M. Sivabakiyam vs K. Kulanthaivel
2023 Latest Caselaw 524 Mad

                                                                                         Crl.R.C.No.1362 of 2017


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED : 10.01.2023

                                                              CORAM

                                     THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR

                                                     Crl.R.C.No.1362 of 2017

                     M. Sivabakiyam                                                   ... Petitioner

                                                                Vs.

                     K. Kulanthaivel                                                  ... Respondent

                     Prayer: Criminal Revision Case is filed under Section 397 and 401 of
                     Cr.P.C., to set aside the order dated 21.06.2017 in C.A.No.60 of 2016
                     passed by the II Additional District Sessions Court, Tirupur confirming the
                     order of conviction in C.C.No.13 of 2015 by Fast Tract Court, Tirupur.
                                        For Petitioner      : Mr. S.M. Muralidharan

                                        For Respondent      : Mr. Maruthi Raj,
                                                              Legal Aid Counsel

                                                             ORDER

This Criminal Revision Case is filed against the concurrent finding of

the Courts below holding the petitioner guilty of offence under Section 138

of Negotiable Instruments Act.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1362 of 2017

2. In C.C.No.13 of 2015, the trial Court by judgment dated

26.04.2016 found the petitioner guilty, convicted and sentenced her to

undergo one year rigorous imprisonment and fine of Rs.1,000/-, in default,

to undergo one month simple imprisonment. On appeal, the conviction and

sentence was confirmed by the II Additional District Sessions Court, Tirupur

in C.A.No.60 of 2016. Aggrieved by that, the petitioner has preferred this

present petition.

3. The case of the complainant is that the petitioner / accused is a

good friend of the respondent / complainant. On 04.06.2012, the petitioner

approached the complainant for a loan amount of Rs.7 lakhs for her urgent

family need and business expenses and assured to repay the same during

December 2012 and the petitioner / accused received the loan amount on

04.06.2012. To discharge the debt she gave a cheque bearing No.993319

dated 10.12.2012 drawn at ICICI Bank, Indira Nagar, Tirupur Branch for a

sum of Rs.7 lakh. The complainant presented the cheque in his Bank viz.,

Indian Overseas Bank, Velampalayam, Tirupur Branch on 10.12.2012, the

same was returned on 12.12.2012 with an endorsement “Insufficient

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1362 of 2017

Funds”. Thereafter, statutory notice was issued on 20.12.2012 and same

was received by the accused on 21.12.2012. But, she neither repaid the

cheque amount nor sent any reply. Hence, the complaint under Section 138

of Negotiable Instruments Act was filed and same was taken on file by the

trial Court in C.C.No.13 of 2015.

4. To prove the case, the complainant has examined himself as

P.W.1 and 5 documents were marked as Exs.P1 to P5. Ex.P1 is the cheque,

Ex.P2 / Bank return memo, Ex.P3 / statutory notice, Ex.P4 / Postal

acknowledgement for receipt of the notice by the accused and Ex.P5 is the

income tax returns of the complainant for the Assessment Year 2013-2014.

Thereafter, the complainant was cross examined by the petitioner. On the

side of the defence, no witness was examined or document marked. On

conclusion of the trial, the trial Court convicted the petitioner and it was

confirmed by the lower appellate Court, as stated above.

5. The contention of the learned counsel for the petitioner is that

the trial Court as well as the lower appellate Court failed to consider that the

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1362 of 2017

respondent / complainant had produced no other documents except the

cheque to prove that he advanced such a huge amount of Rs.7 lakh without

coverage of any security or other documents. Further, he submitted that it is

strange to see that the respondent admits that on the same day i.e., on

04.06.2012, he arranged Rs.7 lakhs, though on that day he was having only

an amount of Rs.3 lakhs with him and he had arranged balance Rs.4 lakhs

from his friend, Karupasamy of Amma Palayam, which is highly

improbable. The respondent / complainant have no source of income to

advance such huge amount.

5.1. The specific case of the petitioner is that earlier, she had taken a

loan of Rs.50,000/- at that time the cheque/Ex.P1 was given as security and

Rs.50,000/- had been repaid by her. Thereafter, the respondent had not

returned the security cheque and later filled up with such huge amount of

Rs.7 lakhs and lodged a false complaint. He further submitted that the

Hon'ble Apex Court in the case of John K. Abraham Vs. Simon C.

Abraham and Another reported in (2014) 2 SCC 236 had held that the

presumption under Sections 118 and 139 of the Negotiable Instruments Act

was not irrebuttable presumption, once the petitioner is able to dislodge the

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1362 of 2017

presumption and probabilise her defence, it is for the complainant to

thereafter to prove beyond reasonable doubt, that the petitioner had

committed the offence. Further, in the case of Rangappa Vs. Sri Mohan

reported in 2010 (4) CTC 118, the Hon'ble Apex Court had held that it is

not always necessary that the accused has to step into the box to disprove

his case with available materials and by way of cross examination, he can

probabilise his defence and the same can be considered. In this case, during

the cross examination, the complainant had admitted that in Ex.P5 / income

tax return, he has not shown the loan advancement to the petitioner.

Further, his income is not commensurate to the loan extended. But, the trial

Court as well as the lower appellate Court failed to consider the same.

5.2. On the other hand, they have proceeded on the fact that the

petitioner admitted her signature and the issuance of the cheque and hence,

presumption under Section 118 and 139 of the Negotiable Instruments Act,

would come into play and convicted the petitioner, which is not proper, in

view of the apex Court judgments and the provision of law. Hence, prayed

to allow the revision.

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6. Mr.Maruthi Raj, the learned Legal Aid Counsel appearing for

the respondent / complainant submitted that in this case, the petitioner had

not denied the issuance of cheque. The signed cheque had been issued by

the petitioner to the respondent is not disputed. Once a signed cheque is

given, it gives an authority under Section 20 of the Negotiable Instruments

Act, to the holder of the cheque to fill up, in view of the same, the defence of

the petitioner cannot be accepted. The trial Court, for this reason had rightly

convicted the petitioner and the lower appellate Court, on independent

assessment of the material and evidence, had rightly convicted the petitioner.

Further, the petitioner had not produced any material to show that the

amount of Rs.50,000/-, earlier taken as loan, has been repaid. The petitioner,

after receipt of the statutory notice/Ex.P3, failed to send any reply. For the

first time in the trial, the petitioner takes such a defence in this case, hence,

the statutory presumption is staring against the petitioner which she failed to

dislodge and failed to probabilise any defence, hence, prayed for dismissal of

the revision.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1362 of 2017

7. On considering the rival submissions and perusal of the

materials, it is seen that the petitioner's defence is that the respondent /

complainant has got no source of income to pay such huge amount of Rs.7

lakhs, as loan, to the petitioner. Further, the petitioner had sought for the

loan one week prior to 04.01.2012 and within a short period, he had

arranged Rs.7 lakhs by borrowing Rs.4 lakhs from Karuppasamy of

Ammapalayam and had given the loan to the petitioner. The respondent

further submits that the loan was for interest and thereafter, a cheque dated

10.12.2012 was issued. He further admits that the petitioner had not paid

any interest during this period and he also admits in the evidence that he had

not mentioned anywhere about the rate of interest, for which, the loan was

advanced. The person who said to have given loan during the 6th month

2012 and received a cheque in the 12th month, for the period of 7 months,

what is the interest and how the interest is collected and why it is not

reflected in the repayment cheque, no particulars have been given. Further,

from Ex.P5/ income tax returns for the Assessment Year 2013-2014, it is

seen that the advancement of loan to the petitioner is not disclosed.

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8. On perusal of the income tax returns, it is seen that the

petitioner's Annual Income is Rs.3,85,047/-. In the annexure to the income

tax returns, it is seen that the petitioner has shown loans and advance of

Rs.7,97,500/-. In the income tax returns, he has shown the loan paid to the

petitioner on 04.06.2012, but this income tax return has been prepared and

submitted on 17.03.2014. The complaint was filed initially on 29.11.2012

and thereafter, on 10.01.2013, the income tax return has not been produced

or listed as a document.

9. The contention of the petitioner is that the income tax return

has been prepared to suit the case of the respondent gains credence, for the

reason that apart from the petitioner, there is no loan or advance made to

any other person. Further, the petitioner admits that he had taken Rs.4

lakhs from one Karuppasamy of Ammapalayam, there is no reference about

this liability in the income tax return.

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10. In such circumstances, the respondent will not be able to give

loan to the petitioner and that too without any interest. No interest aspect is

calculated, projected and demand by the respondent. The Income derived

from power table contract is only a labour charges and this amount had been

appropriately accounted without any surplus. The petitioner admits that

apart from her business, she has got no other business.

11. In view of the same, this Court finds the respondent has got no

other source to extend such huge amount, as loan, to the petitioner. The

respondent failed to examine the said Karuppasamy to confirm the loan he

had taken from him and there is no reference or disclosure from the income

tax return about the same. In view of the same, this Court finds that the

petitioner had probabilised her defence and her explanation gains credence.

The respondent failed to prove the case against the petitioner beyond

reasonable doubt.

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12. Accordingly, this Court allows the Criminal Revision by setting

aside the judgments of the Courts below.

13. Rs.1 lakh which has been deposited by the petitioner / accused

to the credit of C.C.No.13 of 2015 on the file of the Fast Track Magistrate

Court, Tirupur in Crl.M.P.No.13254 of 2017, while granting suspension of

sentence, is directed to be returned to her.

14. This Court records its appreciation to Mr.Maruthi Raj, learned

counsel appeared on behalf of the respondent, who was appointed by the

legal aid, to represent the respondent, for his able assistance to the Court.

10.01.2023

Index : Yes/No Speaking / Non-speaking

AT

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1362 of 2017

To

1.The II Additional District Sessions Court, Tirupur.

2.The Fast Tract Court, Tirupur.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1362 of 2017

M.NIRMAL KUMAR,J.

AT

Crl.R.C.No.1362 of 2017

10.01.2023

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