M/S.Thulasi Suppliers vs M/S.Power Caar Care Center
2022 Latest Caselaw 15172 Mad

                                                                                 Crl.R.C.No.953 of 2022

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 12.09.2022

                                                          CORAM:

                                     THE HON'BLE MR.JUSTICE P.VELMURUGAN

                                                   Crl.R.C.No.953 of 2022
                                                            and
                                                  Crl.M.P.No.10148 of 2022

                     1.M/s.Thulasi Suppliers,
                       Rep.by its Proprietor,
                       Mr.Ravi.

                     2.R.Ravi                                                  ... Petitioners
                                                            ..vs..
                     M/s.Power Caar Care Center,
                     Rep.by its Proprietor
                     S.Senthil                                                 ... Respondent

                                  Criminal Revision Case filed under Sections 397 r/w 401 Cr.P.C to
                     call for the records in C.A.No.132 of 2016 dated 23.10.2018 on the file of
                     the XVII Additional Sessions Judge, City Civil Court, Chennai confirming
                     the judgment passed by the Metropolitan Magistrate (Fast Track Court
                     No.III) Saidapet, Chennai in C.C.No.10725 of 2010 dated 22.04.2016 to
                     undergo 6 months of simple imprisonment and to pay compensation sum of
                     Rs.25,00,000/- to the complainant for the offences under Section 138 of
                     NI Act and set aside the same.

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                                                                                Crl.R.C.No.953 of 2022

                                       For Petitioners   :     Mr.S.Saranraj
                                       For Respondent    :     Mr.J.William Shakesphere

                                                         ORDER

This revision has been preferred challenging the judgment dated

23.10.2018 passed in Crl.A.No.132 of 2016 by the learned XVII

Additional Sessions Judge, City Civil Court, Chennai.

2. The revision petitioners are accused, against whom, the

respondent/complainant filed a private complaint in C.C.No.10725 of 2010

before the learned Metropolitan Magistrate (Fast Track Court No.III)

Saidapet, Chennai. After trial, the learned Magistrate found that the

petitioners are guilty of the offence under Section 138 of The Negotiable

Instruments Act, 1881 [hereinafter referred to as 'N.I.Act' for the sake

convenience] and convicted and sentenced the second petitioner/A2 to

undergo simple imprisonment for a period of six months and directed the

first petitioner/A1 to pay the cheque amount as compensation. Challenging

the said order, the petitioners have preferred an appeal in Crl.A.No.132 of

2016 before the learned XVII Additional Judge, City Civil Court, Chennai.

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The learned Appellate Judge confirmed the order of the trial Court and

dismissed the appeal. Aggrieved by the same, the petitioners have

preferred the present revision case.

3.The learned counsel for the petitioners/accused submitted that the

respondent/complainant has no means to lend such a huge amount of

Rs.25,00,000/-. The respondent/complainant is a tenant of the second

petitioner’s wife and she has also taken eviction proceedings against the

respondent. During their tenancy, the petitioners borrowed a sum of

Rs.10,000/- and in order to discharge the said liability, the petitioners

issued a cheque for collateral purpose. Even after repayment of the said

loan amount, the respondent did not return the cheque and discharge the

petitioners from the said transaction. He further submitted that second

petitioner’s wife had issued a legal notice dated 13.05.2010 to the

respondent seeking to evict the leased premises. Thereafter, the

respondent/complainant issued a legal notice dated 21.05.2010 to the

petitioners for repayment of the alleged cheque amount of Rs.25,00,000/-,

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for which, the petitioners/accused also sent a reply notice by denying the

said allegations. The trial Court failed to consider the facts and allowed the

petition, even though the respondent/complainant has not filed any

document to show that the petitioners lent the huge sum of Rs.25,00,000/-,

which would clearly show that the respondent has not come with clean

hands. In order to counter blast to the notice sent by the petitioner's wife,

the respondent filled the blank cheque which was given by the petitioners

for collateral purpose and filed a complaint against the petitioners.

4. The learned counsel for the petitioners further submitted that,

even during the cross examination, P.W.1 clearly stated that for the past

three years, he could not have borrowed any money and issued cheque

within the strange relationship between the petitioners and the respondent.

Except the filled cheque, the respondent has not produced any document to

substantiate their claim. Both the Courts below failed to consider the facts

and circumstances and convicted and sentenced the petitioners for the

alleged offence, which warrants interference of this Court.

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5.The learned counsel for the respondent submitted that the

petitioners have admitted the signature and execution of the disputed

cheque and hence, the petitioners have not approached the Court with

clean hands and hence, the judgments of the Court below do not require

any interference by this Court.

6.Admittedly, the respondent filed a complaint against the revision

petitioners for the offence under Section 138 of N.I.Act. Further, the

petitioners have admitted that they have executed the cheque to the

complainant towards security purpose and also admitted the signature

found in the cheque.

7.It is a settled proposition of law that when once the execution of

the cheque is admitted, Section 139 of N.I.Act mandates a presumption

that the cheque was issued for discharge of legally enforceable debt or

other liability. No doubt, the presumption under Section 139 is a rebuttable

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presumption and the onus is on the accused to raise the probable defence,

wherein the existence of a legally enforceable debt or liability can be

contested. The standard of proof for rebutting the presumption is not as

that of the complaint.

8.In the case on hand, the petitioner has admitted the execution of

the cheque, but the defence taken by the petitioners/accused is that they

have borrowed only a sum of Rs.10,000/-, but, even after repayment of the

same, the respondent did not return back cheque. In this regard, the

petitioners have not taken any steps, even though the wife of the accused

sent a notice on 13.05.2020 for some other purpose. However, the

petitioners have not sent any notice or any complaint against the

respondent for the above allegation. Therefore, the petitioners have not

rebutted the presumption in the manner know to law.

9.The scope of revision is very limited. The Trial Court and the

Appellate Court had already appreciated the entire evidence and also given

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findings and while exercising the revisional jurisdiction, this Court cannot

sit in the arm chair of the Appellate Court and re-appreciate the evidence.

However, this Court has to see whether there is any perversity in

appreciation of evidence by the Courts below.

10.On a combined reading of the entire materials and judgments of

both the Courts below, this Court does not find any perversity in the

judgments of the Courts below. Accordingly, this Criminal Revision Case

is dismissed. Consequently, connected miscellaneous petition is closed.

12.09.2022

Index: Yes/No Speaking Order/Non-Speaking Order ms

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P.VELMURUGAN, J.

ms

To

1.The XVII Additional Sessions Judge, City Civil Court, Chennai.

2.The Metropolitan Magistrate (Fast Track Court No.III) Saidapet, Chennai.

Crl.R.C.No.953 of 2022 and Crl.M.P.No.10148 of 2022

12.09.2022

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