S. Muthumariselvam vs Boopathy
2022 Latest Caselaw 15365 Mad

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 15.09.2022

                                                          CORAM

                                  THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

                                              CRL.R.C.No.1010 of 2016

                  S. Muthumariselvam                                        ... Petitioner/Accused
                                                           Vs.

                  Boopathy                                           ... Respondent/Complainant

                  PRAYER: Criminal Revision Case is filed under Section 397 r/w 401 of the
                  Code of Criminal Procedure, to set aside the conviction imposed in the
                  judgment dated 28.01.2016 made in CA.No.39 of 2014 on the file of the II
                  Additional Sessions Judge, Erode, confirming the conviction imposed in
                  Judgment dated 30.04.2014 made in STC.No.17 of 2013 on the file of the
                  Judicial Magistrate, Fast Track Court (Magistrate Level-I), Erode.


                                         For Petitioner    :      Mr.M.Guruprasad
                                         For Respondent    :      No appearance

                                                            ORDER

The revision petition filed against the concurrent findings of the court

below holding that the petitioner is guilty of offence under Section 138 of the

Negotiable Instrument Act.

2. According to the complaint, on 03.08.2012, the petitioner herein

https://www.mhc.tn.gov.in/judis borrowed a sum of Rs.2,00,000/- from the complainant and promised to repay

it in due course. He gave a post-dated cheque dated 03.10.2012 for the said

sum drawn on Dhanalakshmi Bank, Veerappanchatram Branch, Erode. When

the said cheque was presented for collection, the same was returned with an

endorsement 'funds insufficient' enclosed to the memorandum dated

03.10.2012. The accused thereafter caused statutory notice on 05.10.2012. The

accused received it and gave a reply on 16.10.2012 denying the liability.

Hence the complaint under Section 138 of the Negotiable Instruments Act.

3. To prove the complaint prosecution, the complainant was examined

as PW1, marked 5 exhibits. On the side of the accused, neither document nor

witness examined. The trial court on appreciating the ocular evidence, PW1

and Exs.P1 to P5 held that the accused is guilt of the offence under Section

138 of the Negotiable Instruments Act, sentenced him to undergo 6 months

Simple Imprisonment and fine of Rs.5000, in default of fine amount, to

undergo 30 days Simple Imprisonment. The petitioner, being aggrieved by the

judgment of conviction and sentence imposed by the trial court, preferred an

appeal before the II Additional Sessions Judge, Erode, in Crl.A.No.39 of

2014. The lower appellate court, on appreciating the evidence, confirmed the

https://www.mhc.tn.gov.in/judis trial court judgment and dismissed the appeal.

4. Aggrieved accused is before this court under revisional jurisdiction

challenging the judgment of the court below, on the ground that the

complainant has not proved the fundamental fact of issuance of the cheque for

any liability. Signature in the cheque and the writings on the cheque defers

both in writing as well as in language. PW1, the complainant had specifically

stated that the cheque was written, signed and handed over to him by the

accused. Whereas the accused is a person who cannot read or write English.

The lower appellate court has given a very weird explanation for this

deficiency which is not sustainable. Subject cheque was given to the son and

wife of the complainant who were running unregistered chit and in the said

course of chit transaction, blank cheque was given to the son and wife of the

complainant. The said cheque has been grossly misused by the complainant by

filling it for Rs. 2,00,000/- and presented the same for collection.

5. The learned counsel for the petitioners submitted that the accused has

discharged the burden by preponderance of probability. However, the court

below has negatived the defence. This court, on perusing the records and the

https://www.mhc.tn.gov.in/judis depositions and judgment of the court below, finds that the cheque/Ex.P1 is

dated 03.10.2012. It is signed by the accused in Tamil. Though it is contended

by the accused that the said signature was not affixed by him, comparison of

the signature in the cheque and the signatures found in the depositions and in

the Section 313 questioning, this Court finds that there is no difference on

scrutinizing by naked eye. Anyhow, if the accused intended to rebut the

presumption ought to have taken necessary steps to send the disputed cheque

for hand written comparison which he has failed. The accused admits the

issuance of cheque but denies the liability. In the reply notice/Ex.P5, the

accused has narrated how the said cheque came to the hands of the deacto

complainant. It is stated in the reply that the accused and Santhi, wife of the

complainant, had chit transaction during the period 2010-2011. The subject

cheque is dated 03.10.2012. The petitioner/accused had not placed any

evidence to show that the blank cheque given to Santhi and Karthik were

misused by the complainant and there is no explanation why he had not taken

any steps to recover the said cheque for more than a year. Therefore, it is clear

that the defence taken is only a formal. Further, it is not sufficient to rebut

statutory presumption against the petitioner. Hence, the court below had

rightly convicted the petitioner for the offence under Section 138 of the

https://www.mhc.tn.gov.in/judis Negotiable Instruments Act. As far as sentence is concerned, since the

petitioner was found guilty of offence under Section 138 of the Negotiable

Instruments Act for issuing the cheque for Rs.2,00,000/- knowing well that he

has no sufficient funds, he was convicted to undergo 6 months Simple

Imprisonment and fine amount of Rs.5000/-, in default, 30 days of Simple

Imprisonment.

6. Taking note of the value of the cheque, the sentence is modified from

6 months Simple Imprisonment to 3 months Simple Imprisonment. However,

the fine amount of Rs.5000/-, in default, sentence of 30 days Simple

Imprisonment, is confirmed.

7. Accordingly, this Criminal Revision Case is partly allowed

modifying the sentence.

15.09.2022

Index: Yes/No Internet: Yes/No gv

https://www.mhc.tn.gov.in/judis DR. G. JAYACHANDRAN., J.

gv

To

1. The II Additional Sessions Judge, Erode.

2. The Judicial Magistrate, Fast Track Court (Magistrate Level-I), Erode.

CRL.R.C.No.1010 of 2016

15.09.2022

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