E.Sivasankar vs P.Thangavel
2023 Latest Caselaw 8582 Mad

Citation : 2023 Latest Caselaw 8582 Mad
Judgement Date : 19 July, 2023

Madras High Court

E.Sivasankar vs P.Thangavel on 19 July, 2023

                                                                                Crl.R.C.No.1197 of 2023
                                                                               and Crl.M.P.9346 of 2023


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 19.07.2023

                                                         CORAM

                                  THE HONOURABLE MRS. JUSTICER. HEMALATHA

                                                 Crl.R.C.No.1197 of 2023
                                               and Crl.M.P.No.9346 of 2023

                     E.Sivasankar                                         ... Petitioner

                                                            vs.

                     P.Thangavel                                          ... Respondent

                     Prayer : Criminal Revision filed under Section 397 & 401 of Criminal
                     Procedure Code to set aside the order passed in Crl.A.No.22/2019 dated
                     02.12.2019 passed by learned Principal Sessions Judge, Krishnagiri and
                     further remand back the Crl.A.No.22/2019 to the Principal Sessions
                     Judge to disposal of the case on merits and pass suitable other orders.

                                   For Petitioner   : Mr.P.Muthamizh Selvakumar
                                   For Respondent : Mr.J.Hariharan
                                                       for M/s.Law Firm




                     Page 1 of 7

https://www.mhc.tn.gov.in/judis
                                                                              Crl.R.C.No.1197 of 2023
                                                                             and Crl.M.P.9346 of 2023




                                                       ORDER

Challenging the judgment and orders passed by the Principal

Sessions Judge, Krishnagiri in Crl.A.No.22/2019 dated 02.12.2019, the

present revision has been filed by the revision petitioner/accused in

S.T.C.No.171/2017 on the file of the Judicial Magistrate No.II,

Krishnagiri.

2.The case of the respondent/complainant is that he and the

revision petitioner/accused are friends and that the accused is the

proprietor of Shiva Traders. On 05.12.2016, the accused/revision

petitioner borrowed a sum of Rs.6,00,000/- from the complainant to meet

his family needs and also assured the latter to repay the same within a

month. In order to discharge the debt, the present revision

petitioner/accused issued a post dated cheque bearing No.037555 dated

06.01.2017 (Ex.P1) for a sum of Rs.6,00,000/- to the

respondent/complainant drawn on Corporation Bank, Boodimutlu

Branch. When the complainant presented the said cheque for collection

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1197 of 2023 and Crl.M.P.9346 of 2023

through his banker, namely, Corporation Bank, Boodimutlu Branch, the

same was returned on 06.01.2017 (Ex.P2) for the reason “Account

Closed”. Therefore, the respondent/complainant issued a legal notice

dated 23.01.2017 (Ex.P3) calling upon the revision petitioner/accused to

pay the amount due under the cheque. The said notice was returned

unserved with a postal endorsement 'Addressee Out of Station'.

Thereafter, he filed a private complaint before the Judicial Magistrate

No.II, Krishnagiri under Section 200 Cr.P.C. against the present revision

petitioner for the offence punishable under Section 138 of Negotiable

Instruments Act in S.T.C.No.171/2017. Summons was issued to the

accused/revision petitioner and on his appearance copies of records were

furnished under Section 207 Cr.P.C. When the revision petitioner/accused

was questioned with regard to the substance of the accusation, he denied

the same and the case was posted for trial. The complainant examined

himself as PW.1 and marked Ex.P1 to Ex.P5. The accused was

questioned under Section 313 (1) (b) Cr.P.C. with regard to the

incriminating circumstances appearing in evidence against him. The

accused denied having committed the offence. He examined himself as

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1197 of 2023 and Crl.M.P.9346 of 2023

DW1. However, no documentary evidence was adduced on his side.

3.After analysing the evidence on record, the learned trial court

judge found the accused guilty of the offence under Section 138 of the

Negotiable Instruments Act and convicted and sentenced the revision

petitioner to undergo one year simple imprisonment and to pay a fine of

Rs.5,000/-, in default, to undergo simple imprisonment for two months as

per Section 255 (2) Cr.P.C.

4.Aggrieved over the same, the accused filed an appeal in

Crl.A.No.22/2019 before the Principal Sessions Court, Krishnagiri.

Learned Principal Sessions Judge, Krishnagiri directed the present

revision petitioner to deposit 20% of the compensation amount before

taking up the case for arguments. Since the revision petitioner did not

deposit the amount, the appeal was dismissed by the learned Principal

Sessions Judge, Krishnagiri vide her orders dated 02.12.2019.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1197 of 2023 and Crl.M.P.9346 of 2023

5.Heard Mr.P.Muthamizh Selvakumar, the learned counsel for

the revision petitioner and Mr.J.Hariharan, the learned counsel for the

respondent.

6.Mr.Muthamizh Selvakumar, learned counsel for the revision

petitioner contended that the total cheque amount is Rs.6,00,000/- and

that the revision petitioner is ready to pay Rs.2,00,000/- to the

respondent/complainant.

7. Mr.Hariharan, learned counsel for the respondent did not

raise any objection to this.

8. A perusal of the orders passed by the First Appellate Court

shows that the First Appellate Court did not dispose of the criminal

appeal on merits. The trial Court had directed the accused to pay a fine of

Rs.5,000/- and in default, to undergo simple imprisonment for a period of

two months. However, the First Appellate Court had passed the following

orders:

“This appeal came up today for deposit of 20% of compensation amount, Appellant counsel did not deposit the amount inspite of repeated demands, Appellate called

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1197 of 2023 and Crl.M.P.9346 of 2023

absent, appeal is dismissed.”

9. In these circumstances, this Court is of the view that the case

has to be remitted back to the Appellate Court. The judgment and orders

passed by the Appellate Court is therefore, set aside and the Appellate

Court is directed to take Crl.A.No.22/2019 on file and hear both the

parties on merits and pass judgment on merits in accordance with law. In

the meanwhile, the revision petitioner/accused is directed to pay a sum of

Rs.2,00,000/- to the respondent /complainant directly as assured by him.