Madras High Court
Srinivasan vs Murugan on 16 September, 2022
Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.09.2022
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.No.1327 of 2022 and
Crl.M.P. Nos.14182 & 14183 of 2022
Srinivasan .. Petitioner
Vs
Murugan .. Respondent
***
Prayer: Criminal Revision filed under Section 397 r/w 401 of the
Criminal Procedure Code against the judgment of the learned
Additional District and Sessions Judge, Ariyalur dated 01.06.2022
made in Crl.A. No.9 of 2021 confirming the judgment of conviction
imposed by the learned Judicial Magistrate I, Jayamkondam dated
23.03.2020 in S.T.C. No.87 of 2018 and set aside the same.
***
For Petitioner : Mr.A.C.R.Malarvannan
ORDER
The revision petitioner/accused has filed this criminal
revision case against the concurrent findings of conviction and
sentence passed by the Courts below.
https://www.mhc.tn.gov.in/judis
Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
2. The petitioner is the accused. The respondent is the
complainant. The respondent filed a complaint against the revision
petitioner under Section 200 Cr.P.C. for an offence under Section
138 of the Negotiable Instruments Act, 1881 before the learned
Judicial Magistrate - I, Jayamkondam. The learned Judicial
Magistrate - I has taken the complaint on file in S.T.C. No.87 of
2018 and after trial, he convicted the revision petitioner for the
offence under Section 138 of the Negotiable Instruments Act, 1881
and sentenced him to undergo six months simple imprisonment
and pay a fine of Rs.18,00,000/- equivalent to the cheque value.
3. Challenging the said judgment of conviction and sentence,
the accused filed an appeal before the learned Principal District
and Sessions Judge, Ariyalur and the same was taken on file in Crl.
A. No.9 of 2021. When the same was made over to the learned
Additional District and Sessions Judge, Ariyalur, he dealt with the
appeal. After hearing the arguments of both sides, the appellate
court, dismissed the appeal and confirmed the conviction and
sentence passed on the petitioner/accused. Challenging the said
dismissal of appeal, the petitioner/accused has filed the present
criminal revision case.
https://www.mhc.tn.gov.in/judis
Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
4. The learned counsel for the revision petitioner would
submit that the petitioner never borrowed any money from the
respondent and he never issued a cheque to the respondent.
Actually, the petitioner/accused borrowed a sum of Rs.1,00,000/-
from the uncle of the respondent one Mr.Mayilvahanam and he
demanded exorbitant interest of Rs.5,00,000/- from the petitioner.
Since the petitioner refused to budge, he was abducted and
forcibly made to sign certain blank papers and promissory notes.
The said Mayilvahanam did not return the blank cheque given by
the revision petitioner at the time of borrowing of Rs.1,00,000/-
from him. The said Mayilvahanam made use of the
respondent/complainant to file a complaint against the petitioner
using the cheque, which he did not return to the revision
petitioner. Both the courts below, have failed to appreciate the
evidence that though the respondent has stated that he earns a
sum of Rs.10,00,000/- per year, he has not shown the source of
lending a huge amount of Rs.18,00,000/- to the petitioner and the
respondent has not substantiated that he lent such a huge money
even without obtaining any documents and he straight away lent
such a huge amount of Rs.18,00,000/- only against a blank
cheque, which is not believable. Further, he would submit that
already the petitioner gave a complaint against respondent's uncle
https://www.mhc.tn.gov.in/judis
Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
just prior to issuing the cheque and that if at all any complaint is
lodged against his uncle, how the respondent would have lent such
a huge amount of Rs.18,00,000/- to the petitioner and that too
only based on the mere cheque. These facts have not been
considered by both the courts below. Further he would submit that
he gave a complaint against Mayilvahanam, who is none other than
the uncle of the respondent on the file of Jayamkondam Police
Station, which was registered in Crime No.401/2017 and the FIR
was also marked as Ex.P7 and also he has made a statement
before the learned Judicial Magistrate - I, Ariyalur under Section
164(5) of the Cr.P.C. These facts have not been considered by both
the courts below.
5. It is the duty of the complainant to establish that he has
got sufficient means during the relevant point of time to lend such
a huge money and he has not proved that without any supporting
documents he lent the huge money and the trial court has failed to
consider these aspects and convicted the petitioner/accused.
Unfortunately, the appellate court, as a final court of fact finding,
should have re-appraised the evidence and given a finding
independently, but without re-appreciating the evidence, the
learned Additional District and Sessions Judge, simply endorsed
https://www.mhc.tn.gov.in/judis
Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
the view of the learned Judicial Magistrate. Therefore, the finding
of both the courts below are perverse and the revision has to be
allowed and both the judgments of conviction and sentence passed
by the courts below have to be set aside.
6. In support of his contention, the learned counsel
appearing for the petitioner has relied on a judgment of this court
in P.Dhanam vs. G.Arjunan reported in
MANU/TN/6182/2018.
7. Though the matter is coming under the caption 'For
Admission', this court heard the learned counsel for the petitioner
and perused the materials available on record and dispose of the
criminal revision case at the admission stage itself.
8. The case of the respondent/complainant is that the
petitioner borrowed a sum of Rs.18,00,000/- from the respondent
to discharge the legally enforceable debt on 12.07.2015 and
executed two blank promissory notes with his signature agreeing
to pay the interest amount of Re.1/- per Rs.100/- on the fifth day
of every calendar month and when the respondent demanded the
money, he promised to repay the money but failed to repay. When
https://www.mhc.tn.gov.in/judis
Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
the respondent/complainant went to petitioner's house and
demanded the money, he got back the promissory notes, which he
had given to the respondent/complainant and issued a cheque
bearing No.773356 dated 05.12.2017 for a sum of Rs.18,00,000/-
and when the respondent presented the cheque for encashment,
the same was returned by the bank without honouring the same
with an endorsement "88 Accounts dormant". Therefore, the
respondent/complainant has issued a statutory notice on
04.01.2018 and the petitioner received the notice and sent a reply
on 20.01.2018 with false allegations. Since the petitioner has not
repaid the money within the statutory period after receipt of the
notice and therefore, the respondent/complainant was constrained
to file the complaint.
9. In order to substantiate the case of the respondent, he
examined himself as PW1 and the Bank Manager was examined as
PW2 and marked as many as 10 documents on his side and proved
his case.
10. Though the learned counsel for the revision petitioner
vehemently contended that Ex.P1-cheque was not issued to the
respondent, which was issued only to the uncle of the respondent,
https://www.mhc.tn.gov.in/judis
Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
namely Mayilvahanam, the respondent was also examined as RW1
and marked Ex.R1 - Statement under Section 164(5) of Cr.P.C.
Though he has stated that he gave a complaint against
Mayilvahanam, but on seeing the FIR, which is marked as Ex.P7
and also Ex.R1, Statement of the revision petitioner under Section
164(5) of Cr.P.C. he has not stated anything about the disputed
cheque. If at all the petitioner issued a cheque to Mayilvahanam
even much earlier to this, definitely at the time of filing the
complaint or the statement made before the learned Judicial
Magistrate, he would have stated about the issuance of cheque and
he has stated that he has issued the cheque to Mayilvahanam but
he has not stated any details about the cheque or the bank name
and the amount.
11. When the complainant filed the complaint under Section
138 of the Negotiable Instruments Act, 1881 and filed the cheque
before the court, when the accused has not denied the execution of
the cheque or the signature in the cheque, there is a presumption
under Section 139 of the Negotiable Instruments Act, 1881 that
cheque was issued only to discharge the legally enforceable debt,
the initial burden has been proved by the complainant. No doubt,
the said presumption under Section 139 of the Negotiable
https://www.mhc.tn.gov.in/judis
Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
Instruments Act, 1881, is a rebuttable presumption, the accused
has to rebut the presumption that the cheque was not issued to
discharge the legally enforceable debt. Though the accused need
not rebut the presumption by direct evidence, the accused can
rebut the presumption by preponderance of probabilities and in
this case, as already stated, the signature found in Ex.P1 - Cheque
is admitted that of the revision petitioner. The specific case of the
respondent is that the revision petitioner borrowed a sum of
Rs.18,00,000/- and issued two promissory notes and when he
demanded money, he issued a cheque and when it was presented
to the banker, the same was returned by the banker without
honouring the same and therefore, he issued a notice and then
filed the complaint, examined himself and marked all the
documents and proved the initial burden.
12. The specific case of the revision petitioner is that he has
not borrowed any money from the respondent and he has not
issued a cheque to the respondent, but the same was given to one
Mayilvahanam, who is none other than uncle of the respondent,
then it is for the revision petitioner to prove that the cheque was
issued only to Mayilvahanam. Admittedly, in this case, already the
petitioner gave a complaint against Mayilvahanam in Crime No.401
https://www.mhc.tn.gov.in/judis
Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
of 2017 on the file Jayamkondam Police Station. Admittedly, it is
subsequent to filing of the complaint. Otherwise, even the
petitioner would have filed the counterfoil of the cheque leaf,
which was given on 05.12.2017 to the respondent and that he has
not filed the counterfoil and the number of the cheque, date of
issuance of the cheque and the person to whom he issued the
cheque.
13. Learned counsel for the petitioner vehemently contended
that the source of lending money has not been proved. Though the
respondent, during cross examination has clearly stated that he
has got agricultural lands of 15.00 Acres and he has agricultural
income of Rs.10,00,000/- per year. But it has not been disputed by
the revision petitioner. Even they have not put any suggestion that
the respondent was not having agricultural land and the
respondent is not getting any income from agricultural.
14. In the case relied on by the learned counsel for the
petitioner, namely P.Dhanam vs. G.Arjunan reported in
MANU/TN/6182/2018, in that case, though the complainant has
stated about some specific source of lending money, subsequently,
the same was not established. Whereas, in this case, the
https://www.mhc.tn.gov.in/judis
Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
complainant has not stated any other specific source except the
agricultural income and he has also clearly stated during cross-
examination that for agricultural income no income-tax. Therefore
he has stated any specific lending source of money except the
agricultural income. Therefore, the citation referred to by the
learned counsel for the petitioner is not applicable to the present
case.
15. Though the learned counsel for the petitioner submitted
that without getting any supporting document, the respondent
would not have lent such a huge amount of Rs.18,00,000/-in this
regard, in the complaint itself, the complainant has stated that at
the time of borrowing money, the petitioner gave promissory notes
and subsequently, he got back the promissory notes and issued
the cheque, that has not been denied by the petitioner. Further,
even otherwise, the petitioner himself put a suggestion before the
respondent during the cross examination that the accused is a
Municipal Councillor for more than 15 years in this area and that
be the case, a person well known to the respondent and also in a
respectable post in the society, then naturally, would be aware of
the happenings. Further he also stated that, at the time of lending
money, he also obtained promissory notes, subsequently he
https://www.mhc.tn.gov.in/judis
Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
returned back the same and obtained a cheque, then the
respondent has proved his case and also there is a legal
presumption in favour of the respondent. Therefore, it is for the
accused to rebut the presumption. Even though the accused need
not rebut the presumption by a direct evidence, at least, he can,
by preponderance of probabilities would have rebutted. Whereas,
in the case on hand, the petitioner has not rebutted the
presumption in the manner known to law, though he has focussed
only against Mayilvahanam and the specific case of the revision
petitioner is that the disputed cheque is given to Mayilvahanam
but, unfortunately, the petitioner has not proved his defence in the
manner known to law either by producing the counterfoil of the
cheque leaf or he has not stated any cheque number and other
details in the reply notice sent by the petitioner and the statement
made before the learned Judicial Magistrate. Therefore, under
these circumstances, this court does not find any perversity in the
judgment of conviction and sentence passed by the courts below.
16. It is well settled proposition of Law that the revision
court, cannot sit in the arm chair of the appellate court and re-
appreciate the entire materials. What the revision court has to see
only if there is any perversity in the appreciation of material
https://www.mhc.tn.gov.in/judis
Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
evidence, otherwise, the revision court cannot interfere with the
judgments of the courts below. Therefore, on a careful perusal of
the materials, this court does not find any perversity in the
appreciation of evidence by the courts below and this court finds
that the respondent has proved his case before the courts below
and also the presumption under Section 139 of the Negotiable
Instruments Act, 1881 and this court also does not find that the
revision petitioner rebutted the presumption in the manner known
to law. Therefore, this court does not find any perversity in the
judgments of conviction and sentence passed by the courts below.
Therefore, there is no merit in the revision and the revision is
liable to be dismissed at the admission stage itself.
17. Accordingly, the criminal revision case is dismissed.
Consequently, the connected criminal miscellaneous petitions are
also closed.
16.09.2022
Index : Yes/No
Internet : Yes
Asr
To
1.The Additional District and Sessions Judge,
Ariyalur.
https://www.mhc.tn.gov.in/judis
Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
2.The Judicial Magistrate I
Jayamkondam
https://www.mhc.tn.gov.in/judis
Crl. R.C. No.1327 of 2016 and
Crl.M.P. Nos.14182 & 14183 of 2022
P.VELMURUGAN, J.
Asr
Crl.R.C.No.1327 of 2022 and
Crl.M.P. Nos.14182 & 14183 of 2022
Dated : 16.09.2022
https://www.mhc.tn.gov.in/judis
