Madras High Court
Jacab Stephen vs S.Sankar on 31 October, 2022
Crl.R.C.No.1646 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:31.10.2022
CORAM:
THE HONOURABLE Dr.JUSTICE G.JAYACHANDRAN
Crl.R.C.No.1646 of 2016 and
Crl.M.P.Nos.13588 and 13589 of 2016
Jacab Stephen ... Petitioner
Vs.
S.Sankar ... Respondent
Prayer: Criminal Revision is filed under Section 397 r/w 401 of
Cr.P.C. against the judgment in C.A. No.2 of 2015 dated 19.10.2016
on the file of the Additional District Judge (FTC) of Vellore District,
confirming the judgment in C.C. No.151 of 2013 dated 02.09.2014 on
the file of the Fast Track Court, Judicial Magistrate, Vellore No.4.
For Petitioner : Mr.P.Chandrasekar
For Respondent : No appearance
ORDER
This revision petition has been filed by the petitioner against the
concurrent findings of the Courts below in a criminal complaint filed
under Section 138 of the Negotiable Instruments Act.
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Crl.R.C.No.1646 of 2016
2.According to the complainant, he and the petitioner/accused
were classmates and known to each other for more than 15 years.
When the accused sought for financial assistance, he lent
Rs.3,00,000/- against a Promissory Note on 30.04.2013. When the
complainant demanded money back, the accused gave a cheque dated
17.06.2013 for Rs.3,00,000/- drawn in favour of the complainant.
However, on presentation of the cheque for collection, the same was
returned as 'funds insufficient'. A Statutory Notice dated 21.06.2013
was issued to the petitioner/accused both to his residential address
and business premises. The notice was duly served on 22.06.2013.
However, the accused neither replied nor paid the cheque amount.
Hence, the complaint.
3.To substantiate the complaint, the complainant was examined
as P.W.1 and 4 Exhibits were marked, viz. the cheque, return memo,
statutory notice and postal acknowledgment cards. To rebut the
presumption, the petitioner/accused neither examined witness nor
produced any document.
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Crl.R.C.No.1646 of 2016
4.The Court below after considering the evidence held that the
accused has not denied the signature, the date and amount found in
the cheque/Ex.P1 and he has not denied about the return of cheque
for want of fund and the receipt of statutory notice and therefore, the
presumption under Section 138 of Negotiable Instruments Act gets
attracted. Accordingly, the absence of proof in contrary and the
presumption of liability been wrong and convicted for offence under
Section 138 of the Negotiable Instruments Act and sentenced to
undergo one year Simple Imprisonment and Rs.3,000/- of fine and in
addition Rs.3,00,000/- being the cheque amount ordered to be paid as
compensation within three months and in default to undergo two
months Simple Imprisonment. Aggrieved by the conviction and
sentence, the accused preferred a Criminal Appeal No.2115 of 2014
before the Sessions Judge, Vellore.
5.After appreciating the evidence, the Lower Appellate Court
found no error in the Trial Court judgment and therefore, confirmed
the same by dismissing the Appeal. By way of revision, the accused
sought for reversal of the concurrent findings on the ground that the
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Crl.R.C.No.1646 of 2016
complainant though admits that loan was advanced on promissory
note, the said promissory note has not seen the light of the day.
6.The learned counsel for the petitioner submitted that the day
book and ledgers maintained in the normal course of business were
not produced to show that the petitioner borrowed Rs.3,00,000/- from
the respondent. Though he admitted that he is an Income Tax
Assessee, the complainant has not filed his income tax return which
will reflect money transaction to the petitioner. The failure to
substantiate the fundamental fact of borrowing has not been taken
mere note of by the Courts below and thereby, grave error and
miscarriage of justice have been occurred.
7.In support of his submissions, learned counsel for the
petitioner would rely upon the judgment of this Court rendered in
2012 (3) Madras Weekly Notes (Criminal) (DCC) 1 (Madras) in
T.R.Kannan vs. Ramani Bai, wherein the High Court has confirmed the
order of acquittal by the Trial Court, wherein the complainant failed to
produce the Income Tax Return and 2017 (1) Madras Weekly Notes
(Criminal) DCC 166 (Madras) in G.S.Gunasekar Vs. Vinayaga Trading
Company, wherein the High Court has confirmed the order of acquittal
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Crl.R.C.No.1646 of 2016
for not producing the Income Tax Return inspite of filing petition under
Section 91 of Cr.P.C. for production of Income Tax Return.
8.As far as the facts of the case are concerned, both the Courts
on facts has held against the petitioner. The production of income tax
return to substantiate the transaction is not a sine qua non for
maintaining complaint under Section 138 of the Negotiable
Instruments Act. The two judgments cited by the learned counsel for
the petitioner are Appeals against acquittal, wherein the complainant
failed to produce the income tax return despite a judicial order passed
directing the complainant to produce the documents. The failure to
produce the documents lead to adverse inference as per the Evidence
Act. By drawing the provisions of the Evidence Act, the Court has held
that failure to produce income tax return despite summons produced
leads to adverse inference.
9.In this case, the petitioner has not sought for any production
of income tax returns and further more, the case of the complainant
that he is running a coconut business in Sathuvachari Town and having
coconut grove have not been disputed. Having admitted the
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Crl.R.C.No.1646 of 2016
signatures, date and amount found in the cheque/Ex.P1 and having
failed to reply to the Statutory Notice and also let in positive evidence
to rebut the present statutory presumption, the conviction and
sentence imposed by the Court below cannot be termed as perverse,
illegal or error apparent on record.
10.The learned counsel for the petitioner would plead that the
sentence of imprisonment of one year and the compensation of
Rs.3,00,000/-, the cheque amount are excessive and taking into
consideration the age of the petitioner/accused and the friendship
between the complainant and the petitioner/accused, leniency could be
shown.
11.This Court, taking into consideration the above submission,
while confirming the conviction, modifies the sentence as below. The
petitioner/accused shall pay a fine of Rs.3,00,000/-, in default to
undergo 2 months Simple Imprisonment from the fine amount and
compensation of Rs.3,00,000/-, to be paid to the complainant. Fine to
bepaid within a period of three months from today, failing which the
accused to undergo three months Simple Imprisonment.
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Crl.R.C.No.1646 of 2016
12.With the above modifications, the Criminal Revision Case is
partly allowed. Consequently, connected miscellaneous petitions are
closed.
31.10.2022
vga
Index:yes/No
To
1.The Additional District Judge (FTC),
Vellore District
2.The Fast Track Court,
Judicial Magistrate No.4,
Vellore.
3. The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1646 of 2016
Dr.G.JAYACHANDRAN,J.
vga
Crl.R.C.No.1646 of 2016 and
Crl.M.P.Nos.13588 and 13589 of 2016
31.10.2022
https://www.mhc.tn.gov.in/judis
