Madras High Court
N.Ramesh vs A.Gopalakrishnan on 22 June, 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.06.2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
CRL RC No. 1148 of 2014
N.Ramesh ...Petitioner
Vs.
A.Gopalakrishnan
...Respondent.
Criminal Revision Case filed under Section 397 read with 401
Cr.P.C, to call for the records and set aside the judgment of conviction
dated 01.02.2014 made in C.A No. 101 of 2013 on the file of the learned
I Additional District and Sessions Judge, Coimbatore, confirming the
judgment of the trial Court dated 12.07.2013 made in C.C No. 416 of
2012 on the file of the learned judicial Magistrate, Fast Track Court – I,
Magisterial level, Coimbatore and acquit him.
For Petitioner : Mr.P.M.Duraiswamy
For Respondent : Mr.V.Sivakumar
ORDER
This Criminal Revision Case has been filed against judgment of
conviction dated 01.02.2014 made in C.A No. 101 of 2013 on the file of
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the learned I Additional District and Sessions Judge, Coimbatore,
confirming the judgment of the trial Court dated 12.07.2013 made in C.C
No. 416 of 2012 on the file of the learned judicial Magistrate, Fast Track
Court – I, Magisterial level, Coimbatore.
2. It is case of the respondent/complainant is that the petitioner
borrowed a hand loan for a sum of Rs. 1,70,000/- from the complainant
on 18.03.2009 for his business purpose and the same day he issued a
post dated cheque dated 20.05.2009 drawn on Centurian Bank, Avianshi
Road , Coimbatore, in favour of the complainant and promised to repay
the same loan on 20.05.2009. when the respondent presented the cheque
for encashment on 20.05.2009 and the same was returned with an
endorsement Account closed on 21.05.2009. Thereafter, the
complainant/respondent issued a legal notice on 25.05.2009 and the same
was received by the accused on 27.05.2009. The petitioner/accused
neither paid the loan amount nor reply to the legal notice. Hence ther
respondent lodged a complainant under Negotiable Instrument Act.
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3. The learned counsel for the petitioner submitted that in spite of
liability disputed by the petitioner/accused, the respondent/complainant
not produced any material evidence to prove the same but the Court
below failed to appreciate those legal aspects and erroneously shifted the
burden on the petitioner's side and convicted him under Section 138 of
Negotiable Instrument Act( in short N.I Act) , as such is totally unfair and
liable to be set aside. Further he also raised another objection that notice
was not served properly and witness from the bank also not been
examined on the side of the complainant thereby respondent failed to
comply the provisions of the N.I Act. Furthermore as there is not legally
enforceable loan but the Court below erroneously convicted the accused
as such is un warranted and liable to be set aside.
4. On the other side, the learned counsel for the respondent
submitted that accused/petitioner borrowed a hand loan of Rs.1,70,000/-
from the complainant/respondent on 18.03.2009 for his business purpose
and issued post dated cheque dated 20.05.2009 when it was presented
before the bank it was returned as account closed on 21.05.2009.
Immediately, the respondent issued notice and the same was received by
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the accused/petitioner but failed to repay the amount. Hence he filed
complaint under N.I Act, before the Trial Court.
5. Though the accused took defence that he borrowed only ten
thousand from the complainant/respondent in the year 2005 and the same
was repaid but the cheque given by him as security was not returned by
the respondent/complainant and after lapse of five years, he filed this
complaint by using the said cheque. According to the accused/petitioner,
he admits the cheque issued but denied the loan transaction as alleged by
the complainant and the date of issuance of cheque. Now, the
complainant established his case about the cheque issued by the accused.
Therefore the burden is on the accused/petitioner to prove that disputed
cheque was issued in year of 2005 not in the year of 2009, as rightly
pointed out by the Court below there is no independent evidence on the
side of the accused/ petitioner to establish the fact. Further, there is no
evidences on the side of the accused/petitioner to disprove the alleged
transaction as claimed by the complainant. The presumption under
Section 139 of N.I Act bound to be rebutted by the accused by way of
preponderance of probability. As discussed above, the accused has not
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taken any steps to rebut the said presumption and the same was rightly
appreciated by the Court below needs no interference.
6. In the light of the above facts, this Court does not find any
perversity or infirmity in the order of the Courts below. Accordingly, this
Criminal Revision Case is dismissed. Consequently, connected
miscellaneous petitions are closed.
22.06.2023
Index: Yes/No
Speaking Order/Non Speaking Order
pbl
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T.V.THAMILSELVI
pbl
To
1.The I Additional District and Sessions Judge, Coimbatore,
2.The judicial Magistrate, Fast Track Court – I, Magisterial level,
Coimbatore.
3.The Public Prosecutor,
High Court, Madras.
Crl. R.C.No.1148 of 2014
22.06.2023
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