and
another son's marriage was held on 31.08.2020 and hence, the
entire reasons for receiving money for the complainant is not
correct and the petitioner/accused already repaid the amount
borrowed from the respondent and the respondent has no source of
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income to give money and the case was not property considered by
the trial court as well as by the first appellate court and prays that
the criminal revision has to be allowed.
6.On the other hand, the learned counsel appearing for
the respondent/complainant argued that the accused borrowed Rs.8
Lakhs from her on 10.10.2014 for purchasing a house and also for
performing the marriage of his sons and he agreed to repay amount
from his retirement benefits, but he has not repaid and instead he
gave the disputed cheque and the complainant presented the
cheque for collection and it was returned with endorsement as
'Insufficient of funds' and hence, she issued a legal notice and the
accused sent reply containing false allegations and the accused
failed to repay the amount and hence, she filed the complaint and
prays that the Criminal Revision has to be dismissed.
7.The respondent/complainant stated that the
petitioner/accused borrowed a sum of Rs.8,00,000/- and issued the
disputed cheque. In this case, the issuance of cheque and the
signature of the accused were admitted. Hence, it is the duty of the
accused to rebut the presumption. The respondent/complainant
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sent a legal notice to the accused calling upon him to pay the
amount of Rs.8,00,000/- borrowed from her. For that, the accused
sent a reply (Ex.P4) to the complainant. On perusal of Ex.P4, it is
stated that during the year 2011, the wife of the accused borrowed
Rs.2,00,000/- from the complainant with interest of 7% and she
repaid the amount and the complainant demanded additional
amount of Rs.50,000/- from the accused and further the
respondent/complainant took steps to get for Rs.2,50,000/- from the
finance company and for that, the complainant obtained a cheque
and repaid the entire amount and hence, the accused is not liable to
pay any amount and hence, the accused is not liable to pay any
amount to the complainant.
8.In Ex.P4, the accused stated that his wife borrowed Rs.
2,00,000/- from the complainant and the amount borrowed from the
complainant was repaid with interest. To prove it, no document was
filed and the wife of the accused was not examined as witness.
When the accused pleaded discharge, it is the duty of the accused
to prove it. But in this case, to prove the discharge, no document
was filed. Hence, from Ex.P4, it reveals that there was money
transaction between the complainant and the accused and the
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accused borrowed money from the complainant. Further, the
accused stated in his reply notice that the complainant demanded
additional amount of Rs.50,000/- from him and for that, he gave the
disputed cheque. When the complainant demanded Rs.50,000/-, he
has not sent any notice to the complainant stating that already he
paid the entire amount and hence, it is not necessary to pay Rs.
50,000/-. Hence, the above argument put forth on the side of the
petitioner/accused is not at all acceptable.
9.The another contention raised on the side of the
petitioner/accused is that the complainant has no source to give the
huge amount of Rs.8,00,000/- and she falsely filled the cheque and
filed this case and hence, the accused is not liable to pay any
amount.
10.At this juncture, it is necessary to refer the recent
decision reported in 2021(2) CTC 357 (Kalamani Tex and
others Vs. P.Balasubramanian). In that case, it has been held in
para 14 to 16 as follows:-
“14.Adverting to the case in hand,
we find on a plain reading of its judgment
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that the trial Court completely overlooked the
provisions and failed to appreciate the
statutory presumption drawn under Section
118 and Section 139 of NIA. The Statute
mandates that once the signature(s) of an
accused on the cheque/negotiable instrument
are established, then these ‘reverse onus’
clauses become operative. In such a situation,
the obligation shifts upon the accused to
discharge the presumption imposed upon
him. This point of law has been crystalized by
this Court in Rohitbhai Jivanlal Patel v. State
of Gujarat, 2019(2) MWN (Cr.) DCC 26 (SC):
2019(18) SCC 106, p.18 in the following
words:
“In the case at hand, even after
purportedly drawing the presumption
under Section 139 of the NI Act, the trial
court proceeded to question the want of
evidence on the part of the complainant as
regards the source of funds for advancing
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loan to the accused and want of examination
of relevant witnesses who allegedly extended
him money for advancing it to the accused.
This approach of the trial court had been at
variance with the principles of presumption in
law. After such presumption, the onus shifted
to the accused and unless the accused had
discharged the onus by bringing on record
such facts and circumstances as to show the
preponderance of probabilities tilting in his
favour, any doubt on the complainant's case
could not have been raised for want of
evidence regarding the source of funds for
advancing loan to the appellant-accused…..”
15. Once the 2nd Appellant had
admitted his signatures on the cheque and
the Deed, the trial Court ought to have
presumed that the cheque was issued as
consideration for a legally enforceable debt.
The trial Court fell in error when it called
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upon the Complainant Respondent to explain
the circumstances under which the appellants
were liable to pay. Such approach of the trial
Court was directly in the teeth of the
established legal position as discussed above,
and amounts to a patent error of law.
16. No doubt, and as correctly
argued by senior counsel for the appellants,
the presumptions raised under Section
118 and Section 139 are rebuttable in nature.
As held in MS Narayana Menon v. State of
Kerela, 2006(3) CTC 730 (SC); 2006 (6) 39, p
32, which was relied upon in Basalingappa
(supra), a probable defence needs to be
raised, which must meet the standard of
“preponderance of probability”, and not mere
possibility. These principles were also
affirmed in the case of Kumar Exports
(supra), wherein it was further held that a
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bare denial of passing of consideration would
not aid the case of accused.”
11.In this case, the petitioner/accused himself admitted in
his reply notice (Ex.P4) that his wife borrowed Rs.2,00,000/- and
she repaid the entire amount with interest. Already it was decided
that the petitioner/accused failed to prove that only his wife
borrowed Rs.2 Lakhs from the respondent/complainant. Hence,
from the perusal of Ex.P4, it reveals that already the
petitioner/accused borrowed amount from the
respondent/complainant and issued the disputed cheque. It is to be
noted that when the petitioner/accused admitted his signature in
the disputed cheque, unless and until contrary is proved, it is
presumed that the petitioner/accused only borrowed Rs.8,000,000/-
from the respondent/complainant and gave the disputed cheque. In
view of the above discussion, this Court finds that considering the
facts and circumstances of the case, the sentence imposed on the
petitioner/accused to undergo one year Simple Imprisonment alone
is liable to be set aside.
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12.In the result, this Criminal Revision is partly allowed.
The sentence imposed by the courts below to undergo one year
Simple Imprisonment alone is set aside and the petitioner/accused
is directed to pay Rs.8,00,000/- towards compensation to the
respondent/complainant, within a period of 6 weeks from the date
of receipt of a copy of this order, failing which the findings of the
Courts below shall stand restored without reference to this court.
Post the matter after 6 weeks for reporting compliance.
11.08.2021
Index:Yes/No
Internet:Yes/No
er
Note :
In view of the present lock down
owing to COVID-19 pandemic, a
web copy of the order may be
utilized for official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the advocate/
litigant concerned.
https://www.mhc.tn.gov.in/judis/
T.KRISHNAVALLI,J
er
To,
1.Principal District & Sessions Judge,
Ramanathapuram.
2.The Judicial Magistrate No.1,
Ramanathapuram.
Judgment made in
Crl.R.C(MD)No.670 of 2020
11.08.2021
https://www.mhc.tn.gov.in/judis/
