Madras High Court
M.Manjula vs M.Balasubramaniam on 21 January, 2022
Crl.R.C.No.553 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.01.2022
CORAM
THE HONOURABLE Ms.JUSTICE R.N.MANJULA
Crl.R.C.No.553 of 2017
M.Manjula ... Petitioner
Vs
M.Balasubramaniam ... Respondent
PRAYER: This Criminal Revision Case is filed under Section 397 and
r/w.401 Cr.P.C., against the judgment of the learned I Additional District and
Sessions Judge, Erode, dated 14.03.2017 made in Crl.A.No.104 of 2016,
confirming the judgment of the learned Judicial Magistrate,Fast Track Court
No.II, Erode dated 21.04.2016 made in S.T.C.No.185 of 2014.
For Petitioner : Mr.R.Marudhachalamurthy
For Respondent : Mr.V.Raghunathan
ORDER
This Criminal Revision Case has been preferred challenging the
judgment of the learned I Additional District and Sessions Judge, Erode,
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Crl.R.C.No.553 of 2017
dated 14.03.2017 made in Crl.A.No.104 of 2016, confirming the judgment of
the learned Judicial Magistrate,Fast Track Court No.II, Erode dated
21.04.2016 made in S.T.C.No.185 of 2014.
2. This case arises out of a private complaint made by the
respondent/complainant on the allegation that, on 10.11.2013, the petitioner
had availed a loan of Rs.4,00,000/- and he also issued a post dated cheque
dated 20.12.2013 towards discharge of the said amount. When the cheque
was presented for collection, on 23.12.2013, it was returned with an
endorsement “for want of sufficient funds”. After issuing mandatory legal
notice and after complying all legal mandates, the respondent/complainant
had preferred the complaint against the petitioner for the offence under
Section 138 of the Negotiable Instruments Act.
3. After the case was taken on file and on being satisfied with the
materials available on record, the accused was questioned. Since the accused
pleaded innocence and claimed to be tried, the trial was conducted.
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Crl.R.C.No.553 of 2017
4. During the course of trial, on the side of the complainant, one
witness was examined as PW1 and 11 Documents were marked as Exs.P1 to
P11. On the side of defence, two witnesses were examined as DW1 and
DW2 and two documents were marked as Exs.D1 and D2.
5. After completion of the trial and on considering both oral and
documentary evidence adduced on the side of the complainant and on the side
of the defence, the learned trial Judge found the accused guilty of the offence
under Section 138 of Negotiable Instruments Act and convicted and
sentenced him as follows:
Conviction Sentence
Section 138 of To undergo One year Simple Imprisonment
Negotiable Instruments and also imposed a fine of Rs.5000/- and in
Act. default to pay a fine of Rs.5000/-, to undergo
one month Simple Imprisonment.
6. Aggrieved over the same, the petitioner/accused preferred an appeal
before the learned I Additional District and Sessions Judge, Erode, in
Crl.A.No.104 of 2016 and the same was also dismissed by confirming the
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Crl.R.C.No.553 of 2017
judgment of the trial Court. Aggrieved by the same, the revision
petitioner/accused has preferred this Revision Case.
7. Heard the learned counsel for the petitioner and the learned counsel
for the respondent and perused the materials available on record.
8. The learned counsel for the petitioner submitted that the impugned
cheque was issued by the petitioner only by way of security for an earlier loan
availed by the petitioner's brother; despite the loan was repaid to the
respondent/complainant, the cheque was not returned and it was misused by
the respondent for the purpose of this case. The learned trial Judge as well as
the learned Appellate Judge did not appreciate the evidence in a proper
perspective and arrived at a conclusion that the cheque was not supported by
consideration. The petitioner had examined her brother as a witness and he
had stated in his evidence about the issuance of cheque to the
respondent/complainant as a security for his earlier loan. Since the Courts
below have over looked the above important evidence, the judgment of the
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Crl.R.C.No.553 of 2017
Courts below should be reversed.
9. The learned counsel for the respondent/complainant submitted that
once, the execution of the cheque was admitted by the petitioner, the initial
presumption will go in favour of the respondent/complainant. The alleged
earlier loan transaction between the petitioner's brother and the complainant
has got nothing to do with the impugned transaction. Only because the
petitioner failed to rebut the initial presumption, the learned trial Judge had
found the accused guilty for the offence under Section 138 of Negotiable
Instruments Act. The learned appellate Judge has rightly upheld the judgment
of the trial Court by properly evaluating the evidence available on record.
Hence, it does not warrant any interference by this Court.
10. Point for consideration:
''Whether the conviction and sentence of the accused
for the offence under Section 138 of the Negotiable
Instruments Act, by the learned Sessions Judge, is fair and
proper?''
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Crl.R.C.No.553 of 2017
11. The simple defence of the petitioner/accused in this case is that the
impugned cheque has been issued only as a security and it is not supported by
any consideration. However, the execution of cheque was not denied. In such
circumstances, the holder of the cheque, namely, the respondent/complainant
is entitled for getting an initial presumption in his favour that the cheque has
been executed for a legally enforceable debt or liability as prescribed under
Section 118 read with Section 139 of the Negotiable Instruments Act. Despite
the initial presumption lies in favour of the complainant, it is always open to
the petitioner to rebut the same by bringing out the preponderance of
probability in his favour.
12. The petitioner has submitted that the cheque in question was issued
only by her brother, one Ganesan, in connection with his earlier loan
transaction that, he had with the respondent/complainant. It is further
submitted that since the said Ganesan could not repay the loan amount, he
entered into a sale transaction of his property with the
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Crl.R.C.No.553 of 2017
respondent/complainant and completed the sale. Even after that, the
respondent/complainant refused to hand over the cheque and misused it for
the purpose of this case. In order to substantiate the above contentions, on the
side of the defence, the said Ganesan was examined as DW1. He also
produced the sale deed-Ex.D1, executed by him in favour of the
respondent/complainant The recitals of Ex.D1 do not disclose anything about
the alleged earlier loan availed from the respondent/complainant. The trial
Court has also adverted about the same and observed that the recitals of the
sale deed do not mention anything about the alleged loan transaction or that
the sale consideration was appropriated for discharging the previous loan. It
is to be noted that, despite the sale was executed no step was taken by DW1
to get back the cheque from the complainant. The petitioner/accused who has
got the burden to demolish the initial presumption by shifting preponderance
of probability in her favour ought to have shown the steps she had taken to
get back the cheque after executing the sale deed.
13. In the case on hand, the evidence on record would show that the
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Crl.R.C.No.553 of 2017
petitioner/accused had failed to discharge her reverse burden. Under such
circumstances, it is right for the Courts below to record a finding that the
petitioner/accused is guilty for the offence under Section 138 of Negotiable
Instruments Act, which, in my opinion, does not suffer from any factual or
legal infirmity and hence there is no reason for interference by this Court.
14. It is seen that the petitioner/accused was convicted and sentenced
to undergo one year Simple Imprisonment. The learned counsel for the
petitioner submitted that the sentence is too high and some leniency should be
shown to her.
15. Considering the submission made by the learned counsel for the
petitioner and also taking into account of the circumstances of the case, I feel
that the sentence should be reduced from one Year Simple Imprisonment to
Six months Simple Imprisonment.
16. In the result, this Criminal Revision Case is partly allowed and
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Crl.R.C.No.553 of 2017
(i) the judgment of the learned I Additional District and Sessions Judge,
Erode is modified to the effect that sentence is reduced from one Year Simple
Imprisonment to Six months Simple Imprisonment.
(ii) The sentence of imprisonment if any already undergone by him,
shall be set off under Section 428 Cr.P.C.
(iii) Since the petitioner/accused is on bail, pending Crl.R.C., the trial
Court is directed to issue Non-Bailable Warrant for securing him to undergo
the remaining sentence, if any.
21.01.2022
Index:Yes / No
Speaking Order : Yes / No
ssn
To
1. The I Additional District and Sessions Judge,
Erode.
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Crl.R.C.No.553 of 2017
2. The Judicial Magistrate,Fast Track Court No.II,
Erode.
3. The Public Prosecutor,
High Court of Madras,
Chennai.
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Crl.R.C.No.553 of 2017
R.N.MANJULA, J.,
ssn
Crl.R.C.No.553 of 2017
21.01.2022
https://www.mhc.tn.gov.in/judis
