Madras High Court
V.Tamil Selvan vs S.Vasudevan (Died) on 5 August, 2022
Crl.RC.No.75 of 2017
IN THE HIGH COURT OF JUDIATURE AT MADRAS
DATED: 05.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
Crl.R.C.No.75 of 2017
V.Tamil Selvan
S/o.Velayutham ...Petitioner
Vs
1.S.Vasudevan (Died)
S/o. Subbarayan
2.Mrs.V.Mahalakshmi
W/o.(late) S.Vasudevan ...Respondents
Prayer:- Criminal Revision Petition has been filed, under Section 397 r/w
401 of Cr.P.C, to set aside the set aside the order dated 18.04.2016 passed
in C.A.No.16 of 2015 on the file of District and Sessions Judge, Tiruvallur
and confirming Judgment in order dated 09.02.2015 in S.T.C.No.136 of
2014 on the file of the Fast Track Court, Ambathur.
For Petitioner : Mrs.S.Sridevi
Legal Aid Counsel
1/10
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Crl.RC.No.75 of 2017
For R2 : Mr.G.Peramban
Legal Aid Counsel
ORDER
This Criminal Revision Case has been preferred against the
Judgement passed in C.A.No.16 of 2015 on the file of the I Additional
Sessions Judge, Tiruvallur, confirming the Judgement in order dated
09.02.2015 passed in S.T.C.No.136 of 2014 on the file of the Fast Tract
Court, Ambathur.
2.The respondent filed a complaint under Section 138 of Negotiable
Instrument Act, alleging that he had given a loan of Rs.10,00,000/-(Rupees
Ten Lakhs only) to the accused/petitioner herein and towards the discharge
of the said loan amount, the petitioner had issued a cheque for a sum of
Rs.7,00,000/-(Rupees Seven Lakhs only) on 25.04.2013; when the said
cheque was presented for collection, it was returned by the Banker for the
reason ''Funds insufficient''; then he had issued a statutory notice to the
accused to his address and the same was returned unserved with an
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Crl.RC.No.75 of 2017
endorsement ''not claimed''. The respondent examined himself as P.W.1 and
marked seven documents viz. Ex.P.1 to Ex.P.7. The petitioner examined
two witnesses on his side and marked three documents. The petitioner's
defence during the trial was that the cheque was not issued to the
respondent in discharge of any liability and it was issued only for the
purpose of security.
3.After considering the evidence on record and hearing either side,
the trial Court vide judgement dated 09.02.2015 in S.T.C.No.136 of 2014
convicted the petitioner under Section 138 of Negotiable Instrument Act
and sentenced him to undergo Six Months Simple Imprisonment and to pay
the cheque amount of Rs.7,00,000/- (Rupees Seven Lakhs Only) to the
complainant u/s 357(3) of Cr.P.C. as compensation. The petitioner
challenged the said conviction and sentence before the I Additional
Sessions Judge in C.A.No.16 of 2015 and the same was dismissed.
Aggrieved by the concurrent findings of the Courts below, the accused has
preferred the present Criminal Revision.
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Crl.RC.No.75 of 2017
4.There was no representation for the petitioner on 24.06.2022 and
also on 15.07.2022. Therefore, this Court by an order dated 15.07.2022,
directed the Registry to appoint Mrs.S.Sridevi, Legal Aid Counsel to
represent the petitioner.
5.Heard Mrs.S.Sridevi, Legal Aid Counsel appearing for the
Revision Petitioner and Mr.G.Peramban, Legal Aid Counsel appearing for
the 2nd respondent.
6.The learned counsel for the Revision Petitioner would submit that
the Courts below erred in convicting the petitioner, without considering the
material facts that there was no legally enforceable debt and that the
cheque was issued only for the security purpose. The learned Counsel
further submitted that though in the complaint, the respondent had stated
that the cheque was issued for the discharge of loan amount, the cheque
was issued only as a security. The learned counsel relied upon the
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Crl.RC.No.75 of 2017
judgement of this Court in M.V.S.Rajendranath vs Raj Television
Network Ltd., reported in 2022 (2) MWN (Cr.) DCC 132 (Mad.), in
support of her submission.
7. The learned counsel for the respondent/complainant would submit
that the complainant has proved his case beyond reasonable doubt; thatthe
petitioner has not rebutted the statutory presumption in the manner known
to law. He further submits that the Courts below have rightly disbelieved
the defence of the petitioner and convicted him for the offence under
Section 138 Negotiable Instrument Act. The cheque was given only for
discharge of the liability of the petitioner.
8. Before adverting to the rival submissions, it is necessary to
reiterate the principle that while exercising Revisional Jurisdiction
involving concurrent finding of the Courts below, this Court cannot act as a
second Appellate Court.
9. It is trite law that in a Revision challenging Appellate Court's
judgement, confirming the judgement of trial Court, the Court can
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Crl.RC.No.75 of 2017
appreciate the evidence only to the limited extent of ascertaining if the
finding is perverse, unreasonable or implausible.
10.In the case on hand, we find that the complainant has established
the fact that the cheque was issued by the accused and that the cheque was
dishonoured for the reason''Funds insufficient'' and that the statutory
notice was sent to the accused. Since he has established the foundational
fact under the statutory presumption under Section 139 of Negotiable
Instrument Act, enures to his favour. The next question is whether the
accused has rebutted the presumption. It is the case of the petitioner, that
the cheques were not given for any legally enforceable debt. On a perusal
of the Judgement of the Courts below, we find that the petitioner has not
probablised the said defence. The cross examination of the respondent and
the evidence of the defence witnesses examined by the petitioner, do not
create any doubt in the complainant's case, so as to rebut the statuatory
presumption. The petitioner has not elicited any favourable answers but
only made a few suggestions. That apart, we find that the trial Court has
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Crl.RC.No.75 of 2017
extracted the evidence of the petitioner who was examined as D.W.2
admitting his liability of Rs.10,00,000/- (Rupees Ten Lakhs Only). The
Judgement relied upon by the learned counsel for the petitioner has no
application to the facts of the instant case. In that case, this Court was
dealing with the judgment of the Appellate Court which set aside a
judgement of acquittal by the trial Court. In that case, it was established
that the cheque was given as security and on that basis the trial Court
acquitted the accused.
11. It is well settled that the presumption under Section 139
Negotiable Instrument Act, is a rebuttable presumption. The accused can
rebut the presumption either by improbablising the version of the
complainant through cross examination or by adducing evidence on his
side. The accused can discharge the said burden by preponderance of
probability. We find that the accused has failed to rebut the statutory
presumption either by cross-examination of the complainant's witnesses or
by adducing evidence on his side. The Courts below have found that the
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Crl.RC.No.75 of 2017
accused has not probablised his version and hence found him guilty. We do
not find any infirmity or illegality or perversity in the finding of the Courts
below.
12.In the result, this Criminal Revision stands dismissed as devoid of
merits. The conviction and sentence imposed by the trial Court, which is
confirmed by the Appellate Court stands unaltered. The trial Court is
hereby directed to secure the accused and commit him to prison to undergo
the remaining sentence. The Registry is directed to transmit the original
records if any, to the respective Courts forthwith.
05.08.2022
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking : Yes/No
dk
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Crl.RC.No.75 of 2017
To:
1.I Additional Sessions Judge,
Tiruvallur.
2.The Judicial Magistrate.
Fast Track Court (Magistrate Level)
Ambattur.
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Crl.RC.No.75 of 2017
SUNDER MOHAN, J.
dk
Crl.RC.No.75 of 2017
05.08.2022
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