Madras High Court

M.Ravi vs M.Sivanantham on 24 July, 2023

                                                                                Crl.R.C.No.1290 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 24.07.2023

                                                        CORAM

                                  THE HONOURABLE MRS. JUSTICE R. HEMALATHA

                                             Crl.R.C.No.1290 of 2023 and
                                              Crl.M.P.No.10519 of 2023

                     M.Ravi                                                         ... Petitioner
                                                             Vs.

                     M.Sivanantham                                                 ... Respondent

                     Prayer : Criminal Revision Petition filed under Section 397 r/w. 401 of
                     Criminal Procedure Code, to call for the records and set aside the
                     conviction imposed in the Judgment dated 30.06.2022 made in
                     C.A.No.29 of 2019 on the file of the Principal District and Sessions
                     Judge at Vellore, confirming the conviction imposed in the the Judgment
                     dated 04.03.2019 made in C.C.No.29 of 2019 on the file of the Judicial
                     Magisterial, Katpadi and the same was confirmed by allowing this
                     Criminal Revision Petition.

                                            For Petitioner         : Mr.K.P.Anantha Krishna


                                                        ORDER

Challenging the order and Judgment dated 30.06.2022 passed

by the Principal District and Sessions Judge, Vellore in Crl.A.No.29 of

2019, the present Criminal Revision is filed by the petitioner/accused.

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2. The petitioner is the accused in C.C.No.206 of 2012 on the

file of the Judicial Magistrate, Katpadi, Vellore. The

respondent/complainant filed a private complaint in C.C.No.206 of 2012

under Section 200 of Cr.P.C., against the revision petitioner/accused

before the Judicial Magistrate, Katpadi for an offence punishable under

Section 138 of the Negotiable Instruments Act. The learned Judicial

Magistrate took cognizance of the offence, issued summons to the

revision petitioner / accused for his appearance. 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 the accusation made against him, he pleaded not guilty and the case

was posted for trial.

3. The respondent / complainant examined himself as P.W1

and two other witnesses and marked Exs.P1 to P13. The accused was

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

incriminating circumstances appearing in evidence against him. The

accused denied having committed any offence. The accused examined

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himself and two other witnesses and marked Ex.D1 to Ex.D8.

4. After analysing the oral and documentary evidence on

record, the learned Judicial Magistrate, Katpadi found the revision

petitioner/accused guilty of the offence punishable under Section 138 of

the Negotiable Instruments Act and convicted and sentenced him to

undergo simple imprisonment for a period of one year and also to pay a

fine of Rs.3,000/- in default to undergo Simple Imprisonment for three

months. This Judgement was passed on 04.03.2019.

5. Aggrieved over the same, the revision petitioner/accused

filed an appeal in Crl.A.No.29 of 2019 before the Principal District and

Sessions Judge, Vellore. The learned Principal District and Sessions

Judge, Vellore dismissed the appeal, confirming the conviction and

sentence passed by the trial court vide his Judgment dated 30.06.2022.

Now the present Criminal Revision is filed by the accused as against the

Judgment, dated 30.06.2022 passed by the Principal District and Sessions

Judge.

6. The case of the complainant in a nutshell is as follows:

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The respondent / complainant and the petitioner / accused are

friends and the accused borrowed a sum of Rs.2 lakhs on 01.01.2011

from the respondent / complainant for his family expenses and promised

to repay the same together with interest at 25% per annum and executed a

promissory note in favour of the complainant apart from handing over a

cheque bearing No.559205 dated 15.02.2012 drawn on Canara Bank

(Main Branch) Vellore for a sum of Rs.2 lakhs. When the complainant

presented the cheque for collection on 16.04.2012, the same was returned

for the reason 'insufficient funds' (Cheque return memo, dated

18.04.2012- Ex.P3). When the same was informed to the accused, the

latter assured the former that he can present the cheque for collection on

07.05.2012 and on that day, the cheque was once again presented for

collection. But the same was returned for 'insufficient funds' vide Memo

dated 09.05.2012 (Ex.P5). Thereafter, the respondent/complainant issued

a statutory notice dated 21.05.2012 (Ex.P7), demanding the accused to

make good the payment. The said notice was received by the accused as

is seen from the postal acknowledgment card (Ex.P8). The accused sent

a reply dated 16.06.2012 (Ex.P9) in which, the accused had stated that he

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had never seen the respondent / complainant and that he had a money

transaction only with one Meganathan who is one of the close relatives

of the complainant. According to the revision petitioner /accused, he

handed over ten cheques bearing nos.559201 to 559210 to the said

Meganathan and one of those cheques was misused by the complainant.

7. Mr.K.P.Anantha Krishna, learned counsel for the petitioner

contended that the cheques were issued to Meganathan only as a security

for the loan obtained by the revision petitioner/accused. His further

contention is that the revision petitioner did not borrow any amount from

the respondent / complainant and that the said Meganathan obtained ten

blank cheques and three promissory notes at the time of lending a sum of

Rs.50,000/- to the revision petitioner/accused. It is also his contention

that both the Courts below did not take these aspects into consideration

and convicted the accused for an offence under Section 138 of the

Negotiable Instruments Act.

8. It is seen from the records that the pro note which is said to

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be executed by the revision petitioner/accused on 01.01.2011 for a sum

of Rs.2 lakhs was marked as Ex.P1. The revision petitioner had not

disputed his signatures either on the pro-note or on the cheque. When

the cheque was presented by the respondent / complainant through his

banker viz., Indian Bank, Katpadi, Vellore for collection on 16.04.2012

and subsequently on 07.05.2012, it was returned on both the occasions

on the ground of “insufficient funds”. Thereafter, the respondent /

complainant had issued a legal notice dated 21.05.2012 i.e., within 30

days form the date of return of the cheque.

9. A perusal of the records shows that notice issued to the

residential address of the revision petitioner/accused was returned

unserved and therefore, the respondent/complainant sent another notice

to his office address. However, the revision petitioner / accused admitted

during the course of cross examination tht he is residing in the address

mentioned in the notice Ex.P7. When the signature on the cheque is

admitted, there is a presumption under Section 118 and 138 of the

Negotiable Instruments Act, unless the contrary is proved. The specific

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contention of the accused is that he borrowed a sum of Rs.50,000/- from

one Meganathan who is a close relative of the complainant and that the

said loan was also discharged. According to the accused, the said

Meganathan obtained ten blank cheques and three promissory notes and

the same were issued only as a security for the aforesaid loan. To

substantiate the same, the petitioner has adduced the cheque bearing

No.559202 (Ex.D5), certified copy of the complaint filed in

C.C.No.102/2012 on the file of the Judicial Magistrate I, Kancheepuram

(Ex.D6), Cheque bearing Nos.559202 and 559203 (Exs.D5 and D7) and

Promissory note (Ex.D8).

10. As rightly observed by both the Courts below, there is

nothing on record to show that the said cheques and promissory notes are

connected with the present case. The revision petitioner/accused also did

not examine the said Meganathan to substantiate his contention that he

borrowed a sum of Rs.50,000/- from him and that the cheques ware

issued to him that too for a security purpose. An attempt was made by

the revision petitioner before the Courts below that the

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respondent/complainant had no financial ability to lend a sum of Rs.2

lakhs to him. However, this aspect was also dealt with by both the

Courts below that the respondent/complainant had discharged his initial

burden of proving the lending of amount to the accused and the

execution of cheque by the accused in his favour. On the contrary, the

revision petitioner/accused did not discharge his burden by adducing any

rebuttal evidence.

11. In fact the lower appellate Court in paragraph No.15 and 16

had observed as follows:

“15) Further, the contention of the Appellant that the cheque was issued as a security to the said Meganathan is not proved. In the absence of any cogent and rebuttable evidence on the side of the Appellant / Accused to disprove the case of Respondent, this Court is of the view that the Accused had not rebutted the case of the Complainant even atleast by the standards of preponderance of probability, and hence the case of the Respondent / Complainant stands proved. Since the Accused who has admitted his signature and the issuance of cheque etc., not proved the discharge of

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the loan and not rebutted the case of the Respondent by way of convincing oral and documentary evidence the contention of the Appellant that the cheque was issued only by way of security cannot be acceptable and this Court holds that the Appellant / Accused has not proved his case by way of rebuttable evidence.

16) It is settled position of law that once the signature is admitted and issuance of the cheque is admitted, the presumption U/s 118, 139 and 20 of NI Act comes in to rescue and the accused is estopped from denying the validity of the instruments, and as held by various Hon’ble High Courts and also Hon’ble Apex Court, as far as Section 138 complaints are concerned, the Court has to presume that the cheque has been issued for a enforceable debt or liability. However, the presumption is rebuttable and however the burden of proving that the cheque has not been issued for a debt or liability is on the accused. In this case, the accused had neither proved his case by leading cogent evidence nor by eliciting preponderance of probability that the cheque was issued only as a security. Under such circumstances, this court is of the view that the trial court rightly discussed and decided the case and there is no perversity and irregularity in the finding and does not warrant any interference by this Court in the trial court’s judgment.

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There are no valid grounds or reasons to set-aside the conviction and ordering of compensation by the trial Court and accordingly, this Court is inclined to confirm the trial Court's verdict and it is answered to the point that the trial court's findings is liable to be confirmed .”

12. All the above observations are perfectly in order and I do

not see any reason to interfere with the findings by both the Courts

below. The Criminal Revision case is dismissed as devoid of merits. The

Judgment and order dated 30.06.2022 in Crl.A.No.29 of 2019 on the file

of the Principal District and Sessions Judge, Vellore is confirmed. The

accused is directed to surrender before the trial Court within a period of

15 days from today (24.07.2023), failing which, the trial Court shall take

necessary steps for securing the presence of revision petitioner/accused

to serve the remaining period of sentence. Connected miscellaneous

petition is closed.

24.07.2023 Index: Yes/No Speaking/Non-Speaking order vum

R.HEMALATHA, J.