Madras High Court
K.Selvakumar vs B.Balan on 16 September, 2022
Crl.R.C.No.1013 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 16.09.2022
CORAM
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.1013 of 2018
K.Selvakumar, ... Petitioner/Appellant/Accused
/versus/
1. B.Balan,
2. The State,
Rep. by the Public Prosecutor,
Coimbatore.
(R2 Given up) ... 1st respondent/1st respondent/Complainant
Prayer: Criminal Revision Petition is filed under Section 397 & 401 of Cr.P.C.,
against the judgment passed in C.A.No.186 of 2016, on the file of IV Additional
District and Sessions Judge, Coimbatore, dated 06.07.2018 confirming the
judgment passed in C.C.No.385 of 2014 on the file of the Judicial Magistrate, Fast
Track Court, Magisterial Level-I, Coimbatore, dated 02.12.2016.
For Petitioner : Mr.K.Ponmani,
Legal Aid Counsel
For R1 : Mr.P.Sesubalan Raja.
For R2 : Given up
ORDER
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Crl.R.C.No.1013 of 2018
Heard the Learned Legal Aid Counsel appointed by the Court to
represent the petitioner/accused and the Learned Counsel for the
respondents/defacto complainant.
2. This Criminal Revision Petition is filed against the concurrent
finding of the Courts below holding the petitioner guilty of offence under Section
138 of Negotiable Instrument Act, 1881 and sentenced to undergo 6 months S.I
and to pay fine of Rs.4,10,000/- being the cheque amount within 2 months, failing
which, to undergo 2 months S.I.
3. The conviction and sentence passed by the Trial Court confirmed
by the Lower Appellate Court in C.C.No.385 of 2014 dated 02.12.2016. The
present Criminal Revision Petition is filed on the ground that the subject cheque
was issued only as a security. The petitioner not borrowed any money from the 1st
respondent and there is no legally enforceable debt. Further, the
respondent/complainant has not established that he is capable of giving a huge
sum of Rs.4,10,000/- to the petitioner.
4. The Learned Counsel for the petitioner submitted that there was an
unregistered agreement between the petitioner and the 1st respondent in respect of
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Crl.R.C.No.1013 of 2018
construction of a house in the vacant site. Since the petitioner been realtor engaged
in promoting land and construction of building agreed to construct house
measuring 1500 sq.ft located at S.No.563/3 in Kurudampalayam Village in the
name and style of “Green Avenue”. Pursuant to the said agreement, the respondent
advance sum of Rs.4,10,000/-. The petitioner agreed to arrange bank loan for the
balance amount, provided the petitioner furnish the necessary documents for
arising loan. In the said context, the subject cheque was given as a security for the
money received. While so, the petitioner not able to raise loan since the
respondent was not able to produce necessary document to the satisfaction of bank
authority to advance loan. In the said circumstances, to recover the money
advanced without intimation, the cheque given as security was filed and presented
for collection. When the petitioner came to know about the unilateral act of
presenting the cheque without intimation, he caused notice on 09.01.2014 calling
upon the complainant/respondent not to proceed with any complaint under Section
138 of Negotiable Instrument but to handover all the necessary documents and
expenses to him in order to get loan and pursue the unregistered agreement on
24.10.2013. While fact being so, the complainant, who is at fault and breach of
the agreement had misused the blank cheque given as security by filling up the
amount and date. Therefore, the conviction and sentence liable to be set aside.
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Crl.R.C.No.1013 of 2018
5. Per contra, the Learned Counsel for the 1st respondent submitted
that even according to the petitioner receipt of Rs.4,10,000/- as advance for the
site and construction is admitted and the cheque was given by the petitioner since
he was not able to perform his part of contract of arranging the loan. However,
without making arrangement to honour the cheque, he has given the cheque with
dishonest intention and hence, the complaint. To prove, the complaint, the
complainant examined herself and marked 15 documents. Whereas, the accused,
who mounted the witness box and tried to rebut the presumption against him was
unsuccessful. Therefore, the trial Court as well as 1st Appellate Court has held the
petitioner guilty and there is no error to interfere the said judgment under this
Revision Petition.
6. Heard the Learned Counsel for the petitioner and the Learned
Counsel for the respondent. Records Perused.
7. The case of the complainant is that the cheque marked as Ex.P.1
for sum of Rs.4,10,000/- was given by the accused/petitioner herein to discharge
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Crl.R.C.No.1013 of 2018
the debt incurred earlier. In support of this contention, the agreement (Ex.P.7) and
receipts Ex.P.8, Ex.P.9, Ex.P.10, Ex.P.11 and Ex.P.12 are marked. These receipts
along with the recital found in the agreement establishes the fact that the petitioner
received Rs.4,10,000/- towards part consideration of the agreement marked as
Ex.P.7. In fact, the petitioner himself admits the receipt of this amount in the
notice dated 09.01.2014, which is marked as Ex.P.3. The only defence to rebut the
presumption against him is the plea of not enforceable debt and the cheque was
given only as security. These two grounds are not sustainable for the reason that
the debt of Rs.4,10,000/- is explicitly admitted by the petitioner both in the
agreement marked as Ex.P.7 as well as the notice issued by him marked as Ex.P.3.
8. The plea that the cheque was issued only as a security also does not
hold any ground when the fact that the responsibility of arranging loan was casted
upon the petitioner herein and admittedly, he could not arrange the loan and as per
terms found in Ex.P.7, the petitioner is bound to return the money which is
reflected in the cheque marked as Ex.P.1. They are also other documents Ex.P.14
& Ex.P.15, which are joint memos filed by the petitioner and the respondent
before the Court and statement given by the petitioner before the Race Course
Police, Coimbatore. For the said reasons, this Court finds no merit in the Revision
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Crl.R.C.No.1013 of 2018
Petition.
9. The Learned Counsel for the respondent submits that pursuant to
the petition filed for suspension of sentence, this Court directed the petitioner to
deposit 50% of the cheque amount i.e., Rs.2,05,000/- and same has been deposited
by the petitioner in the account of C.C.No.385 of 2014, on the file of Judicial
Magistrate, Fast Track Court-I, Coimbatore and seek permission of this Court to
withdraw the same and to proceed against the petitioner for recovery of the
balance compensation amount.
10. The permission sought by the respondent/complainant to
withdraw Rs.2,05,000/- deposited in the account of C.C.No.385 of 2014 is
allowed. Further, this Court directs the petitioner herein to deposit the remaining
compensation amount of Rs.2,05,000/- within period 30 days from today. If, the
petitioner fails to pay the said amount within the said period, and default, he shall
undergo 2 months S.I beside the substantive sentence of 6 months S.I. However,
liberty is given to the petitioner herein if he pays the balance compensation of
Rs.2,05,000/- within the time prescribed by this Court, the petitioner can seek for
compounding the offence before the trial Court under Section 147 of Negotiable
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Instrument Act and the trial Court shall consider the prayer on merits and pass
appropriate order.
11. With the above modification, this Criminal Revision Petition is
disposed of.
16.09.2022
Index : Yes/No.
Internet : Yes/No.
bsm
To,
1. The IV Additional District and Sessions Judge, Coimbatore.
2. The Judicial Magistrate, Fast Track Court, Magisterial Level-I, Coimbatore.
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Crl.R.C.No.1013 of 2018
Dr.G.JAYACHANDRAN,J.
bsm
Crl.R.C.No.1013 of 2018
16.09.2022
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