S.Arulsamy vs V.Cheeralan
2022 Latest Caselaw 17872 Mad

                                                                               CRL.R.C.No.827 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 29.11.2022

                                                      CORAM

                             THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                              Crl.R.C.No.827 of 2018

                     1. S.Arulsamy
                     2. A.Kavitha                                                ... petitioners

                                                           Vs.

                     V.Cheeralan                                                 ... Respondent


                     PRAYER: Criminal Revision case has been filed under Section 397 r/w
                     401 of Cr.P.C to set aside the judgment dated 27.06.2018 made in
                     C.A.No.20 of 2018 on the file of the learned XVII Additional Judge, City
                     Civil Court, Madras, confirming the judgment and conviction dated
                     22.12.2017 made in C.C.No.1633 of 2015 on the file of the learned III
                     Metropolitan Magistrate, George Town, Chennai, acquit the petitioners
                     from the charges.


                                         For petitioners     : Mr. B.R.Shankaralingam

                                         For Respondent      : No appearance




                     Page 1 of 8
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                                                                                 CRL.R.C.No.827 of 2018

                                                          ORDER

This Criminal Revision is arising out of the judgment passed

in C.A.No.20 of 2018 dated 27.06.2018 on the file of the learned XVII

Additional Judge, City Civil Court, Madras, confirming the judgment

passed in C.C.No.1633 of 2015 dated 22.12.2017 on the file of the

learned III Metropolitan Magistrate, George Town, Chennai, thereby

convicting the petitioners for the offence punishable under Section 138

of the Negotiable Instruments Act, (herein after referred to as “the NI

Act”).

2. The petitioners are accused in the complaint lodged by the

respondent for the offence under Section 138 of the NI Act. According to

the respondent, the petitioners approached the respondent and borrowed

a sum of Rs.1,00,000/- each on 29.11.2014 and executed a pronote for

the said sum and also agreed to repay the same with an interest at 1% per

month. In order to repay the said amount, the petitioners issued cheque

for the sum of Rs.2,20,000/- on 01.10.2015. When the cheque was

presented for collection, the same was returned dishonored for the reason

https://www.mhc.tn.gov.in/judis CRL.R.C.No.827 of 2018

insufficient fund. After causing statutory notice, the respondent filed this

present complaint.

3. On the side of the respondent, he examined himself as P.W.1

and marked documents as Ex.P.1 to Ex.P.5. On the side of the accused, no

one was examined and no documents were marked. On a perusal of oral

and documentary evidences, the trial Court found them guilty and

sentenced to undergo six months simple imprisonment each and also

awarded total compensation of Rs.3,00,000/- in default to undergo one

month simple imprisonment. Aggrieved by the same, the petitioners

preferred an appeal and the same was also dismissed by confirming the

judgment passed by the trial Court. Hence the petitioners filed this

present revision.

4. The learned counsel appearing for the petitioners would

submit that according to the respondent, the petitioners executed pronote

on the date of the borrowal of the loan, which was marked as Ex.P.1

series. Admittedly there was a material alteration in Ex.P.1. Therefore,

https://www.mhc.tn.gov.in/judis CRL.R.C.No.827 of 2018

the respondent failed to discharge initial burden as contemplated under

Section 138 of the NI Act. The material alteration in Ex.P.1 is fatal to the

entire case of the prosecution. In support of his contention he relied upon

the judgment reported in 2017(2)CTC 625 in the case of G.Vasantha Vs.

Sri Maharaja Kallash Benefit Fund Ltd., in which this Court held that

in the suit for recovery of money based on the promissory note, altering

amount, scratching date and substituting letters constitute material

alteration. The material alteration changes legal character of the

instrument, as such under Section 87 of the NI Act, the instrument is

void. However, without considering the above fact, both the Courts

below convicted the petitioners for the offence under Section 138 of the

NI Act. Hence, he prayed to allow this revision petition.

5. Heard Mr.B.R.Shankaralingam, learned counsel appearing

for the petitioners. Though notice served to the respondent, no one is

appearance on behalf of the respondent either in person or through

pleader.

https://www.mhc.tn.gov.in/judis CRL.R.C.No.827 of 2018

6. The petitioners are accused in the complaint lodged by the

respondent. On the date of borrowal of amount, the petitioners executed

pronote dated 29.11.2014, which was marked as Ex.P.1. In order to repay

the said loan amount, the petitioners jointly issued cheque on 01.10.2015

for a sum of Rs.2,20,000/-. The said cheque was presented for collection

and same was returned dishonored for the reason that insufficient fund.

Therefore, after causing statutory notice dated 26.10.2015 the respondent

lodged the complaint. On receipt of the notice, the petitioners did not

choose to give any reply. Further the petitioners did not deny their

signature and issuance of cheque. Therefore, the respondent discharged

his initial burden as contemplated under Section 138 of the NI Act.

7. Further in order to rebut the presumption, the petitioners

failed to examine any witness and failed to mark any document, in

support of their contention. The only contention raised before this Court

is that the pronote which was allegedly executed by the petitioners has

material alteration and it cannot be valid instrument and it is void under

Section 87 of the NI Act. On the date of borrowal of amount, Ex.P.1 was

https://www.mhc.tn.gov.in/judis CRL.R.C.No.827 of 2018

executed by the petitioners. In order to repay the amount, the petitioners

also issued cheque and on the strength of the issuance of cheque the

present complaint has been filed. Therefore, it is not a suit for recovery of

money. If at all any material alteration found in the cheque, the judgment

cited by the learned counsel appearing for the petitioners can be relied

upon.

8. In the case on hand, the petitioners were issued cheque and

the same was dishonored, on its presentation as funds insufficient. The

promissory note was used for collateral purpose and nothing else. Further

the petitioners never denied their signature found in the cheque and

issuance of cheque. Therefore, both the Courts below rightly convicted

the petitioners and this Court finds no infirmity or illegality in the order

passed by the Courts below.

9. However, the learned counsel appearing for the petitioners

submitted that already the petitioners deposited part of the cheque

amount before the trial Court and there is a possibility of settlement

https://www.mhc.tn.gov.in/judis CRL.R.C.No.827 of 2018

between the parties and the petitioners are ready and willing to settle the

cheque amount within a period of two months. Considering the above

facts and circumstances, this Court is not inclined to interfere with the

conviction and sentence imposed by the Courts below and the Criminal

Revision stands dismissed.

10. However, if the petitioners settle the cheque amount with the

respondent on or before 23.01.2023, the conviction and sentence

imposed by the Courts below shall stands automatically set aside. On

such settlement, the respondent is permitted to withdraw the amount

already deposited before the trial Court by filing appropriate application.

It is made clear that on such application, the trial Court is directed to

permit the respondent to withdraw the amount without ordering notice to

the petitioners.

29.11.2022 Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order Note :- Issue order copy on or before 06.12.2022 rts

https://www.mhc.tn.gov.in/judis CRL.R.C.No.827 of 2018

G.K.ILANTHIRAIYAN, J

rts

To

1. The XVII Additional Judge, City Civil Court, Chennai.

2. The III Metropolitan Magistrate, George Town, Chennai

Crl.R.C.No.827 of 2018

29.11.2022

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