Madras High Court
P.Ramesh vs P.Bhuvanesan on 20 March, 2023
Crl.R.C(MD)No.539 of 2017
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED : 20.03.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.539 of 2017
P.Ramesh ... Petitioner/
Appellant/Accused
Vs.
P.Bhuvanesan ... 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 relating to the order passed by the learned Additional
Sessions Judge, Karur in C.A.No.30 of 2017, dated 03.04.2017 in
partly allowing the Judgment in C.C.No.142 of 2015, dated
07.11.2016 on the file of the learned Judicial Magistrate, Fast Track
Court at Magisterial Level, Karur and set aside the same.
For Petitioner : M/s.Vilma Rexy
For Respondent : Mr.P.Dhanasekaran
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Crl.R.C(MD)No.539 of 2017
ORDER
This revision has been filed to set aside the order passed
by the learned Additional Sessions Judge, Karur in C.A.No.30 of
2017, dated 03.04.2017 in partly allowing the Judgment in
C.C.No.142 of 2015, dated 07.11.2016 on the file of the learned
Judicial Magistrate, Fast Track Court at Magisterial Level, Karur.
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 crux of the complaint is that on 10.02.2015, the
petitioner borrowed a sum of Rs.5,00,000/- as a hand loan from the
respondent for his urgent needs and family expenses. Thereafter, in
order to discharge the liability, the petitioner issued a cheque for the
said amount. The cheque was presented for collection, and it was
returned 'dishonoured' for the reason that the 'funds insufficient'.
Immediately, the respondent caused legal notice and lodged the
complaint.
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Crl.R.C(MD)No.539 of 2017
4.On the side of the respondent, he himself was
examined as P.W.1 and marked Exs.P.1 to P.4 and on the side of the
petitioner, no one was examined and no document was marked.
5.On perusal of the oral and documentary evidence, the
trial Court found him guilty for the offence under Section 138 of the
Negotiable Instruments Act and sentenced him to undergo one year
Simple Imprisonment. Aggrieved by the same, the petitioner
preferred an appeal in C.A.No.30 of 2017 on the file of the learned
Additional Sessions Judge, Karur and the same was also partly
allowed by the Appellate Court thereby confirming the conviction
and reduced the sentence alone from one year Simple
Imprisonment to three months Simple Imprisonment. Aggrieved by
the same, the present Revision.
6.The learned counsel appearing for the petitioner would
submit that except the cheque, no documents were produced in
order to prove the alleged loan borrowed by the petitioner from the
respondent. There is absolutely no illegally enforceable debt
between the petitioner and the respondent herein. In fact, the
petitioner never borrowed any loan from the respondent and never
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Crl.R.C(MD)No.539 of 2017
issued any cheque towards any illegally enforceable debt. The
alleged cheque was misused by the respondent and initiated the
proceedings under Section 138 of the Negotiable Instruments Act.
7.The learned counsel appearing for the respondent
would submit that the respondent discharged his burden as
contemplated under Section 138 of the Negotiable Instruments Act
and as such, the Courts below rightly convicted him for the offence
under Section 138 of the Negotiable Instruments Act. In fact, while
suspending the sentence, this Court, by order dated 14.07.2017
imposed a condition that the petitioner shall deposit a sum of
Rs.1,00,000/-. However, the petitioner did not comply with the
same. Hence, the respondent filed a petition in Crl.M.P(MD)No.7116
of 2019 to dismiss the suspension sentence application and the
petitioner had taken time and even till today, failed to comply with
the same. Therefore, he prayed for the dismissal of the revision.
8.Heard the learned counsel appearing on either side
and perused the materials available on record.
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Crl.R.C(MD)No.539 of 2017
9.The petitioner borrowed a sum of Rs.5,00,000/- from
the respondent and in order to repay the said amount, he issued
cheque. The cheque was presented for collection and returned
dishonoured for the reasons 'funds insufficient'. Therefore, the
respondent caused legal notice and the same was duly received by
the petitioner, which was marked as Ex.P.3 and Ex.P.4. Even after
receipt of the same, the petitioner failed to reply in order to rebut
the presumption as arose under the Negotiable Instruments Act.
That apart, the petitioner never denied the signature found in the
cheque. Though the petitioner denied the issuance of cheque, in
order to substantiate, he did not even examine any witness and did
not produce any evidence to substantiate the same. As far as the
respondent is concerned, he had discharged his initial burden in
order to prove his case as contemplated under Section 138 of the
Negotiable Instruments Act. Therefore, the statutory presumption
contemplated under Section 139 of the Negotiable Instruments Act
shall be drawn in favour of the respondent, until the contrary is
proved which is presumed that the cheque was issued for legally
enforceable debt or liability. Though the presumption is a rebuttable
presumption, the petitioner failed to repay the same. The defence
available for the petitioner is the preponderance of probability,
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Crl.R.C(MD)No.539 of 2017
however, the petitioner failed to substantiate his version by a
preponderance of probability. In fact, the petitioner did not make
any statement under Section 313 of Cr.P.C in order to rebut the
presumption. Therefore, both the Courts below 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 is dismissed. However, if the petitioner paid
the cheque amount, namely to the tune of Rs.5,00,000/- (Rupees
Five Lakhs Only), to the respondent on or before 24.04.2023, the
conviction and sentence imposed by the Courts below stands set
aside.
20.03.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
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Crl.R.C(MD)No.539 of 2017
To
1.The Additional Sessions Judge,
Karur.
2.The Judicial Magistrate,
Fast Track Court at Magisterial Level,
Karur.
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Crl.R.C(MD)No.539 of 2017
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.539 of 2017
20.03.2023
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