Madras High Court
P.Pakirisamy vs K.Srinivasan on 13 September, 2022
Crl.R.C.No.1017 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 13.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.No.1017 of 2019
P.Pakirisamy ... Petitioner
Vs.
K.Srinivasan ... Respondent
This Criminal Revision case has been filed under Sections 397 r/w 401 of
Code of Criminal Procedure to call for the records and set aside the order of
conviction and sentence passed in C.A.No.139 of 2015, dated 11.03.2019, on
the file of the learned IV Additional Sessions Judge, Chennai, confirming the
judgment passed by the learned Metropolitan Magistrate, Fast Track Court-II,
Egmore, Chennai in C.C.No.1227 of 2012.
For Petitioner : M/s.R.Murugabharathi
For Respondent : Mr.K.R.Ramesh Kumar
******
ORDER
This Criminal Revision Case has been filed challenging the Judgment
passed by the learned IV Additional Sessions Judge, Chennai in C.A.No.139 of
2015, dated 11.03.2019, upholding the conviction and sentence imposed by
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Crl.R.C.No.1017 of 2019
the learned Metropolitan Magistrate, Fast Track Court-II, Egmore, Chennai, by
judgment dated 19.06.2015 in C.C.No.1227 of 2012.
2. The petitioner is the accused and the respondent is the complainant.
The respondent / complainant filed a complaint under Section 138 of
Negotiable Instruments Act (In short "the Act") for dishonour of cheque. The
said case was registered as C.C.No.1227 of 2012. The learned Metropolitan
Magistrate, Fast Track Court No.II, Egmore, Chennai, passed an order
convicting the petitioner-accused for the offence punishable under Section
138 N.I. Act and directed the petitioner/accused to pay compensation of a sum
of Rs.2,00,000/- to the respondent/complainant, in default, to undergo simple
imprisonment for one year. The petitioner preferred the appeal against the
said order, which was numbered as Criminal Appeal No.139 of 2015. The
learned IV Additional Sessions Judge, Chennai, dismissed the appeal confirming
the judgment in C.C.No.1227 of 2012 convicting the accused. Against which,
the present Criminal Revision.
3. The learned counsel for the petitioner would submit that there was
no documentary evidence by the respondent/complainant as to the details of
payments made by the petitioner/accused based on the construction
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Crl.R.C.No.1017 of 2019
agreement (Ex.P1), however, in the absence of the same, the claim of the
complainant that the petitioner/accused had paid Rs.8,38,600/- and
Rs.2,00,000/- was due to the complainant is not having any substantiating
material, however, the Courts below, without appreciating the facts, rejected
the claim of the petitioner/accused. It is further contended that pending
revision, the revision petitioner has deposited a sum of Rs.1,00,000/- to the
credit of C.C.No.1227 of 2012, on the file of Metropolitan Magistrate, Fast
Track Court-II, Egmore, Chennai. The respondent/complainant has not proved
his case and also he failed to prove the fact that on the date of presentation
of cheque for collection, there was legally enforceable debt to be paid by the
petitioner. The trial Court has failed to consider the above facts and convicted
the petitioner and the lower appellate Court has also without appreciating the
above facts has simply confirmed the judgment of the trial Court, which
warrants interference.
4. The learned counsel for the respondent/complainant would submit
that the petitioner/accused has entered into an agreement on 23.10.2009 for
the construction of the building, and after construction, paid Rs.8,38,600/- out
of total cost of construction of Rs.10,38,600/- and hence, the petitioner has
issued a cheque for the balance sum i.e., Rs.2,00,000/-. When the cheque was
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Crl.R.C.No.1017 of 2019
presented for collection, the same was dishonored and returned for the reason
“insufficient funds”. The complainant/respondent issued a Statutory Notice on
19.04.2011 and the same was acknowledged by the petitioner on 23.04.2011.
But, he neither repaid the said amount as mentioned in the Statutory Notice,
nor sent any reply. Therefore, the respondent was constrained to file a
complaint for the offence under Section 138 of Negotiable Instrument Act.
Both the learned Magistrate as well as the learned Appellate Court rightly
considered the oral and documentary evidence and had rightly come to the
conclusion that the petitioner has committed the offence and hence, there is
no merit in the Revision and the same is liable to be dismissed.
5. Heard the learned counsel on either side and perused the materials
available on record.
6. The petitioner filed this revision against the concurrent judgment
of conviction made by both the Courts below. It is not in dispute that the
petitioner/owner and the respondent/builder entered into an agreement
(Ex.P1) on 23.10.2009 for the construction of the building. Ex.P2 is an affidavit
by the petitioner stating that he would settle the amount of Rs.2,00,000/- to
the respondent/complainant and Ex.P3 is the subsequent agreement dated
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Crl.R.C.No.1017 of 2019
24.01.2011, in which, the petitioner/accused sought further time to pay the
sum of Rs.2,00,000/-. Though it is the contention of the learned counsel for
the petitioner that there was no documentary evidence produced by the
respondent/complainant as to the details of payments made by the
petitioner/accused based on the construction agreement (Ex.P1), and Exs.P2 &
P3 are fabricated, it is for the accused to rebut the presumption in the
manner known to law through documentary evidence. A bare perusal of the
entire evidence of the petitioner / accused, it could be seen that the
petitioner/ accused had admitted the execution of cheque and the signature
in the cheque is not denied by the revision petitioner / accused, and
therefore, once the issuance of cheque is admitted, Section 138 of Negotiable
Instruments Act would attract and the presumption under Section 118 and 139
of the Negotiable Instruments Act can be drawn and it is for the accused has to
rebut the presumption that there is no legally enforceable debt and cheque
has not been issued for legally enforceable debt. Though the statutory
presumption is rebuttable one, the reading of the entire materials shows that
the revision petitioner has not rebutted the presumption in the manner known
to law. Further, when the statutory notice was issued to the petitioner, the
petitioner has not given any reply to the statutory notice.
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Crl.R.C.No.1017 of 2019
7. On a reading of the entire materials, both the Courts below have
appreciated the evidence in proper perspective and found guilt of the accused
and awarded compensation, and in default of payment of compensation,
awarded sentence. Therefore, this Court finds that there is no merit in the
revision, and there is no ground to interfere with the judgment of the Courts
below.
8. In the result, the criminal revision is dismissed and judgment of
conviction and sentence passed by the Courts below are hereby confirmed. As
the petitioner already deposited a sum of Rs.1,00,000/- to the credit of
C.C.No.1227 of 2012, the petitioner is directed to deposit the balance
compensation of Rs.1,00,000/- to the credit of C.C.No.1227 of 2012, on the
file of Metropolitan Magistrate, Fast Track Court-II, Egmore, Chennai within a
period of eight weeks from the date of receipt of a copy of this order. It is
made clear, in default of payment of compensation, the order passed by the
trial Court shall stand restored.
13.09.2022
Speaking Order : Yes.
Index : Yes.
rns
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To
1. The IV Additional Sessions Judge, Chennai,
2. The Metropolitan Magistrate,
Fast Track Court-II, Egmore, Chennai.
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Crl.R.C.No.1017 of 2019
P.VELMURUGAN, J.,
rns
Crl.R.C.No.1017 of 2019
13.09.2022
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