Madras High Court
Criminal Revision Case Was ... vs Vijayan (Died) on 2 March, 2023
Crl.R.C.No.1009 of 2017
N.ANAND VENKATESH.,J
The matter was listed under the caption 'For Being Mentioned'. When the
Criminal Revision case was disposed of by this Court on 02.03.2023, this Court directed
the petitioner to pay the entire cheque amount of Rs.2,50,000/- (Rupees Two Lakhs
Fifty Thousand only) to the respondent on or before 31.03.2023. When this direction
was given, this Court did not recognise the fact that the petitioner had already
deposited a sum of Rs.1,00,000/- (Rupees One Lakh only) before the Trial Court in
compliance with the condition imposed by this Court, when the sentence was
suspended.
2.In view of the same, Paragraph No.17 of the order shall read thus:
(a) It is left open to the petitioner to pay the entire cheque amount of
Rs.2,50,000/- to the respondent on or before 31.03.2023. Out of the total amount of
Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only), the petitioner has already
deposited the sum of Rs.1,00,000/- (Rupees One Lakh only) before the Trial Court.
Hence, the petitioner shall file a memo before the Trial Court seeking for the withdrawal
of the sum of Rs.1,00,000/- (Rupees One Lakh only) and the same shall be entertained
by the Trial Court and the petitioner shall be permitted to withdraw the amount. On
such withdrawal, the petitioner will pay the total amount of Rs.2,50,000/- (Rupees Two
Lakhs Fifty Thousand only) to the respondent.
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Page No.1 of 12
N.ANAND VENKATESH.,J
ssr
(b) If the petitioner settles this amount within the time limit stipulated by this
Court, the offence will stand compounded and the judgment and order passed by both
the Courts below will stand set aside.
(c) If the petitioner does not comply with the direction issued in Clause (a), the
petitioner is directed to surrender before the Trial Court by 03.04.2023, to undergo the
sentence imposed against him. and ;
(d) If the petitioner does not surrender as directed in Clause (c), the Trial Court
shall immediately issue a non-bailable warrant and secure the petitioner to make him
undergo the sentence imposed against him.
3.The existing Paragraph No.17 of the order shall be replaced with the above
Paragraph No.17.
4.The Registry is directed to furnish a fresh certified copy of the order to the
counsel appearing on either side.
28.03.2023
ssr
Note: Issue Today (i.e., 28.03.2023)
Crl.R.C.No.1009 of 2017
https://www.mhc.tn.gov.in/judis
Page No.2 of 12
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.03.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Crl.R.C.No.1009 of 2017
Mr.Akilan ...Petitioner/Appellant/Accused
.Vs.
1. Vijayan (Died)
2. V.Vijesh
3. State rep.by
District Public Prosecutor
Coimbatore. ... Respondent/Respondent/ Complainant/
Criminal Revision filed under Sections 397 & 401 of the Code of Criminal
Procedure, to set aside the judgment passed against the petitioner in Crl.A.No.249
of 2015 by the III Additional District and Sessions Judge, Coimbatore dated
10.04.2017, confirming the judgment made in C.C.No.150 of 2014, by the Judicial
Magistrate, Fast Track Court at Magisterial Level-II, Coimbatore dated
24.11.2015.
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Page No.3 of 12
For Petitioner Mr.B.Nedunchezhiyan
For Respondents Mr.S.S.Swaminathan
for R2
Mr. L.Baskaran
Government Advocate (Crl.side)
for R3
ORDER
This Criminal Revision Case has been filed against the judgment and order
passed by the III Additional District and Sessions Judge, Coimbatore made in
Crl.A.No.249 of 2015, dated 10.04.2017, confirming the judgment and order
passed by the Judicial Magistrate, Fast track Court at Magisterial Level-II,
Coimbatore in C.C.No.150 of 2014, dated 24.11.2015, convicting the petitioner
for offence under Section 138 of the Negotiable Instruments Act, 1881, and
sentencing him to undergo ten months simple imprisonment and to pay a fine of
Rs.3,500/- and in default to undergo two months simple imprisonment.
2.One Vijayan, filed a private complaint against the petitioner on the ground
that he is known to the petitioner while they were working in the Military
Engineering Service at Coimabtore and the said Vijayan retired from service. The
further case of the complainant is that the petitioner approached him and
borrowed hand loan to the tune of Rs.2,50,000/- on 17.07.2013, for meeting some
https://www.mhc.tn.gov.in/judis
urgent family expenses. According to the complainant, the petitioner agreed to
repay the amount within a period of four months with interest. Since the petitioner
did not repay the loan amount with interest as promised, repeated demands were
made to the petitioner and ultimately, the petitioner issued a cheque dated
13.12.2013, for a sum of Rs.2,50,000/-. When the complainant presented this
cheque for collection, it was returned with an endorsement “funds insufficient”.
3.The complainant thereafter issued legal notice dated 16.12.2013, to the
petitioner. The petitioner received this legal notice and he issued a reply notice
dated 23.12.201, denying the existence of any debt or liability. It is under these
circumstances, the complaint came to be filed by the complainant – Vijayan for
offence under Section 138 of the Negotiable Instruments Act,1881.
4.The Trial Court on considering the oral and documentary evidence, came
to a conclusion that the legal presumption under Section 139 of the Negotiable
Instruments Act, has to be drawn in favour of the complainant since the petitioner
did not properly rebut the presumption. Accordingly, the Trial Court convicted
and sentenced the petitioner for offence under Section 138 of the Negotiable
Instruments Act,1881.
https://www.mhc.tn.gov.in/judis
5.The petitioner aggrieved by the Order passed by the Trial Court, filed an
appeal in Crl.A.No.249 of 2015, and the same was heard by the III Additional
District and Sessions Judge, Coimbatore. During the pendency of the appeal, the
complainant – Vijayan died and his son was impleaded as the 2nd respondent by an
order dated 14.12.2016.
6.The Appellate Court on reappreciation of evidence and after considering
the findings of the Trial Court, did not find any ground to interfere with the
judgment and order passed by the Trial Court and accordingly, the Criminal
Appeal was dismissed by judgment and order dated 10.04.2017. Aggrieved by
the same, the present Criminal Revision Case has been filed before this Court.
7.Heard Mr.B.Nedunchezhiyan, learned counsel for the petitioner,
Mr.S.Swaminathan, learned counsel for R2 and Mr.L.Baskaran, learned
Government Advocate (Crl.side) for R3.
8.The main grounds that were urged by the learned counsel for the
petitioner is that both the Courts below did not properly appreciate the evidence of
DW-1. It was further submitted that the petitioner had borrowed only a sum of
Rs.20,000/- and it was repaid back and a cheque which was given towards
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security was misused and therefore, there was no enforceable debt/liability on the
part of the petitioner. That apart, it was argued that the complainant had filed a
false case against the petitioner by misusing the cheque.
9.Per contra, the learned counsel for the respondent submitted that both the
Courts below have considered all the grounds that were raised by the learned
counsel for the petitioner and sufficient reasons have been given for rejecting the
claim/defense taken by the petitioner. The learned counsel submitted that the
findings of both the Courts below does not suffer from any perversity and hence,
there is no scope for interference in this criminal revision case and accordingly,
the learned counsel sought for the dismissal of this criminal revision.
10.This Court has carefully considered the submissions made on either side
and the materials available on record.
11.The first ground that was urged by the learned counsel for the petitioner
is with regard to the evidence of DW-1. According to the petitioner, it is very
clear from the evidence of DW-1 that the petitioner had borrowed only a sum of
Rs.20,000/- from the complainant-Vijayan and the subject matter of cheque was
given as a blank cheque and subsequently, the amount was also repaid back by the
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petitioner and this cheque was not given back to the petitioner. While appreciating
the evidence of DW-1, both the Courts below have found that there was a dispute
between DW-1 and complainant and the same had led to filing a complaint before
the police. The Court below also found that the complainant had retired from
service even during the year 2009 and whereas DW-1 was claiming that the
petitioner had borrowed a sum of Rs.20,000/- in his presence during the year
2011. Both the Courts below also found that DW-1 was not able to give a proper
answer as to how he saw the complainant giving the loan amount of Rs.20,000/-
to the petitioner in the year 2011, when the complainant had retired from service
in the year 2009 itself. The Court below after carefully considering the evidence
of DW-1 have come to a categorical conclusion that the evidence of DW-1 is
unreliable and DW-1 had come before the Court and deposed only due to his
previous enmity with the complainant.
12.The above finding rendered by both the Courts below with regard to the
evidence of DW-1 does not suffer from any illegality or infirmity and such a
finding was given on proper appreciation of the evidence of DW-1.
13.Insofar as the claim made by the petitioner that he had repaid back the
sum of Rs.20,000/- and that the cheque was only given as a security, both the
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Courts below held that the petitioner did not dispute the signature that was found
in the cheque. The petitioner also did not properly explain as to how the cheque
reached the hands of the complainant. In view of the same, both the Courts below
applied the legal presumption under Section 139 of the Negotiable Instruments
Act and gave a finding that the petitioner was not able to rebut the legal
presumption.
14.In the considered view of this Court, the existence of the debt/liability is
evident from the very cheque itself. The petitioner did not dispute the signature
that was found in the cheque. The petitioner was also not able to rebut the
presumption, since the evidence of DW-1 was found to be completely unreliable.
In view of the same, both the Courts below have rightly invoked the legal
presumption under Section 139 of the Negotiable Instruments Act and this Court
does not find any ground to interfere with the findings of both the Courts below
and those findings do not suffer from any illegality or perversity.
15.In the light of the above discussion, this Court does not find any ground
to interfere with the judgment and order passed by both the Courts below
convicting the petitioner for offence under Section 138 of the Negotiable
Instruments Act.
https://www.mhc.tn.gov.in/judis
16.The learned counsel for the petitioner submitted that earlier, the
petitioner was taking efforts to settle this dispute by paying the entire cheque
amount to the respondent. The learned counsel submitted that the petitioner was
not able to settle the amount since he had to meet the expenses of his wife, who
was suffering from cancer. The learned counsel for the respondent submitted that
the respondent was also willing to receive the cheque, but however, the petitioner
never paid the amount. Even now, the respondent is willing to receive the cheque
amount, if it is settled by the petitioner.
17.In view of the above, this Criminal Revision Case is disposed of in the
following manner:
(a) It is left open to the petitioner to pay the entire cheque amount of
Rs.2,50,000/- to the respondent on or before 31.03.2023. If the petitioner settles
this amount within the time limit stipulated by this Court, the offence will stand
compounded and the judgment and order passed by both the Courts below will
stand set aside.
(b) If the petitioner does not comply with the direction issued in Clause (a),
the petitioner is directed to surrender before the Trial Court by 03.04.2023, to
undergo the sentence imposed against him. and ;
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(c ) If the petitioner does not surrender as directed in Clause (b), the Trial
Court shall immediately issue a non-bailable warrant and secure the petitioner to
make him undergo the sentence imposed against him.
02.03.2023
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
kp
To
1.TheDistrict Public Prosecutor
Coimbatore.
2.III Additional District and Sessions Judge,
Coimbatore.
3. Judicial Magistrate,
Fast Track Court at Magisterial Level-II,
Coimbatore.
4.The Public Prosecutor
High Court, Madras.
https://www.mhc.tn.gov.in/judis
N. ANAND VENKATESH, J.
kp
Crl.R.C.No.1009 of 2017
02.03.2023
https://www.mhc.tn.gov.in/judis
