Kalaiselvi vs Sivasubramanian
2023 Latest Caselaw 4744 Mad

                                                                            Crl.R.C.(MD)No.120 of 2018



                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   Date : 25.04.2023

                                                      CORAM:

                           THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                         Crl.R.C.(MD)No.120 of 2018
                                                    and
                                    Crl.M.P.(MD)Nos.1737 and 1738 of 2018

                     Kalaiselvi                          ... Petitioner/Appellant/Sole Accused

                                                            vs.

                     Sivasubramanian                    ...Respondent/Respondent/Complainant

                     PRAYER : This Criminal Revision Petition has been filed under Section
                     397 r/w 401 r.w 482 of Cr.P.C., to call for the records of the learned I
                     Additional District and Sessions Judge, Tirunelveli in C.A.No.7 of 2015,
                     dated 13.11.2017 partly allowed to pay the compensation amount of Rs.
                     2,00,000/- and confirmed the default sentence to undergo one month
                     simple imprisonment if the compensation amount is not paid within one
                     month from the date of the judgment for an offence under Section 138 of
                     the Negotiable Instruments Act by the learned Judicial Magistrate No.IV,
                     Tirunelveli in S.T.C.No.2880 of 2007, dated 18.12.2014 and set aside the
                     same.


                                  For Petitioner     : Mr.M.Ramu

                                  For Respondent : Mr.M.Murugaprabhu



https://www.mhc.tn.gov.in/judis
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                                                                                 Crl.R.C.(MD)No.120 of 2018



                                                           ORDER

This Criminal Revision Case is directed against the Judgment,

passed in C.A.No.7 of 2015 by the learned I Additional District and

Sessions Judge, Tirunelveli dated 13.11.2017 confirming the order

passed in S.T.C.No.2880 of 2007 by the learned Judicial Magistrate

No.IV, Tirunelveli, dated 18.12.2014.

2. The petitioner is an accused in the complaint lodged by the

respondent for the offence under Section 138 of the N.I. Act.

3. The crux of the complaint is that the petitioner borrowed a sum

of Rs.2,00,000/- (Rupees Two Lakhs only) from the respondent, on

10.09.2006, for her family needs. The petitioner/accused issued a post

dated cheque for the loan amount. When the same was presented for

collection, it was returned as dishonored for the reason “insufficient

funds”. After causing statutory notice, the respondent lodged the

complaint.

4. On the side of the respondent, he examined himself as P.W.1 and

exhibited 6 documents as Ex.P.1 to Ex.P.6. On the side of the petitioner,

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Crl.R.C.(MD)No.120 of 2018

two witnesses were examined as D.W.1 and D.W.2 and exhibited 3

documents as Ex.D.1 to Ex.D.3.

5. A perusal of the oral and documentary evidence, the trial Court

found the petitioner guilty for the offence under Section 138 of the N.I

Act and sentenced her to undergo 6 months Simple Imprisonment and

also awarded compensation for a sum of Rs.2,00,000/- (Rupees Two

Lakhs only) within a period of three months.

6. Aggrieved by the same, the petitioner has preferred an appeal

before the learned Additional District and Sessions Judge, Tirunelveli, in

C.A.No.7 of 2015. The First Appellate Court has partly allowed the

appeal on 13.11.2017 and thereby, confirmed the conviction and set aside

the sentence and also confirmed the compensation awarded by the trial

Court. Hence, the present revision.

7. The learned counsel for the petitioner would submit that the

respondent is a stranger to the petitioner. On receipt of the statutory

notice, she issued a reply notice and categorically stated that the

respondent is a stranger to her and she never borrowed any loan from the

respondent. The cheque was not issued for any legally enforceable debt, https://www.mhc.tn.gov.in/judis

Crl.R.C.(MD)No.120 of 2018

since the cheque was forcibly taken by one Velu, on the borrowal of loan

by her husband from one Ponnudurai. On behalf of the said Ponnudurai,

the said Velu snatched cheques from the petitioner under coercion.

Further, the petitioner questioned the source of income by the respondent

to lend such a huge amount of Rs.2,00,000/- (Rupees Two Lakhs only) as

loan. That apart, admitting to lending loan, no documents were received

by the respondent as security. Therefore, the petitioner categorically

rebutted the presumption arising under Sections 118 and 139 of the N.I.

Act. Even then, the respondent failed to prove his case beyond any

reasonable doubt and as such, the petitioner has ordered to be acquitted

for the offence under Section 138 of the N.I Act. In support of his

contention, he relied upon the judgment of the Hon'ble Supreme Court of

India in Basalingappa Vs. Mudibasappa reported in (2019) 5 SCC 418.

8. Per contra, the learned counsel for the respondent would submit

that the petitioner admitted her signature. Once she admitted the

signature, she cannot clarify issuance of cheque. Though the petitioner

had taken specific stand that the alleged cheques were snatched from her

by one Velu under coercion, she failed to lodge any complaint so far.

Even after receipt of the statutory notice, the petitioner did not lodge any

complaint as against the said Velu. Though the petitioner issued reply https://www.mhc.tn.gov.in/judis

Crl.R.C.(MD)No.120 of 2018

notice, she never questioned about the source of income of the

respondent herein. The petitioner did not make any statement under

Section 313 of Cr.P.C. before the trial Court in order to dispute the source

of income of the respondent herein. Therefore, the respondent discharged

his initial burden as contemplated under Section 138 of the N.I Act and

both the Courts below rightly convicted the petitioner for the offence

under Section 138 of the N.I Act. In fact, the First Appellate Court set

aside the sentence and only confirmed the award of compensation to the

tune of cheque amount. Therefore, nothing warrants this Court to

interfere with the conviction and compensation awarded by the First

Appellate Court.

9. Heard the learned counsel appearing on either side and perused

the materials available on record.

10. The petitioner is an accused and she borrowed a sum of

Rs.2,00,000/- (Rupees Two Lakhs only). In order to repay the said

amount, she issued cheque and the same was returned as dishonored for

the reason “insufficient funds”. However, the respondent caused statutory

notice and on receipt of the same, the petitioner issued reply notice,

which was marked as Ex.P.5.

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Crl.R.C.(MD)No.120 of 2018

11. A perusal of Ex.P.5 revealed that the petitioner had taken

specific stand that the respondent is a stranger to her. She never

borrowed any amount from him. She never issued any cheque in favour

of the respondent herein. However, she failed to question about the

source of income of the respondent herein at the time of alleged borrowal

of loan. However, during cross examination of P.W.1, a suggestion was

put against the respondent in respect of the source of income. Mere

suggestion cannot be stated that the petitioner rebutted the presumption

arising under Sections 138 and 139 of the N.I Act, since the petitioner

admitted her signature and issuance of cheque. Further, her specific

stand is that the respondent borrowed loan from one Ponnudurai. On

behalf of the said Ponnudurai, one Velu snatched the cheques and

pronote from the petitioner and the same was misused by the petitioner

by initiation of proceedings under Section 138 of the N.I Act. However,

the said contention was not proved by the petitioner by any material

evidence. Admittedly, the petitioner did not lodge any complaint so far.

In fact, even after receipt of statutory notice, the petitioner failed to lodge

any complaint as against the respondent. It is true that there is a

presumption mandated by Section 139 of the N.I Act. It does indeed

include the existence of legally enforceable debt or liability, which, of

course, is in the nature of a rebuttable presumption. https://www.mhc.tn.gov.in/judis

Crl.R.C.(MD)No.120 of 2018

12. The learned counsel for the petitioner relied upon upon the

judgment of the Hon'ble Supreme Court of India in Basalingappa Vs.

Mudibasappa reported in (2019) 5 SCC 418, in which, the Hon'ble

Supreme Court held that the accused has raised a probable defence and

the findings of the trial Court that the complainant failed to prove his

financial capacity or based on evidence let in by the defence. Therefore,

the observations of the Court below are perverse and unsustainable.

13. In the case on hand, a perusal of statutory notice, which was

marked as Ex.P.5 revealed that the petitioner never questioned about the

source of income of the respondent. Her specific stand that in the reply

notice was that she never borrowed any loan from the respondent. The

respondent is the stranger to her. The cheque was not issued by her for

any legally enforceable debt. Only in the cross examination of P.W.1, she

questioned about the source of income. Therefore, the petitioner failed to

rebut the presumption at initial stage, when issuing reply notice. That

apart, the petitioner failed to make any statement under Section 313 of

Cr.P.C. about the source of income, issuance of cheque and any legally

enforceable debt. The cheque was issued for legally enforceable debt.

Therefore, the above Judgment is not applicable to the case on hand.

14. In view of the above, this Court finds no infirmity or illegality https://www.mhc.tn.gov.in/judis

Crl.R.C.(MD)No.120 of 2018

in the order passed by the Courts below and the revision is liable to be

dismissed. Accordingly, the Criminal Revision Petition is dismissed.

Consequently, connected miscellaneous petitions are closed.

25.04.2023

sji

NCC : Yes/No Index: Yes/No Internet: Yes/No To

1.The I Additional District and Sessions Judge, Tirunelveli.

2.The Judicial Magistrate No.IV, Tirunelveli.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis

Crl.R.C.(MD)No.120 of 2018

G.K.ILANTHIRAIYAN , J.

sji

Crl.R.C.(MD)No.120 of 2018

25.04.2023

https://www.mhc.tn.gov.in/judis