P.Kuppusamy vs Narayanasamy (Died)
2023 Latest Caselaw 1255 Mad

                                                                                Crl.R.C.No.1469 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 01.02.2023

                                                         CORAM:

                                  THE HONOURABLE MS JUSTICE R.N.MANJULA

                                                 Crl.R.C.No.1469 of 2017

                     P.Kuppusamy                                                    ... Petitioner

                                                            Vs.

                     Narayanasamy (died)
                     R.Shanmugam                                                  ... Respondent

                     Prayer: The Criminal Revision Case filed under Section 397 r/w. 401 of
                     Cr.P.C. to set aside the conviction imposed in the Judgment, dated
                     26.10.2017 made in C.A.No.54 of 2017 on the file of the learned Second
                     Additional Sessions Court, Erode confirming the Judgment, dated
                     04.02.2017 made in S.T.C.No.584 of 2014 on the file of the learned Judicial
                     Magistrate, Fast Track Court No.1, Erode by allowing this Criminal
                     Revision Petition.


                                    For Petitioner         : Mr.M.Ganesh for
                                                             Mr.N.Manokaran

                                    For Respondent         : Mr.M.Kathik for
                                                             Mr.I.C.Vasudevan



                     1/9


https://www.mhc.tn.gov.in/judis
                                                                                    Crl.R.C.No.1469 of 2017

                                                           ORDER

This Criminal Revision has been preferred challenging the conviction

and sentence imposed in the Judgment, dated 26.10.2017 made in

C.A.No.54 of 2017 on the file of the learned Second Additional Sessions

Court, Erode confirming the order, dated 04.02.2017 made in S.T.C.No.584

of 2014 on the file of the learned Judicial Magistrate, Fast Track Court

No.1, Erode.

2. The revision petitioner is the sole accused against whom the

respondent had given a complaint under Section 138 of the Negotiable

Instruments Act for dishonour of cheque. The allegation made by the

respondent is that the petitioner had availed a loan of Rs.3 lakhs from the

respondent on 26.01.2013 and to discharge the sum, he had issued a post

dated cheque on 25.04.2013 for 3lakhs drawn from ICICI Bank, Erode

Branch. As requested by the petitioner, the respondent has presented the

cheque for collection through SBI Bank, Erode on 27.04.2013 and the same

was returned on 29.04.2013 as “funds insufficient”. The notice sent by the

respondent was also not served on the petitioner and it was returned as left

without instructions. After complying the legal mandates, private complaint

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1469 of 2017

was filed by the respondent against the petitioner for the offence under

Section 138 of the Negotiable Instruments Act and the same was taken in

S.T.C.No.584 of 2014. After completion of trial, the petitioner was found

guilty and he was convicted and sentenced to undergo 6 months Simple

Imprisonment and imposed with a sum of Rs.3 lakhs as compensation to be

payable to the respondent. Aggrieved over the said order of conviction and

sentence, the accused preferred an appeal in C.A.No.54 of 2017 before the

II Additional Sessions Judge, Erode and the same was dismissed, against

which the present Revision has been preferred.

3. Heard the learned counsel for the petitioner and the learned counsel

appearing for the respondent.

4. The learned counsel for the petitioner submitted that the petitioner

never knew the respondent. The petitioner's brother viz., Kannan had some

money transaction with DW2 viz., C.Subramaniam who is the friend of the

respondent. During that course, the petitioner's brother Kannan had issued a

cheque to DW2 and that was handed over to the respondent and the case has

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1469 of 2017

been filed basing on the said transaction. The cheque is not supported by

any debt or legally enforceable liability. DW2 was examined as a witness

on the side of the petitioner/accused and during his examination he did not

know about his transaction with the petitioner's brother. However, the

evidence of D.W.3 who is the senior bank manager would show that DW2 is

related to the respondent and they had transaction between themselves. By

claiming that the rebuttal proof was satisfactorily adduced, the learned

counsel for the petitioner submitted that the same was not properly

appreciated by the Courts below.

5. The learned counsel for the respondent submitted that once the

signature in the cheque is not denied, the presumption under Section 138 of

the Negotiable Instruments Act will go in favour of the holder of the

cheque. The petitioner did not take any legal action by alleging that there is

a cheque issued by his brother Kannan to D.W.2, even after the loan availed

by Kannan for D.W.2 got discharged. In fact, D.W.2 has refused that he did

not hand over any cheque to the respondent / complainant. The petitioner

did not examine his brother Kannan as his witness. Neither the petitioner

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1469 of 2017

nor his brother Kannan had taken any steps to recover the cheque which is

alleged to have been handed over to D.W.2 as security. Since the

respondent had proved the guilt of the accused with relevant materials, the

Courts below concurrently found the accused guilty and convicted him.

The impugned cheque dated 25.04.2013 which is marked as Ex.P1 is for

Rs.3 lakhs drawn from ICICI bank. The signature contained in the

impugned cheque is not in dispute. The one and only contention of the

petitioner is that the cheque was not issued by him to the respondent for any

legally enforceable debt or liability, but it was given as security by his

brother Kannan to D.W.2 who is the friend of the respondent. Even though

the petitioner did not choose to examine his own brother Kannan, he has

examined D.W.2 Subramaniam who is said to be the friend of the

respondent. However, the said Subramaniam had deposed that he did not

give any cheque to the respondent.

6. The learned counsel for the petitioner submitted that D.W.2 has

stated in his chief examination that he did not have any transaction with the

respondent, but the evidence of D.W.3, the bank manager would prove

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1469 of 2017

otherwise. Even if it is true that D.W.2 and the respondent were friends and

they had transaction between themselves, the fact remains that the impugned

cheque was sent and drawn by the respondent himself. The brother of the

respondent was not examined as a witness in order to show what kind of

transaction he had with D.W.2 and at what point of time he had given the

impugned cheque to D.W.2. The learned trial Judge rightly observed that

neither the petitioner nor his brother Kannan had taken any steps to recover

the impugned cheque after the alleged loan was repaid by Kannan.

Knowing pretty well about the consequences of the signed cheque, the

petitioner did not inform his Bank Manager to stop payment from his

account. The cheque of the petitioner cannot be considered as a rebuttal

proof to rebut the presumption revolving Ex.P1, Cheque. Neither the

petitioner nor his brother had given any police complaint much less the

petitioner had not chosen to give any reply to the legal notice sent by the

respondent.

7. The learned trial Judge has properly appreciated the materials on

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record along with the conduct of the petitioner, to arrive at a conclusion that

the cheque has been issued for a legal enforceable debt or liability. Since

the learned appellate Judge did not find any lapse on decision of the learned

trial Judge, he confirmed the order of the learned trial Judge by dismissing

the appeal. Since no valid ground for revision has been successfully made

out, I feel it is unnecessary to interfere with the Judgment of the learned II

Additional Session Judge, Erode.

8. However, the learned counsel for the petitioner submitted that

considering the age of the petitioner some liberty should be shown in the

matter of punishment. Taking into consideration the fact that the petitioner

is a senior citizen, I feel it is appropriate to modify the sentence alone.

Accordingly, the sentence of 6 months Simple Imprisonment is modified as

3 months Simple Imprisonment. The imposition of compensation at

Rs.3lakhs remain unaltered. It is also seen from the order of this Court,

dated 22.11.2017 in Crl.M.P.Nos.14543 and 14545 of 2017 that a sum of

Rs.75,000/- has been imposed while granting suspension of sentence against

the accused. If the said amount had been deposited by the petitioner, the

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1469 of 2017

respondent is at liberty to file an appropriate application before the trial

court and withdraw the same and apportionate it towards the part of the

compensation ordered.

9. With the above modification and observation, this Criminal

Revision Case is partly allowed.

01.02.2023 Index: Yes/No Speaking order/Non speaking order vum

R.N.MANJULA,J.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1469 of 2017

vum

Crl.R.C.No.1469 of 2017

01.02.2023

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