Madras High Court
L.Ramachandran vs Shantha on 6 September, 2022
Crl.R.C.No.1336 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 06.09.2022
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.1336 of 2015
L.Ramachandran, ... Petitioner/Appellant
-vs-
1. Shantha,
2. The State of Tamil Nadu,
Represented by the Public Prosecutor,
The Nilgris. ... Respondents
PRAYER : Criminal Revision Case is filed under Section 397 read with 401 of
Cr.P.C., to set aide the judgment passed by the District and Sessions Judge of
the Nilgris, at Udhagamandalam, in C.A.No.17 of 2011 dated 23.09.2015,
confirming the judgment passed by the Judicial Magistrate/Fast Track Court,
Coonoor, in C.C.No.91 of 2011, dated 16.09.2011 and acquit the
petitioner/accused and allow the above Crl.R.C as the charges against her are
disproved.
For Petitioner : Mr.V.S.Kesavan
For Respondent : Mr.R.Balu
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Crl.R.C.No.1336 of 2015
ORDER
This Criminal Revision Petition is filed by the accused who
suffered conviction and sentence by the trial Court and same been confirmed by
the Lower Appellate Court in the private complaint filed for offence under
Section 138 of N.I.Act.
2. The short facts of the case is that, to discharge the debt, the
petitioner/accused gave a cheque for Rs.1,50,000/- dated 31.01.2007 in favour
of the complainant. When the cheque was presented for collection, same was
returned with memo dated 12.02.2007 stating insufficiency of fund. The
complainant has caused statutory notice dated 15.02.2007, which was received
by the petitioner/accused on 17.02.2007 and 20.02.2007. However, no reply or
payment of cheque amount made by the accused, hence, the private complaint.
3. To prove the complaint, the complainant examined as P.W.1
(Shantha) and marked six exhibits. To rebut the presumption and to disprove
the case of the complainant, the accused examined one Madasamy as D.W.1
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Crl.R.C.No.1336 of 2015
and he was examined as D.W.2. Three documents were marked on the side of
the accused.
4. In the course of trial, the accused has filed two memos, wherein,
he has given an undertaking that he will repay the cheque amount. These two
memos were marked as Ex.C.1 and Ex.C.2.
5. The trial Court, after considering the case of the complainant
and the accused held that, the issuance of cheque not denied by the accused.
The defence taken by the accused that the cheque was issued by him when the
complainant handed over the possession of the Tea estate and the bank account
was opened subsequently under Ex.D.1 to Ex.D.3, was disbelieved by the trial
Court. Taking note of the fact that the drawing of the cheque by the accused
not in dispute. When the statutory notice was caused to the accused, there is no
explanation or defence denying the enforceable debt or passing of
consideration. Disbelieved Ex.D.1 to Ex.D.3 for want of proof and
admissibility, the accused was sentenced to undergo three months S.I and fine
of Rs.3,000/-, in default, one month S.I.
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Crl.R.C.No.1336 of 2015
6. Aggrieved by the finding of the trial Court, the appeal was
preferred before the Learned District Sessions Judge, Ooty, in C.A.No.17 of
2011.
7. The Lower Appellate Court, after re-appreciating the evidence,
confirmed the trial Court judgment. The Lower Appellate Court had also taken
note of the Court documents Ex.C.1 and Ex.C.2, where the accused has
admitted his liability and promised to pay the amount within the time
prescribed. Particularly, while confirming the judgment of the trial Court, the
Lower Appellate Court has also taken note of the fact that the accused admits
that the cheque was received by the complainant, when she handed over the
possession of Tea estate to him. Therefore, the liability to pay the debt
presumed under Section 139 of N.I and conviction was confirmed.
8. Aggrieved by the concurrent finding of the Courts below, the
present revision is filed.
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Crl.R.C.No.1336 of 2015
9. The Learned Counsel appearing for the petitioner would forcibly
argue that the complainant conspicuously silent about the date of borrowing
and the consideration for which the subject cheque was issued. While so, the
fundamental fact that the cheque was issued for enforceable debt not been
proved by the complainant. The Courts below erred in presuming that, the
subject cheque was issued for enforceable debt. Further, the Learned Counsel
also submitted that, the evidence of D.W.1 and Ex.D.1 to Ex.D.3, not properly
appreciated by the Courts below.
10. Per contra, the Learned Counsel for the respondents submitted
that the Courts below have rightly appreciated the evidence. The admission of
the accused that the cheque was issued by him and that cheque was issued when
he took possession of the Tea estate from the complaint per se prove that, the
cheque was issued for consideration to discharge the enforceable debt.
Further, the admission of the accused by filing memo, pending trial, that he will
pay the cheque amount also proves beyond doubt that the accused has admitted
his liability to pay the cheque amount but to protract the proceedings had
contested the matter.
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Crl.R.C.No.1336 of 2015
11. This Court, on considering the rival submissions and fact that
there is no dispute regarding issuance of cheque and also the accused candidly
admits that there was quid pro quo for issuing the cheque, it goes to show that
there was an enforceable debt. The presumption gets fortified by the memo
filed by the accused, pending trial. Hence, this Court finds there is no error in
the finding of the Court below.
12. Accordingly, the conviction under Section 138 of N.I Act is
confirmed. Regarding sentence is concerned, the Learned Counsel for the
petitioner would submit that the accused is presently above 65 years old and if
some time is granted, in spite of sentencing him for imprisonment for a term of
three months, sentence may be modified. Considering the said submission, this
Court, while holding the conviction, modifies the sentence as compensation of
Rs.2,00,000/-, within a period of 60 days, from today, in default, shall undergo
S.I for period of three months.
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Crl.R.C.No.1336 of 2015
13. With the above modification, this Criminal Revision Petition is
partly allowed.
06.09.2022
Internet : Yes/No
Index : Yes/No
bsm
To,
1. The District and Sessions Judge, Udhagamandalam, The Nilgris.
2. The Judicial Magistrate/Fast Track Court, Coonoor,
3. The Public Prosecutor,
State of Tamil Nadu, The Nilgris.
4. The Public Prosecutor, High Court, Madras.
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Crl.R.C.No.1336 of 2015
Dr.G.JAYACHANDRAN, J.
bsm
Crl.R.C.No.1336 of 2015
06.09.2022
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