R.Sampath Kumar vs P.Raja
2023 Latest Caselaw 2517 Mad

                                                                                    Crl.R.C.No.60 of 2020



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       Dated : 15.03.2023

                                                           CORAM :

                                  THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN

                                                  Crl.R.C.No.60 of 2020

                     R.Sampath Kumar                                                      .. Petitioner
                                                                 Vs.

                     P.Raja                                                              ..Respondent

                     PRAYER : Criminal Revision Case has been filed under sections 397
                     read with 401 of Criminal Procedure Code to set aside the conviction
                     imposed in the judgment dated 24.10.2019 made in C.A.No.37 of 2017
                     on the file of the learned Additional District and Sessions Judge,
                     Dharmapuri, confirming the conviction imposed in judgment dated
                     07.11.2017 made in S.T.C.No.245 of 2013 on the file of the learned
                     Judicial Magistrate at Harur by allowing this Criminal Revision Case.


                                      For Petitioner       :       Mr.J.Pradeep

                                      For Respondent       :      Mr.D.Dasarathan
                                                               ORDER

This Criminal Revision Case is filed by the accused being

aggrieved by the concurrent findings of the Courts below holding him

https://www.mhc.tn.gov.in/judis Crl.R.C.No.60 of 2020

guilty for offence under Section 138 of Negotiable Instruments Act.

2. According to the complainant, Raja / the respondent herein

has borrowed a sum of Rs.7,00,000/- from the complainant as a loan and

promised to repay the same in three installments. To discharge the

liability, he gave post dated cheque bearing No.114022 dated 24.01.2013

drawn on HDFC bank, Salem branch for Rs.7,00,000/-. When the cheque

was presented for collection, it was returned with a memo dated

29.01.2013 for “Insufficient Fund”. After causing statutory notice to the

accused, which was served on him on 05.03.2013, the complainant filed

a private complaint before the learned Judicial Magistrate at Harur and

taken on file in S.T.C.No.245 of 2013.

3. To prove the complaint, two witnesses have been examined

and 6 exhibits were marked. On the side of the accused, the accused has

not adduced any oral evidence. During cross examination of the

prosecution witnesses for the complainant, it was suggested that the

cheque was not issued to discharge any debt incurred by the accused, but

https://www.mhc.tn.gov.in/judis Crl.R.C.No.60 of 2020

it was given as a security in the course of chit transaction between the

accused and the complainant. Except the signature in the cheque, other

particulars were filled up by the complainant to suit his convenience.

4. The Trial Court on appreciation of evidence has observed

that to prove the complaint, the cheque [Ex.P1] return memo [Ex.P2],

statutory notice [Ex.P4] and postal acknowledgment [Ex.P5] prima facie

established that the accused has issued a cheque for Rs.7,00,000/- and

the said cheque was returned for Insufficient of funds and when this was

brought to the notice of the accused, he neither replied nor repaid the

cheque amount. Whereas, considering the defence put forth by the

accused, the Trial Court has formulated three questions, (i) to succeed,

the accused has to prove that he had conducted a chit (ii) the complainant

participated in the chit (iii) for the security purpose the accused entrusted

the cheque to the complainant. Having taken a specific defence, the

accused has not adduced any evidence to substantiate his defence, which

requires proof of three ingredients mentioned above.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.60 of 2020

5. The Trial Court has also taken note of suggestion put to the

complainant during cross examination, wherein, he has admitted

regarding the participation of the chit conducted by the accused and

withdrawal of amount in two cheques, out of three cheques which he has

participated. However, he denied the receipt of subject cheque as a

security. No contra evidence has been let in by the accused to prove that

the cheque was handed over to the complainant only for the security

purpose. Hence the Trial Court has rightly convicted the accused under

Section 138 of N.I.Act and regarding the failure of the accused to rebut

the presumption when this was challenged before the Additional District

and Sessions Judge, Dharmapuri in C.A.No.37 of 2017, the Lower

Appellate Court after perusal of the records has found that the conclusion

of the Trial Court needs no interference, since the signature found in the

cheque Ex.P1 being admitted by the accused and no contra evidence to

the presumption that the cheque was issued to discharge enforceable

liability.

https://www.mhc.tn.gov.in/judis Crl.R.C.No.60 of 2020

6. In the revision, the learned counsel for the accused

contended that there is an error in the complaint regarding the branch of

the accused banker the different ink used one for signature and other to

enter the address in the cheque created a strong suspicion that the cheque

was not issued to the complainant and for the amount mentioned that

there is correction in the cheque marked as Ex.P1. Alteration in the

Negotiable Instruments will render the instrument defect and

unenforceable. Therefore, the Courts below ought not have believed the

case of the complainant.

7. This Court, regarding the contention that the cheque has

been altered, perused the cheque which is marked as Ex.P1, finds that

there is no material alteration in the cheque. No doubt the ink used by the

drawer to sign the cheque and the ink used to fill the address differs that

will not render the cheque defective.

8. As far as the defence is concerned tit is admitted that the

cheque was issued in connection with the chit transaction. Except the

https://www.mhc.tn.gov.in/judis Crl.R.C.No.60 of 2020

suggestion to the complainant during the cross examination, there is no

substantial material to draw that the subject cheque was issued as a

security in connection with the chit transaction. Therefore, this Court

finds that no substance in the revision to interfere with the concurrent

finding of the Courts below, which has appreciated the evidence in the

light of the judgments of the Court and consonance with the law. Hence

the Criminal Revision Case is dismissed.

15.03.2023 Internet : Yes/No Index: Yes/No

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To

1.The Additional District and Sessions Judge, Dharmapuri

2. The Judicial Magistrate at Harur .

https://www.mhc.tn.gov.in/judis Crl.R.C.No.60 of 2020

Dr.G.JAYACHANDRAN, J.

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Crl.R.C.No.60 of 2020

15.03.2023

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