Madras High Court
Mohan vs Jayaprakash on 13 October, 2022
CRL.R.C.No.838 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.838 of 2018
Mohan ... Petitioner
Vs.
Jayaprakash ...
Respondent
PRAYER: Criminal Revision case has been filed under Section 397 r/w
401 of Cr.P.C to set aside the judgment made in C.A.No.83 of 2018 dated
07.07.2018 on the file of the learned II Additional District and Sessions
Judge, Erode against the judgment passed in S.T.C.No.141 of 2017 dated
06.02.2018 by the learned Judicial Magistrate, Fast Track-1, Erode.
For Petitioner : Mr.S.N.Arunkumar
For Respondent : Mr.Mohammed Hanza Ameeri
For Mr.S.Veeraraghavan
ORDER
This Criminal Revision case has been filed as against the
judgment of conviction dated 07.07.2018, passed in C.A.No.83 of 2018
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CRL.R.C.No.838 of 2018
on the file of the learned II Additional District and Sessions Judge, Erode,
thereby reversing the order of acquittal dated 06.02.2018 made in
S.T.C.No.141 of 2017 on the file of the learned Judicial Magistrate, Fast
Track Court-I, Erode, for the offence under Section 138 of the Negotiable
Instruments Act (herein after referred to as “the NI Act”).
2. The petitioner is an accused and the respondent is the
complainant. The respondent lodged complaint under Section 138 of the
NI Act alleging that on 28.10.2016, the petitioner borrowed a sum of
Rs.7,50,000/- and he also assured that he will repay the said sum on
28.12.2016. Thereafter, in order to repay the said amount, the petitioner
issued a cheque dated 28.12.2016. When the same was presented for
collection, it was returned dishonor for the reason that in funds sufficient.
Thereafter, the respondent caused legal notice on 30.12.2016. On receipt
of the same, the respondent issued reply notice dated 05.01.2017, and
thereafter the respondent lodged the present complaint.
3. On the side of the respondent, he himself examined as P.W.1
and marked Ex.P.1 to Ex.P.8. On the side of the petitioner, he examined
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CRL.R.C.No.838 of 2018
himself as D.W.1 and also marked Ex.D.1 to Ex.D.11. On a perusal of
oral and documentary evidences produced on either side, the trial Court
found that the petitioner was not guilty for the offence under Section 138
of the NI Act and acquitted him. Aggrieved by the same, the respondent
filed an appeal and the first appellate Court reversed the finding of the
trial Court and convicted the petitioner 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, as against which the
present revision.
4. The learned counsel appearing for the petitioner submitted
that the first appellate Court without any reason mechanically reversed
the findings of the trial Court for the reason that the respondent proved
his case beyond any doubts, since the issuance of cheque in favour of the
respondent herein has been proved. The legal presumption against the
petitioner has not been rebutted to the manner or the procedure or known
to law.
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CRL.R.C.No.838 of 2018
4.1. He further submitted that the trial Court passed detailed
order that the respondent failed to prove his case that the petitioner
borrowed a sum of Rs.7,50,000/- during the year 2013, whereas the
petitioner established that he paid a sum of Rs.2,00,000/- during the year
2013, which corroborates his contention that he only borrowed a sum of
Rs.2,00,000 and the said amount was duly repaid during the year 2013.
Further, the cheque was issued for security purpose and the same was
misused by the respondent to file this complaint.
4.2. He further submitted that the respondent deposed that he
paid a sum of Rs.7,50,000/- through RTGS. However, the respondent
failed to produce any evidence to show that the respondent had lend a
sum of Rs.7,50,000/- through RTGS. The petitioner caused reply notice
dated 05.01.2017 and categorically denied the borrowal of Rs.7,50,000/-.
He further stated in the reply notice that he borrowed a sum of
Rs.2,00,000/- during the year 2013 and the same was duly repaid fully in
favour of the respondent. However, the respondent failed to return the
cheque which was received as security purpose at the time of borrowal of
loan. The petitioner also marked Ex.D.1 to Ex.D.11 to show that he
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CRL.R.C.No.838 of 2018
promptly repay the loan amount which was received in the year 2013.
5. Per contra, the learned counsel appearing for the respondent
submitted that though the petitioner had taken a stand that he borrowed a
sum of Rs.2,00,000/- during the year 2013 and after repayment of the
entire loan, the respondent failed to return the cheque which was issued
for security purpose, the petitioner did not choose to lodge any complaint
or made any public notice that not to use the cheque which was issued for
security purpose. He further submitted that the petitioner never denied the
signature found in the cheque and never denied the issuance of cheque in
favour of the respondent. Therefore, the presumption in favour of the
respondent not at all rebutted by the petitioner and the petitioner failed to
rebut the same. Therefore, the first appellate Court rightly convicted the
petitioner for the offence under Section 138 of the NI Act.
6. Heard Mr.S.N.Arunkumar, learned counsel appearing for the
petitioner and Mr.M.Mohammed Hanza Ameeri, learned counsel
appearing for the respondent.
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CRL.R.C.No.838 of 2018
7. The respondent is the money lender. The petitioner used to
borrow money from the respondent. Accordingly in the year 2013, the
petitioner borrowed a sum of Rs.2,00,000/- from the respondent. At the
time of borrowal of the said loan, he issued cheque, which is marked as
Ex.P.1, bearing No.716347 as security purpose. The petitioner duly
repaid the said amount by bank deposit in favour of the respondent till
17.09.2016 and the bank deposit chellans were marked as Ex.D.1 to
Ex.D.11. The last payment was made by the petitioner on 17.09.2016.
8. According to the respondent, the petitioner borrowed a sum
of Rs.7,50,000/- on 28.10.2016 and the petitioner also paid interest of
Rs.15,000/- for two months. Thereafter, the petitioner in order to repay
the entire loan issued Ex.P.1 dated 28.12.2016. It is seen from the
records, the petitioner used to repay the loan by way of monthly
installments. Accordingly, he repaid the loan amount which was
borrowed in the year 2013, by way of bank deposit till 17.09.2016. While
being so, the petitioner could not have paid the interest of Rs.15,000/- by
cash for two months. That apart, even according to the respondent, the
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CRL.R.C.No.838 of 2018
petitioner borrowed a sum of Rs.7,50,000/- as hand loan only on
28.10.2016. Immediately within a period of two months ie., on
28.12.2016 in order to repay the entire loan, the petitioner issued the
alleged cheque.
9. It is seen from the past transactions, the petitioner used to
repay the loan amount as monthly installments. Therefore, when the
petitioner borrowed the loan only on 28.10.2016, he could not have
issued cheque in order to repay the entire loan amount on 28.12.2016.
Therefore, the petitioner clearly rebutted the case of the respondent
herein.
10. That apart, on receipt of the statutory notice, the petitioner
issued reply notice dated 05.01.2017. On a perusal of the reply notice, the
petitioner categorically denied the issuance of cheque as alleged in the
statutory notice dated 30.12.2016. The petitioner categorically stated that
the said cheque was issued as security purpose at the time of borrowal of
loan to the tune of Rs.2,00,000/-. Even after receipt of the reply notice,
the respondent failed to send any rejoinder to the petitioner. Therefore,
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CRL.R.C.No.838 of 2018
the respondent failed to prove that Ex.P.1 was issued for legally
enforceable debt and also he failed to prove that he lend a sum of
Rs.7,50,000/- as loan to the petitioner herein. Whereas the presumption
under Section 139 of the NI Act has been rebutted onus is shifted to the
respondent to prove the cheque was issued for discharging legally
subsisting debt.
11. According to the respondent, he lent the money from the
money available on his hand. However, in his cross-examination he
deposed that after selling turmeric and other agricultural products, he
earned a sum of Rs.7,50,000/- and the same was borrowed by the
petitioner. Whereas the income tax returns statement filed by the
respondent, which is marked as Ex.P.7, revealed that from the
agricultural, the respondent earned only Rs.72,200/- for the financial year
2016-2017.
12. Further, in the complaint the respondent stated that a sum of
Rs.7,50,000/- was given as cash to the petitioner. Whereas in his
deposition, he stated that the sum of Rs.7,50,000/- was paid to the
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CRL.R.C.No.838 of 2018
petitioner through RTGS. However, the respondent failed to produce any
document to show that the said amount was sent through RTGS to the
petitioner. Therefore, the trial Court rightly concluded that the respondent
has no source of income to lend a sum of Rs.7,50,000/- and there is no
legally enforceable debt to the petitioner. Unfortunately, the first appellate
Court without considering the above facts and circumstances,
mechanically reversed the findings of the trial Court without any reasons.
13. In view of the above discussions, this Court has no hesitation
to interfere with the impugned order. Accordingly the judgment dated
07.07.2018, passed in C.A.No.83 of 2018 on the file of the learned II
Additional District and Sessions Judge, Erode, is hereby set aside and the
judgement dated 06.02.2018 passed by the learned Judicial Magistrate,
Fast Track Court-I, Erode, in S.T.C.No.141 of 2017, is hereby restored.
14. In the result, the Criminal Revision stands allowed.
13.10.2022
Index: Yes/No
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CRL.R.C.No.838 of 2018
Internet: Yes/No
Speaking/Non-Speaking order
rts
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CRL.R.C.No.838 of 2018
To
1. The II Additional District and Sessions Judge,
Erode.
2. The Judicial Magistrate,
Fast Track Court-I, Erode.
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CRL.R.C.No.838 of 2018
G.K.ILANTHIRAIYAN, J
rts
Crl.R.C.No.838 of 2018
13.10.2022
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