Madras High Court
V.S.Gunaseelan vs K.Moorthi on 2 March, 2023
Crl.R.C.No.1337 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.03.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Crl.R.C.No.1337 of 2017
V.S.Gunaseelan ... Petitioner
vs.
K.Moorthi ... Respondent
Prayer: Criminal Revision filed under Sections 397 r/w 401 of the Code of
Criminal Procedure praying to call for the entire records in respect of the
judgment rendered by the learned Additional Sessions Judge, Magalir
Needhimandram/Fast Track Court, Erode dated 31.08.2017 in C.A.No.119 of
2017 by confirming the judgment rendered by the learned Judicial Magistrate
No.I, Gopichettipalayam in C.C.No.2 of 2008 dated 08.05.2017 and set aside the
same and acquit the petitioner.
For Petitioner : Mr.D.Rajagopal
For Respondent : M/s.H.Kavitha for
S.Kaithamalai Kumaran
https://www.mhc.tn.gov.in/judis
Page No.1 of 10
Crl.R.C.No.1337 of 2017
ORDER
This Criminal Revision case has been filed against the judgment and order
passed in Crl.A.No.119 of 2017 by the learned Additional Sessions Judge,
Magalir Needhimandram, (Fast Track Mahila Court), Erode, dated 31.08.2017,
confirming the judgment and order passed by the learned Judicial Magistrate
No.I, Gopichettipalayam in C.C.No.2 of 2008, dated 08.05.2017, convicting the
petitioner for offence under Section 138 of the Negotiable Instruments Act and
sentencing him to undergo two years simple imprisonment.
2.The respondent/complainant preferred a private complaint against the
petitioner on the ground that the petitioner borrowed a sum of Rs.5,00,000/-
(Rupees Five Lakhs only) on 02.10.2007 and in discharge of this liability, the
petitioner issued a cheque (Ex.P1), dated 02.11.2007 for a sum of Rs.5,00,000/-
(Rupees Five Lakhs only). When the respondent/complainant presented the
cheque for clearance, it was returned with an endorsement "Funds Insufficient".
The return memo was marked as Ex.P2. Thereafter, the respondent issued a
statutory notice (Ex.P3) and on receipt of the same, the petitioner gave a reply
notice (Ex.P6) denying the liability. As a result, the complaint came to be filed
against the petitioner.
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Crl.R.C.No.1337 of 2017
3.The Trial Court after appreciating the oral and documentary evidence,
came to a conclusion that the legal presumption under Section 139 of the
Negotiable Instruments Act must go in favour of the complainant and it was held
that the petitioner did not rebut the presumption and accordingly, the Trial Court
convicted and sentenced the petitioner for offence under Section 138 of the
Negotiable Instruments Act.
4.Aggrieved by the above judgment and order passed by the Trial Court,
the petitioner filed an appeal and the same was taken on file in Crl.A.No.119 of
2017. The Appellate Court on reappreciation of the evidence and after
considering the findings of the Trial Court, found that there is no ground to
interfere with the judgment of the Trial Court and accordingly, the Criminal
Appeal came to be dismissed by judgment dated 31.08.2017. Aggrieved by the
same, this criminal revision case has been filed before this Court.
5.Heard Mr.D.Rajagopal, learned counsel appearing on behalf of the
petitioner and Ms.H.Kavitha, learned counsel appearing on behalf of the
respondent.
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Crl.R.C.No.1337 of 2017
6.The learned counsel for the petitioner mainly raised two grounds in this
case. The first ground that was raised by the learned counsel for the petitioner is
that the respondent did not have the financial wherewithal to lend a sum of
Rs.5,00,000/- (Rupees Five Lakhs only) to the petitioner and there was not even
an iota of evidence to substantiate the financial status of the respondent. It was
therefore submitted that both the Courts below did not consider this issue in a
proper perspective. The next ground that was raised by the learned counsel for the
petitioner is that there was no legally enforceable debt/liability in this case, since
the petitioner never borrowed any amount from the respondent and he had not
issued any cheque in favour of the respondent. The learned counsel therefore
submitted that both the Courts below had wrongly invoked Section 139 of the
Negotiable Instruments Act even without the respondent establishing the legally
enforceable debt/liability.
7.Per contra, the learned counsel for the respondent submitted that the
petitioner had taken various defence at each stage and the same was properly
considered by both the Courts below and ultimately, the findings were rendered
and hence, there is no ground to interfere with the conviction and sentence passed
against the petitioner.
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Crl.R.C.No.1337 of 2017
8.This Court has carefully considered the submissions made on either side
and also the materials available on record.
9.It is too well settled that the presumption under Section 139 of the
Negotiable Instruments Act can be rebutted by the accused through
preponderance of probabilities. Therefore, it depends upon the specific defence
taken by an accused in a given case. While establishing the defence, the defence
taken by the accused must be consistent and it cannot keep wavering at every
stage.
10.In the instant case, after the statutory notice was issued by the
respondent, the petitioner gave a reply notice which was marked as Ex.P6. On
carefully going through the reply notice, it is seen that the petitioner has taken a
very specific stand that he had a business transaction with one Udayakumar and
he had issued cheques as security to the said Udayakumar.The further stand taken
was that Udayakumar was misusing the cheques that were given to him as
security and one such cheque that was given to Udayakumar has been given to the
respondent and the same was misused by the respondent. In the reply notice, the
petitioner did not take a stand that the subject cheque was a forged document and
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Crl.R.C.No.1337 of 2017
the only stand taken was that the petitioner never had any transaction with the
respondent.
11.In the course of trial, the petitioner came up with a new stand.
According to the petitioner, PW2 was regularly coming to his house to do
electrical works and that PW2 had stolen the cheque and forged the same and it
has been misused by the respondent. This stand taken by the petitioner is
completely different from the stand that was taken in the reply notice.
12.The last stand that was taken by the petitioner was that the respondent
did not prove his financial wherewithal and therefore, the respondent did not have
the capacity to lend such a huge amount of Rs.5,00,000/- (Rupees Five Lakhs
only) to the petitioner.
13.The last stand that was taken by the petitioner runs contrary to the first
and second stand that was taken earlier by the petitioner. If the last stand is taken
into consideration, then the petitioner must be construed to have admitted the
signature found in the cheque and what he is questioning is only with regard to
the financial status of the respondent.
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Crl.R.C.No.1337 of 2017
14.The Courts below, took all these contradictory stand into consideration.
Insofar as the stand taken by the petitioner to the effect that the signature found in
the cheque was a forgery, both the Courts held that the petitioner never took any
steps to proceed against PW2 nor did the petitioner take any steps to send the
cheque for expert opinion. In view of the same, this defence taken by the
petitioner was rejected.
15.Insofar as the defence taken by the petitioner to the effect that the
cheque was a blank cheque and the same was also admitted by the respondent
when he deposed before the Court, the Courts below applied Section 20 of the
Negotiable Instruments Act and held that the principle that is applied to a
inchoate instrument will equally apply to a cheque also. This finding of both the
Courts below is sufficiently covered by reported judgments.
16.Where the respondent has failed to establish that the cheque is a forged
one and no serious attempt was made to question the signature found in the
cheque, the presumption under Section 139 of the Negotiable Instruments Act
kicks in. The petitioner was not able to rebut this presumption even through
preponderance of probabilities, since the petitioner was taking contrary stands
and it actually weakened the case of the petitioner.
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Crl.R.C.No.1337 of 2017
17.In the light of the above discussion, 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.
18.The learned counsel for the respondent fairly submitted that if the
petitioner is willing to settle the entire cheque amount, the respondent will accept
the same and he will not be interested in prosecuting any further against the
petitioner.
19.In the result, this Criminal Revision case is disposed of in the following
terms:
(a) The petitioner has already deposited a sum of Rs.75,000/- (Rupees Seventy
Five Thousand only) before the Trial Court pursuant to the condition
imposed by this Court when the sentence was suspended in
Crl.M.P.Nos.12972 and 12974 of 2017 by an order dated 24.10.2017. In
view of the same, the petitioner is directed to deposit the balance amount of
Rs.4,25,000/- (Rupees Four Lakhs Twenty Five Thousand only) on or
before 17.04.2023. If this amount is deposited, the offence will stand
compounded and the sentence imposed by both the Courts below will
automatically get set aside.
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Crl.R.C.No.1337 of 2017
(b) If the petitioner deposits the amount as stated in clause (a), it is left open to
the respondent to file an appropriate memo before the Trial Court seeking
for the withdrawal of the total sum of Rs.5,00,000/- (Rupees Five Lakhs
only) and the Trial Court shall permit the respondent to withdraw the
amount.
(c) If the petitioner fails to deposit the amount as directed in clause (a), the
petitioner shall surrender before the Trial Court on 18.04.2023 and the
petitioner shall be confined to the prison to undergo the sentence and
(d) If the petitioner does not comply with the direction issued in clause (c), the
Trial Court is directed to issue non-bailable warrant and secure the
petitioner and make him undergo the sentence.
02.03.2023
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
ssr
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1337 of 2017
N. ANAND VENKATESH, J.
ssr
To
1.The Additional Sessions Judge,
Magalir Needhimandram/Fast Track Court, Erode.
2.The Judicial Magistrate No.I,
Gopichettipalayam.
Crl.R.C.No.1337 of 2017
02.03.2023
https://www.mhc.tn.gov.in/judis
