G.Padmanaban vs K.M.Periyasamy
2023 Latest Caselaw 10148 Mad

                                                                                     Crl.R.C.No.1042 of 2019


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                   DATED: 10.08.2023
                                                            CORAM:
                        THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA
                                                            KURUP


                                                 Crl.RC.No.1042 of 2019

                  G.Padmanaban                                      ... Petitioner/Accused

                                                             Vs.
                  K.M.Periyasamy                                   ... Respondent/Complainant



                  PRAYER: Criminal Revision Petition filed under Section 397 & 401
                  Criminal Procedure Code, to set aside the judgment in C.A.No.25 of 2019
                  dated 31.07.2019 on the file of the Principal Sessions Judge, Erode,
                  confirming the conviction and sentence passed in S.T.C.No.6 of 2014 dated
                  27.12.2018 on the file of the learned Judicial Magistrate, Fast Track Court-II,
                  Erode by allowing this Criminal Revision Petition.

                                           For Petitioner      : Mr.J.N.Naresh Kumar
                                                                Legal Aid Counsel
                                           For Respondent      : No representation


                                                            ORDER

This Criminal Revision Petition had been filed to set aside the

judgment in C.A.No.25 of 2019 dated 31.07.2019 on the file of the Principal

Sessions Judge, Erode, confirming the conviction and sentence passed in

S.T.C.No.6 of 2014 dated 27.12.2018 on the file of the learned Judicial

Magistrate, Fast Track Court-II, Erode.

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Crl.R.C.No.1042 of 2019

2.When the case came up for hearing on previous occasion, there

was no representation for the Revision Petitioner. Therefore, this Court had

addressed the Legal Aid Committee to nominate a Counsel to appear for the

Revision Petitioner and the case was adjourned.

3.On 04.08.2023, the learned Counsel who was nominated by the

Legal Aid Committee, sought further time, as he wanted to peruse the

deposition of the witness before the trial Court and sought further time, and

he also sought copies of the deposition of the witnesses before the trial Court

for effectively submitting his arguments. This Court refused the request of the

learned Counsel for the Revision Petitioner stating that in the revision case,

this Court cannot appreciate evidence. The Revision Petition is filed only on

technicalities of law regarding either the judgment of the trial Court or the

Appellate Court. Therefore, the learned Counsel nominated by the Legal Aid

Committee attached to this Court, was directed to proceed with the

arguments on 10.08.2023, failing which, appropriate orders will be passed.

4.Today, 10.08.2023, when the case came up for hearing, the

learned Counsel who was nominated by the Legal Aid Committee attached to

this Court, submitted his arguments.

5.As per the submission of the learned Counsel for the Revision

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Crl.R.C.No.1042 of 2019

Petitioner, the Accused before the trial Court is the Revision Petitioner. The

Complainant and Accused are not known to each other. The statutory notice

issued by the Complainant was returned without serving on the Accused.

Therefore, he was unable to reply to this statutory notice. Further, it is

defence of the Accused before the trial Court that the Complainant does not

have resources to extend the loan of Rs.3,00,000/- to the Accused. It is the

submission of the learned Counsel for the Revision Petitioner that the

Accused and friend of the Accused viz., Saravanan, were in the textile

business. The Complainant was also in the textile business and 10 years

before filing of the complaint, the Complainant suffered loss in textile

business and he closed the textile business. Therefore, he does not have

resources to extend the loan of Rs.3,00,000/-. It is his defence in the trial in

S.T.C.No.6 of 2014 before the learned Judicial Magistrate, Fast Track Court-

II, Erode, that the Complainant does not have the resources to extend loan of

Rs.3,00,000/- to the Accused. The Accused had not at all received any loan

from the Complainant. Earlier, the Accused had received loan from his friend

Saravanan and had repaid it. At the time of availing loan, the Accused was

alleged to have issued duly signed blank cheque to Saravanan. When he had

also repaid the loan, those cheques have been taken up by the Complainant

and filled up and based on such misuse of the Cheque, the Complainant had

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Crl.R.C.No.1042 of 2019

filed the complaint in S.T.C.No.6 of 2014 before the learned Judicial

Magistrate, Fast Track Court-II, Erode. In the cross examination of the

Complainant-P.W.1 the defence of the Accused was put to him as

suggestions and he had admitted in cross examination that he had sold textile

business 10 years prior to filing of this Complaint. The Complainant as P.W-

1 had clearly in his cross examination stated that he does not know the

address of the Accused. Therefore, the learned Judicial Magistrate failed to

appreciate the evidence available before him.

6.Based on the presumption available under Section 138 of the

Negotiable Instrument Act the Accused was convicted and imposed

compensation of Rs.3,00,000/-. The Accused who had suffered conviction

and sentence of imprisonment, had filed Crl.A.No.25 of 2019 before the

learned Principal Sessions Judge, Erode. The learned Principal Sessions

Judge, Erode, had confirmed the judgment of the learned Judicial Magistrate,

Fast Track Court-II, Erode, and dismissed the appeal. It is the contention of

the learned Counsel for the Revision Petitioner/Accused that the trial Court as

well as the Appellate Court failed to appreciate the evidence, particularly, in

the cross examination of P.W.1 which is in favour of the Accused. Therefore,

he seeks to set aside the judgment of conviction recorded by the learned

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Crl.R.C.No.1042 of 2019

Judicial Magistrate, Fast Track Court-II, Erode and confirmed by the Learned

Principal Sessions Judge, Erode in Crl.A.No.25 of 2019.

7.The learned Counsel for the Revision Petitioner invited the

attention of this Court to the observations of the learned Judicial Magistrate,

Fast Track Court-II, Erode in Paragraph Nos.9 to 20 and Judgement of the

learned Principal Sessions Judge, Erode, in Crl.A.No.25 of 2019 in

Paragraph Nos.14 to 17. Therefore, it is the submission of the learned

Counsel for the Revision Petitioner that the judgement of the learned Judicial

Magistrate, Fast Track Court-II, Erode, in S.T.C.No.6 of 2014 is perverse

and the judgment of the learned Principal Sessions Judge, Erode is also

perverse and they are liable to be set aside.

8. On perusal of the Judgment of the learned trial Judge as well as

the Appellate Judge, it is found that the Rulings cited on behalf of the

Accused by the learned counsel for the Accused as well as before the

Appellate Court, was considered by the learned trial Judge as well as by the

learned Appellate Judge and they had rejected the Rulings cited by the

learned Counsel for the Appellant stating that the defence of the Accused has

to be proved. He had not taken steps to prove the defence, and the rebuttal

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Crl.R.C.No.1042 of 2019

evidence is to be presumed by preponderance of probabilities. It was

accepted by the learned trial Judge as well as by the learned Appellate Judge

and the Accused did not go into the witness box or examine any witness from

the materials available on record and in the evidence adduced by the

prosecution witnesses and answers elicited from prosecution witness were

enough to rebut the presumption and shift the burden of proving the guilt of

Accused. There is sufficient evidence that the Accused had evaded the notice

as well as the reply. Therefore, the Court had drawn adverse inference on the

conduct of the Accused. Therefore, based on the defence of the Accused, he

was convicted. This Court, as revision Court cannot reassess the evidence as

an Appellate Court and already, the Appellate Court had reassessed, the

evidence and arrived at the conclusion, confirming the finding of the guilt

recorded by the learned Judicial Magistrate, Fast Track Court-II, Erode.

9.In the light of the judgment of the Appellate Court confirming the

judgment of the trial Court on the basis of the appreciation of the evidence.

This Revision lacks merit and is to be dismissed. Accordingly, this Criminal

Revision Case is dismissed.

10.The learned Judicial Magistrate, Fast Track Court-II, Erode, is

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Crl.R.C.No.1042 of 2019

directed to secure the Accused by issuing warrant in continuation of the

judgment of conviction and report compliance to this Court by return of e-

mail.

11.Call on 11.09.2023.

10.08.2023

vsn

Note:Issue Order Copy on 10.08.2023

To:

1. The Judicial Magistrate, Fast Track Court-II, Erode.

2. The Principal Sessions Judge, Erode.

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Crl.R.C.No.1042 of 2019

SATHI KUMAR SUKUMARA KURUP, J.

Crl.R.C.No.1042 of 2019

10.08.2023

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