R.Murugesan vs S.Karthikeyan
2022 Latest Caselaw 14766 Mad

                                                                  Crl.R.C.Nos.438 and 441 of 2019
                                                                      and Crl.M.P.No.6605 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 05.09.2022

                                                      CORAM:

                                   THE HON'BLE Mr. JUSTICE P.VELMURUGAN

                                    Criminal Revision Case Nos.438 and 441 of 2019
                                             and Crl.M.P.No.6605 of 2019


                     R.Murugesan                            ... Petitioner in Both Crl.RCs.
                                                         Vs.
                     S.Karthikeyan                          ... Respondent in Both Crl.RCs.



                     Prayer in Crl.R.C.No.438 of 2019 : Criminal Revision Case filed under
                     Section 397 and 401 of Criminal Procedure Code, praying to call for the
                     records and to allow the Criminal revision by set aside the judgment
                     dated 23.10.2018 passed by the II Additional District and Sessions Judge,
                     Salem, in C.A.No.104 of 2017 by the II Additional District and Sessions
                     Judge, Salem, confirming the conviction and the sentence imposed on the
                     petitioner in STC No.608 of 2016, on the file of the Judicial Magistrate,
                     No.III, Salem, by the judgment dated 24.07.2017 and set aside the order
                     for payment of compensation of Rs.10/- lakhs under Section 357 (3) of
                     Cr.P.C.



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                                                                  Crl.R.C.Nos.438 and 441 of 2019
                                                                      and Crl.M.P.No.6605 of 2019

                     Prayer in Crl.R.C.No.441 of 2019: Criminal Revision Case filed under
                     Section 397 and 401 of Criminal Procedure Code, praying to call for the
                     records and to allow the criminal revision by set aside the judgment dated
                     23.10.2018 passed by the learned II Additional District and Sessions
                     Judge, Salem C.R.P.No.35 of 2017, confirming the conviction and the
                     sentence imposed on the petitioner in STC No.608 of 2016, on the file of
                     the Judicial Magistrate No.III, Salem, by the Judgment dated 24.07.2017
                     and to set aside the order for payment of compensation of Rs.10 lakhs u/s
                     357(3) of Cr.P.C.


                     In both Crl.R.Cs.

                                    For Petitioner   :     Mr.S.Balasubramanian
                                                           for Mr.G.Dhanasekaran
                                                           Legal Aid Counsel

                                    For Respondent   :     Mr.N.Manojkumar
                                                           for M/s.K.V.Lawfirm




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                                                                       Crl.R.C.Nos.438 and 441 of 2019
                                                                           and Crl.M.P.No.6605 of 2019

                                                          ORDER

These Criminal Revision Cases have been filed seeking to set aside

the judgment dated 23.10.2018 passed by the II Additional District and

Sessions Judge, Salem, in C.A.No.104 of 2017 and C.R.P.No.35 of 2017,

confirming the conviction and the sentence imposed on the petitioner in

STC No.608 of 2016, on the file of the Judicial Magistrate, No.III, Salem,

by the judgment dated 24.07.2017, and set aside the order for payment of

compensation of Rs.10 lakhs under Section 357 (3) of Cr.P.C.

2. The petitioner is the accused and the respondent is the

complainant in both the revision petitions.

3. The case of respondent is that the petitioner had borrowed Rs.3

lakhs on 10.01.2014, another Rs.3 lakhs on 10.06.2014 and Rs.4 lakhs

on 10.10.2014 from the respondent for his family and business expenses

agreeing to repay the same with interest @ 12% per annum and in order

to discharge the said debt, the petitioner had executed a promissory note

in favour of the respondent on 10.10.2014 and he paid interest till

10.12.2014 and further, the petitioner had issued a cheque dated

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10.12.2014 bearing No.853094 for Rs.10 lakhs drawn at State Bank of

India, Salem-8. Thereafter, as per the instruction of the petitioner, the

respondent presented the said cheque with his banker for encashment

but the same was dishonoured for “insufficient funds” on 12.12.2014.

Hence, the complainant issued a legal notice to the petitioner demanding

the said amount within 15 days. But the petitioner deliberately returned

the notice and failed to make payment. Therefore, the respondent had

filed a private complaint against the petitioner under Section 138 of

Negotiable Instruments Act before the learned Judicial Magistrate No.III,

Salem, and the learned Magistrate taken cognizance of the complaint in

STC No.608 of 2016, and after enquiry, convicted the petitioner for the

offence under Section 138 of Negotiable Instruments Act and sentenced

him to undergo six months simple imprisonment and to pay a fine of

Rs.5,000/- and in default to undergo 1 month simple imprisonment by

order dated 24.07.2017.

4. Challenging the said Judgment of conviction and sentence, the

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petitioner herein had filed an appeal before the II Additional District

Judge, Salem, and the same was taken on file in C.A.No.104 of 2017.

5. Subsequently, the respondent also filed a Criminal Revision

Petition before the II Additional District Judge, Salem, for enhancement

of the said fine amount imposed by the learned Judicial Magistrate

No.III, Salem, in STC No.608 of 2016 by order dated 24.07.2017, and

the same was taken on file in C.R.P.No.35 of 2017.

6. The learned II Additional District Judge, Salem, after hearing

the arguments and re-appreciating the entire materials, dismissed the

appeal filed by the petitioner in C.A.No.104 of 2017 by Judgment dated

23.08.2018 and confirmed the conviction and sentence passed by the

learned Magistrate. At the same time, allowed the Criminal Revision

Petition filed by respondent by Judgment dated 23.08.2018 and directed

the accused to pay compensation of Rs.10 lakhs to the respondent instead

of the fine amount of Rs.5,000/- imposed by the Judicial Magistrate.

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7. Now, challenging the said Judgments in the Appeal as well as in

the Revision, the petitioner/accused has filed the present revisions before

this Court.

8. The learned counsel for the petitioner would submit that though

the respondent has stated that he had given a sum of Rs.10 lakhs to the

petitioner, he has admitted that he has not obtained any document from

the petitioner on the date of giving the said amount to the petitioner. He

would submit that no prudent man would lend such a huge amount of

Rs.10 lakhs, without obtaining any document which itself creates a

reasonable doubt. Further, he would submit that though the respondent in

his complaint has stated that till 10.12.2014, he received interest from the

petitioner @ 12 % per annum, however, there is no record to show that

the petitioner had paid interest to the respondent till 10.12.2014. Even

though the respondent is a money lender and income tax assessee, he has

admitted that he has not shown in the income tax returns regarding the

amount lent to the petitioner. The respondent has not proved that on the

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particular date when the respondent alleges to have given money to the

petitioner, he was having the capacity to lend the money to the petitioner

and that the alleged cheque was issued to discharge the legally

enforceable debt. In this case, the respondent has not filed any bank

statement or accounts to show that on the date of giving money to the

revision petitioner, he was having money or financial source to lend the

money. Further, the respondent has admitted that he has not shown the

said amount in the Income Tax Returns. Therefore the respondent has

not proved that on the date when the cheques are alleged to have been

received from the petitioner, he was having sufficient funds either on

hand or in his bank account and that both the Courts below failed to

appreciate both the oral and documentary evidence and wrongly

convicted the petitioner. Therefore, the conviction and sentence of

imprisonment imposed by both the Courts below are liable to be set aside

and the revision petitions are to be allowed.

9. The learned counsel for the respondent would submit that even

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though the petitioner denies the financial capacity of the respondent, but

the petitioner himself has put a suggestion before the P.W.1 that the

respondent lent money to several persons and also filed several criminal

complaints under Section 138 Negotiable Instruments Act in various

Courts. Therefore, the financial capacity of the respondent cannot be

questioned. Further, the non showing transaction between the petitioner

and respondent in the Income Tax, is not a fatal to the respondent's

complaint. The Hon'ble Supreme Court in its decision has reiterated that

even though the complainant has not filed any Income Tax Returns or not

shown any money transaction in the Income Tax Returns, that may not be

a ground to the accused to get acquittal. The petitioner has admitted the

signature and the Courts below rightly appreciated the evidence and there

is no perversity in the orders passed by the Courts below. Therefore, the

revision petitions are liable to be dismissed.

10. Head both the counsel and perused the materials on record.

11. The admitted fact is that the petitioner is the borrower and the

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respondent is the money lender. The Signature found in the cheque is

admitted and the execution of cheque is also admitted. The only defence

taken by the revision petitioner is that he has signed the cheque for

security purpose for the borrowal of a 3rd party from the respondent.

Subsequently, the respondent has made use of the cheque given by the

petitioner for security purpose as a guarantor and filed the criminal

complaint against the petitioner. Though the petitioner has taken such a

stand, he has not given any specific details on whose name the borrowal

was made and for whom he had given the cheque as guarantor. It is

settled proposition of law that the accused need not come into the witness

box and let any direct evidence, he can always prove his defence through

preponderance of probabilities in the manner known to law. When the

complainant substantiated his complaint by producing documents, the

Court can accept his explanation unless the contrary is proved. Once the

signature found on the cheque and execution are admitted, then

presumption under Section 139 of Negotiable Instruments Act would

come into play and the onus of proof will automatically shifts on the

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accused and it is for the accused to rebut the presumption in the manner

known to law. Whereas in this case, both the execution and signature are

admitted, but the accused has not rebutted the presumption in the manner

known to law. Though he has taken several defence, he has not

substantiated his defence. Admittedly, the accused need not prove his

defence by direct evidence and he can substantiate his defence by cogent

evident whereas, in this case, as already stated, it is a case of revision

against the findings of two Courts below. It is settled proposition of law

that while interfering with the revision, the revision Court has to find out

whether there is any perversity in appreciation of evidence or illegality or

infirmity in the order passed by the Courts below. When there is no

perversity in the appreciation of evidence and when there is no infirmity

or illegality in the order of the Courts below, the revision Court normally

would not interfere with the orders of the Courts below. However, in this

case, as already stated, the execution and signature are admitted.

Therefore, there is statutory presumption under Section 139 of Negotiable

Instruments Act that the cheque was issued to discharge the legally

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enforcible debt. Once the Court draws the presumption, it is for the

accused to rebut the presumption in the manner known to law. On a

reading of the entire materials, this Court does not find any perversity,

illegality or infirmity in the orders passed by the Courts below and there

is no ground to interfere with the orders of the Courts below.

12. Further, the respondent himself has admitted that he is a

money lender and the petitioner had borowed a sum of Rs.10 from him.

Further, during the cross examination, the respondent has admitted that

he has not shown the said transaction in the Income Tax Returns. Hence,

this Court is of the view that the respondent is a tax evader and this Court

directs the Registry to send the copy of the depositions and the complaint

filed by the respondent to the Income Tax Department. The Income Tax

Department is directed to verify the returns submitted by the respondent

during the relevant assessment year. If it is found that the respondent had

not declared this amount in the Income Tax Returns, the Income Tax

Department is directed to take stringent action against the respondent in

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the manner known to law after adopting Procedure as contemplated in the

Income Tax Act.

13. With the above directions, these Criminal Revision Cases are

dismissed.

05.09.2022 ksa-2

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To

1. II Additional District and Sessions Judge, Salem

2. The Judicial Magistrate, No.III, Salem,

Copy to

The Income Tax Office Aayakar Bhawan No.121, M.G.Road Nungambakkam Chennai - 34 Phone No.28338383

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P.VELMURUGAN, J.

ksa-2

Crl.R.C.No.438 of 2019 and Crl.M.P.No.6605 of 2019

05.09.2022

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