Crl.RC.No.1069 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.1069 of 2018 and
Crl.MP.No.12447 of 2018
M.Vasanthi ... Petitioner/accused
Versus
S.Balasubramaniam ... Respondent
PRAYER: Criminal Revision has been filed under Section 397 and 401 of
the Code of Criminal Procedure to set aside the judgment dated 28.02.2018
passed in CA.No.197 of 2017 on the file of the I Additional District Sessions
Court, Erode confirming the Judgment dated 01.02.2017 passed in
STC.No.15 of 2013 on the file of the learned Judicial Magistrate Court(Fast
Track Court No.I), Erode by allowing the present criminal revision petition.
For Petitioner : Mr.I.C.Vasudevan
For Respondent : Mr.C.S.Saravanan
ORDER
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This criminal revision is filed against the judgment dated
28.02.2018 passed in CA.No.197 of 2017 on the file of the I Additional
District Sessions Court, Erode confirming the Judgment dated 01.02.2017
passed in STC.No.15 of 2013 on the file of the learned Judicial Magistrate
Court(Fast Track Court No.I), Erode, thereby convicted the petitioner for the
offence punishable under Section 138 of NI Act.
2. 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 on 04.08.2012, the petitioner borrowed a sum of
Rs.1,00,000/- from the respondent. In order to repay the said amount, she
issued cheque on 05.09.2012 and the same was presented for collection.
However, it was returned dishonoured for the reason 'insufficient funds'.
After causing statutory notice, the respondent filed complaint for the offence
punishable under Section 138 of NI Act.
3. On the side of the respondent, he examined PW1 and marked
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Ex.P1 to Ex.P4. On the side of the petitioner, no one was examined 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 six months simple
imprisonment and also awarded compensation to the tune of the cheque
amount. Aggrieved by the same, the petitioner preferred appeal and the same
was dismissed and confirmed the judgment passed by the trial court.
4. The petitioner raised ground that the cheque was not issued for
any legally enforceable debt. It was issued as security purpose for the
business transaction with the respondent and it was misused by the
respondent. However, without considering those aspects, the courts below
convicted the petitioner.
5. Heard, the learned counsel for the petitioner and the learned
counsel for the respondent.
6. On perusal of records, revealed that after intimation was
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delivered to the petitioner, the statutory notice was returned, which was
marked as Ex.P4. Therefore, the petitioner had knowledge about the
issuance of notice and even then, the petitioner did not issue any reply notice
to rebut the presumption arising out of Section 139 of NI Act. In support of
the contention, the respondent examined himself as PW1. However, nothing
was elicited by the petitioner in the cross examination. The petitioner also
did not examine any witness to rebut the presumption. Hence, the
respondent discharged his initial burden as required under Section 138 of NI
Act and accordingly, the respondent proved his case. Therefore, the courts
below rightly convicted the petitioner and this Court finds no infirmity or
illegality in the orders 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
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. Since the
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learned counsel for the respondent submitted that the sole respondent died,
it is pointed out that if the petitioner settles the amount to the legal heirs of
the deceased complainant, she is at liberty to approach this Court by proper
application. Consequently, connected miscellaneous petition is closed.
01.11.2022 Internet:Yes Index:Yes/No Speaking/Non speaking order lok
G.K.ILANTHIRAIYAN. J,
lok
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To
1.The learned I Additional District Sessions Court, Erode
2.The learned Judicial Magistrate Court(Fast Track Court No.I), Erode
Crl.RC.No.1069 of 2018
01.11.2022
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