Madras High Court
M.Sasikumar vs Gowsalyadevi on 9 November, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 09/11/2022
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
Crl.RC(MD)No.283 of 2020
M.Sasikumar : Petitioner/Respondent/
Complainant
Vs.
Gowsalyadevi : Respondent/Appellant/
Accused
Prayer:- This Revision has been filed under
section 397 r/w 401 of the Criminal Procedure Code to
call for the records pertaining to the judgment, dated
23/06/2020, made in CA No.43 of 2018 on the file of the
Principal District and Sessions Judge, Theni, reversing
the conviction and sentence imposed by the Judicial
Magistrate (Fast Track Court), Uthamapalayam, vide
judgment, dated 25/06/2018 made in STC No.9 of 2017 and
set aside the same.
For Petitioner : Mr.K.M.Arunprasath
For Respondent : M/s.R.Bharathi
https://www.mhc.tn.gov.in/judis
2
O R D E R
This revision has been filed seeking to set aside
the order, dated 23/06/2020, made in CA No.43 of 2018 on
the file of the Principal District and Sessions Judge,
Theni, reversing the conviction and sentence imposed by
the Judicial Magistrate (Fast Track Court),
Uthamapalayam, vide judgment, dated 25/06/2018 made in
STC No.9 of 2017.
2.The facts in brief:-
The complaint was filed stating that the accused
persons, on 16/07/2016 received a sum of Rs.3,00,000/- as
hand loan. On the same day itself, he issued a post-dated
cheque, drawn on SBI, Uthamapalayam, for the said amount.
The cheque was presented for payment in IDBI. It was
returned stating that the drawer has given stop payment
order. So notice was issued, on 12/09/2016 demanding
payment of the amount. It was received, on 14/09/2016.
But within the stipulated time, the accused failed to pay
the above said amount.
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3.The case was taken cognizance by the trial court
in STC No.9 of 2017. On the side of the prosecution, 2
witnesses were examined and 4 documents marked. On the
side of the accused, 3 witnesses were examined and 4
documents marked.
4.At the conclusion of the trial, the trial court
found the accused is guilty of the offence punishable
under section 138 of the Negotiable Instruments Act and
accordingly, he was convicted and sentenced to undergo 6
months SI and Rs.1,00,000/- was ordered to be paid as
compensation.
5.Challenging the above said conviction and
sentence, the accused preferred appeal before the
appellate court in CA No.43 of 2018 and that was also
came to be allowed, on 23/06/2002. Aggrieved by the above
said findings of the appellate court, this revision has
been filed.
6.The case of the respondent before the trial
court is that the accused and the de-facto complainant
were not known to each other and there is no necessity
for the complainant to lend money from the unknown
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person; The cheques, which were issued before and after
the above said cheque, were continuously honoured; The
cheques have been filled up with different writings; But
the signature is not disputed by the accused. It was also
admitted by her that her husband borrowed money from
several persons and issued several cheques in favour of
those persons and later, he committed suicide. Towards
discharge of the amount borrowed by her husband, she also
used to issue cheques. This was the admission on the part
of the accused. So this evidence on the side of the
accused was taken into account. There was no information
on the part of the accused as to when, where the above
said cheques were issued by her. So finding that
presumption has not been rebutted by the accused, she was
convicted.
7.As stated above, she preferred appeal before the
appellate court. The appellate court by its judgment
allowed the appeal and set aside the judgment of
conviction and sentence on the ground that presumption
has been duly rebutted by her and accordingly, she was
acquitted. Apart from that, it was found that source of
the complainant and lending of loan amount was not
proved.
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8.So challenging the correctness of the above said
appellate court judgment, this revision has been
preferred by the complainant.
9.It is a case of revision. So the scope, which is
available to the court is very limited. Unless the
revision petitioner is able to establish the fact that
the finding rendered by the first appellate court is
perverse or suffers from misreading or non-reading of the
evidence, this court cannot interfere into the finding,
even if this court finds that two views are possible, as
taken one by the trial court, and one by appellate court.
10.Now let us bear in mind the factual
circumstances. There is a clear admission on the part of
the accused to the effect that her husband used to borrow
money from several persons. Towards discharge of those
loan amounts, she used to issue cheques. But later due to
financial difficulties, her husband committed suicide and
the cheques, which were issued before and after the
disputed cheque, were honoured. After the death of her
husband, she issued stop payment order to her banker,
which is also available on record. But the disputed
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cheque has been presented for payment only after a year
from the date of the death of her husband. So naturally,
the complainant ought to have established subsequent to
the death of her husband, the accused borrowed the money
from him. If the case of the complainant that the husband
of accused borrowed money from him and towards discharge
of the same, the disputed cheque has been issued, then
only there will be some meaning in accepting the case of
the complainant.
11.But here, the circumstance clearly shows that
after the death of her husband, she issued stop payment
order, since she has issued several cheques in favour of
several persons during the life time of her husband to
discharge the loan amount. So this stop payment order
clearly shows that the disputed cheque was not issued by
her towards any liability incurred by her after the death
of her husband. This is the strong circumstance, which is
available against the complainant's case.
12.With these back ground, let us go to the case
of the complainant.
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13.It is the clear case of the complainant to the
effect that only the accused approached him for financial
assistance. He has stated that she approached him for
loan, some two months prior to the above said date. He
has also admitted that for about five or six months, he
was lending money to her husband.
14.Reading of the entire evidence of PW1 does not
inspire confidence in respect of the payment of money.
Another circumstance, as pointed out by the appellate
court is that from the evidence of DW2, the cheque book
was issued, on 22/04/2014. The cheques issued before and
after the above disputed cheques have been encashed in
2015 itself. So, it is unthinkable that by holding the
disputed cheque, aside, subsequent cheques have been
issued by the accused person to several persons. So this
itself clearly makes out the case for the accused to
rebut the presumption that the above said cheque was not
issued, as mentioned by the complainant.
15.Simply because, the accused has not denied her
signature in the disputed cheque, no automatic
presumption under section 139 of the Negotiable
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Instruments Act can be drawn without any foundation case.
Here, the foundation facts are clearly against the
complainant's case. So the first appellate court has
correctly come to the conclusion that presumption has
been rebutted by brought on record the circumstantial
evidence.
16.Here, the foundation case with regard to the
payment of the loan amount has not been established by
the complainant. So, I am of the considered view that
the view that has been taken by the first appellate court
is probable view, it cannot termed as perverse,
unreasonable and incorrect also. This is the probable
view has been taken by the first appellate court. No
other view is possible. So, rightly the first appellate
court discharged the accused. I find no illegality or
irregularity in the order passed by the first appellate
court.
17.In the result, this criminal revision fails and
the same is dismissed.
09/11/2022
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis
To,
1.The Principal District and Sessions Judge,
Theni.
2.The Judicial Magistrate,
Fast Track Court,
Uthamapalayam.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN,J
er
Crl.RC(MD)No.283 of 2021
09/11/2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
