Madras High Court
R.Sengamuthu vs V.Selvarajan on 13 September, 2022
Crl.R.C.No.1321 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.09.2022
CORAM:
THE HON'BLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.No.1321 of 2022
and
Crl.M.P.Nos.14101 & 14102 of 2022
R.Sengamuthu ... Petitioner
..vs..
V.Selvarajan ... Respondent
Criminal Revision Case filed under Sections 397 r/w 401 Cr.P.C to
set aside the order dated 05.07.2022 passed in C.A.No.104 of 2020 on
the file of the learned III Additional District and Sessions Judge,
Coimbatore dismissing the appeal and confirming the order dated
23.01.2020 in C.C.No.14 of 2018 on the file of the learned Judicial
Magistrate, Fast Track Court at Magistrate Level No.I, Coimbatore.
For Petitioner : Mr.A.Tamilarasan
Page No.1/9
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1321 of 2022
ORDER
By consent of the learned counsel for the petitioner, the matter is
taken up today for final disposal at the admission stage itself, without
issuing notice to the respondent.
2.This revision has been preferred challenging the judgment dated
05.07.2022 passed in Crl.A.No.104 of 2020 by the learned III Additional
District and Sessions Judge, Coimbatore.
3. The revision petitioner is accused, against whom, the respondent
filed a private complaint in C.C.No.14 of 2018 before the Judicial
Magistrate, Fast Track Court at Magistrate Level No.I, Coimbatore. After
trial, the learned Magistrate found that the petitioner is guilty of the
offence under Section 138 of The Negotiable Instruments Act, 1881 and
convicted and sentenced him to undergo simple imprisonment of six
months and directed to pay the cheque amount of Rs.5,25,000/- as
compensation. Challenging the said order, the petitioner has preferred an
appeal in Crl.A.No.104 of 2020 before the learned III Additional District
Page No.2/9
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1321 of 2022
and Sessions Judge, Coimbatore. The learned Appellate Judge confirmed
the order of the trial Court and dismissed the appeal. Aggrieved by the
same, the petitioner has preferred the present revision case.
4.The learned counsel for the petitioner submitted that the
respondent/complainant is a moneylender. The petitioner borrowed a sum
of Rs.5,25,000/- from the respondent and in order to discharge the said
liability the petitioner had issued a cheque for collateral purpose.
Thereafter, the petitioner has repaid the said amount in instalment basis.
Even after repayment of the loan amount, the respondent did not return
the cheque and discharged the petitioner from the said transaction.
Subsequently, the respondent filled the blank cheque and made a false
complaint against the petitioner. He further submitted that though the
money borrowed by the petitioner was already repaid and therefore, the
cheque is not legally enforceable debt. Both the Courts below failed to
consider the facts, convicted and sentenced the petitioner. He further
submitted that the learned Magistrate has not given an opportunity to the
Page No.3/9
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1321 of 2022
petitioner to cross examine the complainant/P.W.1, which warrants
interference of this Court.
5.Admittedly, execution of the cheque and signature found in the
cheque are not in dispute. The revision petitioner himself admitted that he
had borrowed a sum of Rs.5,25,000/- from the respondent and he has
repaid the said amount in installment basis. Even after repayment the
respondent did not return back the cheque. Subsequently, the respondent
issued a statutory notice and the same was received by the petitioner.
After receiving the legal notice, the petitioner neither sent any reply nor
paid the alleged amount. Even not sending the reply is a sole ground to
convict the revision petitioner. However, the respondent/complainant has
to prove his case beyond reasonable doubt.
6.A careful reading of the entire materials, it is seen that the
complainant filed a complaint before the learned Magistrate under
Section 138 of The Negotiable Instruments Act, 1881 stating that the
Page No.4/9
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1321 of 2022
revision petitioner borrowed a sum of Rs.5,25,000/- on 16.11.2014 and
he also promised to repay the said amount within a period of two years.
After receiving that amount, the revision petitioner failed to repay the
same. When the complainant demanded repayment, the accused issued a
cheque bearing No.717502 dated 05.04.2017 in favour of the
complainant to discharge his entire liability. As per the instructions of the
accused, the complainant presented the cheque for collection on
21.04.2017 and the same was returned for the reason “Insufficient
Funds” by return memo dated 24.04.2017. Therefore, the complainant
issued a legal notice on 03.05.2017 to the accused and the same was
received by the petitioner on 05.05.2017. After receiving the notice, the
petitioner neither sent a reply nor paid the amount. Hence, the respondent
preferred the complaint for the offence under Section 138 of The
Negotiable Instruments Act, 1881.
7.In order to substantiate his claim, the respondent himself was
examined as P.W.1 and also marked four documents as Exs.P1 to P4.
Page No.5/9
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1321 of 2022
Ex.P1 is the alleged cheque issued by the revision petitioner in favour of
the respondent. Ex.P2 is the return memo sent by the Bank. Ex.P3 is the
statutory notice sent to the petitioner. Ex.P4 is the acknowledgment card
received by the respondent.
8.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 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.
9.In the case on hand, the revision petitioner himself admitted the
borrowal of the alleged amount, but the only defence taken by the
petitioner is that he repaid the said amount in installment basis, but the
Page No.6/9
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1321 of 2022
respondent did not return the cheque, whereas he filled the blank cheque
and filed a false complaint against the petitioner. However, the petitioner
has not produced any documents to prove that what action he had taken
against the respondent.
10.The scope of revision is very limited. The Trial Court and the
Appellate Court had already appreciated and re-appreciated the entire
evidence and also given 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.
11.At this juncture, the learned counsel for the petitioner
vehemently contended that no opportunity was given to the petitioner for
cross examining the complainant. The complaint was filed in the year
2018 and the same was disposed only in the year 2022. Even after filing
the proof affidavit for the chief examination, the petitioner has not stated
Page No.7/9
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1321 of 2022
that what action he has taken for cross examining the respondent.
12.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 petitions are closed.
13.09.2022
Index: Yes/No
Speaking Order/Non-Speaking Order
ms
To
1. The III Additional District and Sessions Judge,
Coimbatore.
2.The Judicial Magistrate,
Fast Track Court at Magistrate Level No.I,
Coimbatore.
Page No.8/9
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1321 of 2022
P.VELMURUGAN, J.
ms
Crl.R.C.No.1321 of 2022
and
Crl.M.P.Nos.14101 & 14102 of 2022
13.09.2022
Page No.9/9
https://www.mhc.tn.gov.in/judis
