Madras High Court
B.Karthick vs R.Usha on 8 August, 2022
Crl.R.C.No.771 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.08.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.771 of 2019
B.Karthick,
S/o.Balaji ... Petitioner/Accused
Versus
R.Usha,
W/o.Ravichandran ... Respondent/Complainant
Prayer : Criminal Revision Case filed under Section 397 & 401 of the Code of
Criminal Procedure, praying to set aside the Judgment passed by the II
Additional District and Sessions Judge, Tiruvallur at Poonamallee in C.A.No.80
of 2018 dated 28.02.2019 by confirming the judgment dated 17.04.2018 made
in C.C.No.106 of 2017 on the file of the learned Judicial Magistrate, Fast Track
Court, Magistrate Level, Ambattur, convicting the petitioner to undergo simple
imprisonment for 9 months and also directed to pay Rs.5,00,000/- the cheque
amount as compensation to the complainant within two months time in default
to undergo one month simple imprisonment for alleged offence under Section
138 of Negotiable Instrument Act by allowing this Crl.R.C.
For Petitioner : Mr.K.Kannan
For Respondent : Mr.A.M.Rahamath Ali
ORDER
This Criminal Revision Case is filed by the petitioner/accused aggrieved
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Crl.R.C.No.771 of 2019
by the conviction for the offence under Section 138 of Negotiable Instruments
Act.
2.The case of the complainant is that on 09.08.2012, the accused had
borrowed a sum of Rs.3,00,000/- and on 08.12.2012, the accused had further
borrowed a sum of Rs.2,00,000/-, in all totaling to a sum of Rs.5,00,000/- and
in repayment, the subject matter cheque was issued. Upon presentation of the
said cheque, the cheque was returned 'dishonored' and therefore, after issue of a
statutory notice, the complaint is filed.
3.Upon recording the sworn statements of the complainant, the Trial
Court issued summon to the accused. Upon questioning, the accused denied the
allegation and stood trial. Therefore, the complainant examined herself as P.W.1
and Ex.P1 to Ex.P5 were marked on behalf of the complainant. Upon
questioning about the evidence on record, the accused denied the same as false.
Thereafter, the accused examined himself as D.W.1 and Ex.D1 was marked.
4.The specific defence of the accused is that at the time of the alleged
transactions, he was only a student and therefore, there was absolutely no
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Crl.R.C.No.771 of 2019
necessity for him to borrow the said huge sum of money. Further, he has duly
established before the Trial Court that his mother was involved in an
unauthorized chit and the mother of the petitioner/accused and the family
members were taken to the police station after repeated enquiry were finally
taken to custody on 07.02.2014 and they were in prison for more than 40 days.
Only during the said period of incarceration, the alleged cheque, which is said to
have been issued in the year 2012 and was presented for collection, which
would go to show that the defence of the accused that in respect of the various
persons, who alleged monies due, the concerned police had pressurized the
accused and his family members to give away his cheque. Therefore, without
any borrowal whatsoever while the accused and his family members are already
been facing the case for alleged non-payment of money of the chit transactions,
this case is also foisted and therefore, when the accused has let in any evidence
and cross examined the complainant and also through his own evidence to the
level of preponderance of probability raising contentions and doubt about the
case of the complainant, the Trial Court as well as the First Appellate Court
ought to have held that the accused has rebutted the presumption under
Sections 118 and 139 of Negotiable Instruments Act and once the accused has
rebutted presumption and the complainant has not let in positive evidence of
lending such a huge sum of Rs.5,00,000/-, the Trial Court and the First
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Crl.R.C.No.771 of 2019
Appellate Court ought to have given benefit of doubt to the petitioner/accused
and ought to have acquitted him.
5.Per contra, the learned counsel for the respondent brought the attention
of this Court to the judgment of the Trial Court that in this case the accused had
never taken proper and sustainable defence. He would submit that at the first
instance when the statutory notice was issued, the accused did not issue any
reply at all and chose to be silent. In the second instance, when the accused was
summoned and when was questioned by the Trial Court, the accused replied
that he has already repaid the entire amount. Thereafter, during the Trial, a new
defence is taken as if the cheque was obtained in the police station. The
complainant had cross examined D.W.1 that he had not give any further
complaint against the police officials or he did not take any steps regarding the
obtaining of the cheque from him in a forcible manner. Therefore, the Trial
Court considering the above had discarded the defence and held that the
accused had not rebutted the presumption and found the accused guilty and
therefore, he prayed that when both the Courts, namely the Trial Court as well
as the Appellate Court independently appraised the evidence and came to
conclusion, which his based on reasoning and proper findings, there is nothing
for this Court to interfere in the revision.
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Crl.R.C.No.771 of 2019
6.I have considered the rival submissions made by the learned Counsel on
either side and perused the material records of the case.
7.The contentions of the learned counsel for the petitioner is that there is
no legally enforcible liability for the issuance of cheque and there was an
investigation in the connected offence relating to non payment of chit amounts.
During which, the cheques have been obtained and since the blank cheque was
given, it is filled up in the name of the complainant and it is sought to be
presented. As a matter of fact, the accused has not borrowed any amount. If that
be the case, there was no occasion for the accused to have answered that he has
repaid the entire amount.
8.Secondly, as rightly held by the Trial Court that if the cheque was
forcibly obtained from him while he was under custody, the petitioner/accused
after coming out on bail or thereafter, the accused ought to have sent any
representation to the higher police officials or given any complaint in this
regard. In the absence of the same, especially when the Trial Court and the first
Appellate Court have chosen not to believe the said defence in the light of the
facts on record, I am unable to see any merit in the said submissions of the
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Crl.R.C.No.771 of 2019
learned counsel for the petitioner/accused and consequently, I hold that the Trial
Court as well as the first Appellate Court have rightly found the accused guilty
for the offence under Section 138 of Negotiable Instruments Act.
9.Now, coming to the question of sentence, the learned counsel submits
that the transaction was of the year 2012. As a matter of fact, the accused had
deposited a sum of Rs.3,00,000/- to the credit of C.C.No.106 of 2017 pending
the proceedings. Therefore, he would submit that considering the age of the
accused, the punishment imposed by the Trial Court to undergo imprisonment
for a period of 9 months would be unduly harsh at this stage.
10.Considering the said submissions made and the over all facts and
circumstances of the case, I am inclined to modify the sentence as one of fine
and in default of payment of fine, the sentence can be imposed.
11.In that view of the matter, this Criminal Revision Case is partly
allowed on the following terms :-
(i) finding of the guilt of the accused for the offence under
Section 138 of Negotiable Instruments Act is upheld;
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Crl.R.C.No.771 of 2019
(ii) the sentence imposed by the Trial Court and confirmed
by the first Appellate Court is modified to the effect that the
accused shall pay a total fine amount of Rs.5,05,000/-. The
accused has already deposited a sum of Rs.3,00,000/- and the
accused is entitled to adjust the said amount and shall deposit the
balance amount of Rs.2,05,000/- within a period of two months
from the date of receipt of a copy of this order;
(iii) upon such deposit, a sum of Rs.5,00,000/- is ordered to
be paid out to the complainant as compensation, without insisting
upon any formal application, upon verification of the identity
proof;
(iv) it is made clear that there shall be no further extension
of time for deposit of the balance fine amount and if the
petitioner/accused fails to deposit the balance fine amount, he
shall undergo simple imprisonment for a period of six months;
(v) even if the balance fine amount is not paid, the amount
of Rs.3,00,000/- already lying in deposit to the credit of
C.C.No.106 of 2017 shall be paid out to the complainant, without
insisting on any formal application.
08.08.2022
Index : yes/no
Speaking order/Non-speaking order
sp
D.BHARATHA CHAKRAVARTHY, J.,
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Crl.R.C.No.771 of 2019
sp
To
1.The II Additional District and Sessions Judge, Tiruvallur at Poonamallee.
2.The Judicial Magistrate, Fast Track Court, Magistrate Level, Ambattur.
Crl.R.C.No.771 of 2019
08.08.2022
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