J.Manikandan vs R.Anand
2022 Latest Caselaw 15343 Mad

                                                                               Crl.RC.No.1393 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.1393 of 2019

                     J.Manikandan                                            ... Petitioner

                                                          Vs.

                     R.Anand                                                 ... Respondent


                     Prayer: Criminal Revision filed under Section 397 read with 401              of
                     Criminal Procedure Code, praying to set aside the order made in
                     Crl.A.No.24 of 2016 on the file of Principal Sessions Court, Kancheepuram
                     District at Chengalpattu dated 11.02.2019 confirming the order in the
                     C.C.No.767 of 2011 on the file of Judicial Magistrate, Tambaram dated
                     06.07.2016.
                                    For Petitioner      : Mr.A.Sundaravadhanan

                                    For Respondent      : Mr.J.Arockia Dass
                                                          for M/s. Dass and Viswa Associates




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https://www.mhc.tn.gov.in/judis
                                                                                   Crl.RC.No.1393 of 2019


                                                           ORDER

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

order made in Crl.A.No.24 of 2016 on the file of Principal Sessions Court,

Kancheepuram at Chengalpattu dated 11.02.2019 confirming the order in

C.C.No.767 of 2011 on the file of Judicial Magistrate, Tambaram dated

06.07.2016.

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

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

of Rs.4,83,000/- from the respondent in order to start a business, after

executing promissory notes. Thereafter, when the respondent demanded the

petitioner for repayment, the petitioner had issued a cheque bearing

No.077465 dated 29.08.2010 drawn at Syndicate bank, Selaiyur Branch,

Chennai for a sum of Rs.4,83,000/- and when the respondent presented the

said cheque for collection with his banker, the same was returned with a

return memo dated 31.08.2010 stating “Fund Insufficient.” Hence, the

respondent sent a legal notice to the petitioner on 27.09.2010 and same was

https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019

also received by the petitioner. However, he neither repaid the money nor

given any reply to the same. Hence, the respondent had no other option

except to file the case under 138 of Negotiable Instruments Act.

4. Accordingly, the respondent filed a complaint against the petitioner

under Section 138 of Negotiable Instruments Act before the learned Judicial

Magistrate, Tambaram, and the same was taken on file in C.C. No.767 of

2011. The learned Magistrate after trial, convicted the revision petitioner for

the offence under Section 138 of Negotiable Instruments Act and sentenced

to undergo six months rigorous imprisonment and to pay a sum of

Rs.4,85,000/- to the respondent as compensation. Challenging the said

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

learned Principal Sessions Judge in C.A.No.24 of 2016. After arguments,

the learned Sessions Judge dismissed the appeal confirming the conviction

and sentence passed by the learned Judicial Magistrate. Now challenging

the Judgment of dismissal of the appellate Court, the petitioner has filed the

present revision before this Court.

https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019

5. The learned counsel for the revision petitioner would submit that

the respondent has not proved that he is having financial capacity to lend

such a huge amount of Rs.4,83,000/- and he has also not produced any

supportive document to substantiate the date of borrowal or any other

document obtained from the petitioner for the alleged borrowal and

therefore, in the absence of the same, the respondent has not proved that the

cheque was supported with valuable consideration. Further, the respondent

has not proved that the cheque was issued to discharge the legally enforcible

debt. Unfortunately, both the Courts below have failed to appreciate the

evidence and allowed the complaint and convicted the revision petitioner

which warrants interference of this Court.

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

revision petitioner has admitted the execution and also the signature found

in the cheque. Further, in one place he has stated that he has partially

discharged the debt and in another place he has stated fully discharged.

However, he has not produced any document to substantiate the same.

Therefore, both the Courts below rightly appreciated the evidence and

convicted the petitioner and there is no ground to interfere with the

judgments of the Courts below.

https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019

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

for the respondent and perused the materials on record.

8. Admittedly the petitioner is the accused and the respondent is the

complainant. It is a matter of complaint under Section 138 of Negotiable

Instruments Act. In this case, the respondent had filed the complaint against

the revision petitioner for the offence under Section 138 of Negotiable

Instruments Act and both the Courts below have found that the respondent

has proved his case and the revision petitioner has committed the offence

under under Section 138 of Negotiable Instruments Act and thereby,

convicted the petitioner and sentenced as stated above.

9. A careful perusal of the entire records shows that the revision

petitioner has admitted the signature and also the execution of cheque. As

contended by the learned counsel for the respondent, the revision petitioner

in one place has stated that he has partially discharge the cheque amount

and in another place, he has stated that he has totally discharged the cheque

amount. However, no material was produced except Ex.R1. Even Ex.R1

does not say anything about the discharge of the cheque amount. Once the

https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019

execution is admitted, the Court can draw the statutory presumption under

Section 139 of Negotiable Instruments Act that the cheque has been issued

to discharge the legally enforcible debt. Therefore, the Courts below have

rightly drawn the statutory presumption, whereas the revision petitioner has

not rebutted the presumption under Section 139 of Negotiable Instruments

Act. No doubt, the accused need not rebut the presumption by direct

evidence. He can also rebut the presumption by preponderance of

probabilities, whereas as already stated, in the said notice, the revision

petitioner admitted the execution and the signature found in the cheque.

Further, the plea of discharge itself has not been substantiated by the

revision petitioner by letting direct or circumstantial evidence or atleast by

getting admission from P.W.1. Further, the revision petitioner has not

rebutted the presumption either by direct evidence or by preponderance of

probabilities.

10. The scope of the revision is very limited. The revision Court

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

or re-assess the evidence as trial Court and appellate Court. As a revision

Court, this Court while exercising its power, has to find out is there any

https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019

perversity in the appreciation of evidence in the Judgments passed by the

Courts below. Unless there is a perversity, the revision Court cannot

interfere with the Judgments of the Courts below.

11. On a careful perusal of the materials, this Court does not find any

perversity in appreciation of evidence by the Courts below. Though the

revision petitioner has taken the stand that the respondent has not proved his

financial capacity and no supportive document was produced by the

respondent, on receipt of notice, the revision petitioner has not sent any

reply for the statutory notice sent by the respondent. Though non sending of

reply, may not be a sole ground to discard the defence of the accused, once

the complainant has proved the initial burden that the cheque was issued by

the accused to discharge the legally enforcible debt, then it is the duty of

the accused to rebut the presumption in the manner known to law. In this

case, the revision petitioner has not rebutted the statutory presumption in the

manner known to law. Therefore, there is no merit in this revision and the

revision is liable to be dismissed.

https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019

12. Accordingly, this Criminal Revision Case is dismissed. The trial

Court is directed to secure the petitioner to undergo the remaining period of

sentence if any.

15.09.2022

ksa-2

https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019

To

1. The Principal Sessions Court, Kancheepuram, Chengalpattu

2. The Judicial Magistrate, Tambaram

https://www.mhc.tn.gov.in/judis Crl.RC.No.1393 of 2019

P.VELMURUGAN,J.

Ksa-2

Criminal Revision Case No.1393 of 2019

15.09.2022

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