Madras High Court
M.Krishnasamy vs A.Rajathi on 11 October, 2022
Crl.R.C.No.1536 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 11.10.2022
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.1536 of 2017
and
Crl.M.P.Nos.15362 & 15363 of 2017
M.Krishnasamy .. Petitioner
Vs.
1.A.Rajathi
2.The State,
Public Prosecutor,
Erode District.
..Respondents
PRAYER : Criminal Revision Case has been filed under sections 397
read with 401 of Criminal Procedure Code to set aside the Judgment
dated 09.10.2017 passed in C.A.No.215 of 2016 on the file of the Court
of the IV Additional District and Sessions Judge, and confirming the
order of conviction dated 02.11.2016 of the learned II Assistant District
Munsif at Bhavani in S.T.C.No.64 of 2015 Erode District at Bhavani.
For Petitioner : No appearance
1/7
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1536 of 2017
For Respondent : No appearance
ORDER
This Criminal Revision Case is filed against the concurrent
findings of the Courts below holding the petitioner guilty for the offence
under Section 138 of Negotiable Instruments Act.
2. The case of the complainant is that the petitioner
borrowed a sum of Rs.1,50,000/- to meet his urgent expenses and gave
three post dated cheques, each for Rs.50,000/- in favour of the
complainant. When the cheques were presented for collection, the same
have been returned as “Insufficient Funds”. Hence the complaint after
causing statutory notice.
3. To prove the complaint, prosecution examined himself as
PW.1 and marked eight (8) exhibits as Ex.P1 to Ex.P8. On the side of the
accused, the defendant examined himself as DW.1 and marked ten (10)
Exhibits as Ex.D1 to Ex.D10.
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Crl.R.C.No.1536 of 2017
4. The specific case of the complainant is that a sum of
Rs.1,50,000/- was borrowed and to discharge the said loan, three cheques
Ex.P1 to Ex.P3 each for Rs.50,000/- were given to the complainant, but
those cheques were returned saying insufficient of funds. The return
memos are Ex.P4 to Ex.P6. A statutory notice was issued on 30.03.2013
and the same was returned undelivered . Therefore, the accused is liable
to be prosecuted under Section 138 of Negotiable Instruments Act.
5. Contrarily, through the oral evidence and documents
marked as Ex.D1 to Ex.D10, the petitioner/accused contended that he
never borrowed any money from the complainant. The cheques Ex.P1 to
Ex.P3 were issued to one Vijayakumari for security purpose and the
complainant has no right to enforce any debt. Further, the statutory notice
Ex.P7 was not served to him and without causing notice, cause of action
for filing a complaint will not arise. However, the Courts below negatived
the contention of the accused holding that the foundation fact of issuance
of the cheques for discharging the enforceable debt been proved by the
complainant.
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Crl.R.C.No.1536 of 2017
6. Contrarily, the accused has failed to discharge the
presumption against him through Ex.D1 to Ex.D10. The trial Court while
holding the accused guilty, sentenced him to undergo 6 months Simple
Imprisonment and to pay a fine of Rs.1,50,000/- being the cheque amount
as compensation. The appeal preferred before the IV Additional District
and Sessions Judge, Erode in C.A.No.215 of 2016 was dismissed,
confirming the judgment of the trial Court.
7. In the revision case, it is contended that the Courts below
erred in appreciating the evidence let in by the accused in Ex.D1 to
Ex.D10. The probable case of the accused is that the cheques were
issued as security to one Vijayakumari, the daughter of the complainant,
for the loan of Rs.2,50,000/- borrowed on 06.03.2008 and Rs.2,50,000/-
on 04.04.2008. Ex.P1 to Ex.P3 were issued as a security and after
discharging the entire loan amount on 05.12.2011, when the petitioner
demanded return of the cheques, Vijayakumari, the daughter of the
de facto complainant gave lame excuse that she has misplaced the
cheques while shifting her residence. When the loan borrowed was
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Crl.R.C.No.1536 of 2017
discharged, the said Vijayakumari filed a Suit suppressing the fact and
the matter is pending. Likewise, another Suit was filed through the
grandson of the complainant and that was settled in Lok Adalat.
Therefore, the trial Court ought to have dismissed the complaint on the
ground that the cheques were not issued for enforceable debt.
8. However, on perusing the record and deposition, this
Court finds that the transaction alleged to have been taken place between
the petitioner herein and one Vijayakumari, the wife of the de facto
complainant/1st respondent has no bearing the case in hand. The cheques
which are marked as Ex.P1 to Ex.P3 are signed by the petitioner. The
case of the petitioner is not that there was money transaction with the
petitioner. But his contention is that the cheques were not issued for
discharging debt. The Courts below has rightly considered the defence
raised by the petitioner and has observed that if the money borrowed
from Vijayakumari got settled in the month of December 2011 and three
cheques Ex.P1 to Ex.P3 were issued as a security, then immediately on
repayment of the said loan, the same may be intimated to the bank,
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Crl.R.C.No.1536 of 2017
having kept quite for more than a year and having failed to reply to the
notice, the defence taken at the time of trial can only be considered as
after thought. In the light of the facts as discussed above, this Court finds
no merit in the case and therefore this Criminal Revision Case is liable to
be dismissed.
9. The Criminal Revision Case stands dismissed accordingly.
Consequently, the connected Criminal Miscellaneous Petitions are also
dismissed.
11.10.2022
Internet : Yes/No
Index: Yes/No
rpl
To
1. The IV Additional District and Sessions Judge, Bhavani, Erode
District.
2. The II Assistant District Munsif, Bhavani.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1536 of 2017
Dr.G.JAYACHANDRAN, J.
rpl
Crl.R.C.No.1536 of 2017
11.10.2022
https://www.mhc.tn.gov.in/judis
