Madras High Court
K.R.Subramanian vs G.Murugan on 11 April, 2023
Crl.R.C(MD)No.332 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.04.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.332 of 2018
K.R.Subramanian ... Petitioner/
Appellant/Complainant
Vs.
G.Murugan ... Respondent/
Respondent/Accused
PRAYER: Criminal Revision Case filed under Sections 397 r/w 401
& 482 of the Code of Criminal Procedure, to call for the records in
Crl.A.No.13 of 2017 on the file of the Additional District and
Sessions Court, Theni, dated 30.10.2017, in S.T.C.No.187 of 2011
on the file of the Judicial Magistrate, Theni, dated 10.03.2014.
For Petitioner : Mrs.Seeni Syed Amma
for M/s.T.Lajapathi Roy and Associates
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Crl.R.C(MD)No.332 of 2018
ORDER
This revision has been filed to set aside the order passed
in Crl.A.No.13 of 2017 on the file of the learned Additional District
and Sessions Judge, Theni, dated 30.10.2017, confirming the
Judgment in S.T.C.No.187 of 2011 on the file of the learned Judicial
Magistrate, Theni, dated 10.03.2014.
2.The petitioner is the complainant and the respondent
is an accused in the complaint lodged by the petitioner for the
offence punishable under Section 138 of the Negotiable Instruments
Act.
3.According to the petitioner, the respondent issued a
cheque in order to discharge his liability for the sum of
Rs.12,64,094/- in favour of the petitioner. The said cheque was
presented for collection and the same was returned for the reason
'funds insufficient'. After causing statutory notice, the petitioner
lodged the complaint.
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Crl.R.C(MD)No.332 of 2018
4.In order to prove his case, on the side of the
petitioner, P.W.1 to P.W.3 were examined and also marked Exs.P.1 to
P.16 and on the side of the respondent, he had examined D.W.1 to
D.W.4 and Ex.D.1 was marked and also marked Ex.X.1 to Ex.X.5.
5.On perusal of the oral and documentary evidence, the
trial Court dismissed the complaint filed by the petitioner and
acquitted the respondent. Aggrieved by the same, the petitioner
preferred an appeal in Crl.A.No.13 of 2017 on the file of the learned
Additional District and Sessions Judge, Theni and the Appellate
Court also dismissed the same confirming the order of the trial
Court. Hence, the present revision.
6.The learned counsel appearing for the petitioner would
submit that both the Courts below dismissed the complaint only for
the reason that the petitioner failed to mention the date of borrowal
and place of borrowal. In order to discharge the liability, the cheque
was issued and as such, the petitioner need not proceed about the
date of borrowal and date of placement. The presumption/rebuttal
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Crl.R.C(MD)No.332 of 2018
which is presumed unless the contrary is proved that the holder of
the cheque has received cheque for discharge in whole or in part of
any debt or any other. The respondent also categorically admitted
the signature found in the cheque and also the issuance of the
cheque in favour of the petitioner. The respondent also failed to
rebut the evidence in the manner known to law. Even then, both the
Courts below acquitted the respondent. Therefore, the petitioner
discharged his initial burden as contemplated under Section 138 of
the Negotiable Instruments Act and as such, both the Courts below
ought to have convicted the respondent for the offence punishable
under Section 138 of the Negotiable Instruments Act.
7.Heard the learned counsel appearing for the petitioner
and perused the materials available on record.
8.On perusal of the records revealed that in order to
rebut the presumption as contemplated under Section 139 of the
Negotiable Instruments Act, the respondent had examined D.W.1 to
D.W.4 and marked Ex.D.1. The specific case of the respondent was
that the complainant had never lent any loan in favour of the
respondent. The respondent raised a doubt regarding the
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Crl.R.C(MD)No.332 of 2018
presumption of a subsisting liability between the petitioner and the
respondent at the time of issuance of cheque. In fact, the petitioner
lodged a complaint against the respondent before the police. In the
said complaint, the respondent was kept in wrong confinement for
two days. Therefore, there was absolutely no possibility for the
issuance of the alleged cheque on the specified date. The
respondent also proved that he was kept in custody on 15.12.2009,
wherein the alleged cheque was issued on 21.12.2009. The
petitioner also failed to mention the date of borrowal of loan and the
place of issuance of the cheque. Therefore, the respondent
categorically rebutted the presumption arising out of the provision
under Section 139 of the Negotiable Instruments Act. The burden
was shifted to the petitioner to prove his case.
9.Though the evidential burden is initially placed on the
defendant by virtue of Section 118 of the Negotiable Instruments
Act, it can be rebutted by the defendant by showing the
preponderance of probabilities that such consideration as stated in
the pronote or in the suit notice or in the plaint does not exist and
once the presumption is so, the initial evidential burden, the
defendant can rely on direct evidence or circumstantial evidence or
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Crl.R.C(MD)No.332 of 2018
on the presumption of law or fact. Once such convincing rebuttal
evidence is adduced and accepted by the Court, having regard to all
the circumstances of the case and the preponderance of
probabilities, the evidential burden shifts back to the plaintiff who
has the legal burden. Admittedly, the petitioner failed to prove his
case. Further, the petitioner failed to prove by producing any iota of
evidence about the existence of a legally enforceable debt. Hence,
both the Courts below rightly dismissed the complaint filed by the
petitioner and this Court finds no infirmity or illegality in the order
passed by the Courts below. Accordingly, this Criminal Revision Case
is dismissed.
11.04.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.332 of 2018
To
The Additional District and Sessions Court,
Theni.
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.332 of 2018
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.332 of 2018
11.04.2023
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