Madras High Court
G.S.Uma Maheswari vs R.Kalimuthu on 7 March, 2023
Crl.R.C.No.90 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 07.03.2023
Coram:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.R.C.No.90 of 2020
G.S.Uma Maheswari. ... Petitioner/Accused
/versus/
R.Kalimuthu. ... Respondent/Complainant
Prayer: Criminal Revision Petition is filed under Sections 397 and 401 of Cr.P.C.,
pleased to set aside the conviction imposed in the judgment dated 19.12.2019
made in C.A.No.21 of 2019 on the file of the Learned III Additional District and
Sessions Court, Erode at Gobichettipalayam, confirming the conviction imposed
in judgment dated 01.07.2019 made in S.T.C.No.4764 of 2014 on the file of the
Learned Judicial Magistrate Court No.I, Gobichettipalayam, by allowing this
Criminal Revision Petition.
For Petitioner : Mr.M.Guruprasad
For Respondent : Mr.D.Senthur Kugan,
for Ms.Kiruthika Gokulakrishnan.
Page No.1/10
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.90 of 2020
ORDER
This Criminal Revision petition is filed against the concurrent finding
of the Courts below in the matter arising out of private complaint filed under
Section 138 of N.I Act, 1881.
2. The appellant is the accused in S.T.C.No.4764 of 2014. The case
of the complainant is that, the accused borrowed a sum of Rs.4,50,000/- as a hand
loan to meet her family and business expenses. On 18.08.2013, the accused
executed a pro-note on the same day, agreeing to repay the amount with 12%
interest. Thereafter, cheque for Rs.4,50,000/- was issued on 15.09.2013, to
discharge the debt arising out of the pro-note. When the said cheque was presented
for collection, it was returned stating “funds insufficient”. Hence, after causing
notice to the accused, the complaint has been filed.
3. The complainant examined himself as P.W.1 and summoned the
Mr.Venkatramanan, (P.W.2) Assistant Manager, Indian Bank, where the accused
maintaining her account. Seven exhibits were marked to prove the execution of
the pro-note, issuance of cheque, pay slip, return of the cheque for funds
Page No.2/10
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.90 of 2020
insufficient, statutory notice dated 05.10.2013, acknowledgement card to prove the
receipt of the notice by the accused on 08.10.2013 and the statement of account.
4. The Learned Counsel for the petitioner would submit that, the
accused denied the issuance of the cheque and had contended that, there was
money transaction between complainant and her husband and the said cheques,
pro-notes were obtained from her husband. The signatures found in those
documents are not her signature or written by her. Further, the statutory notice
under Section 138-B of N.I Act, 1881, was not served on her and the signature
found in postal acknowledgement card is not her signature.
5. The trial Court, after considering the rival submissions has held
that, the accused has not rebutted the presumption even by preponderance of
probability. Though she denies the signature found in the pro-note and in the
postal acknowledgement, she has not taken any steps to compare the signature by
hand writing expert opinion. Further, the plea that, statutory notice not served on
her is also incorrect in view of the acknowledgement card marked as Ex.P.6,
Page No.3/10
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.90 of 2020
which indicates that, the statutory notice dated 05.10.2013 received by the accused
on 08.10.2013. Hence, the trial Court convicted the accused and sentenced her to
undergo six months S.I and liable to pay compensation of Rs.4,50,000/- being the
cheque amount.
6. Aggrieved by the order of conviction, the present appeal is
preferred by the accused.
7. The Learned Counsel appearing for the petitioner contended that,
the oral and documentary evidence not properly appreciating by the trial Court.
The complainant has failed to prove his source for lending Rs.4,50,000/- and he
has not produced any statement of account or his income tax returns to support his
complaint. For borrowal of Rs.4,50,000/- on 18.08.2013, issuing a cheque within
a month is highly improbable and the trial Court on the sole ground ought to have
accepted the defence of the accused by applying the degree of preponderance of
probability. The plea of non-service of statutory notice canvassed before the
Appellate Court also reiterated.
Page No.4/10
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.90 of 2020
8. The Appellate Court, after considering the provisions of law
governing the disputes and the dictum of Hon'ble High Courts and Apex Court
had reappreciated the evidence, particularly, the admission of the accused
regarding the cheque and the pro-note, that the cheque was issued in connection
with money transaction with the complainant, however, it was only between her
husband and the complainant and not between the petitioner and the complainant.
Having admitted the issuance of cheque, the presumption against the petitioner has
to be rebutted in the manner known to law. Having failed to rebut the
presumption, the Lower Appellate Court has confirmed the order of the trial Court.
In the course of the discussion, the Lower Appellate Court has also declined to
accept the defence that statutory notice was not served on the petitioner/accused.
Taking into consideration that, though the accused in her cross examination said
that, she was not residing in the place where the statutory notice was sent and she
was residing at Door No.115, Rasi Nagar, Vadugapalayam Pirivu, Modachur,
during the year 2013. She has not produced any document to substantiate her
claim and the voter identity card marked as Ex.D.1, which was relied by the
Page No.5/10
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.90 of 2020
accused, was issued in the year 2019, much after the issuance of the subject
cheque.
9. Being aggrieved by the concurrent finding of the Courts below, the
present revision petition is filed on the ground that the presumption under Section
138 of N.I Act, 1881, has been properly rebutted by suggesting in the cross
examination of P.W.1 and Chief examination of D.W.1 and Ex.D.1. While so, the
Courts below ought not to have applied the same degree of proof which requires
for the complainant to draw presumption against the accused. The variation in the
signature found in the pro-note and the postal acknowledgement card marked as
Ex.P.6 would clearly show that, the statutory notice was not served on the accused
and therefore, the cause of action to file a complaint under Section 138 of N.I Act
does not arise.
10. Per contra, the Learned counsel appearing for the respondent
Page No.6/10
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.90 of 2020
would submit the defence that, she did not receive any money from the
complainant, gets falsified in her own admission, in the cross examination as well
as the execution of pro-note marked as Ex.P.1. Though, she denies that, the
signature was not of her signature, she has not taken any steps to establish her
defence by sending the document to get opinion of the hand writing expert.
Further, she also admits that, there was transaction between her husband and the
complainant. The cheque and pro-note are issued in connection with the said
money transaction, if it is so, she should have atleast examined her husband and
produce document. What was the money transaction between her and the husband
which prompted her to give the pro-note marked as Ex.P.1 and the cheque marked
as Ex.P.2 and whether the amount due under the pro-note and cheque was repaid
by her husband.
11. Further, the learned counsel for the respondent would submit that
the accused having not disproved the signature found in the pro-note in the
manner known to law, the presumption under Section 139 of N.I, 1881, to be
drawn since the complainant has proved the fundamental facts required to draw
Page No.7/10
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.90 of 2020
the presumption.
12. This Court, on appreciating the rival submissions hold that, the
evidence as appreciated by the Courts below does not carry any infirmity or
illegality for interference. Though the accused has taken a defence of denying the
signature found in the pro-note as well as legally enforceable debt, to substantiate
the defence, the accused had not come forward to produce any evidence which
could carry the trappings of probability. Without probabilising her defence
through prima facie evidence, the plea of rebuttal will not sustain.
13. The Learned Counsel appearing for the revision petitioner would
submit that being a lady, the incarceration period of 6 months S.I may be
considered and modified. Taking into account that, the appellant has already
deposited a sum of Rs.2,00,000/- in the account of S.T.C.No.4764 of 2014,
pursuant to the direction of this Court while granting suspension of sentence vide
order dated 21.01.2020.
14. This Court, on considering the said submission, modifies the
Page No.8/10
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.90 of 2020
conviction and sentenced as under:
The petitioner/accused sentenced to pay a sum of Rs.4,50,000/- as
compensation which include Rs.2,00,000/- already deposited in the S.T.C account
before the trial Court. The balance sum of Rs.2,50,000/- to be paid within a period
of two months and in default, to undergo S.I for a period of four months. The
complainant/respondent is permitted to withdraw the said sum of Rs.2,00,000/-
lying in S.T.C account on filing proper application.
15. With this modification, this Criminal Revision Petition is partly-
allowed.
07.03.2023
Index :Yes/No.
Internet :Yes/No.
Neutral Citation : Yes/No.
Speaking order/Non-speaking order
bsm
Page No.9/10
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.90 of 2020
Dr.G.JAYACHANDRAN,J.
bsm
To:-
1. The III Additional District and Sessions Court, Erode, Gobichettipalayam.
2. The Judicial Magistrate Court No.I, Gobichettipalayam.
Crl.R.C.No.90 of 2020
07.03.2023
Page No.10/10
https://www.mhc.tn.gov.in/judis
