T.K.C.Shanthakumar vs K.Vijayakumar
2022 Latest Caselaw 9974 Mad

                                                                                     Crl.R.C.No.338 of 2022

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED : 14.06.2022

                                                               CORAM :

                         THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

                                                    Crl.R.C.No.338 of 2022


                     T.K.C.Shanthakumar,
                     S/o.Chelladurai.                                                      ... Petitioner


                                                                Versus


                     K.Vijayakumar,
                     S/o.V.R.Kalahi.                                                ... Respondent

                                  Criminal Revision Case filed under Section 397 read with 401
                     Cr.P.C, to call for records and to set aside the order of conviction dated
                     23.08.2021 passed in C.A.No.23 of 2020 by the V Additional Sessions
                     Judge, City Civil Court at Chennai, by confirming the order of conviction
                     dated 03.12.2019 passed in C.C.No.883 of 2012                    by the learned
                     Metropolitan Magistrate fast Track Court II, Egmore at Allikulam Chennai
                     3 and acquit the petitioner by allowing the Criminal Revision Petition.


                                       For Petitioner      :       Mr.A.Balasingh
                                                                *****



https://www.mhc.tn.gov.in/judis

                     1/7
                                                                                      Crl.R.C.No.338 of 2022

                                                            ORDER

This revision is filed by the petitioner-accused aggrieved by the

Judgment dated 03.12.2019 of the learned Metropolitan Magistrate, Fast

Track Court No.II, Egmore at Allikulam, Chennai 600 003, in C.C.No.883

of 2012, thereby, the petitioner was found guilty of an offence under

Section 138 of the Negotiable Instruments Act and he was sentenced to

undergo one year simple imprisonment and to pay a sum of Rs.50,000/-

being the cheque amount as compensation to the respondent-complainant

and the Judgment of the learned V Additional Sessions Judge, City Civil

Court, Chennai in Crl.A.No.23 of 2020, thereby, dismissing the appeal and

confirming the conviction and sentence imposed against the petitioner.

2. Heard Mr.A.Balasingh, learned counsel appearing on behalf of

the petitioner. Even though, the notice has been served, none appears on

behalf of the respondent-complainant.

3. The learned counsel for the appellant would submit that this is the

case where to the decree of preponderance of probability, the

petitioner/accused had duly cross examined the complainant and letting in https://www.mhc.tn.gov.in/judis

Crl.R.C.No.338 of 2022

his own evidence has rebutted the presumption and the complainant has

not produced any document, whatsoever, in support of either the

disbursement of the loan or about the transactions of re-payment.

Therefore the trial Court as well as the first Appellate Court commited an

error in not granting the benefit of doubt. This apart, the learned counsel

would submit that this is the case where only photo copy of the cheque and

other documents were produced. Even though the production of the photo

copies were objected to be marked and it was a case where the counsel had

lost the original documents along with the bundle, the Trial Court and the

First Appellant Court has not given any finding, whatsoever, about the

genuineness of the reason. The counsel was also not examined in this case

to prove the said facts. Therefore, without recording the reasons for actual

loss of originals, permitting secondary evidence to be taken on file, is not

in confirmity with Section 65(c) of the Indian Evidence Act. He further

submitted that, in spite of the specific plea being taken, both before the

Trial Court as well as the First Appellant Court, including circulation of

the relevant judgements, the courts below simply brushed aside the said

issue and convicted the petitioner and therefore he would submit that this

is the case of perverse finding which warrants interference in exercise the

powers of revision by this Court.

https://www.mhc.tn.gov.in/judis

Crl.R.C.No.338 of 2022

4. I have considered the said submissions and gone through the

material records of this case. In this case, on perusal evidence of PW1, it is

clear that PW1 in his cross examination admitted that there were

transactions with one Rafael and that cheques will be taken in advance as

security, and during the said transactions the petitioner/accused had given

such cheques as security. This apart for question about the grant of loan

the complainant would answer as follows:

"///////// vjphpf;F eP'f ; s; vg;nghJ fld; mspj;jPhf ; s;

                                  vd;W      brhd;dhy;         vdf;F       rhpahf    epidtpy;iy
                                  10/02/2011y;      eP'f
                                                       ; s;    vjphpf;F      fld;    mspj;jjhf

Twpa[s;sPh;fs; vd;W brhd;dhy; rhpjhd;/ vjphp c';fsplk; Kd;njjpapl;l fhnrhiy mspj;jjhf Twpa[s;sPhf ; s;

vjphpaplk; vg;nghJ me;j fhnrhiyia bgw;Ws;sPhf ; s;

vd;why; vd;dplk; bkhj;jk; 4. 5 ngkd;l; bgw;Ws;shh; mnj nghy; 4. 5 !;blg; ig !;blg; Mf bgw;nwd;/ //////"

Thus when it is the specific case of the complainant that he had advanced a

sum of Rs.2 lakhs as loan, he does not even remember as to when and how

said loan was disbursed and no evidence has been let in as to whether the

remaining amount is paid or not and when the cheque was issued was also

not known to the complainant.

https://www.mhc.tn.gov.in/judis

Crl.R.C.No.338 of 2022

5. On the contrary, on behalf of the accused, the counterfoil of the

cheque book issued to accused has been marked and through PW2 the date

of issue of the cheque has been elicited. In these circumstances, when the

petitioner/accused through his examination has raised a probable case of

defence, the non consideration thereafter by the Courts below amounts to

illegality and therefore the Judgment of the trial Court as well as the first

Appellant Court are unsustainable.

6. This apart, even though, for the loss of the original cheque by the

counsel during the course of the hearing, the photo copies can be marked,

however, the same could be considered only after giving a finding that it

was lost in the manner as mentioned by the complainant. Even though,

document missing complaint was marked as Ex.P6, it is again seen that the

number of the case bundle, that is year of the number of the lost case

bundle also differs and it is in this context that to establish that it is a

mistake, appropriate witness namely, either the Inspector of police, who

had given non-traceable certificate or the counsel, who was the

complainant was not examined and the trial Court went on presumptions

and surmises in this case. In that view of the matter, the petitioner is

entitled for the benefit of doubt.

https://www.mhc.tn.gov.in/judis

Crl.R.C.No.338 of 2022

7. Therefore, the finding of guilt by the trial Court as well as the

first Appellate Court is unsustainable in law and therefore this Criminal

Revision Case is allowed. The conviction and sentence imposed by the

Judgment dated 03.12.2019 and 23.08.2021 are set aside. The amount that

has been already deposited is ordered to be refunded to the petitioner.

14.06.2022 Index : yes/no speaking/Non-speaking order nsa

https://www.mhc.tn.gov.in/judis

Crl.R.C.No.338 of 2022

D.BHARATHA CHAKRAVARTHY, J.

nsa

Crl.R.C.No.338 of 2022

14.06.2022

https://www.mhc.tn.gov.in/judis