S.Dhandapani vs R.Thirupathi
2022 Latest Caselaw 15342 Mad

                                                                                     Crl.RC.No.435 of 2019


                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 15.09.2022

                                                           Coram:

                                   THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                            Criminal Revision Case No.435 of 2019

                     S.Dhandapani                                                 ... Petitioner
                                                              Vs.
                     R.Thirupathi                                                 ... Respondent


                     Prayer: Criminal Revision filed under Section 397 read with 401                   of
                     Criminal Procedure Code, praying to set aside the Judgement of conviction
                     imposed in C.A.No.112 of 2018 on the file of the III Additional Sessions
                     Judge, Salem, confirming the Judgment in S.T.C.No.469 of 2015 on the file
                     of the Judicial Magistrate No.IV, Salem dated 20.06.2018.
                                             For Petitioner         : Mr.C.K.M.Appaji
                                             For Respondent         : Mr.V.Gunasekar

                                                         ORDER

The Criminal Revision Case has been file seeking to set aside the

Judgement in C.A.No.112 of 2018 on the file of the III Additional Sessions

Judge, Salem, confirming the Judgment of conviction and sentence imposed

in S.T.C.No.469 of 2015 on the file of the Judicial Magistrate No.IV, Salem

dated 20.06.2018.

https://www.mhc.tn.gov.in/judis Crl.RC.No.435 of 2019

2. The petitioner is the accused and the respondent is the complainant.

The respondent had registered a private complaint against the petitioner

under Section 138 of Negotiable Instruments Act before the learned Judicial

Magistrate No.IV, Salem. The learned Magistrate taken the case on file in

S.T.C.No.469 of 2015 and after trial, convicted the petitioner for the offence

under Section 138 of Negotiable Instruments Act and sentenced to undergo

one year Simple Imprisonment and to pay the cheque amount of Rs.3 lakhs

as compensation to the defacto complainant. Challenging the said Judgment

of conviction and sentence, the petitioner filed appeal before the III

Additional Sessions Judge, Salem, in C.A.No.112 of 2018. The learned

Sessions Judge after hearing the arguments, dismissed the appeal and

confirmed the conviction and sentence passed by the trial Court. Aggrieved

over the same, the petitioner has filed the present revision before this Court.

3. The learned counsel for the petitioner would submit that the

petitioner has not borrowed any money from the respondent. Infact the

respondent was running a chit in which, the petitioner was a subscriber and

towards the settlement of his chit amount, the petitioner had issued two

blank cheques to the respondent for security purpose in the year 2008. But

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even after settling the chit amount, the respondent conveniently retained the

cheques and after lapse of 6 years, he has misused the cheque and filed the

complaint as if, it was issued in the year 2014 towards the amount borrowed

from him. He would further submit that the respondent has no financial

capacity to lend such a huge amount of Rs.2,70,000/- and he has not stated

anything as to how he arranged the said amount in the year 2014. He would

further submit that the petitioner issued the said cheque in the year 2008,

whereas the cheque has been filled and presented in the year 2014. Further,

he has not filed the promissory note at the time of filing the complaint or till

he was examined as P.W.1. and only after the cross examination, he

produced the promissory note which itself shows that the petitioner had not

borrowed any money from the respondent and executed the disputed cheque

towards the legally enforceable debt. He would further submit that no notice

was served to the petitioner. Only after service of the notice, if the petitioner

not repaid the cheque amount within the statutory period, then the cause of

action would arise for filing complaint under Section 138 of Negotiable

Instruments Act. But the respondent has not proved that the statutory notice

was served on the petitioner and simply stated that the mother of the

petitioner had received the notice. Further the respondent has altered the

https://www.mhc.tn.gov.in/judis Crl.RC.No.435 of 2019

year in the cheque which is a material altercation. Therefore, the respondent

has not approached the Court with clean hands and even he has not

complied with the statutory provision under Section 138 of Negotiable

Instruments Act, whereas both the Courts below have failed to consider the

same and arrived at a conclusion as if, the petitioner had borrowed money

from the respondent and issued the cheque to discharge the legally

enforceable debt without having sufficient funds in his account and

subsequently, the cheque was dishonoured. The findings of the Courts

below are perverse which warrants interference of this Court.

4. The learned counsel for the respondent would submit that the

petitioner admitted the signature and he has also admitted the earlier chit

transaction with the respondent and therefore, both the Courts below have

rightly appreciated the evidence. Further, the petitioner himself has

admitted that the respondent is working and getting salary of Rs.25,000/-

which clearly shows that the respondent has got means to lend money.

Therefore, once the signature and execution of cheque are also admitted,

then the initial burden of the complainant is proved and sit is for the accused

to rebut the presumption in the manner known to law. Therefore, both the

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Courts below have rightly appreciated the evidence and convicted the

petitioner and there is no merit in the revision.

5. Heard the learned counsel for the petitioner and the learned counsel

for the respondent and perused the materials on record.

6. The case of respondent is that petitioner had borrowed a sum of

Rs.2,70,000/- from the respondent on 26.04.2014 for his urgent family

expenses and agreed to repay the same with interest of Rs.1/- per hundred,

per month, within 15 months period and executed a pronote on the same.

Thereafter, in order to discharge the debt, the petitioner issued the cheque

bearing No.001140 on 06.04.2015 for a sum of Rs.3 lakhs on 06.04.2015

and requested to present the same for collection after 10 days. Thereafter,

when the cheque was presented for collection on 18.04.2015, the same was

dishonoured with a return memo for the reasons “Funds insufficient.”

Thereafter, the respondent issued notice to the petitioner under Section 138

of Negotiable Instruments Act on 29.04.2015 and the mother of the

petitioner has received the said notice. However, the petitioner neither

repaid the money nor sent any reply. Therefore, the respondent was

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constrained to file the complainant under Section 138 of Negotiable

Instruments Act. In order to substantiate his case, the respondent was

examined as P.W.1 and marked 7 documents.

7. A careful perusal of the entire materials shows that the petitioner has

admitted the signature found in the cheque and his only defence is that he

issued the said cheque towards a chit transaction in the year 2008. Once the

respondent produced the cheque stating that the petitioner had borrowed

money by way of promissory notice and subsequently, to discharge the loan,

the cheque was issued, then the respondent has discharge his initial burden.

Once the signature found in the cheque is admitted and execution is also

admitted, then there is a presumption under Section 139 of Negotiable

Instruments Act that the cheque was issued to discharge the legally

enforceable debt and it is for the accused to rebut the presumption in the

manner known to law. As contended by the counsel for the petitioner if at

all, the cheque was issued in the year 2008 for a chit transaction and it has

been misused by the respondent in the year 2014, the petitioner could have

filed the counter foil of the cheque leaf and proved the same or he could

have proved the same through bank statement of the year 2008 with

previous or subsequent cheque numbers. But he has not do so.

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8. In this case, the signature is admitted and the execution is also

admitted. The petitioner has not proved his defence that the cheque was not

issued to the respondent as stated by him in the year 2014 and it was issued

only in the year 2008 towards chit transaction. Further, as far as, the

financial capacity of the respondent is concerned, the petitioner himself as

admitted that the respondent is working and earning a sum of Rs.25,000/-

per month and he is working for more than 15 years and therefore, the

defence regarding the financial capacity is also not sustainable. As far as

service of notice is concerned, the respondent has stated the the mother of

the petitioner had received the statutory notice. But the petitioner has stated

that none of his family members had received the notice. When the

respondent states that the mother of the petitioner received the notice and

marks the acknowledgement card and when the petitioner disputed the

same, he should have taken steps to send the signature and the

acknowledgement card for expert opinion with the admitted signature of his

mother to prove his defence. Atleast, he should have examined his mother

so that she would have denied the signature. But he has not done so.

Therefore, the petitioner has not substantiated the defence taken by him,

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whereas during trial, the respondent was examined as P.W.1 and marked 7

documents and thereby, the respondent has proved his case with cogent

evidence. Therefore, both the Courts below rightly appreciated the evidence

and convicted the petitioner under Section 138 of Negotiable Instruments

Act.

9. The scope of revision is very limited and this Court as a revision

Court cannot sit in the Arm chair of the Appellate Court and re-appreciate

the entire evidences unless the Court finds that there is perversity in the

appreciation of evidence.

10. This Court does not find any perversity in the Judgments of the

Courts below and there is no merit in the revision. The petitioner has not

made out any grounds to allow this revision and therefore, the revision

petition is liable to be dismissed.

11. Accordingly, this Criminal Revision Case is dismissed.

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12. The petitioner is directed to pay the compensation amount of Rs.3

lakhs to the respondent within a period of one month from the date of

receipt of a copy of this order failing which, the trial Court is directed to

execute the warrant against the petitioner.

15.09.2022

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To

1. The III Additional Sessions Judge, Salem

2. The Judicial Magistrate No.IV, Salem

https://www.mhc.tn.gov.in/judis Crl.RC.No.435 of 2019

P.VELMURUGAN,J.

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Criminal Revision Case No.435 of 2019

15.09.2022

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