Madras High Court
Arivuraj vs Sivakandhan on 4 April, 2022
Crl.R.C.(MD)No.302 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.04.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C.(MD)No.302 of 2020
and
Crl.M.P(MD)Nos.2514 & 2516 of 2020
Arivuraj
... Petitioner
Vs
Sivakandhan ... Respondent
Prayer: Criminal Revision Case filed under Section 397 r/w 401 Cr.P.C. to call
for the records pertaining to the judgment passed in Crl.Appeal No.69 of 2016,
dated 04.11.2019 by the Additional District and Sessions Judge, Sivagangai,
Sivagangai District where in confirmed the conviction and sentences of 1 years
Rigorous imprisonment Under Section 138 of Negotiable Instrument Act, 1881
and directed the petitioner to pay Rs.3,00,000/- of cheque amount as
compensation U/s.357(3) Cr.P.C to the respondent in default for that another 3
months Rigorous imprisonment sentence imposed by the Fast Track Court
(Magisterial Level) Karaikudi, Sivagangai District in STC No.40 of 2016 and
set aside both the Courts judgment by allowing this Criminal Revision Case.
For Petitioner : Mr.R.Murugappan
https://www.mhc.tn.gov.in/judis
1/6
Crl.R.C.(MD)No.302 of 2020
For Respondent : Mr..........
No appearance
ORDER
This Criminal Revision Case has been filed challenging the judgment
passed in Crl.A.No.69 of 2016, dated 04.11.2019 by the learned Additional
District and Sessions Judge, Sivagangai, Sivagangai District, thereby,
confirming the conviction and sentence of one year Rigorous imprisonment,
under Section 138 of Negotiable Instruments Act, 1881 and directed the
petitioner to pay Rs.3,00,000/- of cheque amount as compensation under
Section 357(3) Cr.P.C, to the respondent, in default, to undergo further period of
3 months Rigorous imprisonment, imposed by the Fast Track Court (Magisterial
Level) Karaikudi, Sivagangai District in S.T.C.No.40 of 2016.
2.The petitioner is the accused on the basis of the complaint lodged by the
respondent for the offence punishable under section 138 of Negotiable
Instruments Act, 1881. The respondent lodged a complaint alleging that on
28.04.2014, the petitioner availed loan to the tune of Rs. 3,00,000/-, for his
family expenses from the respondent. In order to repay the said loan, the
petitioner issued a cheque for the said sum and the same was presented for
collection. It was returned for the reason that ‘funds insufficient’. On receipt of
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Crl.R.C.(MD)No.302 of 2020
the same, the respondent caused statutory notice. Though, the petitioner
received the same, failed to give any reply notice.
3.In order to prove the charge against the petitioner, the respondent has
examined himself as PW1 and marked documents as Ex.P.1 to Ex.P.7. On the
side of the petitioner, he did not examine any witnesses and did not mark any
documents, to disprove the case of the respondent herein.
4.Perusal of both oral and documentary evidence, the Court below found
guilty and sentenced the petitioner to undergo imprisonment for period of one
year rigorous imprisonment and also directed to pay compensation of Rs.
3,00,000/-, under Section 357(3) of Cr.P.C.
5.Aggrieved by the same, the petitioner preferred an appeal and the same
was confirmed by the first appellate Court. The learned counsel appearing for
the petitioner would submit that the petitioner was not given opportunity to
cross examine PW1 and he was not given opportunity to examine any witness
on his behalf. The respondent is a stranger to the petitioner and he never meet
the respondent at any point of time. The alleged cheque was not issued for any
legally enforceable debt, since the petitioner has no legally enforceable debt to
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Crl.R.C.(MD)No.302 of 2020
the respondent. There is material alteration in the alleged cheque, involved in
this case, which was clearly established by the petitioner, during the trial. Even
then, the Court below without considering the above facts, convicted the
petitioner and sentenced him as stated supra.
6.Perusal of records reveals that the petitioner did not cross examine
PW1, who is the respondent herein, who categorically deposed that on
28.02.2014, the petitioner borrowed a sum of Rs.3,00,000/- and has not repaid
the same. The petitioner issued the cheque dated 25.09.2015, to the tune of Rs.
3,00,000/-, which was marked as Ex.P.3. It was returned for the reason ‘funds
insufficient’. In pursuance of the same, the respondent caused legal notice,
which was marked as Ex.P.5 dated 09.10.2015, which was also duly received by
the petitioner and the acknowledgement card was marked as Ex.P.7. Even after
receipt of the same, the petitioner failed to rebut the case of the respondent, by
giving reply notice. Even after receipt of summons from the trial Court, the
petitioner failed to rebut the case of the respondent. He did not even examine
himself as a witness and did not cross examine PW1. Though, the learned
counsel appearing for the petitioner has taken a specific stand that the
respondent is a stranger to the petitioner and alleged cheque was not issued for
any legally enforceable debt, the petitioner failed to make any statement under
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Crl.R.C.(MD)No.302 of 2020
Section 313 (1) (b) of Cr.P.C., before the trial Court. That apart, the appellant
also failed to make any application before the first appellate Court to adduce
additional evidence to support his contention. Therefore, the Court below
rightly convicted and sentenced the petitioner for the offence under Section 138
of Negotiable Instruments Act, 1881. Hence, this Court finds no infirmity or
illegality in the order passed by the Court below.
7.Accordingly, this Criminal Revision Case is dismissed. Consequently,
connected miscellaneous petitions are closed.
04.04.2022
Internet : Yes
Index : Yes/No
PNM
Note: In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the responsibility
of the advocate/litigant concerned.
To
1. The Additional District and Sessions Judge,
Sivagangai, Sivagangai District
2. The Fast Track Court (Magisterial Level)
Karaikudi, Sivagangai District.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD)No.302 of 2020
G.K.ILANTHIRAIYAN,J.
PNM
ORDER IN
Crl.R.C.(MD)No.302 of 2020
&
Crl.M.P(MD)Nos.2514 & 2516 of 2020
04.04.2022
https://www.mhc.tn.gov.in/judis
