Getshi vs K.Sornalingam (Died)
2023 Latest Caselaw 7118 Mad

                                                                              Crl.R.C.(MD)No.67 of 2019



                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   Date : 27.06.2023

                                                      CORAM:

                           THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                           Crl.R.C.(MD)No.67 of 2019
                                                     and
                                          Crl.M.P(MD) No. 1474 of 2019


                     Getshi                           ... Petitioner/ Appellant / Accused
                                                              vs.

                     K.Sornalingam (Died)
                     through his wife
                     Ezhil Annam                     ... Respondent/Respondent / Complainant


                     PRAYER : This Criminal Revision has been filed under Section 397 r/w
                     401 of Cr.P.C., to set aside the judgment passed in C.A.No.38 of 2013
                     dated 30.01.2019 on the file of the learned 4th Additional District and
                     Sessions Court, Tirunelveli confirming the judgment and modifying the
                     compensation and sentence passed in C.C.No.32/2003 dated 30.05.2013
                     on the file of learned Judicial Magistrate, Valliyoor.


                                  For Petitioner       : No Appearance

                                  For Respondent      : Mr.M.Gregory Retna Raj




                     1/10
https://www.mhc.tn.gov.in/judis
                                                                                 Crl.R.C.(MD)No.67 of 2019



                                                           ORDER

This Criminal Revision Petition has been filed to set aside the

judgment passed in C.A.No.38 of 2013 dated 30.01.2019 on the file of

the learned 4th Additional District and Sessions Court, Tirunelveli

confirming the judgment and modifying the compensation and sentence

passed in C.C.No.32/2003 dated 30.05.2013 on the file of learned

Judicial Magistrate, Valliyoor.

2.The petitioner is an accused in the complaint lodged by the

respondent for the offence under Section 138 of the Negotiable

Instruments Act.

3.The crux of the complaint is that the accused borrowed a sum of

Rs.4,00,000/- (Rupees Four Lakhs only) to improve her business on

20.07.2002. she also promised to repay the same within a period of six

weeks. In order to repay the said loan, she issued a cheque and the same

was presented for collection. However, it was returned as dishonored for

the reason 'funds insufficient'. After issuance of notice as contemplated

under Section 138 of N.I. Act, the respondent lodged a complaint.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.67 of 2019

4.On the side of the respondent, he had examined P.W.1 and P.W.2

and marked Ex.P.1 to Ex.P.9. On the side of the accused, she had

examined D.W.1 and D.W.2 and marked Ex.D.1 to Ex.D.7.

5.On perusal of the oral and documentary evidence, the trial Court

found her guilty for the offence under Section 138 of the Negotiable

Instruments Act and sentenced her to undergo one year Simple

Imprisonment and ordered compensation of Rs.8,00,000/- (Rupees Eight

Lakhs only) within a period of two months, in default to undergo three

months Simple Imprisonment. Aggrieved by the same, the petitioner has

preferred an appeal and the same was also dismissed and modified the

compensation reduced from Rs.8,00,000/- (Rupees Eight Lakhs only) to

Rs.4,00,000/- (Rupees Four Lakhs only). Hence, the present revision.

6.Though this Court has granted so many adjournments for

settlement and also for arguments, the petitioner did not take any steps to

settle the issue. Today also, no one appeared on behalf of the petitioner.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.67 of 2019

7.A perusal of the records revealed that the petitioner raised a

ground that he did not borrow any amount as alleged by the respondent

and that too, such a huge sum in cash could not be lent without any

security. There is contradiction in the deposition of P.W.1 itself. The

respondent also failed to produce any income returns in order to prove

the source of income. In fact, the petitioner lodged a complaint on

07.10.2002 before the Inspector of Police, Valliyoor, for snatching and

stealing of the cheque from the son of the petitioner against the

respondent. The Inspector of Police was examined as D.W.2 and he

deposed that on the complaint received from the petitioner's husband, the

enquiry was conducted and advised to sort out the issue by negotiations.

Therefore, the petitioner categorically rebutted the presumption as

contemplated under Sections 118 and 139 of the Negotiable Instruments

Act. Even then, both the Courts below mechanically convicted the

petitioner.

8.Per contra, the learned counsel appearing for the respondent

would submit that even before this Court, the petitioner sought time to

settle the matter on several occasions. In fact, the sentence itself is not

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.67 of 2019

yet suspended till today. However, the respondent could not be able to

execute the sentence. Considering the evidence on record, both the

Courts below rightly convicted the petitioner and it does not warrant any

interference by this Court.

9.Heard. Perused the materials available on record.

10.According to the respondent, the petitioner borrowed a sum of

Rs.4,00,000/- (Rupees Four Lakhs only) to develop her business. After

demand, the petitioner issued a cheque for the said sum. It was presented

for collection and the same was returned as dishonored for the reason

'funds insufficient'. The petitioner also did not put any signature.

However, the petitioner disputed the issuance of cheque. According to

the petitioner, it was forcibly taken/stolen by the respondent from the

hands of her son on 07.10.2002. Therefore, on 07.10.2022, her husband

lodged a complaint and the same was enquired by D.W.2. D.W.2 directed

the petitioner and the respondent to settle the issue amicably.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.67 of 2019

11.A perusal of records revealed that on receipt of the statutory

notice, the petitioner issued a reply notice, which was marked as Ex.P.6.

In the reply notice, she stated that the cheque, which was marked as Ex.P.

1 was forcibly taken from her son on 07.10.2002 along with hand bag. A

perusal of the C.S.R. complaint also revealed that on the allegation that

the husband of the petitioner borrowed loan from the respondent, due to

which, there was a dispute. If at all, on 07.10.2002, the respondent

forcibly had stolen the cheque along with the hand bag, the crux of the

complaint would have been the stealing of cheque and handbag, whereas,

the said complaint has not whispered about the stolen of cheque and

handbag from the hands of the petitioner's son. Though the petitioner had

examined the Inspector of Police (D.W.2), he also did not support the

case of the petitioner. In fact, on receipt of the reply notice, the

respondent issued a rejoinder to the reply notice, which was marked as

Ex.P.7. A perusal of Ex.P.7 revealed that the respondent completely

denied the story created by the petitioner in order to escape from the

clutches of the proceedings initiated under Section 138 of the Negotiable

Instruments Act. Though the petitioner had taken a specific stand that the

cheque was issued as security purpose in favour of the third party

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.67 of 2019

without filling the same and the same was misused by the respondent, the

petitioner has failed to substantiate the same with cogent evidence.

However, the stand taken by the petitioner was that a cheque was stolen

from her son by the respondent. It was also not substantiated with any

evidence. Therefore, the petitioner failed to rebut the presumption as

arisen under Sections 118 and 139 of N.I. Act. Hence, both the Courts

below rightly convicted the petitioner for the offence under Section 138

of the Negotiable Instruments Act and this Court finds no infirmity or

illegality in the order passed by the Courts below. Insofar as the sentence

is concerned, this Court is inclined to modify and reduce the

compensation from Rs.8,00,000/- (Rupees Eight Lakhs only) to Rs.

5,00,000/- (Rupees Five Lakhs only).

12.Accordingly, the conviction imposed by the Courts below for

the offence punishable under Section 138 of the Negotiable Instruments

Act is hereby confirmed and insofar as the sentence is concerned, it is set

aside on condition that the petitioner shall deposit Rs.5,00,000/- (Rupees

Five Lakhs Only) to the credit of C.C.No.32 of 2003 on the file of

learned Judicial Magistrate, Valliyoor, on or before 21.08.2023. On such

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.67 of 2019

deposit, the respondent is permitted to withdraw the entire amount by

way of filing an application. If the petitioner fails to deposit the said

amount, the sentence imposed by the Courts below is hereby restored

without any further reference to this Court and the respondent is at

liberty to take appropriate steps to execute the conviction and sentence as

against the petitioner in the manner known to law.

13.Accordingly, this Criminal Revision Case is partly allowed.

Consequently, connected miscellaneous petition is closed.

27.06.2023

sji

NCC : Yes/No Index: Yes/No Internet: Yes/No To

1.The 4th Additional District and Sessions Court, Tirunelveli.

2.The Judicial Magistrate, Valliyoor.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.67 of 2019

4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.67 of 2019

G.K.ILANTHIRAIYAN , J.

sji

Crl.R.C.(MD)No.67 of 2019

27.06.2023

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