Sivanantham vs T.R.Narayanan
2022 Latest Caselaw 16442 Mad

                                                                              CRL.R.C.No.1396 of 2018

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED : 17.10.2022

                                                           CORAM

                             THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                               Crl.R.C.No.1396 of 2018
                                          Crl.M.P.Nos.16232 & 16233 of 2018

                     Sivanantham                                                 ... Petitioner

                                                             Vs.
                     T.R.Narayanan                                               ... 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
                     23.08.2018 made in C.A.No.231 of 2015 on the file of the learned I
                     Additional District and Sessions Judge, Coimbatore, modifying the
                     judgment dated 09.10.2015 made in C.C.No.12 of 2013 on the file of the
                     learned Judicial Magistrate, Fast Track Court, Magisterial Level-II,
                     Coimbatore by allowing this Criminal Revision Petition.


                                     For Petitioner       : Mr.K.Sudhakar

                                                           ORDER

This Criminal Revision is arising out of the judgement dated

23.08.2016, passed in C.A.No.231 of 2015, on the file of the learned I

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Additional District and Sessions Judge, Coimbatore, thereby modifying the

judgment dated 09.10.2015 passed in C.C.No.12 of 2013 on the file of the

learned Judicial Magistrate, Fast Track Court, Magisterial Level-II,

Coimbatore, thereby convicting the petitioner for the offence under Section

138 of 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 as against the petitioner

and the crux of the complaint is that first weeks of December, 2011, the

petitioner approached him for a hand loan of Rs.8,50,000/- for his family

and business commitments. In order to repay the said amount, the

petitioner issued a cheque for a sum of Rs.8,50,000/- and it was presented

for collection and the same was returned dishonored for the reason that

insufficient funds. After causing statutory notice to the petitioner, the

respondent lodged the complaint.

3. On the side of the respondent, he examined P.W.1 & P.W.2

and marked documents as Ex.P.1 to Ex.P7. The petitioner did not examine

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any witness and not marked any document. On a perusal of oral and

documentary evidence, the trial Court found the guilt of the petitioner and

sentenced him to undergo one year simple imprisonment and to pay a fine

of Rs.5000/- in default to undergo two months simple imprisonment.

Aggrieved by the same, the petitioner preferred an appeal and the same

was dismissed by confirming the order passed by the trial Court.

4. Aggrieved by the same, the petitioner already filed revision

before this Court in Crl.RC.No.1456 of 2016 and this Court by an order

dated 15.02.2017 allowed the revision and remanded back the matter to

the first appellate Court for fresh consideration and also permitted the

petitioner to let in additional evidence toward marking bank statement of

the petitioner under Section 391 of Cr.P.C. The first appellate Court after

examining D.W.1, again confirmed the convicting and reduced the

sentence from one year to six months, as against which the present

revision case.

5. The learned counsel appearing for the petitioner submitted

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that the cheque was of the year 2009 and it was issued on 23.09.2009 and

it was not issued for any legally enforceable debt. The petitioner examined

the bank Manager as D.W.1, before the first appellate Court and he

deposed that the alleged cheque which was marked as Ex.P1 was issued in

the year 2009, as such it shows that the alleged cheque was issued for

security purpose. The petitioner borrowed very megar amount and the

respondent received the alleged cheque for security purposed. Thereafter it

was misused by him and presented for collection.

5.1. He further submitted that after receipt of statutory notice, the

petitioner caused reply notice, which was marked as Ex.P.5 in which, he

categorically stated that, he borrowed a sum of Rs.1,50,000/- on

20.12.2009 and at the time of borrowal of the said amount, he issued the

alleged cheque, which was duly signed by him, as security purpose. After

repayment of entire loan amount on various dates, the respondent failed to

return the document, which was received as security purpose. Therefore,

the petitioner categorically rebutted the presumption arising out of Section

138 of the NI Act.

5.2. He further submitted that the respondent had no source of

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income to lend such a huge amount of Rs.8,50,000/- as loan to the

petitioner herein. The petitioner also cross-examined P.W.1. However, the

Courts below without considering these facts and circumstances

mechanically convicted the petitioner. Therefore, he prayed to allow this

revision.

6. Heard Mr.K.Sudhakar, learned counsel appearing for the

petitioner and perused the documents.

7. It is seen from the records after conviction by the Courts

below, the sentence imposed on the petitioner did not get suspended till

today. The Criminal Revision is pending for the past four years and

unfortunately, the respondent did not take any step as against the petitioner

and the petitioner also failed to surrender before the Court below.

8. On merits, it is seen that the respondent examined P.W.1 &

P.W.2 and also marked Ex.P.1 to Ex.P.7. On the side of the petitioner, he

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examined D.W.1 before the first appellate Court. Though the petitioner had

taken specific stand that the cheque which was marked as Ex.P.1 was

issued for security purpose, he failed to prove the same by any substantial

evidence. Mere cross examination of P.W.1 would not serve any purpose

to rebut the presumption arising out of Section 138 of the NI Act. Further,

the petitioner did not deny the issuance of cheque and did not dispute the

signature found in the cheque. Therefore, the initial burden on the shoulder

of the petitioner is clearly proved, and he failed to rebut the presumption

under Section 138 of the NI Act. Though it is rebuttable in nature, the

petitioner failed to rebut the same as contemplated under Section 138 of

the NI Act.

9. It is also seen from Ex.P.5, the reply notice sent by the

petitioner that he categorically stated that he borrowed a sum of

Rs.1,50,000/- from the respondent on 20.12.2009 and handed over the

cheque for security purpose. After repayment of entire amount, the

respondent failed to return the said cheque which was executed at the time

of borrowal. Even assuming that the petitioner repaid the entire amount

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and the respondent refused to return the same, the petitioner did not lodge

any police complaint and failed to take any steps to get back the document

which was executed for security purpose.

10. Further, as directed by this Court, the petitioner examined

D.W.1 and through him he marked the statement of account. Though

Ex.P.1 was issued in the year 2009 to the petitioner by his banker, it

doesn't mean that it was issued to the respondent in the year 2009. Further,

the learned counsel appearing for the petitioner contended that the

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

Rs.8,50,000/-.

11. On a perusal of the statement recorded under Section 131 of

Cr.P.C., the petitioner never denied the issuance of cheque and never

stated that the respondent had no source of income to lend such huge

amount. Mere cross examination would not serve any purpose to rebut the

presumption under Section 138 of the NI Act. Therefore, the Courts below

rightly convicted the petitioner and this Court finds no infirmity or

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illegality in the impugned order. However, if any settlement arrived

between the parties, the petitioner is at liberty to approach this Court by

way of proper petition.

12. Accordingly, the Criminal Revision stands dismissed. The

judgments of conviction and sentence passed by the Courts below are

hereby confirmed. The trial Court is directed to take steps to secure the

petitioner for the purpose of sentencing him to undergo the conviction. It is

also directed that the period of sentence already undergone by the

petitioner, if any, shall be given set off, as required under Section 428

Cr.P.C. Consequently, connected miscellaneous petitions are closed.

17.10.2022 Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order

rts

https://www.mhc.tn.gov.in/judis CRL.R.C.No.1396 of 2018

To

1. The I Additional District and Sessions Judge, Coimbatore.

2. The Judicial Magistrate, Fast Track Court, Magisterial Level-II, Coimbatore .

https://www.mhc.tn.gov.in/judis CRL.R.C.No.1396 of 2018

G.K.ILANTHIRAIYAN, J

rts

Crl.R.C.No.1396 of 2018 and Crl.M.P.Nos.16232 & 16233 of 2018

17.10.2022

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