Crl.RC.No.560 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.11.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.RC.No.560 of 2018
Reshma ... Petitioner/accused
Versus
S.Sankaran ... Respondent
PRAYER: Criminal Revision has been filed under Section 397 r/w 401 of
the Code of Criminal Procedure to set aside the judgment and conviction
dated 16.03.2018 made in CA.No.275 of 2017 on the file of the I Additional
District and Sessions Judge, Erode confirming the judgment dated
05.09.2017 made in STC.No.199 of 2015 on the file of the learned Judicial
Magistrate(FTC No.II) Erode.
For Petitioner : Mr.C.S.Saravanan
For Respondent : Mr.E.D.Sethupathi
1/6
https://www.mhc.tn.gov.in/judis
Crl.RC.No.560 of 2018
ORDER
This criminal revision is filed against the judgment and
conviction dated 16.03.2018 made in CA.No.275 of 2017 on the file of the I
Additional District and Sessions Judge, Erode confirming the judgment
dated 05.09.2017 made in STC.No.199 of 2015 on the file of the learned
Judicial Magistrate(FTC No.II) Erode, thereby convicted the petitioner for
the offence punishable under Section 138 of NI Act.
2. The case of the respondent is that on 10.04.2015, the petitioner
borrowed a sum of Rs.2,35,000/- for his urgent family needs. In order to
repay the same, the petitioner issued cheque for the said sum on 11.05.2015,
which was presented for collection. However, it was returned dishonoured
for the reason 'funds insufficient'. Immediately after causing statutory notice,
the respondent lodged complaint.
3. On the side of the respondent, he examined PW1 and marked
Ex.P1 to Ex.P5. On the side of the petitioner, no one was examined and no
documents were marked. On perusal of oral and documentary evidence, the
2/6
https://www.mhc.tn.gov.in/judis Crl.RC.No.560 of 2018
trial court found the petitioner guilty for the offence punishable under
Section 138 of NI Act and sentenced him to undergo one year imprisonment
with fine of Rs.3,000/-, in default to undergo three months simple
imprisonment. Aggrieved by the same, the petitioner preferred appeal and
the same was dismissed and confirmed the judgment passed by the trial
court.
4. The learned counsel for the petitioner raised grounds that the
respondent failed to prove the consideration which was passed under the
impugned cheque. Therefore, the respondent failed to discharge the initial
burden caused upon him to prove the offence punishable under Section 138
of NI Act. In fact, the petitioner never had seen the respondent and no
acquaintance with him. The alleged cheque was issued in favour of third
person for security purpose and the same was misused by the respondent
and presented the complaint for the offence punishable under Section 138 of
NI Act.
5. Heard, the learned counsel for the petitioner and the learned
3/6
https://www.mhc.tn.gov.in/judis Crl.RC.No.560 of 2018
counsel for the respondent.
6. On perusal of records, revealed that the petitioner never denied
the signature found in the cheque and issuance of cheque. In fact, on receipt
of the statutory notice, the petitioner failed to reply to rebut the presumption
by probable defence. Therefore, the respondent discharged his initial burden
as required under Section 138 of NI Act and as such, the presumption under
Section 139 of NI Act comes in favour of the petitioner. Though it is
rebuttable in nature by the accused through probable defence or atleast to
create a shadow of doubt on the cheque that the cheque was not issued by
the petitioner to the respondent in discharge of legally enforceable debt
payable by her to the respondent, however the petitioner failed to rebut the
same and as such, the courts below rightly convicted the petitioner and this
Court finds no infirmity or illegality in the order passed by the courts below.
7. Accordingly, this criminal revision is 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
4/6
https://www.mhc.tn.gov.in/judis Crl.RC.No.560 of 2018
for the purpose of sentencing her 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. However,
if the petitioner settles the amount in favour of the respondent, she is at
liberty to approach this Court by way of proper petition.
01.11.2022 Internet:Yes Index:Yes/No Speaking/Non speaking order lok
5/6
https://www.mhc.tn.gov.in/judis Crl.RC.No.560 of 2018
G.K.ILANTHIRAIYAN. J,
lok
To
1.The learned I Additional District and Sessions Judge, Erode
2.The learned Judicial Magistrate(FTC No.II) Erode.
Crl.RC.No.560 of 2018
01.11.2022
6/6
https://www.mhc.tn.gov.in/judis
