Madras High Court
Dhanapaul vs R.Jayachandran on 28 March, 2023
Crl.R.C(MD)No.230 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.03.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.230 of 2018
and Crl.M.P(MD)No.2981 of 2018
Dhanapaul ... Petitioner/
Appellant/Accused
Vs.
R.Jayachandran ... 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 in C.A.No.47 of 2016 on the file of the I-Additional District
and Sessions Court, Thoothukudi, dated 11.10.2017 confirming the
conviction and sentence of one year Simple Imprisonment and
direction to pay compensation of Rs.1,53,000/- under Section 357
of Cr.P.C r/w 117 of the Negotiable Instruments Act within one
month from the date of the Judgment in default to undergo one
month Simple Imprisonment imposed by the Judgment dated
08.09.2016 in C.C.No.259 of 2014 on the file of the Fast Track Court
at Magisterial Level, Thoothukudi and set aside the same and acquit
the accused.
For Petitioner : Mr.M.M.Manivel Pandian
For Respondent : Mr.S.C.Herold Singh
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Crl.R.C(MD)No.230 of 2018
ORDER
This revision has been filed to set aside the order passed
in C.A.No.47 of 2016, dated 11.10.2017, on the file of the
I-Additional District and Sessions Court, Thoothukudi, confirming
the Judgment passed in C.C.No.259 of 2014, dated 08.09.2016, on
the file of the Fast Track Court at Magisterial Level, Thoothukudi.
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 the petitioner had
borrowed a sum of Rs.1,53,000/- as a hand loan from the
respondent in the month of June 2014 to meet out his urgent needs
and family expenses and also promised to repay the loan amount
within one month. However, he did not repay the same and on
repeated demands, 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 statutory notice and lodged the
complaint.
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Crl.R.C(MD)No.230 of 2018
4.On the side of the respondent, he himself was
examined as P.W.1 and one Vickraman was examined as P.W.2 and
marked Exs.P.1 to P.6 and on the side of the petitioner, no one was
examined and no documents were 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 and also ordered compensation to the tune of
the cheque amount. Aggrieved by the same, the petitioner preferred
an appeal in C.A.No.47 of 2016 on the file of the I-Additional District
and Sessions Court, Thoothukudi and the same was also dismissed
confirming the conviction and sentence imposed by the trial Court.
Hence, the present Revision.
6.The learned counsel appearing for the petitioner would
submit that while suspending the sentence, this Court, by order,
dated 16.04.2018, directed the petitioner to deposit a sum of
Rs.75,000/- to the credit of the trial Court. Accordingly, the
petitioner deposited the said sum of Rs.75,000/- before the trial
Court on 26.04.2018. The learned counsel appearing for the
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Crl.R.C(MD)No.230 of 2018
petitioner now sought further time in order to repay the remaining
cheque amount.
7.On perusal of the records revealed that the petitioner
borrowed a sum of Rs.1,53,000/- from the respondent and in order
to repay the same, he issued a cheque. It was marked as Ex.P.1. It
was presented for collection and the same was returned
dishonoured for the reason that the 'funds insufficient'. Hence, the
respondent caused statutory notice, which was marked as Ex.P.3.
It was duly received by the petitioner by acknowledgement card,
which was marked as Ex.P.4. On receipt of the statutory notice, the
petitioner failed to send any reply nor rebut the presumption arising
out of Section 139 of the Negotiable Instruments Act. Therefore, the
respondent discharged his initial burden and proved his case. The
petitioner also did not deny the signature found in the cheque and
issuance of the cheque. Therefore, the execution of Ex.P.1 when
admitted by the petitioner, then the respondent is entitled to draw
the presumption under Section 118 of the Negotiable Instruments
Act and it is for the petitioner to rebut the same.
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Crl.R.C(MD)No.230 of 2018
8.In the case on hand, the petitioner failed to rebut the
presumption and as such, the Courts below rightly convicted the
petitioner for the offence punishable under Section 138 of the
Negotiable Instruments Act. However, the petitioner is now ready
and willing to pay the remaining cheque amount.
9.Considering the above facts and circumstances, the
conviction imposed by the Courts below for the offence punishable
under Section 138 of the Negotiable Instruments Act is hereby
confirmed and in so far as the sentence is concerned, it is set aside
on condition that the petitioner shall deposit the remaining cheque
amount, namely Rs.78,000/- (Rupees Seventy Eight Thousand
Only) to the credit of C.C.No.259 of 2014 on the file of the Fast
Track Court at Magisterial Level, Thoothukudi, on or before
27.04.2023. If the petitioner fails to deposit the remaining cheque
amount, the sentence imposed by the Courts below is hereby
restored without any further reference to this Court and the trial
Court is directed to take appropriate steps to secure the petitioner
in order to serve out the remaining period of sentence. On such
deposit, the respondent is permitted to withdraw the entire amount
by way of filing an application.
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Crl.R.C(MD)No.230 of 2018
10.This Criminal Revision Case is disposed of, with the
above direction. Consequently, connected Miscellaneous Petition is
closed.
28.03.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
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Crl.R.C(MD)No.230 of 2018
To
1.The I-Additional District and Sessions Court,
Thoothukudi.
2.The Fast Track Court at Magisterial Level,
Thoothukudi.
https://www.mhc.tn.gov.in/judis
Crl.R.C(MD)No.230 of 2018
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.230 of 2018
28.03.2023
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