Madras High Court
Britto vs Baskar on 9 March, 2023
Crl.R.C(MD)No.407 of 2017
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED : 09.03.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.407 of 2017
Britto ... Petitioner/
Appellant/Accused
Vs.
Baskar ... Respondent/
Respondent/Complainant
PRAYER: Criminal Revision Case filed under Section 397 read with
Section 401 of the Code of Criminal Procedure, to call for the
records of the learned Additional District and Sessions Judge, Theni
at Periyakulam in Crl.A.No.21 of 2015, by Judgment dated
18.10.2016, confirming the conviction and sentence of
imprisonment for six months rigorous imprisonment and to pay a
compensation of a sum of Rs.2,00,000/- in default to undergo one
week simple imprisonment for the offence under Section 138 of the
Negotiable Instruments Act, imposed by the learned Judicial
Magistrate, Periyakulam in S.T.C.No.1050 of 2009 by Judgment,
dated 28.09.2011 and set aside the Judgments of the Court below
and acquit the petitioner.
For Petitioner : Mr.R.Shankar Ganesh
For Respondent : Mr.Mohammed Athiff
for M/s.Ajmal Associates
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Crl.R.C(MD)No.407 of 2017
ORDER
This revision has been filed as against the order passed
in Crl.A.No.21 of 2015, by Judgment dated 18.10.2016, on the
file of the learned Additional District and Sessions Judge, Theni
at Periyakulam, confirming the order passed in S.T.C.No.1050
of 2009 by Judgment, dated 28.09.2011, on the file of the
learned Judicial Magistrate, Periyakulam, thereby convicted the
petitioner for the offence punishable under Section 138 of the
Negotiable Instruments Act.
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 case of the respondent is that the petitioner
borrowed a sum of Rs.2,00,000/- on 10.01.2009 for his
business purpose and in order to repay the same, he issued
cheque. The cheque was presented for collection and it was
returned 'dishonoured' for the reason that the 'funds
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Crl.R.C(MD)No.407 of 2017
insufficient'. Immediately, the respondent caused legal notice
and lodged the complaint.
4.On the side of the respondent, he himself was
examined as P.W.1 and marked Exs.P.1 to P.7 and on the side
of the petitioner, D.W.1 and D.W.2 were examined and marked
Exs.D.1 to D.8.
5.On perusal of the oral and documentary evidence,
the trial Court found him guilty under Section 138 of the
Negotiable Instruments Act and sentenced him to undergo six
months Simple Imprisonment and also awarded compensation
for a sum of Rs.2,00,000/-. Aggrieved by the same, the
petitioner preferred an appeal in Crl.A.No.21 of 2015 on the
file of the Additional District and Sessions Court, Theni at
Periyakulam and the Appellate Court also confirmed the
conviction and sentence imposed by the trial Court. Aggrieved
by the same, the present Revision.
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Crl.R.C(MD)No.407 of 2017
6.The learned counsel appearing for the petitioner
would submit that the petitioner never borrowed any amount
from the respondent and as such, absolutely there are no
legally enforceable debts towards the respondent herein. He
never issued any cheque to the respondent, since it was issued
in favour of Mujipur Rahman for repaying the loan amount.
After execution of the sale deed in favour of Mujipur Rahman,
the petitioner failed to get back the cheque which was issued
as a security purpose, who in turn, handed over the cheque to
the respondent. Hence, the present complaint. He further
submitted that he never received any notice since the
petitioner had three houses and as such, no statutory notice
was served to him. In order to disprove the case of the
respondent, he had examined D.W.1 and D.W.2 and
categorically rebutted the evidence of the respondent even
then, both the Courts below wrongly convicted the petitioner
for the offence punishable under Section 138 of the Negotiable
Instruments Act.
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Crl.R.C(MD)No.407 of 2017
7.Per contra, the learned counsel appearing for the
respondent submitted that the petitioner categorically
admitted the signature found in Ex.P.1 and he never disputed
the signature. Therefore, the presumption presumed by the
Courts below and rightly convicted the petitioner for the
offence punishable under Section 138 of the Negotiable
Instruments Act and it does not warrant any interference by
this Court.
8.Heard the learned counsel appearing on either
side and perused the materials available on record.
9.The petitioner raised three grounds in order to set
aside the conviction imposed on him for the offence punishable
under Section 138 of the Negotiable Instruments Act, as
follows:-
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Crl.R.C(MD)No.407 of 2017
(i) The petitioner was not served with a
statutory notice which was marked as Ex.P.4.
(ii) There was no legally enforceable debt
since the petitioner did not borrow any
amount from the respondent and as such, the
alleged cheque was not issued for any legally
enforceable debt.
(iii) The respondent had previous enmity
in order to purchase the property belonging to
the petitioner and as such, the said cheque
was misused by the respondent and initiated
proceedings under Section 138 of the
Negotiable Instruments Act.
10.Though the petitioner raised these grounds, in
order to substantiate the same, the petitioner failed to
examine the postman. According to him, the petitioner had
three residences and as such, if at all any notice came to his
house and if he refused to claim the same, the postman would
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Crl.R.C(MD)No.407 of 2017
have endorsed 'refused to receive'. Whereas, Ex.P.5 states that
it was 'unclaimed'. Therefore, some other person might be
received and it was endorsed as 'unclaimed'. When it being so,
the petitioner ought to have examined the postman to
substantiate the said contention. But the petitioner failed to
examine any postman in order to substantiate the same.
11.In so far as the legal enforceable debt is concerned, though the
petitioner denied any borrowal from the respondent, he admitted his signature and
issuance of cheque. According to the petitioner, when he borrowed money from one
Mujipur Rahman, he handed over Ex.P.1 as security. Thereafter, the petitioner
executed a sale deed in his favour in respect of his property. After the execution of
sale deed, the petitioner did not take any steps to return the cheque from the said
Mujipur Rahman. In fact, after receipt of summons from the proceedings initiated
under Section 138 of the Negotiable Instruments Act, the petitioner failed to lodge any
complaint as against the said Mujipur Rahman alleging that he handed over the
alleged cheque in favour of the respondent herein. That apart, the petitioner failed to
make any statement under Section 313 of Cr.P.C as if the cheque was not issued by
him, and it was originally issued to one Mujipur Rahman for security purposes.
Therefore, the trial Court rightly convicted the petitioner for the offence punishable
under Section 138 of the Negotiable Instruments Act and this Court finds no illegality
or irregularity in the order passed by the Courts below and the Criminal Revision Case
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Crl.R.C(MD)No.407 of 2017
is dismissed.
09.03.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
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Crl.R.C(MD)No.407 of 2017
To
1.The Additional District and Sessions Court,
Theni at Periyakulam.
2.The Judicial Magistrate,
Periyakulam.
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Crl.R.C(MD)No.407 of 2017
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.407 of 2017
09.03.2023
https://www.mhc.tn.gov.in/judis
