P.Krishnasamy vs R.Anbu
2022 Latest Caselaw 15054 Mad

                                                                               Crl.R.C.No.990 of 2016




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 08.09.2022

                                                         CORAM

                                    THE HON'BLE Dr.JUSTICE G.JAYACHANDRAN

                                                  Crl.R.C.No.990 of 2016
                                                           and
                                             Crl.M.P.Nos.7943 & 7944 of 2016


                     P.Krishnasamy
                                                                                     ... Petitioner
                                                           -Vs.-
                     R.Anbu
                                                                                   .. Respondent

                                  Criminal Revision Petition filed under Section 397 of Code of
                     Criminal Procedure to set aside the conviction and sentence imposed on
                     the petitioner by the Principal District and Sessions Court, Dharmapuri in
                     C.A.No.14 of 2015 dated 27.04.2016 confirming the judgment passed by
                     the learned Judicial Magistrate, Fast Track Court, Dharmapuri in
                     S.T.C.No.57 of 2013 dated 29.04.2015 by allowing this Criminal
                     Revision Petition.

                                             For Petitioner : Mr.C.Munusamy
                                             For Respondent : Mr.V.Rajamohan




https://www.mhc.tn.gov.in/judis
                       1/9
                                                                                    Crl.R.C.No.990 of 2016




                                                           ORDER

This revision petition has been filed challenging the concurrent

findings of the Court below in the complaint arising out of Section 138 of

the Negotiable Instruments Act.

2. The facts of the case is that the complainant and the accused are

related to each other. At the time of Panchayat President Election, the

accused, who contested for the post of President, to meet out his election

expenses, borrowed a sum of Rs.6,00,000/- from the complainant as a

hand loan, during the first week of March 2013, with an assurance that

he will repay the money within 15 days. To discharge the said loan

amount of Rs.6,00,000/-, accused issued a cheque dated 15.04.2013 for

Rs.6,00,000/-, drawn on Axis Bank Limited, Dharmapuri Branch. When

the cheque was presented for collection on 17.04.2014, the same was

returned with memo stating that “funds insufficient”. Immediately, the

complainant contacted the accused and informed about the return of the

cheque. The accused requested the complainant to represent the cheque

during the second week of May 2013, so as to enable him to arrange

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

Crl.R.C.No.990 of 2016

funds. Accordingly, complainant presented the cheque again on

11.05.2013. However, the cheque was bounced again for want of fund.

Thereafter, the Statutory notice dated 18.05.2013, was caused to the

accused calling upon him to pay the cheque amount or to face

consequences. The accused refused to receive the notice and the notice

was returned as refused. Therefore, a complaint was filed under Section

138 of the Negotiable Instruments Act read with Section 200 of Code of

Criminal Procedure.

3. To prove the complaint, the complainant has examined two

witnesses and the five exhibits were marked on the side of the accused.

To rebut the case of the complainant, the accused himself has mounted

the witness box.

4. The trail Court after appreciating the evidence such as

Cheque/Ex.P1 and the return memo/Ex.P2, the statutory notice, postal

endorsement and the cover stating Refused, which are marked as Ex.P3

and Ex.P4, held that the complainant has proved the fact that

Rs.6,00,000/- was borrowed by the accused and issued the cheque/Ex.P1.

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

Crl.R.C.No.990 of 2016

When this statutory notice issued regarding the return of cheque, the

accused refused to receive the notice and thereby cognizance to take the

complaint under Section 138 of the Negotiable Instruments Act is

commenced. The evidence of the accused, that he was running a

unregistered chit and the blank cheque was given as a security for the

prize amount, the same was misused by the complainant, was disbelieved

by the trial Court, since except his ocular evidence, there is no evidence to

corroborate or substantiate the default. The trial Court had also taken

note of the fact that the accused admitted that he owe Rs.3,50,000/- to the

complainant and for that debt, he give him a blank cheque which

indicates that there is an enforceable debt and pursuant to that, the

subject cheque was issued. Having found the accused guilty, the trial

Court convicted him to undergo one year simple imprisonment and pay a

sum of Rs.6,00,000/- as compensation, in default one month simple

imprisonment.

5. Aggrieved by the conviction and sentence, the accused preferred

Crl.A.No.14 of 2015 before the learned Principal District and Sessions

Judge, Dharmapuri. Before the appellate Court, the accused contended

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

Crl.R.C.No.990 of 2016

that the trial Court failed to consider the fact that the cheque was not

issued for discharge of any debt or liability and also no cash was received

from the complainant as hand loan, as stated by the complainant. The

accused evidence that, in pursuant to the cheque transaction, he was

liable to pay only a sum of Rs.2,00,000/- whereas, a blank cheque that

was given as a security has been filled up for a sum of Rs.6,00,000/-

without any proof to show the source of the money and the same had

been ignored by the Court below.

6. However, the appellate Court on re-appreciating the evidence, in

the light of grounds of the appeal, dismissed the appeal recording that if

facts stated by the accused in his evidence are true, then the same should

have been disclosed at the earliest opportunity when the statutory notice

was issued to him but the accused, instead of receiving statutory notice

and reply the same, he refused receiving it. Having admitted the issuance

of cheque, presumption under Sections 139, 139 and 118 of the

Negotiable Instruments Act, falls against the accused. Therefore, the

judgment of the Court below was confirmed by the appellate Court.

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

Crl.R.C.No.990 of 2016

7. In the revision, the grounds that are canvassed before the Lower

Appellate Court has been reiterated. The learned counsel for the revision

petitioner states that the complainant had not produced any documents to

show his capacity to lend Rs.6,00,000/- and his income tax returns were

not filed to prove the fundamental fact.

8.The learned counsel for respondent/complainant would submit

that the admission of issuance of the cheque and the admission of money

transaction between the accused and the complainant fortifies the case of

the complainant that the cheque was issued for legally enforceable debt.

It is an admitted fact that the complainant and the accused are related to

each other and carrying on similar business. Therefore, there is no reason

to issue the cheque by filling up an amount more and above what is liable

to repay.

9. This Court after careful consideration of the rival submission

and records, particularly the deposition of the PW1/accused, finds that

cheque/Ex.P1 was issued for discharge of enforceable debt. The point

disputed by the accused is that the debt is not Rs.6,00,000/- but less than

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

Crl.R.C.No.990 of 2016

Rs.6,00,000/-. For that purpose, the accused should have adduced

evidence. In the absence of evidence, Ex.P1 cannot be doubted. More so,

when there is a statutory presumption in favour of the complainant, that

the cheque was issued for discharge of the debt, the said document can be

rebutted only by equally reliable document evidence and not by oral

evidence. Hence this Court finds no error in the judgments of the Courts

below, holding the accused guilty.

10. As far as sentence is concerned, the learned counsel for the

revision petitioner submit that the petitioner is not in financial position to

pay the compensation amount and also the imprisonment of one year for

the offences will cause irreparable loss to the petitioner and his family.

11. This Court considering the said submission modify the sentence

of one year simple imprisonment as six months. Insofar as compensation

amount is concerned if the accused fails to pay the compensation of

Rs.6,00,000/-, the default sentence shall be 2 months.

12. With these modifications, this Criminal Revision Petition is

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

Crl.R.C.No.990 of 2016

disposed of. Consequently connected miscellaneous petitions are also

closed.

08.09.2022 Speaking/Non-speaking order Index: Yes/No Internet : Yes/No nsa

To

1.The Principal District Sessions Court, Dharmapuri

2.The Judicial Magistrate, Fast Track Court, Dharmapuri

3.The Public Prosecutor, High Court of Madras, Chennai.

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

Crl.R.C.No.990 of 2016

Dr.G.JAYACHANDRAN.J.,

nsa

Crl.R.C.No.990 of 2016 & Crl.M.P.Nos.7943 and 7944 of 2016

08.09.2022

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