Madras High Court
Dhandapani vs M.Kumaravel on 25 April, 2023
Crl.R.C(MD)No.213 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.04.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.213 of 2018
and
Crl.M.P(MD)Nos.2860 & 2861 of 2018
Dhandapani ... Petitioner/
Appellant/Accused
Vs.
M.Kumaravel ... Respondent/
Respondent/Complainant
PRAYER: Criminal Revision Case filed under Section 397 and 401
of the Code of Criminal Procedure, to call for the records and set
aside the conviction and sentence passed in C.A.No.130 of 2017 on
the file of the District and Sessions Court, Karur, dated 09.01.2018,
confirming the conviction and sentence passed in C.C.No.619 of
2014 on the file of the Fast Track Court (Judicial Magistrate Level),
Karur, dated 23.08.2017.
For Petitioner : Mr.AN.Ramanathan
For Respondent : Mr.K.Suresh
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Crl.R.C(MD)No.213 of 2018
ORDER
This revision has been filed to set aside the Judgment
made in C.A.No.130 of 2017 on the file of the District and Sessions
Court, Karur, dated 09.01.2018, confirming the conviction and
sentence made in C.C.No.619 of 2014 on the file of the Fast Track
Court (Judicial Magistrate Level), Karur, dated 23.08.2017.
2.The petitioner is an accused in the complaint lodged
by the respondent for the offence punishable under Section 138 of
the Negotiable Instruments Act.
3.The crux of the complaint is that on 22.06.2014, the
petitioner borrowed a sum of Rs.12,00,000/- for his urgent needs
and also business purposes from the respondent. On the date of
borrowal itself, he had executed a pro-note in favour of the
respondent and also agreed to repay the said amount with interest
at the rate of Rs.1.50 paise per Rs.100/- per month. However, the
petitioner failed to pay any amount either towards principal or
towards interest. On repeated request and demand, the petitioner
had issued three post-dated cheques in favour of the respondent
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Crl.R.C(MD)No.213 of 2018
and two cheques were issued for a sum of Rs.5,00,000/- each and
one cheque was issued for a sum of Rs.2,00,000/-. All the cheques
were presented for collection on 08.09.2014. All the cheques were
returned dishonoured for the reason “funds insufficient”. Hence, the
respondent caused statutory notice. On receipt of the same, the
petitioner neither send any reply nor settled the cheque amount.
Hence, the complaint.
4.On the side of the respondent, he himself was
examined as P.W.1 and marked Exs.P.1 to P.9 and on the side of the
petitioner, he himself was examined D.W.1 and marked Exs.D.1 to
D.5.
5.On perusal of the oral and documentary evidence, the
trial court found the accused guilty for the offence punishable under
Section 138 of the Negotiable Instruments Act and sentenced him to
undergo one year Simple Imprisonment and to pay a fine of Rs.
5,000/-, in default, to undergo 30 days Simple Imprisonment.
Aggrieved by the same, the petitioner preferred an appeal in
C.A.No.130 of 2017 on the file of the District and Sessions Court,
Karur. The appellate Court also dismissed the appeal and confirmed
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Crl.R.C(MD)No.213 of 2018
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 any legally enforceable debt.
The respondent is a stranger to the petitioner and the petitioner
never borrowed any loan as alleged in the complaint. That apart,
the cheque was issued on behalf of V-Wind Mills that too in favour of
the respondent. The cheque was misused by the respondent and
initiated the proceedings under Section 138 of the Negotiable
Instruments Act. Further, in the notice as well as the complaint, the
petitioner name was mentioned as Dhandapani, but his name is
Dhandayuthapani. Therefore, without even knowing the name of the
petitioner, the respondent had lent such a huge amount is an
unbelievable one. Therefore, without considering the above facts
and circumstances both the Courts below wrongly convicted the
petitioner for the offence punishable under Section 138 of the
Negotiable Instruments Act.
7.On perusal of the records revealed that though the
petitioner contended his name as Dhandayuthapani, he ought not to
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Crl.R.C(MD)No.213 of 2018
have received the notice and signed in the acknowledgment card
and the acknowledgment card was marked as Ex.P.9. That apart,
the petitioner executed pro-note which was marked as Ex.P.1 and all
the cheques were marked as Ex.P.2 to Ex.P.4. In fact, the petitioner
failed to appear before the trial Court and as such, Non-Bailable
Warrant was issued as against the petitioner. In order to re-call the
Non-Bailable Warrant, the petitioner filed a petition, in which, he
stated his name as Dhandapani. He had never taken a stand that
his name is Dhandayuthapani before the trial Court.
8.The petitioner had taken a further stand that he
borrowed loan from Vidhya Associates. At the time of borrowal of
loan, the petitioner had given cheques and pro-notes for security
purposes. Even after repaid the entire loan amount, the said Vidhya
Associates failed to return the cheques and pro-notes which were
handed over as security. However, in order to substantiate the
same, the petitioner did not even produce any material evidence to
show that he borrowed the loan from Vidhya Associates and had
given the cheques and pro-notes for security purposes. Even after,
the petitioner did not take any steps to get back their pro-notes and
cheques. In fact, even after receipt of the statutory notice, the
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Crl.R.C(MD)No.213 of 2018
petitioner failed to take any steps to lodge even complaint or any
other proceedings as against the said Vidhya Associates. The
petitioner never denied the signature in the pro-notes and the
cheques. Therefore, it construed that he issued pro-notes and
cheques for the loan borrowed by him.
9.Further, the petitioner marked Ex.D.1/the F.I.R, which
was registered in Crime No.12 of 2010. Accordingly, their company
called Vinfab was completely burnt in a fire accident in the year
2010 itself. Thereafter, the registration certificate of the said
company was also cancelled in the year 2012. When it was being so,
there could not be any cheques issued by the said company. On
perusal of the records revealed that the cheques were issued in the
capacity of the petitioner of Proprietor of V-wind Mills. Those
cheques and pro-notes were not issued in the name of V-wind Mills.
Therefore, the respondent categorically discharged his initial burden
as contemplated under Section 138 of the Negotiable Instruments
Act. Therefore, both the Courts below rightly convicted the
petitioner for the offence punishable under Section 138 of the
Negotiable Instruments Act. That apart, even till today, the
petitioner's sentence is not yet suspended. Unfortunately, the
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Crl.R.C(MD)No.213 of 2018
respondent also did not take any steps to execute the order of
sentence imposed by the Courts below. Hence, this Court finds no
infirmity or illegality in the order passed by the Courts below.
10.Accordingly, this Criminal Revision Case is dismissed.
The trial Court is directed to take steps to secure the
petitioner/accused to serve the remaining period of sentence.
Consequently, connected Miscellaneous Petitions are closed.
25.04.2023
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NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
To
1.The Additional District and Sessions Court,
Palani.
2.The Judicial Magistrate (Fast Track Court),
Palani.
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Crl.R.C(MD)No.213 of 2018
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.213 of 2018
25.04.2023
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