M.Hariharan vs M/S.Ponmathi Finance
2023 Latest Caselaw 1892 Mad

                                                                               Crl.R.C.(MD)No.453 of 2016



                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   Date : 06.03.2023

                                                      CORAM:

                           THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                          Crl.R.C.(MD)No.453 of 2016

                     M.Hariharan                                  ... Petitioner/Appellant/Accused

                                                            vs.

                     M/s.Ponmathi Finance,
                     Rep. by its Partner,
                     Nallusamy,
                     S/o.Karuppanna Gounder,
                     133-B, M.G.Road,
                     Karur Town and District.           ...Respondent/Respondent/Complainant

                     PRAYER : This Criminal Original Petition has been filed under Section
                     397 r/w 401 of Cr.P.C., to call for the records of the learned Sessions
                     Judge, Mahalir Neethimandram (Fast Track Mahila Court), Karur in
                     Crl.A.No.15 of 2016 by Judgment dated 20.04.2016, confirming the
                     conviction and modifying the sentence of imprisonment of 6 months to 3
                     months simple imprisonment and to pay a fine of Rs.2,500/- in default to
                     undergo 30 days Simple Imprisonment for an offence under Section 138
                     of Negotiable Instruments Act, imposed by the learned Judicial
                     Magistrate, Fast Track Court at Magisterial Level, Karur in C.C.No.517
                     of 2014 by the Judgment dated 05.02.2016 and set aside the Judgments
                     of the Court below and acquit the petitioner.
                                  For Petitioner     : Mr.S.Deenadhayalan

                                  For Respondent : Mr.V.Sukumar
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                                                                                  Crl.R.C.(MD)No.453 of 2016




                                                            ORDER

This Criminal Revision Case is filed to call for the records of the

learned Sessions Judge, Mahalir Neethimandram (Fast Track Mahila

Court), Karur in Crl.A.No.15 of 2016 by Judgment dated 20.04.2016 and

by confirming the conviction and modifying the sentence of

imprisonment of 6 months to 3 months simple imprisonment and to pay a

fine of Rs.2,500/- in default to undergo 30 days Simple Imprisonment for

an offence under Section 138 of Negotiable Instruments Act, imposed by

the learned Judicial Magistrate, Fast Track Court at Magisterial Level,

Karur in C.C.No.517 of 2014 by the Judgment dated 05.02.2016 and set

aside the Judgments of the Court below and acquit the petitioner.

2.The respondent/complainant has filed a complaint under Section

200 of Cr.P.C against the petitioner for the offences under Section 138

r/w 142 of N.I Act. The allegation against the petitioner is that on

17.02.2012, he borrowed a sum of Rs.4,00,000/- from the respondent for

his business purpose and for family expenses and he also agreed to repay

the same with interest. Further, he also executed the promissory note in

favour of the respondent. The petitioner had paid the interest for the

principal loan amount for some period. While being so, he paid some https://www.mhc.tn.gov.in/judis

Crl.R.C.(MD)No.453 of 2016

interest for the principal amount by way of cash and issued cheques

towards discharge of the said principal loan amount. When the said

cheque was presented for collection, the same was returned for the reason

“Payment Stopped by the Drawer”. Immediately, the respondent issued a

legal notice and on receipt of the same, the petitioner has not chosen to

reply or pay the amount due under the dishonored cheque..

3.On the side of the respondent, two witnesses were examined as

P.W.1 and P.W.2 and exhibited 12 documents as Ex.P.1 to Ex.P.12 and on

the side of the accused one witness was examined as D.W.1 and marked

14 documents as Ex.D.1 to Ex.D.14.

4.On perusal of the oral and documentary evidence, the Trial Court

found the petitioner guilty for the offence under Section 138 of N.I Act

and sentenced him to undergo six months for Simple Imprisonment and

to pay a fine of Rs.2,500/- in default to undergo thirty days for Simple

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

appeal and the First Appellate Court has partly allowed the appeal and

reduced the sentence alone from six months to three months. Aggrieved

by the same, the present revision has been filed.

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Crl.R.C.(MD)No.453 of 2016

5.The learned counsel for the revision petitioner would submit that

there was no legally enforceable debt between the petitioner and the

respondent. The respondent specifically deposed that the petitioner and

his mother did not owe any liability towards the respondent. Both the

Courts below have failed to consider Ex.D.4 and Ex.D.5 (Receipts)

issued by the petitioner for settling the entire amount. Therefore, the

entire conviction and sentence imposed by the Courts below may not be

suspended and the case is liable to be set aside.

6.On perusal of the records reveals that the petitioner received a

legal notice issued by the respondent, which was marked as Ex.P.5.

Thereafter, he also issued reply notice, which was marked as Ex.P.8.

Though the petitioner had taken a specific stand that whatever the

amount borrowed by him, that was already returned with interest, but the

petitioner never whispered about the discharge of the entire liability in

reply notice dated 23.08.2014. That apart, the petitioner has also failed to

cross examine the respondent in respect of the return of entire award

amount by him. Further, the petitioner has also failed to make any

statement recorded under Section 313 of Cr.P.C. that he already return the

entire amount and no due from the petitioner. Admittedly, the petitioner

paid interest for some period for which, the petitioner had issued receipts https://www.mhc.tn.gov.in/judis

Crl.R.C.(MD)No.453 of 2016

which are marked as Ex.D.1 to Ex.D.7. At the time of borrowing of

money, the petitioner issued pro-note. At the time of issuance of cheques,

all the pro-notes were cancelled and returned to the petitioner. It does not

meant that the petitioner repaid the entire amount. Hence, the respondent

categorically proved his case and both the Courts below have rightly

convicted the petitioner for the offence under Section 138 of N.I Act.

Therefore, this Court finds no infirmity or illegality made by both the

Courts below.

7.In view of the above, this Criminal Revision Case is dismissed.

However, if the petitioner settles the cheque amount on or before

10.04.2023, the conviction and sentence imposed by the Courts below is

hereby set aside.

06.03.2023

sji

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

1.The Sessions Judge, Mahalir Neethimandram (Fast Track Mahila Court), Karur.

2.The Judicial Magistrate, Fast Track Court at Magisterial Level, Karur.

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

Crl.R.C.(MD)No.453 of 2016

G.K.ILANTHIRAIYAN , J.

sji

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

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

Crl.R.C.(MD)No.453 of 2016

06.03.2023

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