Madras High Court
P.Manoj vs Krishnamoorthy on 22 December, 2021
Crl.R.C.No.650 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.12.2021
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
Crl.R.C.No.650 of 2018
P.Manoj
... Petitioner
Vs.
Krishnamoorthy
... Respondent
Criminal Revision filed under Sections 397 and 401 Cr.P.C praying to set
aside the judgment dated 20.04.2018 passed in C.A.No.259 of 2017 on the file
of the First Additional District and Sessions Court, Erode confirming the
judgement dated 24.7.2017 passed in S.T.C.No.1373/2010 on the file of the
Judicial Magistrate Court No.1, Erode by allowing the present criminal
Revision Petition.
For Petitioner : Mr.I.C.Vasudevan
For Respondent : Mr.D.Gopal
*****
ORDER
This Criminal Revision has been preferred challenging the judgment of
the learned First Additional District and Sessions Judge, Erode dated
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.650 of 2018
20.04.2018 made in C.A.No.259 of 2017 confirming the judgment of the
learned Judicial Magistrate-I, Erode dated 24.07.2017 made in S.T.C.No.1373
of 2010.
2. This case has arisen out of a private complaint filed by the respondent
on the allegation that on 26.09.2010, the revision petitioner had borrowed a sum
of Rs.4,00,000/- from the respondent and issued a cheque for Rs.4,00,000/-
dated 26.10.2010 drawn on ICICI Bank, Coimbatore Branch towards discharge
of the loan. When the cheque was presented for collection with the City Union
Bank, Erode on 26.10.2010, the same was returned as “Account closed”. After
having issued the statutory notice and after complying the legal mandates, the
respondent filed the private complaint against the petitioner for punishing him
under Section 139 read with 142 of Negotiable Instruments Act.
3. After the case was taken on file, the accused was questioned. He
pleaded innocence and claimed to be tried.
4. During the course of the trial, on the side of the complainant, he
himself was examined as PW1 and marked 5 documents as Exs.P1 to P5. On
the side of the defence, 4 witnesses have been examined and 4 documents were
marked.
5. At the conclusion of trial and after considering the materials available
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.650 of 2018
on record, the learned trial Judge found the accused guilty for the offence under
Sections 138 Negotiable Instruments Act and convicted and sentenced him to
undergo Rigorous Imprisonment for One Year and to pay a fine of Rs.5,000/- in
default Simple Imprisonment of Three Months. The appeal preferred by the
accused in C.A.No.259 of 2017 was also dismissed on 20.04.2018. Aggrieved
over that the accused has preferred the present revision.
6. Heard the learned counsel for the revision petitioner and the learned
counsel for the respondent. Perused the entire materials available on record.
7. The learned counsel for the revision petitioner/accused submitted that
the Courts below have not properly appreciated the evidence available on
record and convicted the accused; the applicability of Sections 118 and 139 of
Negotiable Instruments Act was also not properly done by the Courts below
and hence, this Revision has to be allowed. The evidence of DWs1 to 4 would
show that the Cheque (Ex.P1) came into the custody of the complainant only
through illegal means and that was omitted to be appreciated by the Courts
below.
8. The learned counsel for the respondent submitted that the revision
petitioner/accused did not deny the execution of the cheque and hence, the
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.650 of 2018
complainant is entitled to the initial presumption under Sections 118 and 139 of
Negotiable Instruments Act. As per the said presumption, if the execution is
admitted, it has to be presumed that the cheque was given for a legally
enforcible debt or liability. The Courts below have rightly appreciated the
evidence and found the accused guilty.
9. Point for consideration:-
Whether the finding of the guilt of the accused for the offence
under Section 138 NI Act by the learned Sessions Judge based on the
materials available on record is fair and proper?
10. The execution of the cheque by the petitioner/accused is not in
dispute. His only contention is that he did not avail any loan from the
respondent/complainant as alleged by him.
11. It is needless to point out that once the execution of cheque is
admitted, the mandatory initial presumption under Sections 118 and 139 would
go in favour of the complainant. As per the said presumption, it has to be
presumed that the cheque has been issued only for a legally enforcible debt or
liability. It is not the case of the complainant that the respondent did not have
financial wherewithal to lend him a loan of Rs.4,00,000/- as alleged by him.
Though the initial presumption as stated above lies in favour of the complainant,
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.650 of 2018
it is always open to the accused to rebut the same by producing any contrary
proof. In this case, despite the revision petitioner/accused examined 4
witnesses on his side, it is not established from their evidence that the cheque
issued by him is not supported by consideration.
12. In the absence of any contrary proof, the evidence adduced on behalf
of the complainant would only become a conclusive proof. The above legal
position has been rightly dealt by the Trial Court and it is upheld by the First
Appellate Court as well. In my opinion, I do not find any legal or factual
infirmity to interfere with the well reasoned judgments of the Courts below.
13. In the result, this Criminal Revision is dismissed. The judgment
dated 20.04.2018 made in C.A.No.104 259 2017 on the file of the learned First
Additional District and Sessions Judge, Erode is hereby confirmed.
22.12.2021
Index: Yes/No
Speaking / Non Speaking Order
kmi
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.650 of 2018
R.N.MANJULA, J
kmi
To
1.The First Additional District and Sessions Judge,
Erode.
2.The Judicial Magistrate No.I,
Erode.
Crl.R.C.No.650 of 2018
22.12.2021
https://www.mhc.tn.gov.in/judis
