Madras High Court
M.Chenduran vs G.Sahayaraj on 25 August, 2023
Crl.R.C(MD) No.221 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :25.08.2023
CORAM
THE HONOURABLE MR.JUSTICE P.DHANABAL
Crl.R.C(MD) No.221 of 2019
and
Crl.M.P(MD) No.3356 of 2019
M.Chenduran ... Petitioner
-Vs-
G.Sahayaraj ... Respondent
PRAYER:- Criminal Revision Petition is filed under section 397 and
401 of Cr.P.C to set aside the judgment in C.A. No.96 of 2017 dated
29.08.2018 on the file of the II Additional District and Sessions Court,
Tuticorin confirming the judgment and sentence passed in C.C. NO.
343 of 2012 dated 30.01.2017 on the file of the Fast Track Court,
Magisterial level, Tuticorin.
For Petitioner : Mr.Ka.Ramakrishnan
For Respondent : Mr.T.Ponramkumar
ORDER
This Criminal Revision has been filed to set aside the
judgment in C.A. No.96 of 2017 dated 29.08.2018 on the file of the II
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Crl.R.C(MD) No.221 of 2019
Additional District and Sessions Court, Tuticorin confirming the
judgment and sentence passed in C.C. No.343 of 2012 dated
30.01.2017 on the file of the Fast Track Court, Magisterial level,
Tuticorin.
2. Before the trial Court the respondent filed complaint under
Section 138 of the Negotiable Instrument Act and the same was
taken on file in C.C. No.343 of 2012. After trial, the trial Court had
convicted the accused for the offence under Section 138 of the
Negotiable Instrument Act and sentenced to undergo one year simple
imprisonment and directed to pay the cheque amount of Rs.2,00,000/-
as compensation to the complainant within a period of one month
indefault to undergo one month simple imprisonment on 30.01.2017
Against which the accused has preferred an appeal before the learned
Principal District and Sessions Judge, Thoothukudi and the same was
made over to the learned II Additional District and Sessions Judge,
Thoothkudi and the learned II Additional District and Sessions Judge,
Thoothkudi has dismissed the appeal on 29.08.2018 confirming the
judgment of the trial Court.
3. As against the said judgment and conviction, the present
revision has been filed on the following grounds:
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Crl.R.C(MD) No.221 of 2019
a) the trial Court ought to have considered that Ex.P.1 cheque
which is typewritten is not a valid instrument under Negotiable
Instrument Act.
b)the complainant has not proved the source of income to lend
money to the petitioner.
b)Ex.P.3 legal notice is not served to the petitioner. The cheque
was not issued inorder to discharge the legally enforceable debt,
thereby the offence under Section 138 of the Negotiable Instrument
Act will not arise.
4. The learned counsel appearing for the petitioner would
contend that the respondent has filed a cheque case before the trial
Court and the same was taken on file C.C. No.343 of 2012 and then
after full trial the trial Court had convicted the accused under Section
138 of the Negotiable Instrument Act and sentenced to undergo one
year simple imprisonment and directed to pay the cheque amount of
Rs.2,00,000/- as compensation to the complainant within a period of
one month indefault to undergo one month simple imprisonment. The
Courts below failed to consider that the complainant has no source of
income to pay the above said cheque amount and inorder to prove the
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Crl.R.C(MD) No.221 of 2019
case the complainant has to adduce sufficient evidence but no
documents were produced to prove the source of income of the
complainant. The petitioner has not received any legal notice.
Cheque was not issued for discharging any legally enforceable debt.
These aspects have not been considered by the trial Court and hence
the judgment and conviction passed by the Courts below are liable to
be set aside by allowing this appeal.
5. The learned counsel appearing for the respondent would
contend that the accused have not denied the execution of cheque
and the complainant is a fisherman and he is having the capacity to
give the cheque amount of Rs.2,00,000/- and the accused admitted the
signature in the cheque. In this case the petitioner was examined as
P.W.1 and marked Exhibits Ex.p.1 and P.2 and on the side of the
defence no one was examined and no document was marked. P.W.1
categorically deposed about the issuance of cheque and presentation
for collection, thereby the petitioner has proved the case. Per contra,
the accused has not examined any witnesses to rebut the
presumption under Section 139 of the Negotiable Instrument Act.
Therefore, the revision petition is liable to be dismissed.
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Crl.R.C(MD) No.221 of 2019
6. Heard both sides and perused the materials available on
record.
7. Upon hearing both sides and perusing the judgments of both
the Courts and the grounds of appeal, the point for determination in
this petition is
i) whether the judgment and conviction passed in C.A. No.96 of
2017 dated 29.08.2018 on the file of the II Additional District and
Sessions Court, Tuticorin confirming the judgment and sentence
passed in C.C. No.343 of 2012 dated 30.01.2017 on the file of the Fast
Track Court, Magisterial level, Tuticorin is sustainable in law and
facts.
8. In this case there is no dispute with regard to the issuance of
cheque and the accused also admitted the signature found in the
cheque. The main contention raised by the petitioner is that the
respondent has no means to pay such a huge amount and he has failed
to prove his financial capacity. But before the trial Court, while
examining the complainant he stated that he is a commission agent
in fish business and having sufficient means and mere disputing the
source of income of the complainant alone is not sufficient and the
trial Court also in the judgement discussed about the same and came
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Crl.R.C(MD) No.221 of 2019
to the conclusion that the accused had proved his means to pay the
above said cheque amount. Further the accused himself admitted his
signature and if so he has to prove the contrary. Under Section 139 of
the Negotiable Instrument Act the presumption is in favour of the
holder of the cheque, but it is a rebuttable presumption. Inorder to
rebut the presumption no any document adduced by the petitioner.
9. Another contention raised by the petitioner is that cheque
was not issued for legally enforceable debt . In this context P.W.1
stated that the accused borrowed a sum of Rs.2,00,000/- from him on
21.03.2010 and then on the same day, he had executed pronote.
Thereafter on demand of the respondent the accused has issued
cheque drawn on Syndicate Bank bearing No. 489297 dated
14.06.2012. Therefore from the evidence of P.W.1 it reveals that the
cheque was issued for the loan obtained by the pettioner from the
respondent. As far as the ground the cheque was typewritten is
concerned no legal bar to type in the cheque. The trial Court as well
as the appellate court elaborately discussed about the evidence
adduced on either side and correctly applied the legal proposition of
law and hold that the complainant has not proved his case with
sufficient evidence, thereby there is no any infirmity found on the
judgements of the Courts below. Hence this Court has no warrant to
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Crl.R.C(MD) No.221 of 2019
interfere with the judgments of Courts below. Therefore the grounds
raised by the petitioner in this petition has no merits and deserves to
be dismissed.
10. Accordingly this Criminal Revision stands dismissed and the
judgment and conviction passed in C.A. No.96 of 2017 dated
29.08.2018 on the file of the II Additional District and Sessions Court,
Tuticorin confirming the judgment and sentence passed in C.C. NO.
343 of 2012 dated 30.01.2017 on the file of the Fast Track Court,
Magisterial level, Tuticorin are hereby confirmed. The trial Court is
directed to take steps to secure the accused and proceed in
accordance with law.
25.08.2023
Index : Yes/No
Internet : Yes/No
aav
To
1. The II Additional District and Sessions Court, Tuticorin
2. The Judicial Magistrate,
Fast Track Court, Magisterial level, Tuticorin
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD) No.221 of 2019
P.DHANABAL, J.
aav
Crl.R.C(MD) No.221 of 2019
25.08.2023
https://www.mhc.tn.gov.in/judis
