Madras High Court
P.Arumugam vs N.R.Kallisamy on 10 April, 2023
Crl.R.C.No.71 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 10.04.2023
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.71 of 2020
and
Crl.M.P.Nos.389 & 390 of 2020
P.Arumugam .. Petitioner
Vs.
N.R.Kallisamy ..Respondent
PRAYER : Criminal Revision Case has been filed under sections 397
read with 401 of Criminal Procedure Code to set aside the judgment of
the V Additional District & Sessions Judge, Coimbatore in Crl.A.No.45
of 2018 dated 04.09.2019 confirming the conviction passed by the
Judicial Magistrate, Fast Track Court No.I @ Magisterial Level,
Coimbatore by the judgment in C.C.No.80 of 2014 dated 12.01.2018.
For Petitioner : Mr.R.John Sathyan, Senior Counsel
For Respondent : Mr.S.S.Mathivanan
1/9
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Crl.R.C.No.71 of 2020
ORDER
This Criminal Revision Case is filed challenging the concurrent
findings of the Courts below holding the revision petitioner/accused
guilty of offence under Section 138 of Negotiable Instruments Act.
2. The case of the complainant, who is the respondent herein, is
that the revision petitioner borrowed a sum of Rs.2,30,000/- from him
and to discharge the debt, he gave a cheque dated 10.12.2012 bearing
No.208864 drawn on ICICI bank, Coimbatore branch. When the cheque
was presented for collection by the respondent, the same was returned
with an endorsement “Insufficient Fund” vide memo dated 12.12.2012.
On return of the cheque, statutory notice dated 20.12.2012 was issued to
the drawer of the cheque and the said notice was received on 21.12.2012
and a reply notice was given on 09.01.2013. Since the liability was
denied in the reply notice and the cheque amount was not paid by the
drawer, a private complaint under Section 138 of N.I.Act has been filed
and same was taken on file by the learned Judicial Magistrate No.I,
Coimbatore in S.T.C.No.625 of 2013, later, it was transferred to the Fast
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Crl.R.C.No.71 of 2020
Track Court No.I, Coimbatore and re-numbered in C.C.No.80 of 2014.
3. To prove the complaint, the complainant/respondent
mounted in the witness box and marked 7 exhibits. In defence, one
Samuel Arthur and the accused/revision petitioner herein were examined
as DW.1 and DW.2 and 3 exhibits were marked.
4. The sum and substance of the case considered and decided
by the Courts below is that the evidence let in by the complainant, who
has issued the cheque bearing No.208864 for Rs.2,30,000/-. The said
cheque was marked as Ex.P1 and it was returned for the reason
Insufficient Fund, that is proved by Ex.P2-Memo from the complainant's
bank. The statutory notice issued by the complainant is marked as Ex.P3
which say that the cheque was issued to discharge the liability arose
when the petitioner borrowed the said amount as hand loan on
08.04.2013, while he has working in the company by name M/s.Aquasub
Engineering Foundry Division, Thudiyalur, Coimbatore and the reply
marked as Ex.P5 and also Ex.D3 by the accused.
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Crl.R.C.No.71 of 2020
5. It has been contended that they both are relatives and
working in the same firm and due to proximity there was some money
transaction, a sum of Rs.2,30,000/- as claimed in the notice. The revision
petitioner has admitted that he received Rs.60,000/- from the
complainant/respondent and agreed to repay the money with interest at
the rate of 36% per annum and he was regularly paying Rs.1,800/- every
month towards interest. At the time of borrowing, he gave a signed blank
cheque and the said cheque has been now misused. In the reply notice it
is also admitted that during the month of June 2005, he borrowed another
sum of Rs.3,000/-, interest upto June 2006 was paid and towards
principal amount a sum of Rs.40,000/- paid. Only Rs.23,000/- due
towards principal. However, since there was a demand of exorbitant
amount of Rs.2,00,000/- to settle the issue and the same was refused by
the accused/revision petitioner, the said cheque given as a security been
filled up. Apart from his reply notice, the main defence taken by the
accused in the course of trial and in the appeal as against the revision
petitioner is that while the subject cheque was given as a security on
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Crl.R.C.No.71 of 2020
borrowing Rs.60,000/- another cheque bearing No.208863 was given to
the complainant/respondent and that the cheque after filling it was
subsequently presented for Rs.60,000/- dated 22.09.2014 knowing that
the revision petitioner/accused has received bonus. The said cheque was
filled and presented for collection and duly encashed. While so, the
probability that the cheque with subsequent number that is 208864 with
earlier for Rs.2,30,000/- dated 10.12.2012 is highly improbable.
6. The learned Senior Counsel for the revision petitioner
submitted that the reply notice as well as in the cross examination of
PW.1, it has been elucidated that the cheque is the subject matter of the
present revision petition and that was presented on 18.01.2013, whereas
another cheque by the complainant for a sum of Rs.60,000/- was
encashed on 22.09.2014. Having admitted that after instuting the
criminal complaint, a subsequent cheque given by the accused been
encashed would highly probabilise the case of the defence that for the
money transaction which took place long back, two cheques were given
as security being misused by the complainant. Particularly, when there is
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Crl.R.C.No.71 of 2020
a dispute regarding the cheque which was presented 1 ½ years ago
earlier, the subsequent cheque which was honoured for a sum or
Rs.60,000/-, either should have been to discharge the earlier debt or it
should have been a blank cheque given as security as projected by the
accused. Either way, the complainant is not entitled for any presumption
under the statute, since the onus of burden been shifted by preponderance
of probability.
7. This Court might have accepted the submission of the
learned Senior Counsel appearing for the accused had the accused
disclosed about giving two blank cheques at the time of initial borrowing
in the reply notice. Whereas in the reply notice, there is no whisper about
the blank cheques with the complainant. If really blank cheque given
earlier was encahsed subsequently after lodging the complaint, this fact
ought not to have been omitted to mention in the reply notice. Therefore,
this Court concurs with the judgment of the Courts below by holding that
the complainant has proved the case and the attempt of the accused to
rebut the statutory presumption has failed
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Crl.R.C.No.71 of 2020
8. In sofar as the sentence is concerned, it is contended that the
money borrowed as a hand loan with an exorbitant interest at the rate of
36% now attempted to be realised through the blank cheque. When this
question was posed to the complainant, he has denied that the accused
borrowed only Rs.60,000/- for interest at the rate of 36%.
9. Taking note of the fact that the accused and the complainant
are related to each other and working in same place, sentence is modified
to the effect that the revision petitioner/accused shall undergo S.I., for a
period of one month and to pay a compensation of Rs.2,30,000/- within a
period of 2 months, in default, he shall undergo Simple Imprisonment for
further period of 1 month.
10. With this modification, this Criminal Revision Case is
partly allowed. Consequently, the connected Criminal Miscellaneous
Petitions are also closed.
11. The period of imprisonment will be given effect, if the
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Crl.R.C.No.71 of 2020
accused/respondent failed to pay the compensation amount within 15
days from the receipt of the order. This concession is granted in view of
the plea made by the learned Senior Counsel to consider the provision
under chapter XXI of Cr.P.C., and Section 147 of the N.I.Act. Though
strictly the accused has not come forward to plea bargain to meet the
ends of justice, this Court postpone the effect of imprisonment order by
15 days from today. If the accused come forward to pay the compensation
money of Rs.2,30,000/- within a period of 15 days, then he shall not be
required to undergo Simple Imprisonment for a period of one month.
10.04.2023
Internet : Yes/No
Index: Yes/No
rpl
To
1.The V Additional District & Sessions Judge, Coimbatore.
2.The Judicial Magistrate, Fast Track Court No.I @ Magisterial Level,
Coimbatore
Dr.G.JAYACHANDRAN, J.
rpl
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Crl.R.C.No.71 of 2020
Crl.R.C.No.71 of 2020
10.04.2023
https://www.mhc.tn.gov.in/judis
