Madras High Court
V.C.Dinesh vs R.Thangavelu on 23 September, 2022
Crl.R.C.Nos.613 to 615 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 23.09.2022
Coram:
THE HONOURBLE DR.JUSTICE G.JAYACHANDRAN
Crl.R.C.Nos.613 to 615 of 2017
V.C.Dinesh .. Petitioner in all cases
/versus/
R.Thangavelu .. Respondent in all cases
Prayer in Crl.R.C.No.613 of 2017:-Criminal Revision Petition is filed under
Section 397(1) and 401 of Cr.P.C praying to call for the records and set
aside judgment dated 10.02.2017 made in C.A.No.136 of 2015 on the file of
the learned I Additional District Judge, Erode which was confirming the
judgment of the trial Court in STC.No.111 of 2012 dated 30.09.2012 on the
file of the learned Judicial Magistrate (Fast Track)No.2, Erode.
Prayer in Crl.R.C.No.614 of 2017:-Criminal Revision Petition is filed under
Section 397(1) and 401 of Cr.P.C praying to call for the records and set
aside judgment dated 10.02.2017 made in C.A.No.134 of 2015 on the file of
the learned I Additional District Judge, Erode which was confirming the
judgment of the trial Court in STC.No.96 of 2012 dated 30.09.2012 on the
file of the learned Judicial Magistrate (Fast Track)No.2, Erode.
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.613 to 615 of 2017
Prayer in Crl.R.C.No.615 of 2017:-Criminal Revision Petition is filed under
Section 397(1) and 401 of Cr.P.C praying to call for the records and set
aside judgment dated 10.02.2017 made in C.A.No.135 of 2015 on the file of
the learned I Additional District Judge, Erode which was confirming the
judgment of the trial Court in STC.No.112 of 2012 dated 30.09.2012 on the
file of the learned Judicial Magistrate (Fast Track)No.2, Erode.
For Petitioner :Mr.S.Silambu Selvan
for M/s A.Gokulakrishnan
(in all cases)
For Respondent :Mr.V.Perarasu (in all cases)
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COMMON ORDER
These three Criminal Revision Cases are filed by the 1st
accused/appellant, being aggrieved by the concurrent findings of the Courts
below held him guilty for issuance of cheques, without sufficient fund and
instructing the bank 'stop payment' and not to dishonour those cheques.
Totally 7 cheques are involved in these three revision petitions, since three
complaints were filed before the Judicial Magistrate (Fast Track Court
No.2), Erode in S.T.C.No.96 of 2012; S.T.C.No.111 of 2012; and
S.T.C.No.112 of 2012.
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Crl.R.C.Nos.613 to 615 of 2017
2. The case of the complainant is that the petitioner and his
wife were known to the complainant and they had borrowed money from
him on various occasion and to discharge the total loan of Rs.3,81,500/-, the
cheques were given on different dates and different amounts. However, on
presentation, all the cheques were returned with an instruction stating 'stop
payment'. The petitioner contested the complaints on the ground that there is
no privity of contract between the complainant and the accused. Infact, the
petitioner was employed under one Vikram Prakash. The petitioner was
running a Multi Level Marketing Company and collected huge deposits
from various persons including the complainant herein. Since the said
Vikram Prakash defaulted in payment, complaints were given to the police.
In the course of the enquiry by the police, the said Vikram Prakash got the
cheques of his employees and gave it to the complainant promising that it
will be honoured. In the said course of action, seven signed cheques of the
petitioner were received by his employer Vikram Prakash and handed over
to the petitioner herein.
3. To prove this defence, the petitioner has examined 4
witnesses and marked 6 exhibits. The trial Court, after considering the
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Crl.R.C.Nos.613 to 615 of 2017
evidence, held that the petitioner herein is the signatory of the subject
cheques and there is no dispute regarding these facts that the cheques were
issued by the petitioner from the account maintained by him and his wife.
Whereas the 2nd accused, who is the wife of the petitioner herein found not
guilty, since the complainant has not proved her role in issuance of the
subject cheques.
4. Having found so, the trial Court convicted the petitioner
to undergo one year SI and to pay a fine of Rs.5,000/- in default to undergo
one month SI. Against the said finding, these three appeals have been
preferred and each of the cases came to be dismissed by confirming the
conviction and sentence imposed by the trial Court.
5. The learned counsel appearing for the petitioner submitted
that the Courts below failed to consider the fact that the subject cheques
were not given to discharge any legally enforceable debt against the
petitioner. The case of the complainant ought to have been disbelieved,
since lending money to a person being acquaintance, while travelling in a
bus is highly improbable. Further, it is also contended that if really the
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Crl.R.C.Nos.613 to 615 of 2017
petitioner had borrowed money from the respondent/complainant and owed
Rs.3,81,500/-, there is no reason to give seven cheques for different
amounts to discharge the said loan. Therefore, his evidence let in by the
defence as spoken by DW1 to DW4 and Ex.D1 to Ex.D6 ought to have been
considered as probabilise the defence to rebut the statutory presumption.
6. The learned counsel appearing for the respondent
submitted that the petitioner having admitted the signatures found in the
subject cheques and issuance of the cheques to the complainant,
presumption under Section 139 of the Negotiable Instruments Act, 1881,
that the cheques were given to discharge the liability, has to be drawn and
the Courts below has rightly said that the statutory presumption having
issued the cheques; the petitioner has instructed his bank to “stop payment”
and also when the statutory notice was issued to him, he did not choose to
reply, is only as a weak defence. It is now contended that the cheques were
issued as security on the request of one Vikram Prakash. However, there is
no material to show that there was any such transaction to probabilise the
case of the defence. Hence, the Courts below has rightly convicted the
petitioner.
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Crl.R.C.Nos.613 to 615 of 2017
7. The Courts below, on considering the evidence and
submissions made held that the signatures found in the subject cheques and
issuance of the subject cheques were not denied by the petitioner. Therefore,
it is the duty of the petitioner to prove, what circumstances the subject
cheques were issued to the complainant. However, the evidence let in by the
petitioner does not probabilise the case and the manner, in which the
cheques were given as contended by the petitioner.
8. Above all, the petitioner admits that all the seven cheques,
which are the subject matter of the complaints, were given by the accused to
the complainant. If he had no liability to pay, why did he give the cheques
to the complainant, has not explained in a convincing manner. Even if it is
so, he has given it as security; then what is the reason for instructing the
bank to 'stop payment'; and not replying to the statutory notice, was the
reason for the Courts below to hold against the petitioner. This Court also
concur with the view and reasoning given by the Courts below for holding
the petitioner guilty.
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Crl.R.C.Nos.613 to 615 of 2017
9. Regarding the sentence, this Court finds that of each of
the complaints, the trial Court has sentenced the petitioner to undergo one
year SI and fine of Rs.5,000/- in default, to undergo 1 month SI.
10. Instead of committing the petitioner in prison, this Court
is of the view that the same may be modified to the effect that:
(i)in Crl.R.C.No.614 of 2017, the petitioner shall pay
compensation of Rs.50,000/- being the cheque amount shown in Ex.P1 and
Rs.81,500/- being the cheque amount shown in Ex.P2 (totally Rs.1,31,500/-)
in S.T.C.No.96 of 2012, within a period of 30 days, failing which 3 months
SI;
(ii)in Crl.R.C.No.615 of 2017, the petitioner shall pay
compensation of Rs.50,000/- each being the cheques amount shown in
Ex.P1 and Ex.P2 (totally Rs.1,00,000/-) in S.T.C.No.112 of 2012, within a
period of 30 days, failing which 3 months SI; and
(iii)in Crl.R.C.No.613 of 2017, the petitioner shall pay
compensation of Rs.50,000/-each for the three cheques amount shown in
Ex.P1 to Ex.P3 (totally Rs.1,50,000/-) in S.T.C.No.111 of 2012, within a
period of 30 days failing which 3 months SI.
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Crl.R.C.Nos.613 to 615 of 2017
11. Accordingly, these Criminal Revision Cases are partly
allowed.
23.09.2022
Index:yes/no
Speaking order/non speaking order
ari
To:
1.The I Additional District Judge, Erode
2. The Judicial Magistrate (Fast Track)No.2, Erode.
2. The Public Prosecutor, High Court, Madras.
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Crl.R.C.Nos.613 to 615 of 2017
DR.G.JAYACHANDRAN,J.
ari
Crl.R.C.Nos.613 to 615 of 2017
23.09.2022
https://www.mhc.tn.gov.in/judis
