Madras High Court
B.Jothimurugan vs S.Gunasekar on 10 October, 2022
CRL.R.C.No.370 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.10.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C.No.370 of 2018
B.Jothimurugan ... Petitioner
Vs.
S.Gunasekar ... Respondent
PRAYER: Criminal Revision case has been filed under Section 397 r/w
401 of Cr.P.C to set-aside the conviction imposed in the judgment dated
25.01.2018 made in C.A.No.195 of 2017 on the file of the Learned I
Additional District and Sessions Judge, Erode confirming the conviction
imposed in judgment dated 16.06.2017 made in S.T.C.No.133 of 2016 on
the file of the Learned Judicial Magistrate (Fast Track Court) No.1,
Erode.
For Petitioner : Mr.M.Guruprasad
For Respondents : Mr.A.V.Radhakrishnan
ORDER
This Criminal Revision case has been filed to set-aside the
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CRL.R.C.No.370 of 2018
conviction imposed in the judgment dated 25.01.2018 made in
C.A.No.195 of 2017 on the file of the Learned I Additional District and
Sessions Judge, Erode confirming the conviction imposed in judgment
dated 16.06.2017 made in S.T.C.No.133 of 2016 on the file of the
Learned Judicial Magistrate (Fast Track Court) No.1, Erode.
2. The petitioner is an accused in the complaint lodged by the
respondent for the offence punishable under Section 138 of Negotiable
Instruments Act. The crux of the complaint is that on 21.01.2016, the
petitioner borrowed a sum of Rs.2,00,000/- from the respondent for his
urgent needs. In order to discharge the said liability, the petitioner issued
post dated cheque for a sum of Rs.2,00,000/- on 12.02.2016. On the
request and instructions given by the petitioner, it was presented for
collection on 22.03.2016. It was returned dishonored for the reason
“Payment stopped by drawer”. After issuance of statutory notice, the
respondent lodged a complaint.
3. On the side of the respondent, he was examined as P.W.1 and
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CRL.R.C.No.370 of 2018
marked Exs.P1 to P4. On the side of the petitioner, D.W.1 and D.W.2
were examined and marked Exs.D1 to D4. On perusal of oral and
documentary evidence, the Trial Court convicted the petitioner and
sentenced him to undergo six months simple imprisonment and also
awarded compensation of a sum of Rs.2,00,000/-. Aggrieved by the same,
the petitioner preferred an appeal and the same was also dismissed,
confirming the order passed by the Trial Court. Hence, this revision.
4. The learned counsel for the petitioner would submit that the
cheque was issued for security purpose and there is no legally enforceable
debt. Therefore, the petitioner rightly stopped the payment for the alleged
cheque. There was no consideration for Ex.P1 and even then, both the
Courts below wrongly convicted the petitioner for the offence punishable
under Section 138 of Negotiable Instruments Act. Except the cheque, no
other document was produced by the respondent to prove the case. The
respondent also failed to produce any Income Tax returns, so that he has
source to lend such huge money to the petitioner. Further, he submitted
that the petitioner already suffered huge loss and as such he filed an
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CRL.R.C.No.370 of 2018
insolvency petition before the II Additional Sub Court, Erode, to declare
him as insolvent. Pending the insolvency petition, the respondent misused
the cheque which was issued for security purpose and filed a complaint.
5. A perusal of records revealed that the petitioner borrowed a
sum of Rs.2,00,000/- for his urgent needs and in order to repay the same,
he issued a cheque. However, even before the presentation of cheque, he
issued a letter to his banker to stop the payment on the cheque, which
was marked as Ex.P1. Though, the petitioner stopped the payment, on the
ground that the cheque was issued for security purpose, on the date of
presentation of cheque, there was debt. Therefore, though the cheque was
issued on the date of borrowal as security purpose, when the debt was
very much in force, the said cheque can be presented for collection.
Hence, the respondent discharged his initial burden as required under
Section 138 of Negotiable Instruments Act, then the presumption under
Section 139 of the Negotiable Instruments Act comes in favour of the
respondent herein. However, it can be rebutted, the presumption attached
to the cheque through probable defence or at least create a shadow of
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CRL.R.C.No.370 of 2018
doubt on the cheque, that the cheque was not issued by the petitioner to
the respondent in discharge of a legally enforceable debt payable by the
petitioner herein. Therefore, the petitioner failed to rebut the evidence of
the respondent. The legal notice was marked as Ex.P3 and the
acknowledgment was marked as Ex.P4. After receipt of the legal notice
caused by the respondent, the petitioner failed to reply to rebut the case of
the respondent herein.
6. Therefore, both the Courts below rightly convicted the
petitioner for the offence punishable under Section 138 of Negotiable
Instruments Act. Hence, this Court finds no infirmity or illegality in the
orders passed by the Courts below and hence, this revision is liable to be
dismissed.
7. Accordingly, this Criminal Revision case stands dismissed.
10.10.2022
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
mn
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CRL.R.C.No.370 of 2018
G.K.ILANTHIRAIYAN, J
mn
To
1. The I Additional District and Sessions Judge, Erode.
2. The Judicial Magistrate (Fast Track Court) No.1, Erode.
Crl.R.C.No.370 of 2018
10.10.2022
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