Mohana D'Souza vs B.Elangovan
2021 Latest Caselaw 14264 Mad

                                                                                      Crl.R.C.No.59 of 2019


                                      IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 16.07.2021

                                                           CORAM

                                      THE HONOURABLE MR.JUSTICE P.VELMURUGAN

                                                  Crl.R.C.No.59 of 2019 &
                                              Crl.M.P.Nos.473 & 474 of 2019


                     Mohana D'Souza                                ...   Petitioner

                                                            Vs.

                     B.Elangovan                                   ...   Respondent




                     PRAYER: Criminal Revision Case filed under 397 r/w 401 of Cr.P.C. to set aside
                     the order dated 12.10.2018 made in C.A.No.208 of 2018 passed by the learned
                     XV Additional Sessions Court, Chennai, confirming the order dated 28.03.2018
                     made in C.C.No.933 of 2011, passed by the learned Metropolitan Magistrate,
                     Fast Track Court No.I, Egmore.




                                   For Petitioner      :     Mr.C.Sivanesan

                                   For Respondent      :     Mr.C.P.Sivamohan




                     1/9




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                                                                                       Crl.R.C.No.59 of 2019




                                                        ORDER

The petitioner is the accused. The respondent is the complainant. The

respondent filed complaint in C.C.No.933 of 2011 against the petitioner under

Section 138 of the Negotiable Instruments Act before the learned Metropolitan

Magistrate, Fast Track Court-I, Egmore, Chennai. The learned Magistrate had

taken the complaint on file and after enquiry, the learned Magistrate found the

petitioner guilty for the offence under Section 138 of the Negotiable Instruments

Act and convicted and sentenced him to undergo six months imprisonment and

directed him to pay a sum of Rs.2,75,000/- towards compensation to the

complainant, in default of payment of compensation to the complainant, to

undergo simple imprisonment for 2 months.

2. Challenging the said Judgment of Conviction and Sentence, the

petitioner herein filed appeal before the learned Principal Sessions Judge,

Chennai and learned Judge taken the appeal on file in C.A.No.208 of 2018 and

made over the appeal to the XV Additional Session Judge, Chennai to dispose the

appeal in accordance with law.

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3. The learned Additional Session Judge after hearing the arguments and

considering the materials, dismissed the appeal and confirmed the Judgment of

conviction and sentence passed by the learned Magistrate. Challenging the

dismissal of appeal, the Petitioner has approached this Court by way of the

present Revision.

4. The learned counsel for the petitioner would submit that the appellate

Court failed to consider that Ex.P5 issued by the respondent-complainant

through his counsel to the appellant / accused and the old case stood on Ex.P5.

The same was detailed nine cheques totalling a sum of Rs.8,75,000/, but the

respondent/complainant demanded a sum of Rs.10,25,000/- towards cheque

amount, which clearly shows that there is an ambiguity whether the

appellant/accused has to pay the total cheque amount of Rs.8,75,000/- or

Rs.10,25,000/-. The learned Magistrate failed to appreciate the defense side

evidence and also defense taken by the petitioner and erroneously convicted

the petitioner and in the appeal before the 1st appellate Court also, the same

was confirmed. Therefore, the judgment warrants interference of this court.

http://www.judis.nic.in Crl.R.C.No.59 of 2019

5. The learned counsel for the respondent/complainant would submit that

the petitioner himself admitted the issuance of cheque and she has also not

disputed the signature in the cheques. Both the learned Magistrate as well as the

learned Appellate Court rightly considered the oral and documentary evidence

and had rightly come to the conclusion that the petitioner has committed the

offence and there is no merit in the Revision and the same is liable to be

dismissed.

6. Heard the learned counsel on either side and perused the materials

available on record.

7. The case of the respondent/complainant is that the petitioner/accused

approached the complaint for loan through a common friend and availaed a loan

to the tune of Rs.10,25,000/-, on various dates. In order to discharge the said

loan, the accusd issued three cheques bearing No.571080, dated 08.11.2010 for

Rs.1,25,000/-; 176791, dated 05.07.2010 for Rs.1,0,000/- and 560766, dated

21.10.2010 for Rs.50,000/-, drawn on Ondian Overeas Bank, Kilpauk Chennai.

The complainant presented the above cheques for payment, but the same were

returned dishonoured by the accused banker with memo dated 25.11.2010 with

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an endorsement "funds insufficient" and the same was intimated to the

complainant on 26.11.2020. After repeated demands, the accused failed to

repay the cheque amount, therefore, the complainant issued a statutory legal

notice, dated 09.12.2010 to the accused and the same was received on

10.12.2010. As per the notice, the accused had not come forward to pay the

amounts claimed within one month from the date of receipt of notice. Instead of

that, the accused sent a reply dated 20.12.2010, accepting her liability. But, in

the said reply, the accused had stated that she availed a loan of Rs.10,00,000/-

and also stated that the cheques were given as security. The allegations are

frivolous and above cheques were not given as security. To prove the averments

made in the complaint, on the side of the respondent/complainant, complainant

examined himself as P.W.1. and 13 documents were marked and the

petitioner/accused has not denied the signatures and the only defence taken by

the petitioner is that there are discrepancies in the loan amount paid by the

respondent/complainant and the loan amount received by the

petitioner/accused and the conviction is based on the document in Ex.P6, which

is reply notice issued by the petitioner/accused to answer the demand notice

issued by the respondent/complainant, which was invalid before the eye of law.

However, to disprove the said contention, the petitioner/accused has not

http://www.judis.nic.in Crl.R.C.No.59 of 2019

producd any document and hence, the learned appellate Judge, rejected the

said contention.

8. It is seen from the records that the petitioner had admitted the

execution of cheques and also admitted that the signatures found in the disputed

cheques are that of her. It is settled proposition of law that once signature and

execution of cheque is admitted then automatically, presumption under Section

118 and 139 of NI Act would come into play, which faovours the complainant,

holder of the cheque.

9. While exercising revisional jurisdiction, this Court has to see as to

whether any perversity in appreciating the evidence in deciding the case. Since

the signature in the cheques are not denied by the revision petitioner/ accused,

this Court can draw presumption under Sections 118 and 139 of the Negotiable

Instruments Act. It is for the petitioner/accused to rebut the presumption.

Admittedly, in this case, the revision petitioner has not rebutted the

presumption in the manner known to law.

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10. While exercising revisional jurisdiction, this Court need not to sit in

the armchair of the appellate Court and revisit the entire evidence and also

reappreciate the same. At the same time, the Court has to find out as to

whether any perversity in appreciation of evidence in the orders passed by both

the Courts below.

11. On reading of the entire oral and documentary evidence, the trial

Court, on proper appreciation of evidence, rightly convicted the petitioner/

accused. The appellate Court, as a fact finding Court, re appreciated the entire

evidence, and dismissed the Appeal.

12. Therefore, this Court does not find any perversity in the Judgment of

the both the Courts below and there is no merit in the revision. Accordingly, the

Judgment passed by both Courts below are hereby confirmed. Consequently,

connected miscellaneous petitions are closed.

16.07.2021 (2/3) Speaking Order / Non-speaking order Index : Yes / No. Internet : Yes.

rns

http://www.judis.nic.in Crl.R.C.No.59 of 2019

To

1.The Metropolitan Magistrate, Fast Track Court No.I, Egmore.

2. The XV Additional Sessions Court, Chennai.

http://www.judis.nic.in Crl.R.C.No.59 of 2019

P.VELMURUGAN, J.

rns

Crl.R.C.No.59 of 2019 & Crl.M.P.Nos.473 & 474 of 2019

16.07.2021 (2/3)

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