Madras High Court
Palanivel vs Selvaraj ... 1St on 17 April, 2023
Crl.R.C(MD)No.768 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.04.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.768 of 2017
and
Crl.M.P(MD)Nos.9162 & 9163 of 2017
Palanivel ... Petitioner/
Appellant/Accused
Vs.
1.Selvaraj ... 1st Respondent/
1st Respondent/Complainant
2.The Public Prosecutor,
Dindigul,
Dindigul District. ... 2nd Respondent/
2nd Respondent
PRAYER: Criminal Revision Case filed under Section 397 and 401 of
the Code of Criminal Procedure, to call for the records pertaining to
the Judgment in C.A.No.19 of 2016, dated 14.07.2017 on the file of
the learned Additional Sessions Judge, Dindigul, confirming the
conviction and sentence under Sentence under Section 138 of the
Negotiable Instruments Act and sentenced him to undergo six
months Simple Imprisonment and to pay a fine amount of Rs.
5,000/- in default to undergo two months Simple Imprisonment by
the learned Judicial Magistrate No.2, Dindigul in C.C.No.503 of
2009, dated 20.04.2016 and set aside the same.
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Crl.R.C(MD)No.768 of 2017
For Petitioner : Mr.M.Annie Mohana
Legal Aid Counsel
For R – 1 : Mr.C.Susikumar
For R – 2 : Mr.K.Sanjai Gandhi
Government Advocate (Crl. Side)
ORDER
This revision has been filed to set aside the Judgment in
C.A.No.19 of 2016, dated 14.07.2017 on the file of the learned
Additional Sessions Judge, Dindigul, confirming the conviction and
sentence in C.C.No.503 of 2009, dated 20.04.2016, on the file of
the learned Judicial Magistrate No.2, Dindigul.
2.The petitioner is an accused and the first respondent
is the complainant. The first respondent lodged the complaint as
against the petitioner for the offence punishable under Section 138
of the Negotiable Instruments Act.
3.The crux of the complaint is that the petitioner was
employed in a Primary Agricultural Co-operative Bank and he
borrowed a sum of Rs.3,00,000/- from the first respondent on
17.05.2009 as a hand loan to meet out his family expenses. He also
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Crl.R.C(MD)No.768 of 2017
assured that he would repay the said amount within a period of two
months. However, the petitioner failed to repay the same as agreed
by him and as such, the first respondent approached the petitioner
and demanded to repay the loan amount. In order to repay the said
amount, the petitioner issued cheque and the same was presented
for collection. It was returned for the reason that 'payment stopped
by the drawer'. After causing statutory notice, the first respondent
lodged the complaint.
4.On the side of the first respondent, he himself was
examined as P.W.1 and also marked Exs.P.1 to P.5 and on the side of
the petitioner, he had examined D.W.1 and D.W.2 and marked
Ex.D.1.
5.On perusal of the oral and documentary evidence, the
trial Court convicted the accused for the offence punishable under
Section 138 of the Negotiable Instruments Act and sentenced him to
undergo six months Simple Imprisonment and to pay a fine Rs.
5,000/-, in default, to undergo two months Simple Imprisonment.
Aggrieved by the same, the petitioner preferred an appeal in
C.A.No.19 of 2016 on the file of the learned Additional Sessions
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Crl.R.C(MD)No.768 of 2017
Judge, Dindigul and the Appellate Court also dismissed the same
confirming the conviction and sentence imposed by the trial Court.
Hence, the present revision.
6.The learned counsel appearing for the petitioner would
submit that the cheque was not issued for any legally enforceable
debt. Therefore, the petitioner issued stop payment and the same
was marked as Ex.D.1. In order to rebut the presumption, the first
respondent had examined D.W.1 and D.W.2. Even then, convicted
the petitioner for the offence punishable under Section 138 of the
Negotiable Instruments Act. The alleged cheque which was marked
as Ex.P.1 was stolen since it was issued for security purposes to one
Selvam and thereafter it was stolen by the first respondent, who
presented the cheque for collection. Immediately, after missing the
cheque, the petitioner issued a stop payment to his banker.
Therefore, the petitioner categorically rebutted the presumption
arising out of Sections 118 and 139 of the Negotiable Instruments
Act.
7.Heard the learned counsel appearing on either side
and perused the materials available on record.
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Crl.R.C(MD)No.768 of 2017
8.On perusal of the records revealed that the petitioner
borrowed a sum of Rs.3,00,000/- as a hand loan and in order to
repay the said amount, Ex.P.1 was issued in favour of the first
respondent. While it was presented for collection, it was returned
dishonoured for the reason 'payment stopped by the drawer'. After
causing statutory notice, the first respondent lodged the complaint.
In fact, the said statutory notice was unclaimed by the petitioner
and returned with an endorsement as 'unclaimed'. Though the
petitioner cross-examined P.W.1, no material was produced to show
that Ex.P.1 was stolen by the first respondent. That apart, the
petitioner though issued a stop payment to his banker, he failed to
establish that on the date of issuance of the stop payment, he
maintained the account with money in order to honour the cheque.
On the other hand, the first respondent had discharged his initial
burden and fulfilled the presumption under Sections 118 and 139 of
the Negotiable Instruments Act. Though it is rebuttable in nature,
the petitioner failed to rebut the same by a preponderance of
probability. Therefore, both the Courts below rightly convicted the
petitioner for the offence punishable under Section 138 of the
Negotiable Instruments Act and this Court finds no infirmity or
illegality in the order passed by the Courts below.
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Crl.R.C(MD)No.768 of 2017
9.However, the learned counsel appearing for the
petitioner would submit that if the petitioner settled the entire
cheque amount, the sentence may be set aside.
10.Considering the said submission, if the petitioner
settled the entire cheque amount to the first respondent on or
before 06.06.2023, the sentence imposed by the Courts below is
hereby set aside. It is made clear that if the petitioner fails to settle
the cheque amount, the sentence imposed by the Courts below is
hereby restored without any further reference to this Court.
Accordingly, this Criminal Revision Case is partly allowed.
Consequently, connected Miscellaneous Petitions are closed.
17.04.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
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Crl.R.C(MD)No.768 of 2017
To
1.The Additional Sessions Judge,
Dindigul.
2.The Judicial Magistrate No.2, Dindigul.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.768 of 2017
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.768 of 2017
17.04.2023
https://www.mhc.tn.gov.in/judis
