Shree Annalakshmi ... vs State Represented By
2021 Latest Caselaw 15334 Mad

                                                                            Crl.R.C.No.436 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 30.07.2021

                                                       CORAM:

                                    THE HON'BLE Mr. JUSTICE P.VELMURUGAN

                                         Criminal Revision Case No.436 of 2021
                                         and Crl.M.P.Nos.7122 and 7123 of 2021


                     1.Shree Annalakshmi Communications
                       Rep.by its Proprietor
                       Mr.K.Balasubramaniam.

                     2.K.Bala Subramaniam                                   ... Petitioners

                                                         ..vs..
                     1.State Represented by
                       Public Prosecutor.

                     2.P.Sivasamy                                            ... Respondents

                               Criminal Revision Case filed under Section 397 and 401 Cr.P.C, to
                     set aside the judgment dated 11.1.2021 passed in C.A.No.19 of 2020 by
                     the First Additional District and Sessions Judge, Coimbatore confirming
                     the judgment dated 11.12.2019 passed in C.C.No.243 of 2014 by the
                     Judicial Magistrate, Fast Track Court No.1 @ ML, Coimbatore and allow
                     this revision.


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https://www.mhc.tn.gov.in/judis/
                                                                            Crl.R.C.No.436 of 2021

                               For Petitioners     :     Mr.C.D.Sugumar

                               For Respondents :         Mr.S.Sugendran
                                                         Government Advocate (Crl.Side)
                                                         for R1

                                                        ORDER

This Criminal Revision Case has been filed against order dated

11.1.2021 passed in C.A.No.19 of 2020 by the learned First Additional

District and Sessions Court, Coimbatore.

2.According to the petitioners/accused, the 2nd respondent/

complainant filed a private complaint under Section 200 Cr.P.C for the

offence under Section 138 of Negotiable Instruments Act (herein after

referred to as 'N.I Act') before the learned Judicial Magistrate, Fast Track

Court No.I, Magisterial Level, Coimbatore and the same was taken on

file in C.C.No.243 of 2014. After due enquiry, the learned Magistrate by

an order dated 11.12.2019 convicted and sentenced the

petitioners/accused under Section 138 of N.I Act. Aggrieved by the said

order, the petitioners/accused herein filed an appeal in Crl.A.No.19 of

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2020 on the file of the learned First Additional District and Sessions

Court, Coimbatore. By order dated 11.1.2021, the learned Sessions Judge

dismissed the appeal and confirmed the judgment of the trial Court.

Challenging the same, the present Criminal Revision Case.

3.The case of the 2nd respondent/complainant is that the

petitioners/accused borrowed a sum of Rs.2,00,000/- from the 2nd

respondent/complainant on 03.12.2011 to meet their business expenses

and executed a promissory note in his favour and agreed to repay the

amount with interest @ 24% per annum. After receiving the said amount,

the accused failed to repay the same and hence, on repeated demands

made by the complainant, the accused issued a cheque to the complainant

to discharge the principal amount and promised to honour the same.

When the complainant presented the cheque for collection on

12.09.2012, it was returned with an endorsement 'Exceeds arrangements'

and the factum of the dishonour was informed to the accused and on

their request, the complainant presented the same on 15.10.2012 and

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again the same was returned for the same reason. Thereafter, the

complainant issued a statutory notice to the petitioners on 30.10.2012.

After receiving the said notice, the accused neither sent reply nor paid the

amount. Hence, the 2nd respondent/complainant filed a complaint against

the petitioners/accused.

4.The learned counsel for the petitioners would submit that the 2nd

respondent is running a chit fund company and the petitioners are

subscribers of the 2nd respondent's chit fund company. The petitioners

issued cheques only for security purpose, at the time of receiving chit

prize amount. After completion of the cheque period, the 2nd respondent

did not return the cheque and filed a false case against the petitioners. He

would further submit that the cheque in question was issued to the

complainant in the year 2011 itself, whereas, the 2nd respondent has

stated that the cheque was issued in the year 2012. However, the trial

Court and the Appellate Court failed to appreciate the defence taken by

the petitioners and simply convicted the petitioners/accused.

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5. Heard both sides and perused the materials available on record.

6.Since this Criminal Revision Case arises out of the concurrent

findings passed in C.C.No.243 of 2014 confirmed in C.A.No.19 of 2020,

this Criminal Revision Case is taken up for final disposal, without

issuing notice to the 2nd respondent.

7.On a careful perusal of the entire materials available on record, it

reveals that the petitioners/accused admitted the execution of the cheque

and the signature found in the cheque is of the petitioners and also they

admitted that the cheque in question was issued for the purpose of

security. Since the petitioners admitted the execution of the cheque, they

have to prove that there is no legally enforceable debt.

8.It is settled proposition of law once the execution of cheque is

admitted, Section 139 of N.I.Act mandates a presumption that the cheque

was issued for discharge of legally enforceable debt or other liability. No

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doubt, the presumption under Section 139 is a rebuttable presumption

and the onus is on the accused to raise the probable defence, wherein the

existence of a legally enforceable debt or liability can be contested. The

standard of proof for rebutting the presumption is not having as that of

the complainant. Further, when the Trial Court and the Appellate Court

had already appreciated the entire evidence and also given a finding,

while exercising the revisional jurisdiction, this Court cannot re

appreciate the evidence and take another view. Therefore, this Court has

to see whether there is any perversity or infirmity in the judgments of the

Court belows.

9.In the present case, the petitioners/accused have admitted the

execution of cheque and it is for them to rebut the presumption that the

cheque has not been issued for legally enforceable debt. After receiving

the return memo from the Bank, the 2nd respondent issued a statutory

notice to the petitioners, but, the petitioners have not sent any reply to

that notice. Though, it is not mandatory in criminal cases that the accused

has to send reply, he can take a defence even by way of cross

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examination of prosecution witnesses. In the present case, the petitioners

admitted the execution of the cheque and also they have admitted that the

same has been issued in the year 2011 and not issued in the year 2012.

Further, the petitioners admitted that the subsequent cheques were

honoured, whereas, the disputed cheque has not been dishonoured, which

itself clearly shows that the petitioners executed the cheques. Therefore,

both the Courts below rightly appreciated that the petitioners admitted

the execution of cheques and also admitted that the cheques were issued

for the purpose of discharging the chit amount. However, the petitioners

have not produced either a counter foil of cheque leaf book and also not

produced any documents that they are the subscribers in the 2nd

respondent's chit fund company and they issued cheque only for security

purpose and they have paid all the subscription amount, but, the 2nd

respondent failed to return the cheque. If at all the petitioners gave

cheques to the 2nd respondent for security purpose, after clearance of chit

subscription and if the respondent not returned the cheque in the year

2011, immediately, the petitioners could have taken action against the

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respondent to get back the discharged cheque, if they failed to return the

same they should have taken legal action to get back the cheque, which

were given for security purpose. However, after receiving statutory

notice, the petitioners neither sent any reply nor filed any complaint.

Therefore, both the Courts below rightly appreciated the entire evidence

and given the finding and this Court cannot interfere with the findings of

the Courts below, since there is no perversity. Further, both the Courts

below rightly shifted the onus on the petitioners and hence, it is for the

petitioner to rebut the presumption in the manner known to law.

10.In the light of the above facts, this Court does not find any

perversity or infirmity in the order of the Courts below. Accordingly,

this Criminal Revision Case is dismissed. Consequently, connected

miscellaneous petitions are closed.

30.07.2021

Internet: Yes/No ms

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To

1.The First Additional District and Sessions Judge, Coimbatore.

2.The Judicial Magistrate, Fast Track Court No.1 @ ML, Coimbatore.

3.State Represented by Public Prosecutor.

4.The Superintendent, Central Prison, Coimbatore.

5.The Public Prosecutor, High Court, Madras.

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P.VELMURUGAN, J.

ms

Criminal Revision Case No.436 of 2021 and Crl.M.P.Nos.7122 and 7123 of 2021

30.07.2021

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