Choke Gowda vs S.Antony
2022 Latest Caselaw 17026 Mad

                                                                                Crl.R.C.No.59 of 2017

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED:31.10.2022

                                                           CORAM:

                                    THE HONOURABLE Dr.JUSTICE G.JAYACHANDRAN

                                                 Crl.R.C.No.59 of 2017 and
                                             Crl.M.P.Nos.629 and 631 of 2017

                     Choke Gowda                                                 ... Petitioner

                                                         Vs.

                     S.Antony
                                                                      ... Respondent
                     Prayer: Criminal Revision is filed under Section 397 r/w 401 of
                     Cr.P.C. against the judgment in Crl.A. No.17 of 2015 dated 22.09.2015
                     on the file of the Principal District and Sessions Judge, Krishnagiri,
                     confirming the judgment passed by the Judicial Magistrate (Fast Track
                     Court), Hosur on 24.02.2015 in S.T.C. No.31 of 2014.
                                       For Petitioner    : Mr.K.Ethirajulu,
                                                           Legal Aid Counsel

                                       For Respondent : Mr.M.P.Saravanan

                                                          ORDER

This revision is filed by the accused/petitioner, being aggrieved

by the concurrent findings of the Court below in a private complaint

initiated against him under Section 138 of the Negotiable Instruments

Act.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.59 of 2017

2.The case of the complainant is that on 08.08.2013, the

complainant gave loan of Rs.4,50,000/- to the petitioner/accused to

meet out his family expenses and medical expenses. To discharge the

said debt, the petitioner gave a cheque dated 28.10.2013. When the

said cheque was presented for collection on 24.12.2013, it was

returned with endorsement 'funds insufficient'. Statutory notice dated

31.12.2013 was issued to the petitioner/accused and he received the

notice on 02.01.2014 and gave an evasive reply on 13.01.2014

denying the liability. Thereafter, cause of action to file complaint arose

after the expiry of 15 days. A private complaint was filed and the same

was taken on file by the Judicial Magistrate, Hosur in S.T.C. No.31 of

2014.

3.To prove the complaint, the complainant was examined as

P.W.1 and 6 Exhibits were marked. To disprove the case of the

complainant, the petitioner/accused and 3 others were examined as

D.Ws.1 to 4 and the Sale Deed dated 19.09.1997 was marked as

Ex.D1. The Courts below held the accused guilty of the offence for

issuing cheque without fund and the said cheque was issued to

discharge an illegally enforceable debt.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.59 of 2017

4.In the revision against the concurrent findings of fact, the

petitioner/accused has contended that the complainant has not filed

any proof for his income to lend Rs.4,50,000/-. Failure to file the

Income Tax Return is fatal to the case of the complainant. In the

complaint, it is admitted that the subject cheque/Ex.P1 was a post

dated cheque issued on 28.10.2013. If so, the validity of the cheque

expires after three months and therefore, the cheque cannot be

treated as a valid cheque. Except P.W.1, there is no evidence to prove

the money transaction. While so, the case of the petitioner/accused is

that the subject cheque was issued as a security, pursuant to the loan

transaction covered under Ex.P1 and as outcome of the compromise

between the complainant's brother and the petitioner. The evidence of

D.Ws.1 to 4 has not been properly appreciated by the Courts below,

leading to miscarriage of justice. Hence, the same is required to be set

aside.

5.The learned counsel for the complainant submitted that both

the Courts on facts have held against the petitioner. The inconsistency

in the defence theory is palpably exhibited in the reply notice, marked

as Ex.P6. The reply notice has not been corroborated by the other

https://www.mhc.tn.gov.in/judis Crl.R.C.No.59 of 2017

evidence since the attempt of the petitioner/accused to rebut the

presumption will miserably fail by the inconsistency in the defence,

which strengthens the presumption against the petitioner/accused.

Having admitted the signature in the cheque, the transactions, the sale

deed of the year 1997 have no relevancy to the money transactions,

which happened in the year 2013. The specific case of the petitioner/

accused is that the subject cheque was issued as a security pursuant

to panchayat held long back and the same has been concocted and

presented. Further, it is also contended that when it is admitted by the

complainant as post dated cheque given much earlier to the date

which it bears, the validity of the cheque itself is doubtful.

6.It is to be noted that to prove the enforceable debt, the

production of income tax return is not a pre-condition or mandatory

requirement. If there is any failure to show the transaction in the

income tax return, the Income Tax Act takes care of such omission and

default and the borrower cannot take advantage of the complainant's

failure to file income tax return. If the petitioner/accused is able to

prove that the complainant is a man of no means and the cheque was

https://www.mhc.tn.gov.in/judis Crl.R.C.No.59 of 2017

not issued to discharge any debt, such proof must come from positive

evidence.

7.Similarly, Section 118 of the Negotiable Instruments Act

clearly provides a statutory presumption that the issuance of cheque to

be presumed as the date the cheque bears.

8.As far as the case in hand is concerned, the cheque is dated

28.10.2013 which was presented immediately and returned on the

ground that it is stale cheque on the ground of insufficient funds.

Therefore, the grounds raised in the revision are not legally

sustainable and therefore, this Court finds no error to exercise power

under revisional jurisdiction.

9.Mr.K.Ethirajulu, learned counsel appointed by this Court from

Legal Services Authority to assist the Court and present the revision

petition submitted that leniency may be shown regarding sentence

since the revision petitioner was presumably not affluent to engage a

counsel and meet out the expenses.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.59 of 2017

10.Taking into consideration the above submission, the period of

imprisonment is modified to three months Simple Imprisonment and

fine of Rs.4,50,0000/- as compensation to be paid to the complainant

and in default to undergo one month Simple Imprisonment.

11.With this modification, the Criminal Revision Case is partly

allowed. Consequently, connected miscellaneous petitions are closed.

31.10.2022

vga Index:yes/No

https://www.mhc.tn.gov.in/judis Crl.R.C.No.59 of 2017

To

1.The Principal District and Sessions Judge, Krishnagiri.

2.The Judicial Magistrate, (Fast Track Court), Hosur.

3. The Public Prosecutor, High Court, Madras.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.59 of 2017

Dr.G.JAYACHANDRAN,J.

vga

Crl.R.C.No.59 of 2017 and Crl.M.P.Nos.629 and 631 of 2017

31.10.2022

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