M.Jyothimani vs S.Mahalingam
2022 Latest Caselaw 16269 Mad

                                                                                   CRL.R.C.No.566 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 13.10.2022

                                                         CORAM:

                             THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                               CRL.R.C.No.566 of 2018

                M.Jyothimani                                                          ... Petitioner

                                                          Vs.

                S.Mahalingam                                                          ... Respondent

                Prayer: The Criminal Revision case filed under Section 397 r/w 401 of Cr.P.C.
                praying to set aside the order dated 09.08.2017 passed in C.A.No.3 of 2016 on
                the file of the II Additional District and Sessions Judge, Tiruppur, in
                confirming the judgment dated 08.12.2015 in C.C.No.543 of 2012 on the file
                of the Judicial Magistrate, Avinashi.


                                        For Petitioner     : Mr.K.Myilsamy

                                        For Respondent     : Ms.P.Abinaya
                                                             for Mr.M.Guruprasad


                                                    ORDER

This Criminal Revision case has been filed as against the judgment

passed in C.A.No.3 of 2016 dated 09.08.2017 on the file of the II Additional

District and Sessions Judge, Tiruppur, thereby confirming the judgment passed

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CRL.R.C.No.566 of 2018

in C.C.No.543 of 2012 dated 08.12.2015 on the file of the Judicial Magistrate,

Avinashi, for the offence under Section 138 of Negotiable Instruments Act.

2. The petitioner is an accused in the complaint lodged by the

respondent. The crux of the complaint is that the petitioner borrowed a sum of

Rs.15,00,000/- for her urgent expenses and in order to repay the said amount,

she issued a cheque, when the said cheque was presented for collection, the

same has been returned dishonored for the reason ''funds insufficient''.

Thereafter, the respondent caused legal notice to the petitioner and lodged a

complaint.

3. On the side of the respondent PW1 was examined and Exs.P1 to 5

were marked as Exhibits and on the side of the petitioner, DW1 and DW2 were

examined and Exs.D1 to 7 were marked as Exhibits.

4. On perusal of oral and documentary evidence on either side, the trial

Court found the petitioner guilty for the offence under Section 138 of NI Act,

and sentenced him to undergo six months simple imprisonment and also

awarded compensation of cheque amount. Aggrieved by the same, the

petitioner preferred an appeal and the same was dismissed and confirmed the

conviction imposed by the trial Court.

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CRL.R.C.No.566 of 2018

5. The learned counsel for the petitioner vehemently contended that the

said cheque was not at all issued in favour of the respondent for any legally

enforceable debt since the petitioner never borrowed any amount from the

respondent. Therefore, no consideration was passed for issuance of cheque.

DW2, who is none other than her son, admittedly, the respondent had

transaction with DW2 in respect of the property, the respondent executed three

Power of Attorneys in respect of different properties, which were marked as

Exs.D1 to 3 to deal with the said properties. Accordingly, DW2 obtained

approval from the Panchayatars and layout the said property. Thereafter, on the

strength of the Power of Attorney, he also executed sale deed in favour of

various persons and those sale deeds were marked as Ex.D5 to 7. Further, the

said cheque was filled up by the complainant which shows that the ink which

was used to fill up the cheques. That apart, the respondent has no source of

income to lend such a huge amount of Rs.15 lakhs. Further, without

considering those aspects, the Court below convicted the petitioner for the

offence under Section 138 of NI Act.

6. On a perusal of records revealed that the petitioner borrowed a sum of

Rs.15 lakhs from the respondent and in order to repay the said amount, he

issued a cheque. After receipt of a statutory notice, the petitioner failed to reply https://www.mhc.tn.gov.in/judis

CRL.R.C.No.566 of 2018

to rebut the evidence of the respondent herein. However, the petitioner came

before the trial Court with a defence that she never borrowed loan from the

respondent herein. The alleged cheque, which was marked as Ex.P1, was not

issued for any consideration in favour of the respondent herein. The said

cheque was misused by the respondent for no consideration. He further

contended that the signed cheque was used by her son to avail loan from the

private financier, from the said private financier the said cheque was handed

over to the respondent and the same was misused for lodging a complaint for

the offence punishable under Section 138 of NI Act.

7. Further to substantiate the said contentions, the petitioner failed to

adduce any evidence and failed to produce any piece of evidence to rebut the

case of the respondent herein. Though, the petitioner had taken a stand that the

respondent had no source of income to lend a huge amount of Rs.15 lakhs;

Firstly, the petitioner failed to reply for the statutory notice. Secondly, she did

not even make any statement recorded under Section 313 Cr.P.C, that the

respondent had no source of income to lend such a huge amount.

8. In respect of source of income, it is relevant to rely upon the judgment

reported in 2022 SCC OnLine SC 302 in the case of Tedhi Singh Vs. Narayan https://www.mhc.tn.gov.in/judis

CRL.R.C.No.566 of 2018

Dass Mehant, in which the Hon'ble Supreme Court of India held that in the

case under Section 138 of the NI Act, the complainant need not to show in the

first instance that he had capacity to lend loan, unless a case is set up in the

reply notice to the statutory notice, that the complainant did not have the

wherewithal, it cannot be expected the complainant to initially lead evidence to

show that he had the financial capacity. However, the accused had the right to

demonstrate that the complainant in a particular case did not have the capacity

and therefore, the case of the accused is acceptable which he can do by

producing independent materials, namely, by examining his witnesses and

producing documents. It is also open to him to establish the very same aspect

by pointing out the materials produced by the complainant himself. Further he

must establish the case that the complainant has no source of income even in

the statement given under Section 313 of Cr.P.C.

9. It is settled law that in the case under Section 138 of NI Act, Section

139 of NI Act provides that the Court shall presume that the holder of a cheque

received the cheque of the nature referred into Section 138 of NI Act, for the

discharge, in whole or in part or any debt or other liability. This presumption,

however, is expressly made subject to the position being proved to the

contrary. In other words, it is open to the accused to establish that there is no https://www.mhc.tn.gov.in/judis

CRL.R.C.No.566 of 2018

consideration received. It is in the context of this provision that the theory of

probable defence has grown.

10. Thus it is clear that the petitioner failed to rebut the evidence of the

respondent herein. In so far as, the difference in filling up of Ex.P1 is

concerned, the complainant can very well fill up the cheque for the legally

enforceable debt. That apart, to verify the difference in the ink used to fill up

the cheque, there is no laboratory available in our country. In respect of the

transaction between the respondent and the DW2, who is none other than the

own son of the petitioner is concerned, admittedly, the respondent executed

three Power of Attorneys in respect of the three different properties in favour

of the DW2. In pursuant to the execution of Power of Attorneys, he obtained

approval from the Panchayatars to layout the land and executed sale deeds in

favour of their parties. However, it has nothing to do with the transaction

between the petitioner and the respondent. In fact, it is also clear that the

respondent had no source of income to lend a huge amount of Rs.15 lakhs in

favour of the petitioner herein.

11. This Court, while suspending the sentence of the petitioner, imposed

a condition that the petitioner shall deposit 30% of the amount awarded by the https://www.mhc.tn.gov.in/judis

CRL.R.C.No.566 of 2018

trial Court. However, the petitioner failed to comply with the said condition

even till today. Therefore, both the Courts below rightly found the petitioner

guilty for the offence under Section 138 of NI Act and this Court finds no

infirmity or illegality in the orders passed by the Courts below.

12. Accordingly, the Criminal Revision case stands dismissed.

13.10.2022 ata Index : Yes / No Speaking / Non Speaking order

To

1. The Second Additional District and Sessions Court, Tiruppur.

2. The Judicial Magistrate, Avinashi.

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CRL.R.C.No.566 of 2018

G.K.ILANTHIRAIYAN, J.

ata

Crl.R.C.No.566 of 2018

13.10.2022

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