Crl.RC.Nos.490 & 493 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.11.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.RC.Nos.490 & 493 of 2018
Crl.RC.No.490 of 2018
R.Krishnamurthi ... Petitioner/accused
Versus
M.Babu ... Respondent
PRAYER: Criminal Revision has been filed under Sections 397 and 401 of
the Code of Criminal Procedure to call for the records in CA.No.30 of 2017
on the file of the learned Additional District and Sessions Judge, Dharmapuri
and to set aside the order dated 20.02.2018 confirming the conviction and
sentence imposed on the petitioner by the learned Judicial Magistrate(FTC),
Dharmapuri dated 29.11.2016 made in STC.No.35 of 2013.
For Petitioner : Mr.M.Sudhan
For Respondent : No appearance
(Not ready in notice)
Crl.RC.No.493 of 2018
1/10
https://www.mhc.tn.gov.in/judis
Crl.RC.Nos.490 & 493 of 2018
R.Krishnamurthi ... Petitioner/accused
Versus
S.Suseendaran ... Respondent
PRAYER: Criminal Revision has been filed under Sections 397 and 401 of
the Code of Criminal Procedure to call for the records in CA.No.31 of 2017
on the file of the learned Additional District and Sessions Judge, Dharmapuri
and to set aside the order dated 20.02.2018 confirming the conviction and
sentence imposed on the petitioner by the learned Judicial Magistrate(FTC),
Dharmapuri dated 29.11.2016 made in STC.No.34 of 2013.
For Petitioner : Mr.M.Sudhan
For Respondent : No appearance
(Not ready in notice)
COMMON ORDER
The criminal revision in Crl.RC.No.490 of 2018 is filed against
the judgment dated 20.02.2018 passed in CA.No.30 of 2017 on the file of the
learned Additional District and Sessions Judge, Dharmapuri, thereby
confirmed the judgment dated 29.11.2016 in STC.No.35 of 2013 on the file
of the learned Judicial Magistrate(FTC), Dharmapuri, thereby convicted the
2/10
https://www.mhc.tn.gov.in/judis Crl.RC.Nos.490 & 493 of 2018
petitioner for the offence punishable under Section 138 of NI Act. The
criminal revision in Crl.RC.No.493 of 2018 is filed against the judgment
dated 20.02.2018 passed in CA.No.31 of 2017 on the file of the learned
Additional District and Sessions Judge, Dharmapuri, thereby confirmed the
judgment dated 29.11.2016 in STC.No.34 of 2013 on the file of the learned
Judicial Magistrate(FTC), Dharmapuri, thereby convicted the petitioner for
the offence punishable under Section 138 of NI Act.
2. In respect of Crl.RC.No.490 of 2018, the petitioner is the
accused in the complaint lodged by the respondent for the offence punishable
under Section 138 of NI Act. The crux of the complaint is that the petitioner
borrowed a sum of Rs.4,50,000/- on 01.07.2012 and issued cheque for the
said sum dated 01.08.2012 on the same day. On instruction, it was presented
for collection and the same was returned dishonoured for the reason 'stopped
payment' on the direction by the petitioner. Therefore, the respondent caused
statutory notice dated 25.08.2012 and the same was returned without being
served. Therefore, again he sent another notice dated 11.09.2012 and the
same was also returned. Hence, the complaint.
3/10
https://www.mhc.tn.gov.in/judis Crl.RC.Nos.490 & 493 of 2018
2.1 In respect of Crl.RC.No.493 of 2018, the petitioner is the
accused in the complaint lodged by the respondent for the offence punishable
under Section 138 of NI Act. The crux of the complaint is that the petitioner
borrowed a sum of Rs.3,50,000/- on 01.07.2012 and issued cheque for the
said sum dated 01.08.2012 on the same day. On instruction, it was presented
for collection and the same was returned dishonoured for the reason 'stopped
payment' on the direction by the petitioner. Therefore, the respondent caused
statutory notice dated 25.08.2012 and the same was returned without being
served.
3. In respect of Crl.RC.No.490 of 2018, on the side of the
respondent, he examined PW1 to PW3 and marked Ex.P1 to Ex.P6. On the
side of the petitioner, he was examined as DW1 and no documents were
marked. On perusal of oral and documentary evidence, the trial court found
the petitioner guilty for the offence punishable under Section 138 of NI Act
and sentenced to undergo one year simple imprisonment and also awarded
compensation of Rs.4,50,000/-. Aggrieved by the same, the petitioner
4/10
https://www.mhc.tn.gov.in/judis Crl.RC.Nos.490 & 493 of 2018
preferred appeal and the same was also dismissed and confirmed the
conviction rendered by the trial court. In respect of Crl.RC.No.493 of 2018,
on the side of the respondent, he examined PW1 to PW4 and marked Ex.P1
to Ex.P8. On the side of the petitioner, he was examined as DW1 and no
documents were marked. On perusal of oral and documentary evidence, the
trial court found the petitioner guilty for the offence punishable under Section
138 of NI Act and sentenced to undergo one year simple imprisonment and
also awarded compensation of Rs.3,50,000/-. Aggrieved by the same, the
petitioner preferred appeal and the same was also dismissed and confirmed
the conviction rendered by the trial court.
4. In respect of Crl.RC.No.490 of 2018, the learned counsel for the
petitioner would submit that the first statutory notice dated 25.08.2012 was
not at all served on the petitioner and it was not at all informed to the
petitioner by the postman. However, again the respondent sent the very same
notice dated 11.09.2012 and it was also not served on the petitioner. Simply
the postman recorded that intimation delivered to the addressee and returned
the same. He ought to have kept the post for minimum seven days so that the
5/10
https://www.mhc.tn.gov.in/judis Crl.RC.Nos.490 & 493 of 2018
addressee can receive the same whenever available in his residence. In the
case on hand, the postman, within three days, returned to the sender.
4.1 He further submitted that the complaint was filed by two
persons. It is also evident from the complaint that there was cut and paste, in
which the petitioner's name was only altered in the complaint. It shows that
there was absolutely no legally enforceable debt for issuance of cheques. The
respondent admitted that he conducted chit and at the time of taking the chit
amount, both the cheques were received for security purpose. Thereafter,
both the cheques were misused by the complainant and presented the same.
In fact, in another complaint, the respondent in Crl.RC.No.493 of 2018
marked Ex.P7 i.e. notice allegedly sent by the petitioner to the respondent.
Though the petitioner categorically denied the said notice, it was not issued
on his instruction. Without considering those aspects, the courts below
convicted the petitioner for the offence punishable under Section 138 of NI
Act. He further submitted that the respondent has no source of income to lend
such huge amount and the respondent failed to prove the source of income
and he also did not even file any income tax returns to prove his income.
6/10
https://www.mhc.tn.gov.in/judis Crl.RC.Nos.490 & 493 of 2018
5. Heard, the learned counsel for the petitioner.
6. On perusal of records, revealed that the petitioner borrowed a
sum of Rs.4,50,000/- and Rs.3,50,000/- respectively. On the date of the
borrowal of the amount, he issued post dated cheque in order to repay the
said amount. On instruction, it was presented for collection. However, it was
returned for the reason 'stopped payment'. Therefore, the respondent caused
statutory notice dated 25.08.2012, which was returned with endorsement 'left'
on 28.08.2012. Therefore, the respondent had sent the same notice for the
second time on 11.09.2012, which was returned with endorsement that
intimation delivered to the petitioner. The said returned cover was marked as
Ex.P6. Therefore, the respondent discharged his initial presumption as
required under Sections 118 and 139 of NI Act.
7. Though the petitioner raised ground that the respondent had no
source of income to lend such a huge amount, the petitioner failed to issue
any reply notice questioning the source of income. In fact, he also did not
make any statement under Section 313 of Cr.P.C. before the trial court.
7/10
https://www.mhc.tn.gov.in/judis Crl.RC.Nos.490 & 493 of 2018
Therefore, the petitioner failed to rebut the presumption by probable defence.
As such, the courts below rightly convicted the petitioner and this Courts
finds no infirmity or illegality in the orders passed by the courts below.
8. Accordingly, both the criminal revisions are dismissed and the
judgments of conviction and sentence passed by the Courts below are hereby
confirmed. The trial Court is directed to take steps to secure the petitioner for
the purpose of sentencing him to undergo the conviction. It is also directed
that the period of sentence already undergone by the petitioner, if any, shall
be given set off, as required under Section 428 Cr.P.C.
01.11.2022 Internet:Yes Index:Yes/No Speaking/Non speaking order lok
8/10
https://www.mhc.tn.gov.in/judis Crl.RC.Nos.490 & 493 of 2018
G.K.ILANTHIRAIYAN. J,
lok
To
1.The learned Additional District and Sessions Judge, Dharmapuri
2.The learned Judicial Magistrate(FTC), Dharmapuri
9/10
https://www.mhc.tn.gov.in/judis Crl.RC.Nos.490 & 493 of 2018
Crl.RC.Nos.490 & 493 of 2018
01.11.2022
10/10
https://www.mhc.tn.gov.in/judis
