Madras High Court
A.Kumar vs M.Xavier Chandrakumar on 17 August, 2023
Crl.R.C.No.236 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.08.2023
CORAM
THE HONOURABLE MRS. JUSTICE R. HEMALATHA
Crl.R.C.No.236 of 2022 and
Crl.M.P.No.2414 of 2022
A.Kumar ... Petitioner
Vs.
M.Xavier Chandrakumar ... Respondent
Prayer : Criminal Revision Case filed under Section 397 r/w. 401 of
Criminal Procedure Code, to set aside the Judgment in C.A.No.3 of 2020
on the file of the Principal District and sessions Judge, Kancheepuram
District at Chengalpattu dated 04.12.2021, confirming the Judgment
passed in C.C.No.135 of 2017 on the file of the Judicial Magistrate No.1,
Chengalpattu.
For Petitioner : Mr.S.Arokiamaniraj
For Respondent : Mr.S.Rajeswaran
ORDER
Challenging the Judgment and order, dated 04.12.2021 passed
in Crl.A.No.3 of 2020 by the learned Principal District and Sessions
Judge, Kancheepuram at Chengalpattu, the present Criminal Revision is
filed by the petitioner.
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Crl.R.C.No.236 of 2022
2. The respondent/complainant filed a private complaint
against the present revision petitioner under Section 200 Cr.P.C., in
C.C.No.135/2017 before the learned Judicial Magistrate I, Chengalpattu
for an offence punishable under Section 138 of the Negotiable
Instruments Act.
3. The case of the complainant in a nutshell is as follows:
The respondent / complainant and the petitioner /accused are
friends. The accused borrowed a sum of Rs.8 lakhs from the
complainant and executed two promissory notes for Rs.5 lakhs and
Rs.3lakhs. Subsequently, the accused issued two cheques for a sum of
Rs.5 lakhs and Rs.3 lakhs dated 15.12.2016 and 02.12.2016 respectively
(Ex.P1 and Ex.P2) drawn on Indian Overseas Bank, Koduveli
Ramapuram Branch to the complainant towards liquidation of the loan
amount. When the cheques were presented for collection by the
complainant through his banker viz., Karur Vysya Bank, Kelambakkam
Branch, the cheques were returned for the reason 'Insufficient funds'
(Return Memo-Ex.P3). Thereafter, the complainant issued a legal notice
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Crl.R.C.No.236 of 2022
dated 09.03.2017 (Ex.P4) to the accused and though the accused received
the said notice as is seen from the postal acknowledgment card (Ex.P5),
he neither paid any amount due under the cheques nor sent any reply to
the legal notice. Therefore the complainant filed the private complaint in
C.C.No.135/2017 on the file of the learned Judicial Magistrate I,
Chengalpattu. The learned Judicial Magistrate took cognizance of the
offence, issued summons to the revision petitioner / accused under
Section 204 of Cr.P.C. On appearance of the accused, copies of records
were furnished to him under Section 207 of Cr.P.C., When the accused
was questioned with regard to the substance of accusation levelled
against him, he pleaded not guilty and the case was posted for trial.
4. In the trial Court, the respondent / complainant examined
himself as P.W1 and marked Ex.P1 to Ex.P5. When the accused was
questioned with regard to the incriminating circumstances appearing in
evidence against him under Section 313 (i) (b) Cr.P.C, he denied of
having committed any offence. The accused did not adduce any oral or
documentary evidence on his side.
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Crl.R.C.No.236 of 2022
5. After analysing the evidence on record, the learned Judicial
Magistrate I, Chengalpattu found the revision petitioner/accused guilty of
the offence punishable under Section 138 of the Negotiable Instruments
Act, convicted and sentenced him to undergo simple imprisonment for a
period of one year and also to pay a fine of Rs.8,00,000/- in default to
undergo Simple Imprisonment for three months.
6. Aggrieved over the same, the revision petitioner/accused
filed an appeal in Crl.A.No.3 of 2020 before the Principal District and
Sessions Judge, Kancheepuram at Chengalpattu. The learned Principal
District and Sessions Judge, Kancheepuram at Chengalpattu dismissed
the appeal, confirming the conviction and sentence passed by the trial
court vide his Judgment dated 04.12.2021, aggrieved over which the
present revision is filed.
7. Mr.S.Arokiamaniraj, learned counsel for the petitioner
contended that the complainant had not proved his wherewithal for
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Crl.R.C.No.236 of 2022
lending a sum of Rs.8 lakhs to the accused and that there is no proof for
the financial transaction between the complainant and the accused. He
also contended that the cheques ware issued in favour of a Trust in which
the complainant is a Managing Trustee and that the private complaint
under Section 200 of Cr.P.C., is filed by the complainant in his
individual capacity and therefore the conviction and sentence passed by
both the Courts has to be set aside.
8. Per contra, Mr.S.Rajeswaran, learned counsel appearing for
the respondent contended that both the Courts have concurrently held
that the accused had borrowed a sum of Rs.8 lakhs and issued cheques
without having sufficient funds in his bank account. His further
contention is that both the Courts rightly found the accused guilty for the
offence punishable under Section 138 of the Negotiable Instruments Act
and therefore, there is no need to interfere with the concurrent findings of
facts by the Courts below. Moreover, though the accused was given
opportunity to cross examine the complainant (P.W.1.) he did not choose
to cross examine him. Therefore, now the accused cannot contend that
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Crl.R.C.No.236 of 2022
the complainant had no wherewithal to lend a sum of Rs.8 lakhs to him
and that the cheques were issued only in favour of the Trust in which the
complainant is a Managing Trustee.
9. A perusal of the cheques shows that the cheques were issued
only in favour of the complainant and not in favour of the Trust.
Moreover, the revision petitioner/ accused did not deny his signature on
the cheques (Ex.P1 and Ex.P2). The complainant had originally obtained
two promissory notes from the accused and this has not been denied.
Moreover, the accused did not state that the cheques were issued only in
favour of the Trust and not in favour of the complainant during
questioning under Section 313 of Cr.P.C., As already observed, the
accused did not cross examine the complainant and in fact did not send
any reply to the notice issued by the complainant. Therefore both the
Courts below had rightly held that the accused is guilty of the offence
punishable under Section 138 of the Negotiable Instruments Act. This
Court, while exercising revisional jurisdiction, cannot sit as a second
appellate Court to reconsider the facts of the case. I do not see any reason
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Crl.R.C.No.236 of 2022
to interfere with concurrent findings of facts by the Courts below. The
Criminal Revision is dismissed and the conviction and sentence passed
by both the courts below are confirmed. The accused is directed to
surrender before the trial Court within 15 days from the date of receipt of
a copy of this order, failing which the trial Court shall take necessary
steps to secure the presence of the accused to serve the remaining period
of sentence. Consequently, connected miscellaneous petition is closed.
17.08.2023
Index: Yes/No
Speaking/Non-Speaking order
vum
To
1.The Principal District and Sessions Judge,
Kancheepuram at Chengalpattu.
2.The Judicial Magistrate I,
Chengalpattu.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.236 of 2022
R. HEMALATHA, J.
vum
Crl.R.C.No.236 of 2022 and
Crl.M.P.No.2414 of 2022
17.08.2023
https://www.mhc.tn.gov.in/judis
