Madras High Court
K. Deenadayalan vs N. Selvakumar on 23 June, 2022
Crl.R.C.No. 172 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.06.2022
CORAM:
THE HON'BLE MR. JUSTICE D. BHARATHA CHAKRAVARTHY
Crl.R.C.No. 172 of 2019
K. Deenadayalan ... Petitioner
Versus
N. Selvakumar ... Respondent
Criminal Revision Case filed under Section 397 read with Section 401
of Cr.P.C., to set aside the Judgment of conviction and sentence to undergo
simple imprisonment for six months and also to pay cheque amount to the
complainant passed by the learned III Additional Sessions Judge, Chennai in
C.A.No.256 of 2017, dated 09.10.2017 while confirming the conviction and
sentence imposed by the learned Metropolitan Magistrate, Fast Track No.III,
Saidapet, Chennai - 600 015 in C.C.No. 1885 of 2012, dated 19.08.2017.
For Petitioner : Ms.V. Valarmathi
Legal Aid Counsel
For Respondent : Mr.P. Suresh
----
ORDER
This Criminal Revision is filed by the petitioner/accused aggrieved by
the judgment of the learned Metropolitan Magistrate [Fast Track Court No.III,
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Crl.R.C.No. 172 of 2019
Saidapet, Chennai], dated 19.08.2017 in C.C.No.1885 of 2012 in and by
which, he was convicted for an offence under Section 138 of the Negotiable
Instruments Act and sentenced to undergo simple imprisonment for a period of
six months and to pay the cheque amount as compensation to the complainant,
which was confirmed by the judgment of the learned III Additional Sessions
Judge, Chennai, dated 09.10.2018 in C.A.No. 256 of 2017 while dismissing
the appeal filed by the petitioner herein.
2. When the matter came up for hearing on 09.06.2022, this Court after
noticing earlier order dated 07.01.2021, whereby, this Court vacated the order
granting suspension of sentence since the petitioner did not comply with the
conditional order. Thereafter, when the matter came up for hearing since there
was no representation for the petitioner, this Court appointed Ms.C.Valarmathi,
learned Legal Aid Counsel to prosecute the above Criminal Revision Case on
behalf of the petitioner and posted the matter today for arguments.
3. Accordingly, today, this Court heard the submissions made by the
learned Legal Aid Counsel and Mr.P. Suresh, learned counsel appearing on
behalf of the respondent.
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Crl.R.C.No. 172 of 2019
4. The learned Legal Aid Counsel appearing for the petitioner would
submit that this is a case where the complainant alleges that the accused had
returned the advance money by means of a cheque and it was dishonoured on
its presentation. According to the learned counsel, there is no agreement of
sale which was marked by the complainant to show the nature of transaction
with the petitioner/accused. It is the specific pleading of the accused that on
the strength of the police complaint, the cheque has been extracted from him in
the police station. When the complainant has not specifically pleaded the
liability and the accused has raised the probable defense that the cheque has
been extracted from him in the police station, the accused has rebutted the
presumption. The trial Court as well as the Lower Appellate Court, in the
absence of any further proof for advancement of Rs.5,00,000/- by the
complainant, ought not to have convicted the petitioner.
5. The learned counsel appearing for the petitioner would further submit
that the accused had examined himself as DW1 and on his behalf Ex.D1 to
Ex.D4 were also marked to rebut the initial presumption raised by the
complainant. The trial Court as well as the First Appellate Court without
considering the probable defence raised by the petitioner, erroneously
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Crl.R.C.No. 172 of 2019
convicted him.
6. Per contra, the learned counsel appearing on behalf of the
respondent/complainant would submit that this is a case where the accused
pleads that the cheque was obtained by him by duress. However, to prove the
same, the accused did not take any steps, including issuing notice to the police
officials officials for allegedly extraccting the cheque from him. This apart,
the petitioner did not even produce any document to show as on what date and
time etc., the cheque was extracted from him. In the reply notice as well as in
the chief-examination, the accused did not deny the transaction with the
complainant. However, in his cross-examination, he has admitted the earlier
transaction of sale of one property to the complainant. The complainant also
marked Ex.P7, letter of undertaking. The signature of the petitioner/accused in
the said cheque as well as the letter of undertaking are not disputed by the
accused. Therefore, the complainant has proved the guilt of the
petitioner/accused beyond reasonable doubt and the Trial Court as well as the
First Appellate Court correctly convicted and sentenced him. The learned
counsel therefore prayed for dismisal of this Revision case.
7. I considered the rival submissions made on behalf of both sides and
perused the material records of the case.
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Crl.R.C.No. 172 of 2019
8. As rightly contended by the learned counsel appearing for the
respondent, if the cheque has been extracted in the police station, then the
accused should have taken steps by lodging a complaint to the higher officials
which is not done in the instant case. The complainant is able to establish that
there was an earlier transaction of sale of immovable property between the
complainant and the accused which proved his case. This apart, the letter of
undertaking is also given by the accused which corroborates the legal liability
of the petitioner/accused for Ex.P1-Cheque. Therefore, this is a case where the
petitioner/accused was not successful in establishing any probable defence and
therefore, the presumption under Section 118 and 139 of the Negotiable
Instruments Act, come to the aid of the complainant. In such event, the
complainant need not further establish the fact that he had given Rs.5,00,000/-
in cash by further evidence. The complainant has discharged his onus so as to
raise the presumption by examining himself and proved the complaint by
marking Ex.P1-cheque and Ex.P7 letter of undertaking. Therefore, this
Criminal Revision Case filed by the petitioner/accused is without any merits
and it is liable to be dismissed by confirming conviction and sentence passed
by the courts below.
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Crl.R.C.No. 172 of 2019
9. Accordingly, this Criminal Revision Case is dismissed by confirming
the conviction and sentence imposed by the Trial Court.
23.06.2022
Internet : Yes/No
Index : Yes/No
msm
To
1. The III Additional Sessions Judge, Chennai.
2. The Metropolitan Magistrate, [Fast Track Court No.III]
Saidapet, Chennai - 600 015.
3. The Public Prosecutor, High Court, Madras.
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Crl.R.C.No. 172 of 2019
D. BHARATHA CHAKRAVARTHY, J.
msm
Crl.R.C.No. 172 of 2019
23.06.2022
https://www.mhc.tn.gov.in/judis
