Madras High Court
R.Uma vs G.Lenin Muthu on 4 January, 2021
Crl.R.C(MD)No.335 of 2021
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
RESERVED ON : 04.04.2022
PRONOUNCED ON : 07.04.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.335 of 2021
R.Uma ... Petitioner/Appellant/Accused
Vs.
G.Lenin Muthu ... Respondent/Respondent/Complainant
PRAYER: Criminal Revision Case filed under Section 397 r/w 401 of
the Code of Criminal Procedure, to call for the records of the learned
II Additional District and Sessions Judge, Thanjavur in C.A.No.34 of
2019, dated 04.01.2021, confirming the Judgment and conviction of
the learned Fast Track Judicial Magistrate, Thanjavur in S.T.C.No.52
of 2016, dated 27.02.2019 and set aside the judgment and
conviction of the Courts below.
For Petitioner : Mr.A.Saravanan
For Respondent : Mrs.M.P.Roniga
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Crl.R.C(MD)No.335 of 2021
ORDER
This revision is directed as against the order passed in
C.A.No.34 of 2019, dated 04.01.2021 on the file of the learned II
Additional District and Sessions Judge, Thanjavur, confirming the
order passed in S.T.C.No.52 of 2016, dated 27.02.2019 on the file
of the learned Fast Track Judicial Magistrate, Thanjavur, thereby
convicted the petitioner for the offence punishable under Section
138 of the Negotiable Instruments Act.
2.The respondent lodged a complaint for the offence
punishable under Section 138 of the Negotiable Instruments Act as
against the petitioner herein alleging that the petitioner borrowed a
sum of Rs.7,00,000/- on 10.02.2014. She also assured that she will
pay the interest at the rate of 24% per annum. After repeated
request, on 20.08.2015, in order to repay the said amount along
with interest, she issued cheque for a sum of Rs.8,50,000/-. The
said cheque was presented for collection and the same was returned
dishonoured for the reason that the 'funds insufficient'. Thereafter,
the respondent issued statutory notice as required under Section
138 of the Negotiable Instruments Act and lodged the complaint.
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Crl.R.C(MD)No.335 of 2021
3.On the side of the respondent, he himself was examined
P.W.1 and marked Ex.P.1 to Ex.P.5 and on the side of the petitioner,
no one was examined and no documents were marked.
4.On a perusal of oral and documentary evidence, the trial
Court found that the petitioner was guilty and sentenced her to
undergo simple imprisonment for the period of three months and
also awarded compensation for a sum of Rs.8,50,000/- under
Section 357(3) of Cr.P.C. Aggrieved by the same, the petitioner
preferred an appeal and the first Appellate Court confirmed the
conviction and sentence imposed by the trial Court. Challenging the
same, the petitioner has filed the present revision petition.
5.The learned counsel appearing for the petitioner would
submit that the petitioner is a stranger to the respondent herein and
she never parted any loan from the respondent as alleged by the
respondent herein. There was absolutely no money transaction
between them. The petitioner had money transaction only with the
uncle of the respondent herein. When the petitioner borrowed loan
from the uncle of the respondent in the year 2012, at the time of
borrowal of loan, she had issued the alleged cheque which was
marked as Ex.P.1 for security and also executed pro-note. Both
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Crl.R.C(MD)No.335 of 2021
were signed by the petitioner in the unfilled form of cheque and
pro-note. After repaying the entire loan amount, the uncle of the
respondent failed to return the cheque and pro-note and the same
were handed over to the respondent and to extract more money,
the respondent filled up the cheque and also filled up the pro-note
and lodged the complaint for the offence punishable under Section
138 of the Negotiable Instruments Act. In fact, the respondent did
not even whisper about the pro-note allegedly executed by the
petitioner in favour of the respondent in the statutory notice as well
as the complaint. When the respondent was examined as P.W.1, he
suddenly marked the pro-note as Ex.P.5, dated 10.02.2014. Further,
the respondent had no source of income to lend a huge sum of
Rs.7,00,000/-. That apart, no prudent man will lend such a huge
sum without any execution of other document such as pro-note. At
the time of lending loan, the respondent was in abroad and he had
no source of income to lend such a huge amount. The petitioner
categorically rebut the evidence of the respondent by
cross-examination and as such, the burden again shifted to the
shoulder of the respondent to prove his case beyond doubt. The
respondent failed to prove his case after rebutting the evidence of
the respondent. Unfortunately, both the Courts below did not
consider the same and convicted the petitioner herein. He further
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Crl.R.C(MD)No.335 of 2021
submitted that the petitioner is a staff nurse and she is residing at
Chennai. There is absolutely no need for her to go to Thanjavur and
borrow the amount from the respondent, who is the permanent
resident of Thanajvur.
6.The learned counsel appearing for the petitioner would
further submit that the respondent also failed to prove the existing
liability between the petitioner and the respondent. The respondent
also did not whisper about the date on which, the petitioner
borrowed loan and failed to mention the time and place of borrowal
of loan. In support of his contention, he relied upon the Judgment of
the Honourable Supreme Court of India in Crl.A.No.636 of 2019
in the case of Basalingappa Vs. Mudibasappa, in which the
Honourable Supreme Court of India held that non-production of any
document by the complainant to show his earning and the
complainant has not executed any document before lending such
huge amount to the accused. Such circumstances raises serious
doubt on the transaction as claimed by the complainant. Thus, the
accused satisfied that she has raised a probable defence and the
findings of the trial Court that the complainant failed to prove his
financial capacity are based on the evidence led by the defence.
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Crl.R.C(MD)No.335 of 2021
7.The learned counsel appearing for the petitioner also relied
upon the Judgment of this Court in the case of Ramkumar Vs.
Chelladurai (2022 (1) MWN (Cr.) DCC 28 (Mad.)), in which this
Court held that the liability to repay an unaccounted loan amount
admittedly not disclosed in Income-Tax Returns cannot be legally
recovered liability. If such a liability is held to be legally recoverable
debt, it will rendered the explanation to Section 138 of the
Negotiable Instruments Act.
8.Per contra, the learned counsel appearing for the
respondent would submit that the signature and issuance of cheque
are not disputed by the petitioner. If at all the petitioner had taken a
stand that she is a stranger to the respondent and she never
borrowed any loan from the respondent, definitely she would have
issued reply notice after receipt of the statutory notice dated
27.08.2015. The petitioner did not issue any reply notice on the
statutory notice issued by the respondent. The petitioner also failed
to examine any witness to rebut the evidence of the respondent
herein and also failed to mark any documents in support of her
contention. The petitioner also failed to make a statement under
Section 313 of Cr.P.C about the denial of borrowal and denial of
issuance of cheque. She simply stated that the respondent lodged
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Crl.R.C(MD)No.335 of 2021
false complaint. Even according to the petitioner, she borrowed loan
in the year 2012 from the uncle of the respondent herein, it is
obvious that without knowing the respondent she could not state
that she borrowed loan only from the uncle of the respondent
herein. Therefore, both the Courts below rightly convicted the
petitioner for the offence punishable under Section 138 of the
Negotiable Instruments Act.
9.Heard the learned counsel appearing for the petitioner and
the learned counsel appearing for the respondent and perused the
materials available on record.
10.According to the respondent, the petitioner borrowed a
sum of Rs.7,00,000/- and also assured that she will pay interest at
the rate of 24% along with principal amount. In order to repay the
same, she issued cheque dated 20.08.2015 for a sum of
Rs.8,50,000/-, which was presented for collection and the same was
returned dishonoured for the reason that 'funds insufficient'. After
causing statutory notice, lodged the complaint. The statutory notice
dated 27.08.2015 was duly received by the petitioner by the
acknowledgment dated 01.09.2015, which was marked as Ex.P.4.
Though the petitioner had taken specific stand while
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Crl.R.C(MD)No.335 of 2021
cross-examining the respondent that the respondent is a stranger to
her and she never borrowed any loan from the respondent as
alleged in the complaint, the petitioner failed to issue any reply
notice. She also failed to examine any one of the witness to
substantiate her contention that she borrowed loan only from the
respondent's uncle in the year 2012 and at the time of borrowal of
loan, she had given Ex.P.1 and Ex.P.5 for security purpose. Further,
the learned counsel appearing for the petitioner vehemently
contended that while borrowing the alleged loan that too such a
huge amount, no prudent man will leave the borrower without
execution of any document. Further, he contended that the
respondent failed to account the amount which was lent by her and
he has also failed to show in the income tax returns and as such, it
is unaccounted money and it is not legally recoverable one.
However, the petitioner failed to mark any of the document and
failed to examine any of the witnesses to substantiate these
contentions before the Court below or before the first Appellate
Court. The petitioner also had taken a specific stand that the
respondent had no source of income to lend such a huge sum.
However, the petitioner failed to make any statement when she was
questioned under Section 313 of Cr.P.C.
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11.In this regard it is relevant to rely upon the Judgment of
the Honourable Supreme Court of India in Crl.A.No.362 of 2002
in the case of Tedhi Singh Vs. Narayan Dass Mahant, in which
the Honourable Supreme Court of India held that unless a case is
set up in the reply notice to the statutory notice sent, that the
complainant did not have the wherewithal, it cannot be expected of
the complainant to initially lead evidence to show that he had the
financial capacity. However, the accused has the right to
demonstrate that the complainant in a particular case did not have
the capacity and therefore, the case of the accused is acceptable
which he can do by producing independent materials, namely, by
examining his witnesses and producing documents. It is also open
to him to establish the very same aspect by pointing to the
materials produced by the complainant himself. He can further,
more importantly, achieve this result through the cross examination
of the witnesses of the complainant. Ultimately, it becomes the duty
of the Courts to consider carefully and appreciate the totality of the
evidence and then come to a conclusion whether in the given case,
the accused has shown that the case of the complainant is in peril
for the reason that the accused has established a probable defence.
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Crl.R.C(MD)No.335 of 2021
12.This Court has gone through the nature of the evidence. In
the case on hand, admittedly, the petitioner failed to issue reply
notice for the statutory notice caused by the respondent herein. The
petitioner also failed to examine any witness and failed to mark any
document to substantiate her contention except the
cross-examination.
13.On a perusal of cross-examination of P.W.1 also revealed
that all the suggestions put up by the petitioner were denied by the
respondent. In fact, the signature and issuance of cheque were
categorically admitted by the petitioner herein. As held by the
Honourable Supreme of India, if at all the petitioner wanted to take
a specific stand that the respondent had no source of income to lend
such a huge amount, the petitioner has to demonstrate that the
complainant did not have capacity.
14.As stated supra, admittedly, the petitioner failed to
establish the same. It is true that this is a case under Section 138 of
the Negotiable Instruments Act. Section 139 of the N.I. Act provides
that Court shall presume that the holder of a cheque received the
cheque of the nature referred to in Section 138 for the discharge, in
whole or in part, of any debt or other liability. This presumption,
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Crl.R.C(MD)No.335 of 2021
however, is expressly made subject to the position being proved to
the contrary. In other words, it is open to the accused to establish
that there is no consideration received. It is in the context of this
provision that the theory of ‘probable defence’ has grown. In the
case cited by the learned counsel appearing for the petitioner in
Crl.A.No.636 of 2019 in the case of Basalingappa Vs.
Mudibasappa, the Honourable Supreme Court of India held that
Section 139 of the N.I. Act is an example of reverse onus. It is also
true that the accused is not expected to discharge an unduly high
standard of proof. Accordingly the principle has developed that all
which the accused needs to establish is a probable defence. As to
whether a probable defence has been established is a matter to be
decided on the facts of each case on the conspectus of evidence and
circumstances that exist.
15.In the case on hand, as stated supra, the petitioner failed
to establish her probable defence except cross-examination of
P.W.1. Therefore, the Judgments cited by the learned counsel
appearing for the petitioner are not helpful to the case on hand. The
failure to whisper about Ex.P.5 in the complaint and the statutory
notice is not the fatal to the case of the respondent herein. It is only
a supportive document and as stated supra, the issuance of cheque
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Crl.R.C(MD)No.335 of 2021
itself the Court presume that the holder of a cheque received the
cheque of the nature referred to in Section 138 for the discharge, in
whole or in part, of any debt or other liability. Therefore, the Courts
below rightly convicted the petitioner herein for the offence under
Section 138 of the Negotiable Instruments Act. Hence, this Court
finds no infirmity or illegality in the order passed by the Courts
below. Accordingly, this Criminal Revision Case is dismissed.
07.04.2022
Index : Yes/No
Internet : Yes
ps
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Crl.R.C(MD)No.335 of 2021
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.
To
1.The II Additional District and Sessions Judge,
Thanjavur.
2.The Fast Track Judicial Magistrate,
Thanjavur.
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Crl.R.C(MD)No.335 of 2021
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.335 of 2021
07.04.2022
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