Madras High Court
Mariam Varghese vs P.Shanmugam on 8 September, 2021
Crl.R.C.No.576 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
Crl.R.C.No.576 of 2015
Mariam Varghese ... Petitioner
.. Vs ..
P.Shanmugam ....Respondent
Prayer:- Criminal Revision filed under Sections 397 and 401 of the
Criminal Procedure Code, to set aside the conviction imposed in the
judgment dated 20.02.2015 made in C.A.No.152 of 2014 on the file of
the learned Fourth Additional District Sessions Court, Coimbatore
confirming the judgment dated 22.09.2014 made in S.T.C.No.258 of
2012 on the file of the learned Judicial Magistrate Fast Track Level
No.2, Coimbatore (C.C.No.195 of 2012 on the file of the Judicial
Magistrate No.6, Coimbatore).
For Petitioner : Mr.Harish
For Mr.N.Manokaran
For Respondent : Mr.V.Ashok Kumar
Legal-Aid-Counsel
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Crl.R.C.No.576 of 2015
ORDER
The convicted accused is the revision petitioner herein.
2. The petitioner has filed this revision against the conviction
imposed in the judgment dated 20.02.2015 made in C.A.No.152 of
2014 on the file of the learned Fourth Additional District Sessions
Court, Coimbatore, confirming the judgment dated 22.09.2014 made
in S.T.C.No.258 of 2012 on the file of the learned Judicial Magistrate
Fast Track Level No.2, Coimbatore (C.C.No.195 of 2012 on the file of
the Judicial Magistrate No.6, Coimbatore) sentencing her to undergo
one year simple imprisonment with fine of Rs.5000/- in default to
undergo two months simple imprisonment for the offence under
Section 138 of Negotiable Instruments Act.
3. The petitioner submits that the respondent herein filed a
private complaint in S.T.C.No.258 of 2012 on the file of the learned
Judicial Magistrate Fast Track Level No.2, Coimbatore (C.C.No.195 of
2012) on the file of the Judicial Magistrate No.6, Coimbatore, against
the petitioner herein alleging that she had borrowed a sum of Rs.5
lakhs and issued a cheque and when it was presented for collection on
21.01.2012, it was returned unpaid with an endorsement 'funds
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insufficient' on 23.01.2012 and he issued a legal notice on
26.01.2012, thereafter filed the above complaint before the Court.
4. The petitioner submits that during the course of the trial, the
respondent herein examined himself as P.W.1 besides marking Exs.P1
to P4. The trial Court, without taking note of the defence putforth by
the petitioner herein, erroneously convicted her by sentencing the
petitioner to undergo simple imprisonment for one year for the
offence under Section 138 of Negotiable Instruments Act. The appeal
filed by the accused in C.A.No.152 of 2014 before the Appellate Court
was also dismissed on 20.02.2015. Hence the revision.
5. The petitioner submits that there was no transaction between
the parties, whereas the cheque has been misused and the present
complaint has been filed to get an unlawful gain. The petitioner
submits that she has dislodged the presumption even though the
respondent had failed to prove the transaction between the parties by
producing the documents. The petitioner has taken the task of
rebutting the presumption and she has falsified the version pleaded by
the respondent.
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6. The learned counsel for the revision petitioner contended that
the cheque was not issued to one Shanmugam/the private complainant
whereas it was issued to one Kunjumon to meet the medical expenses
and also challenged the financial capacity of the drawee to issue the
amount. The transaction alleged under cheque was not duly reflected
in the income tax returns submitted by the respondent. The
respondent herein filed a private complaint in S.T.C.No.258 of 2012
alleging that the revision petitioner/accused has borrowed a sum of
Rs.5 lakhs on 15.12.2011 for business purposes and to discharge the
debt, she has issued Ex.P1 cheque and on presentation on 23.01.2012
the same was returned with endorsement of insufficient funds and
after issuing P3 legal notice which was served upon the accused under
Ex.P4 he has instituted the case. The accused has not given any reply
legal notice. So is the evidence before the trial Court.
7. The trial Court has held that the respondent/complainant is
entitled for presumption under Section 139 of the Negotiable
Instruments Act and to discharge the rebuttal presumption, the
accused had examined D.W.1 Kunjumon his evidence was disbelieved.
Accordingly, the trial Court laid the conviction as stated supra. In
appeal in C.A.No.152/2014 was dismissed and hence the revision.
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8. After perusing the evidence of P.W.1 coupled with
documentary evidence of Ex.P1 to Ex.P4, I find that both the Courts
below has rightly come to the conclusion that the respondent/private
complainant is entitled for presumption under Section 139 of
Negotiable Instruments Act.
9. On the point of rebuttal presumption, the accused has
examined D.W.1 Kunjumon who, in his evidence has stated that his
son has met with an accident and hence he was taking treatment at
Laksho hospital, Ernakulam. To meet the medical expenses he has
approached the accused/ husband Mathew Jacob and Mathew Jacob
has given 4 cheques which was signed by his wife. It was given to the
hospital and after settlement at the time of the discharge, they have
returned the two cheques however, he had not returned the cheques
and hence could contend that these cheques have been given as a
security to meet the medical expenses of the son of the Kunjumon.
10. Though a specific case has been projected by the D.W.1,
none of the medical records of the alleged illness of the son of the
Kunjumon was brought on record. No document is produced from
Ernakulam Hospital regarding the payment made through the cheque
or made by utilizing the cheque given by the accused.
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11. Furthermore, since it is a specific evidence of the D.W.1
Kunjumon, Ex.P1 along with the other cheques were given through the
husband of the accused Mathew Jacob for the reasons best known the
husband of the accused, who is said to have handled the cheque from
the accused to the defacto-complainant, was not examined. He is not
a third party and he is the husband of the accused and hence the trial
Court disbelieved the evidence saying that it is only an after thought to
create a defence and accordingly rejected the case.
12. It is also to be noted that had there been any such incident
of middleman involving in payment of the medical expenses and
payment has been made to the hospital authorities towards the
medical treatment of son of Kunjumon (D.W.1), they could have very
well given the said documents before the trial Court or at the appellate
stage. Neither in the appeal, they have not taken any steps to
probablize the suggestive case. In the absence of probablization of
suggestive case, the trial Court and the appellate Court has
concurrently held that the accused has miserably failed to probabalize
the suggestive case and accordingly laid the conviction and the said
conviction under Section 138 of Negotiable Instruments Act is
sustainable in law.
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13. On the point of quantum of sentence, the accused, being a
lady, the learned counsel for the revision petitioner contended that
some leniency could be shown.
14. Taking into consideration the amount mentioned in the
cheque and the accused being a lady, while confirming the conviction
this Court hereby reduces the sentence from period of one year to six
months. In other aspects, the order of the Courts below do stand.
15. Accordingly, this Criminal Revision Petition is partly allowed
to the limited extent of sentence only.
15.09.2021
nvi
Index : Yes / No
Internet : Yes
To
1. The Fourth Additional District Sessions Court, Coimbatore
2. The Judicial Magistrate Fast Track Level No.2, Coimbatore
3. The Judicial Magistrate No.6, Coimbatore
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RMT.TEEKAA RAMAN,J.,
nvi
Crl.R.C.No.576 of 2015
15.09.2021
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