Madras High Court
C. Raja vs L. Thirumalaisamy on 2 February, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.02.2021
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
Crl.RC(MD)No. 182 of 2016
C. Raja ... Petitioner/Appellant/Sole accused
Vs.
L. Thirumalaisamy ...Respondent/Respondent/Complainant
PRAYER: Petition filed under Section 397 & 401 of the Criminal Procedure
Code, to set aside the Judgment of conviction, dated 03.02.2016 made in
C.A. No. 19 of 2014 on the file of the learned Principal Sessions Judge,
Dindigul District, Dindigul, by confirming conviction and sentence made in
STC No. 667 of 2010 on the file of the Judicial Magistrate Court,
Oddanchathiram, dated 15.04.2014 and allow this Criminal Revision Petition
and acquit the petitioner for the alleged offence under Section 138 of the
Negotiable Instruments Act.
For Petitioner : Mr.A. Saravanan
For Respondent : Mr.S. Karthik
*****
ORDER
This criminal revision case is filed as against the concurrent findings
on a complaint instituted under Section 138 of the Negotiable Instruments
Act.
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2. The trial Court, namely, the learned Judicial Magistrate,
Oddanchatram, found this petitioner guilty under Section 138 of the
Negotiable Instruments Act in S.T.C No.667 of 2010 and by order dated
15.04.2014, convicted and sentenced him to undergo rigorous imprisonment
for One year and to pay a fine of Rs.5000/-, i/d to undergo simple
imprisonment for One month. As against the conviction and sentence, the
petitioner has preferred an appeal and the learned Principal Sessions Judge,
Dindigul, by order dated 03.02.2016, in C.A.No.19 of 2014 confirmed the
conviction and sentence imposed by the trial Court. Aggrieved over the same,
the petitioner has preferred the instant revision case.
3. The case of the respondent/complainant is that the
petitioner/accused borrowed a sum of Rs.1,50,000/-, as hand loan from him,
agreeing to repay the same within three months and in order to discharge the
said liability, had also handed over a cheque, dated 06.11.2008 bearing No.
5964902. When the respondent/ complainant presented the said cheque, the
same was returned with an endorsement 'insufficient funds'. Therefore, the
complainant, after issuing a notice calling upon the petitioner/accused to
make the payment as required under Clause (b) of the proviso to Section 138
of the Negotiable Instruments Act, filed the complaint, after the statutory
period. The petitioner has borrowed a sum of Rs.90,000/-from one
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Krishnasamy, who is brother of complainant and issued cheque to him and he
has also filed I.P. No.1 of 2009 against that Krishnasamy and some others.
Both the Courts below have found the petitioner/accused guilty and
aggrieved, the petitioner has preferred the instant revision case.
4. Heard Mr.A. Saravanan, learned Counsel for the petitioner /
accused. There is no representation for the respondent / complainant.
5. Mr.A. Saravanan, learned Counsel for the petitioner/accused
contended that the petitioner has not borrowed any loan at all, as alleged by
the complainant. He further contended that the complainant admitted that the
cheque was filled up by his brother and it was suggested by the accused that
his brother filled up the cheque and asked him to realise the same. He further
contended that the Branch Manager admitted that the date in which the
cheque was remitted into Bank was not mentioned and he has also admitted
that the complainant signed as Thirumalsamy and also admitted that the
cheque number has not been filled in the Bank Chalan. Therefore, the
learned Counsel further contended that a false case has been foisted against
him and prays for interference.
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6. The learned counsel appearing for the respondent/complainant
submitted that the petitioner/accused clearly admitted the signature and in his
reply, he has stated that he has issued a blank cheque in favour of one
Krishnasamy. He further submitted that the petitioner/accused has filed IP
against Kannaiyan who is brother of the accused in I.P. No. 1 of 2009 and he
admitted that he knew the complainant and his brother. He further submitted
that the petitioner/accused had borrowed money from various persons, but
not returned to anybody. Hence, he prayed for dismissal of the Criminal
Revision Cases.
7. This Court has paid it's anxious consideration to the submissions
made by the petitioner's Counsel and also to the documents placed on record.
8. Perusal of record shows that the respondent/ complainant, in support
of his case, examined two witnesses as PW1 & PW2 and marked six
documents. On the side of the petitioner/accused DW1 was examined and
marked five documents.
9. The Criminal Revision case arisen out of conviction and sentence
imposed by the learned Judicial Magistrate, Oddanchatram, in STC No.667
of 2010, dated 14.04.2014 and against the Judgment in C.A. No. 19 of 2014.
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10. The cheque is belonged to the petitioner/accused. Signature in the
cheque is also by the accused. His only objection is that, he did not borrow
money from the complainant. He has borrowed a sum of Rs.90,000/-from one
Krishnasamy, who is brother of complainant and issued cheque to him. He
also filed I.P. No.1 of 2009 against that Krishnasamy and some others.
Therefore, the Krishnasamy issued a cheque to the complainant and filed the
criminal case in STC No. 667 of 2010. In support of his case, he quoted the
evidence of PW1's cross examination. In the cross examination of PW1, he
had stated that the cheque was filed by his brother Ranganathan. Once the
accused has admitted his signature on the cheque he could not escape from
his liability on the ground that the same has not been filled in by him. A
person issuing a blank cheque must know the consequences.
11. The complainant had presented the cheque on 05.02.2009 only
after that the petitioner/accused filed I.P.No.1 of 2009, against the brother of
the complainant. In I.P. No.1 of 2009, he never stated that he issued blank
cheque to the brother of the complainant.
12. The ingredients of Section 138 of the Negotiable Instruments Act is
extracted under:-
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“ 138. Dishonour of cheque for insufficiency, etc., of funds in the account-
Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any amount of
money to another person from out of that account for the
discharge, in whole or in part, of any debt or other liability, is
returned by the bank unpaid, either because of the amount of
money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount arranged to be
paid from that account by an agreement made with that bank,
such person shall be deemed to have committed an offence and
shall, without prejudice to any other provision of this Act, be
punished with imprisonment for a term which may extend to
[two years] or with fine which may extend to twice the amount
of the cheque, or with both:
Provided that nothing contained in this section shall
apply unless -
(a). the cheque has been presented to the bank within a period
of six months from the date on which it is drawn or within the
period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the
case may be, makes a demand for the payment of the said
amount of money by giving a notice, in writing, to the drawer of
the cheque, within [thirty] days of the receipt of information by
him from the bank regarding the return of the cheque as unpaid;
and
( c) the drawer of such cheque fails to make the payment of the
said amount of money to the payee or, as the case may be, to the
holder in due course of the cheque, within fifteen days of the
receipt of the said notice”.
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13. In the case on hand, according to the complainant, he gave money
to the petitioner/accused and the cheque was issued by the accused. Cheque
is belonged to the accused. His signature was also admitted by him.
14. The relevant portion of the Judgment reported in 2013 (1) MWN
(Crl.) DCC 85 (Mad.), is extracted hereunder:
“If two views are possible, Court has to adopt view
which is favourable to accused and should not interfere
with findings of the acquittal passed by the Lower Court.”
15. The scope of Criminal Revision under Section 397 r/w 401 Cr.P.C.
is very limited and this Court cannot re-appreciate the evidence, unless and
until there is a illegality, perversity or impropriety in the findings of the trial
Court and the appellate Court.
16. This Court in Anbarasu Vs Mukanchand Bothra, reported in 2019
(3) MWN (Cr) DCC 1(Mad), has held that while exercising the revisional
powers under Section 397 r/w 401 Cr.P.C., the Court is required to find out
whether there is any illegality or impropriety in the findings of the trial Court
and the appellate Court warranting interference and it is not open to this
Court to exercise the revisional power as a second appellate forum.
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17. The petitioner / accused has not made out any ground to show that
there is any illegality, perversity or impropriety in the findings of the Courts
below. In such view of the matter, this Court is not inclined to interfere with
the order passed by the learned Judicial Magistrate Court, Oddanchathiram,
in STC No.667 of 2010, dated 15.04.2014, as confirmed by the learned
Principal Sessions Judge, Dindigul District, Dindigul, in C.A. No. 19 of
2014, dated 03.02.2016.
18. In fine, this Criminal Revision Case is dismissed. Since the
petitioner/accused is in bail, the trial Court is directed to secure and confine
him, in accordance with law. Bail bonds, if any executed, shall stand
terminated.
Index :Yes/No 02.02.2021
Internet :Yes/No
ksa
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To
1. The Judicial Magistrate Court, Oddanchathiram.
2. The Principal Sessions Court, Dindigul District, Dindigul,
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4. The Section Officer, Criminal Section,
Madurai Bench of Madras High Court,
Madurai.
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S.ANANTHI, J.
ksa
Order made in
Crl.RC(MD)No. 182 of 2016
02.02.2021
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