G.Gobi vs N.Maharajan
2021 Latest Caselaw 14380 Mad

                                                                                Crl.R.C.No.1582 of 2016

                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 19.07.2021

                                                             CORAM:

                                    THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

                                                      Crl.R.C.No.1582 of 2016


                      G.Gobi                                                           ... Petitioner
                                                              .. Vs ..


                      N.Maharajan                                                   ....Respondent

                      Prayer :- Criminal Revision filed under 397 and 401 of the Criminal
                      Procedure Code, to set aside the judgment dated 30.08.2016 passed
                      in Crl.A.No.18/2016 on the file of the Additional District and Sessions
                      Judge, Krishnagiri confirming the judgment dated 09.10.2015 passed
                      in S.T.C.No.47/2015 on the file of the Judicial Magistrate (Fast Track)
                      Court, Hosur.


                                     For Petitioner        : Mr.M.Karthik,
                                                           For Mr.I.C.Vasudevan


                                     For Respondent        : Mr.A.Tamilvanan
                                                           ORDER

Heard the learned counsel for the petitioner and the learned

counsel for the respondent.

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2. This criminal revision petition has been filed against the

judgment dated 30.08.2016 passed in Crl.A.No.18/2016 on the file of

the Additional District and Sessions Judge, Krishnagiri, confirming the

judgment dated 9.10.2015 passed in S.T.C.No.47/2015 on the file of

the Judicial Magistrate (Fast Track) Court, Hosur.

3. The revision petitioner is the convicted accused.

4. The respondent filed a complaint in S.T.C.No.47/2015 before

the learned Judicial Magistrate, Hosur, alleging that the respondent did

not prove his ability to pay the huge amount of Rs.9,00,000/- to the

petitioner, especially, when he did not mark any Income Tax returns,

bank statements, etc to show his capacity to pay the same.

5. The non-reply to the notice issued by the respondent alone

would not be sufficient to reject the defence and convict the

petitioner/accused.

6. The trial Court laid the conviction based upon the answer

elicited in the cross-examination, coupled with answer given by the

accused under Section 313 (3) of Cr.P.C.

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7. The appeal preferred by the revision petitioner in

Crl.A.No.18/2016 before the learned Additional District Judge,

Krishnagiri, was dismissed and hence the criminal revision.

8. The learned counsel for the revision petitioner/accused

contended that the complainant has stated that the accused is known

to him and approached him on 18.09.2014 for a hand loan of

Rs.9,00,000/- to repay his debts. It is stated that the accused

undertook to refund the loan amount within one month. Believing the

accused, the complainant was alleged to have given the amount. It is

further stated that a cheque was issued by the accused on 26.12.2014,

which was presented to the complainant's bank on the same day and it

was returned as "insufficient fund". A legal notice was issued on

05.01.2015, which was received by the accused, but not replied.

Thereafter, the complaint was filed.

9. On the side of the complainant, he was examined as P.W.1.

The accused has not let in oral evidence and marked two documents in

the cross-examination of P.W.1. The trial Court, after conclusion of

trial, convicted the accused. The complainant has marked the cheque

under Ex.P1. The legal notice dated 05.01.2015 was marked as Ex.P3.

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This notice was received by the accused, which is not disputed. The

postal receipt and the acknowledgment were also marked as Ex.P4 and

Ex.P5 respectively. The accused failed to pay the cheque amount even

after legal notice. No reply was given for the notice under Ex.P3.

10. On a perusal of the documents, I find that, as per the

complaint, the loan amount was borrowed on 18.09.2014 and Ex.P1

cheque was issued on 26.12.2014 and the same was returned for

"insufficient funds" which is Ex.P2. Ex.P3 is the legal notice issued on

05.01.2015 and there was no reply during the cross-examination of

P.W.1. It is suggested that the petitioner has availed loan only for

Rs.4,50,000/- from the respondent and he has executed a General

Power of Attorney for the sale of a piece of land, which the respondent

herein also sold and realized Rs.5 lakhs.

11. During the questioning, the revision petitioner could state

that he has borrowed loan from the complainant. According to him,

total amount of loan he borrowed was Rs.4,50,000/- and at the time

of borrowal unfilled blank cheques were given to the complainant. It is

further stated that the total loan amount was given in instalments and

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the interest rate agreed was 3%. The accused further stated that since,

there was a loss in his business, he was not able to pay the interest. He

further stated a General Power of Attorney was given in favour of the

complainant and thereafter the complainant has entered into an

agreement for sale of the property and received a sum of Rs.5 lakhs.

The accused also stated that the cheques were not filled up.

12.Admittedly, after the receipt of Ex.P3 legal notice, no reply

was issued and no defence evidence was let in. The revision

petitioner/accused has not explained as to the reason for non sending

the reply of the said legal notice in Ex.P3.

13. On a combined reading of Exs.P1 to P3, coupled with the

evidence of P.W.1, the trial Court has rightly come to the conclusion

that borrowal has been proved and also the issuance of the cheque

and dishonour of the cheque for the reason of insufficient funds, all

have been proved in the manner known to law. Consequently, the trial

Court held that the respondent/complainant has proved the

presumption under Section 139 of the Negotiable Instruments Act.

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14. On the point as to whether the revision petitioner/accused

has rebutted the presumption, both the Courts below have

concurrently held that no steps have been taken by the revision

petitioner to rebut the same.

15. After hearing the submissions made by the revision

petitioner and taking into consideration the money transaction

between P.W.1 and the petitioner herein and also the real estate

transaction, the trial Court has rightly come to the conclusion that the

respondent has proved that the cheque was issued for proper

consideration.

16. Admittedly, the revision petitioner/accused has not stated

any reply notice to the notice under Ex.P3. Now he has taken a plea in

the trial that from General Power of Attorney was given in favour of the

revision petitioner for realization of Rs.5 lakhs . No piece of evidence

has been adduced either during the cross-examination of P.W.1 or

when he was allowed to let in evidence.

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17. Admittedly, the revision petitioner/accused has not taken

steps to go into the witness box to adduce the evidence to probablize

the suggestive case and in the absence of any probablize of the

suggestive case, both the Courts below have rightly come to the

conclusion that the revision petitioner/accused has filed to prove the

presumption and consequently laid the conviction. The concurrent

findings by both the Courts below do not suffer from any illegality or

perversity and taking note of the scope of the criminal revision and

also on facts and there are no merits in the revision petition.

18. Accordingly, this Criminal Revision Petition is dismissed.

19.07.2021

nvi

Index : Yes / No Internet : Yes To

1. The Additional District and Sessions Judge, Krishnagiri

2. The Judicial Magistrate (Fast Track) Court, Hosur.

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RMT.TEEKAA RAMAN,J.,

nvi

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