Sivakumar vs Kannan
2023 Latest Caselaw 7119 Mad

                                                                                  Crl.R.C.(MD)No.40 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.40 of 2019
                                                          and
                                               Crl.M.P.(MD)No.1268 of 2019


                     Sivakumar                              ... Petitioner/ Appellant / Accused
                                                                 vs.

                     Kannan                                 ... Respondent/Respondent/Complaint


                     PRAYER : This Criminal Revision has been filed under Section 397 r/w
                     401 of Cr.P.C., to call for the records from the courts below and set aside
                     the conviction and sentence passed by the learned 1st Additional District
                     Sessions Judge, Thoothukudi in C.A.No.14 of 2017 dated 29.10.2018
                     confirmed the judgment in C.C.No.336 of 2014 passed by the Fast Track
                     Court (Magistrate Level), Thoothukudi, dated 30.01.2017.


                                       For Petitioner     : Mr.G.Radhakrishnan
                                       For Respondent    : Mr.KA.Ramakrishnan

                                                          ORDER

This Criminal Revision Petition has been filed to set aside the

conviction and sentence passed by the learned 1st Additional District

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.40 of 2019

Sessions Judge, Thoothukudi in C.A.No.14 of 2017, dated 29.10.2018

confirming the judgment in C.C.No.336 of 2014 passed by the Fast Track

Court (Magistrate Level), Thoothukudi, dated 30.01.2017.

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

respondent for the offence punishable under Section 138 of the

Negotiable Instruments Act.

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

of Rs.1,00,000/- on 27.12.2003 from the respondent for his urgent family

needs with promise to repay the same within a period of one month.

When the respondent demanded the above said loan, the petitioner issued

a cheque for the said sum. It was presented for collection. However, it

was returned dishonored for the reason 'funds insufficient'. After causing

statutory notice, the respondent lodged a complaint.

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

marked Ex.P.1 to Ex.P.6. On the side of the petitioner, no one was

examined and no documents were produced.

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.40 of 2019

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

found the petitioner guilty for the offence punishable under Section 138

of the Negotiable Instruments Act and sentenced him to undergo one year

Simple Imprisonment and to pay the cheque amount of Rs.1,00,000/- as

compensation. Aggrieved by the same, the petitioner has preferred an

appeal in C.A.No.14 of 2017 before the learned 1st Additional District

Sessions Judge, Thoothukudi and the Appellate Court also dismissed the

same, confirming the order of conviction and sentence imposed by the

trial Court. Hence, the present revision.

6.The petitioner raised grounds that the respondent has failed to

prove his case beyond any doubt. The cheque was not issued for any

legally enforceable debt. The respondent is being the financier claimed

exorbitant interest and even after returning the entire loan amount, the

respondent failed to return the cheque. Subsequently, it was misused by

him by presentation. Therefore, the petitioner never had any liability to

issue any cheque.

7.On perusal of the entire records revealed that after disclosing the

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.40 of 2019

cheque, the respondent issued statutory notice and the same was duly

received by the petitioner. However, the petitioner failed to reply in order

to rebut the initial presumption. Further, the petitioner also admitted his

signature and issuance of cheque. Therefore, the respondent discharged

his initial burden as contemplated under Section 138 of the Negotiable

Instruments Act. Though the petitioner can very well rebut the

presumption, the petitioner has failed to rebut the same by probable

defence. In fact, the petitioner has failed to issue any reply notice and did

not even examine anybody and failed to produce any iota of evidence to

substantiate the grounds raised herein. That apart, after concurrent

findings of the Courts below, the petitioner did not even move his

application for suspension of sentence sofar. Therefore, this Court finds

no infirmity or illegality in the order passed by the Courts below.

8.Accordingly, this Criminal Revision Case is dismissed.

Consequently, connected miscellaneous petition is closed.

27.06.2023

sji NCC : Yes/No

https://www.mhc.tn.gov.in/judis Crl.R.C.(MD)No.40 of 2019

Index: Yes/No Internet: Yes/No

To

1.The 1st Additional District Sessions Judge, Thoothukudi.

2.The Fast Track Court (Magistrate Level), Thoothukudi.

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.40 of 2019

G.K.ILANTHIRAIYAN , J.

sji

Crl.R.C.(MD)No.40 of 2019

27.06.2023

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