Sreekantaswamy vs C.Prakashkumar
2021 Latest Caselaw 23095 Mad

                                                                                   Crl.R.C.No.334 of 2016

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 25.11.2021

                                                             CORAM

                                   THE HONOURABLE Ms.JUSTICE R.N.MANJULA

                                                 Crl.R.C.No.334 of 2016

                     Sreekantaswamy                                       ... Petitioner

                                                              Vs


                     C.Prakashkumar                                       ... Respondent

                     PRAYER: This Criminal Revision Case is filed under Sections 397 r/w.

                     401 of Cr.P.C., against Judgment dated 28.01.2015 made in Crl.A.No.18 of

                     2014 on the file of the Principal District and Sessions Judge, Vellore, in

                     confirming the Judgment dated 04.02.2014 made in C.C.No.177 of 2010, on

                     the file of the Judicial Magistrate Court, Katpadi, Vellore District.



                                    For Petitioner       :     Mr.C.Prabakaran

                                    For Respondent      :      Mr.M.Kempraj




                     1/12


https://www.mhc.tn.gov.in/judis
                                                                                        Crl.R.C.No.334 of 2016

                                                        ORDER

This Criminal Revision Case has been preferred challenging the

judgment of the learned Principal District and Sessions Judge, Vellore,

dated 28.01.2015 made in C.A.No.18 of 2015.

2. This case has arisen out of the dishonour of the cheque alleged to

have been issued by the petitioner/accused in favour of the

respondent/complainant for discharging a loan amount of Rs.4,00,000/-.

And for which, private complaint was filed under Section 138 of Negotiable

Instruments Act. The allegation of the respondent/complainant is that on

01.04.2008, the petitioner/accused borrowed a sum of Rs.4,00,000/- from

the respondent on the assurance that he would repay the same within a

period of two months. In view of an understanding between the parties, the

amount does not carry any interest. On 03.06.2008, the petitioner issued a

cheque for Rs.4,00,000/- drawn on ICICI Bank, Mysore Branch, in favour

of the respondent/complainant for the purpose of discharging the loan

amount of Rs.4,00,000/-. When the cheque was presented by the

respondent/complainant on 14.07.2008, it was returned as 'Funds

Insufficient'. The return intimation was received by the

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respondent/complainant on 22.07.2008. Subsequent to that, the

respondent/complainant issued a statutory legal notice to the petitioner on

04.08.2008 calling upon to him to pay the cheque amount. But, the said

notice was not served on the petitioner and it was returned as 'no such

addressee'. Having waited for the mandatory period as contemplated under

Negotiable Instruments Act, the respondent/complainant has filed the

private complaint against the petitioner for punishing him under Section 138

of Negotiable Instruments Act and the said complaint was taken on file.

3. During the course of trial, on the side of the

respondent/complainant two witnesses were examined as PW1 and PW2

and Exhibits P1 to P10 were marked and on the side of the

petitioner/accused, no witness was examined and no documents were

marked.

4. After conclusion of trial and on consideration of the materials

available on record, the learned Trial Judge found the accused guilty for the

offence under Section 138 of Negotiable Instruments Act, and convicted

https://www.mhc.tn.gov.in/judis Crl.R.C.No.334 of 2016

and sentenced him to undergo 6 months simple imprisonment and imposed a

fine of Rs.3,000/- in default, to undergo one month simple imprisonment.

The cheque amount of Rs.4,00,000/- issued was ordered to be paid as

compensation to the respondent, in default, to pay compensation, the

petitioner is ordered to undergo two months simple imprisonment. The said

judgment was challenged by the petitioner/accused by preferring an appeal

before the Principal District and Sessions Judge, in C.A.No.18 of 2014 and

the appeal was also dismissed on 28.01.2015. Aggrieved over that, the

petitioner/accused has preferred this Criminal Revision Case before this

Court.

5. Point for consideration:

Whether the conviction and sentence of the accused for the offence under Section 138 of Negotiable Instruments Act, by the learned Sessions Judge basing on the materials available on record is fair and proper?

6. Heard the learned counsel for the petitioner and the learned for the

https://www.mhc.tn.gov.in/judis Crl.R.C.No.334 of 2016

respondent.

7. The learned counsel for the petitioner submitted that the

respondent/complainant was working as a Supervisor under him and during

that relevant period, he managed to steal the cheque belonging to the

petitioner and he misused it for the purpose of this case. It is further

submitted that the respondent has not complied the mandatory requirement

of sending statutory notice as per Section 138(b) of the Negotiable

Instruments Act, and further, the respondent does not have the financial

capacity to lend the sum of Rs.4,00,000/- to the petitioner/accused.

8. The learned counsel for the respondent/complainant submitted that

the petitioner did not deny the execution of the cheque and hence, it has to

be presumed that the cheque was issued for a legally enforceable debt. It is

further submitted that the notice was sent to the petitioner to his last known

address and even at the time of filing the Criminal Revision Case, the

petitioner has stated to be residing in the very same address. The

petitioner/accused wantonly returned the notice and that cannot be

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construed as non-compliance of notice sent under Section 138(b) of

Negotiable Instruments Act. He further submitted that his father has sold a

family property in the year 2002, and the sale proceeds were in the custody

of his father's friend. Only when the petitioner approached him for financial

assistance, he managed to get the amount through his father and gave it to

the petitioner.

9. The respondent is known to the petitioner. The petitioner himself

has stated that the respondent had worked as a Supervisor under him at the

relevant point of time. So the parties are not strangers they knew each other.

The petitioner has admitted that the impugned cheque belonged to him and

it contained his signature. But the only contention of the petitioner is that

the respondent did not have the financial capacity to lend the sum of

Rs.4,00,000/- as claimed by him. He has also raised a technical point that

the pre-litigation notice contemplated under Section 138(b) has not been

duly served on him and that would vitiate the proceedings.

10. As per Section 139 of Negotiable Instruments Act, if the

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executant of the cheque does not deny its execution, it has to be presumed

that the cheque amount has been given only for the purpose of discharging

legally enforceable debt payable to the holder of the cheque. Though the

complainant gets this presumption in his favour that can be rebutted by the

accused by producing the proof to the contrary. The standard of proof for

such rebuttal is not strict proof of beyond reasonable doubt, but only

through preponderance of probabilities. It is sufficient if the accused could

establish through preponderance of probability that the cheque was not

supported by consideration.

11. In the case on hand, the petitioner has submitted that the

respondent/complainant did not have the financial capacity to lend a sum of

Rs.4,00,000/- to him and the impugned cheque was stolen by the respondent

when he was working as Supervisor under the petitioner. Admittedly, no

action has been taken by the petitioner on the allegation that the respondent

had stolen any of his cheques. Such an action has not been taken even after

the filing of his complaint. Though it is correct that the rebuttal proof can be

through preponderance of probability, the probability cannot be presumed

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from mere suggestion put by the accused during his cross examination,

PW1. Even if the accused does not subject himself for examination, the

improbabilities can also be explored from the evidence and materials of the

complainant. The simple contention of the complainant is that he had lent

the sum of Rs.4,00,000/- to the petitioner for his business needs and he

managed to arrange the money from the sale proceeds kept in the hands of

his father. The complainant produced the copy of the sale deed dated

07.11.2002 and that would show that the property was sold on the said date

for a valuable consideration.

12. Though it is the contention of the learned counsel for the

petitioner that it is unbelievable that the sale consideration which was got in

the year 2002 was kept in the hands of the respondent or his father till the

year 2008 and the same was utilised for lending loan to the petitioner, it is

the option of the respondent or his father to utilise the sale proceeds in the

manner preferred by them. Thus, prima facie proof is shown by the

respondent/complainant to show that he had the background to lend a sum

of Rs.4,00,000/- to the petitioner/accused. The initial presumption coupled

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with the supporting evidence will strengthen the case of the complainant

and make the initial presumption culminated into the conclusive proof, in

the absence of any contrary proof. But the petitioner/accused had not

produced any materials to demolish the above proof offered by the

petitioner. In the said circumstances, it has to be concluded that the

petitioner had not rebutted the evidence of the respondent/complainant or

falsified it.

13. The second point raised by the petitioner is that the respondent

has not sent the statutory legal notice in the manner known to law and

complied with the mandatory requirements before filing the complaint.

Once the cheque is dishonoured for insufficient funds, the complainant has

to necessarily send a legal notice in compliance of Section 138(b). The

complainant has chosen to send the notice to the address known to him in

which the accused was residing and the same address was shown as his

address in this Criminal Revision Case also and that proves that the

petitioner continues to live there but some how evaded to receive notice.

14. In such circumstances, the notice returned for the reason that

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addressee not found cannot be held against the respondent. Hence, I am not

able to agree with the contentions of the learned counsel for the

petitioner/accused that the respondent has not complied the mandatory

requirement contemplated under Section 138(b) of the Negotiable

Instruments Act.

15. The learned Trial Judge and the learned First Appellate Judge

have correctly appreciated the materials on record in a right perspective and

arrived at the conclusion that the accused is guilty for the offence under

Section 138 of Negotiable Instruments Act. Hence, the judgments of the

courts below does not suffer from factual and legal infirmity and it does not

warrant any interference.

16. In the result,

● This Criminal Revision Case is dismissed.

● The Judgment dated 28.01.2015 made in Crl.A.No.18 of 2014

confirming the Judgment dated 04.02.2014 in C.C.No.177 of

2010 is confirmed.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.334 of 2016

● The learned Trial Judge is directed to issue Non-Bailable

Warrant for securing the accused to undergo incarceration.

25.11.2021

Index:yes / No Internet:Yes / No Speaking / Non-Speaking Order ssn

To

1. The Principal District and Sessions Judge, Vellore.

2. The Judicial Magistrate Court, Katpadi, Vellore District.

3. The Public Prosecutor, High Court of Madras, Chennai.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.334 of 2016

R.N.MANJULA, J., ssn

Crl.R.C.No.334 of 2016

25.11.2021

https://www.mhc.tn.gov.in/judis