Madras High Court
D.Ebenezer Daniel Raj vs B.Dinesh Kumar on 13 September, 2023
Crl.R.C.No.1574 of 2023
and Crl.M.P.No.14529 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.09.2023
CORAM
THE HONOURABLE MRS. JUSTICE R. HEMALATHA
Crl.R.C.No.1574 of 2023
and
Crl.M.P.No.14529 of 2023
D.Ebenezer Daniel Raj ... Petitioner
Vs.
B.Dinesh Kumar ... Respondent
Prayer : Criminal Revision filed under Section 397 r/w. 401 of Criminal
Procedure Code to set aside the judgment dated 20.07.2023 in
C.A.No.101/2020 passed by the learned IV Additional District and
Sessions Judge, Coimbatore.
For Petitioner : Mr.P.Narayana Prasadh
ORDER
Challenge in this revision is made to the judgement and orders
dated 20.07.2023 passed by the learned IV Additional District and
Sessions Judge, Coimbatore in C.A.No.101/2020 in and by which the
conviction and sentence dated 01.02.2020, passed by the learned Judicial
Magistrate, Fast Track Court No.1 at Magisterial Level, Coimbatore in
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1574 of 2023
and Crl.M.P.No.14529 of 2023
C.C.No.207/2015, was confirmed.
2. The case of the complainant in a nutshell is as follows :
2.1. The complainant and the accused are known to each other.
The accused borrowed a sum of Rs.3,50,000/- from the complainant on
16.08.2012 to meet his urgent family needs and for developing his
business. The revision petitioner/accused assured that he would repay the
same with interest @ 18% per annum on demand.
2.2. When the complainant demanded the accused to repay the
amount, the petitioner/accused issued a cheque bearing No.120407 dated
21.08.2014 (Ex.P1) drawn on Axis Bank, R.S.Puram Branch,
Coimbatore, for a sum of Rs.4,04,237/- in favour of the
respondent/complainant to discharge his liability. When the complainant
presented the said cheque for collection on 21.08.2014 through his
banker, viz., the Canara Bank, Gandhipuram Branch, Coimbatore, the
cheque was returned unpaid for the reason 'Account Closed' as is seen
from the cheque Return Memo dated 23.08.2014 (Ex.P2). Therefore, the
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1574 of 2023
and Crl.M.P.No.14529 of 2023
respondent/complainant issued a legal notice dated 20.09.2014 (Ex.P3)
to the accused. Though the revision petitioner/accused received the said
legal notice on 22.09.2014 as is seen from the postal acknowledgement
card (Ex.P4), he did not come forward to pay the amount due under the
cheque and did not also send any reply to the notice received by him.
2.3. Therefore, the respondent/complainant filed a private
complaint before the learned Judicial Magistrate, Fast Track Court No.1
at Magisterial Level, Coimbatore, under Section 200 Cr.P.C. against the
revision petitioner/accused for an offence punishable under Section 138
of the Negotiable Instruments Act in C.C.No.207/2015. The learned
Judicial Magistrate, Fast Track Court No.1 at Magisterial Level, after
receipt of the complaint recorded the sworn statement of the complainant
and took cognizance of the offence under Section 138 of the Negotiable
Instruments Act (herein after referred to as NI Act) and issued summons
to the accused. On appearance of the accused, the copies of the case
records were furnished to him under Section 207 Cr.P.C. When the
accused was questioned with regard to substance of accusation made
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1574 of 2023
and Crl.M.P.No.14529 of 2023
against him, he pleaded not guilty and therefore, the case was posted for
trial.
3.The complainant examined himself and marked Ex.P1 to
Ex.P4. When the accused was questioned under Section 313 of Cr.P.C.,
with regard to the incriminating circumstances appearing in evidence
against him, the accused denied of having committed any offence.
However, the accused did not adduce any oral / documentary evidence on
his side.
4.After analysing the evidence on record, the learned trial court
judge found the accused guilty of the offence under Section 138 of the
Negotiable Instruments Act, convicted and sentenced him as detailed
hereunder.
Offences under which
S.No. Sentence
convicted
1 Section 138 of N.I. Simple imprisonment for six months and
Act to pay a sum of Rs.4,04,237/- as
compensation to the complainant
u/s.357(3) Cr.P.C., within two months
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Crl.R.C.No.1574 of 2023
and Crl.M.P.No.14529 of 2023
Offences under which
S.No. Sentence
convicted
from the date of the judgment, in
default, to undergo simple imprisonment
for two months.
5. Aggrieved over the same, the revision petitioner/accused
filed an appeal in C.A.No.101/2020 before the IV Additional District and
Sessions Court, Coimbatore. The learned IV Additional District and
Sessions Judge, Coimbatore after analysing the evidence on record,
confirmed the findings recorded by the trial court judge and dismissed
the appeal, as against which the present criminal revision is filed.
6. Mr.P.Narayana Prasadh, learned counsel for the revision
petitioner contended that the cheque was issued in favour of Hindu
Undivided Family and therefore, the complainant Dinesh Kumar cannot
file a complaint in his individual capacity. According to him, the
complainant is only a Karta of Hindu Undivided Family.
7. The learned Judicial Magistrate, Fast Track Court No.1 at
Magisterial Level, Coimbatore had considered this plea of the accused
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Crl.R.C.No.1574 of 2023
and Crl.M.P.No.14529 of 2023
and observed thus :
"10.From the above and on perusal of record, it comes to know
that the accused did not deny the borrowal of amount from the
complainant. Further, the accused did not deny the issuance of
the cheque for discharging the liability. The accused raised a
single defence stating that the payee of the cheque is Dinesh
Kumar - HUF, but the case was filed in the individual capacity
i.e. by Dinesh Kumar only and therefore the complaint filed by
the complainant is liable to be dismissed. It is an admitted fact
that the payee of the cheque is Dinesh Kumar - HUF. Though
the accused raised this defence, the complainant clearly deposed
that he is the Karta of HUF and in order to prove the same, he
can produce Pan Card. But the accused did not prove the same
either by oral or documentary evidence. In Labh Chand Jain Vs
Satish Kumar Meena, the Hon'ble High Court of Rajasthan
held that the HUF is not come under the definition of S.141 of
the NI Act. Further, the complaint can be maintained only by
holder of the cheque in due course and not by a stranger. Hence
this court comes to the conclusion that when the accused did not
deny the borrowal of amount and issuance of the cheque, then
the defence raised by the accused is not proving any contrary to
the case of the complainant."
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Crl.R.C.No.1574 of 2023
and Crl.M.P.No.14529 of 2023
8. It is pertinent to point out that the accused did not deny the
signature on the cheque and therefore, there is a presumption u/s.118 &
139 of the Negotiable Instruments Act unless the contrary is proved. The
accused did not send any reply to the statutory notice issued by the
complainant. The cheque in question was issued in the name of Dinesh
Kumar – Hindu Undivided Family (HUF) and this alone cannot be a
reason to hold that Dinesh Kumar cannot file a private complaint in his
individual capacity. Moreover, the Hindu Undivided Family (HUF) does
not come under the purview of Section 141 of N.I. Act. In the
circumstances, I do not see any reason to interfere with the findings
recorded by both the Courts below.
9.It is trite law that this Court while exercising its revisional
jurisdiction cannot act as a second appellate court. A bare perusal of the
concurrent findings of both the Courts below clearly shows that all the
aspects of the case had been considered well. The accused had not
rebutted the presumption under Section 139 of the Negotiable
Instruments Act by adducing acceptable evidence. Therefore, the
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1574 of 2023
and Crl.M.P.No.14529 of 2023
Revision Case is dismissed at the admission stage itself.
10. In the result, the Criminal Revision Case is dismissed.
Consequently, connected Criminal Miscellaneous Petition is closed.
i. The judgement dated 20.07.2023 passed in C.A.No.101/2020 on
the file of the IV Additional District and Sessions Court,
Coimbatore and the orders dated 01.02.2020 passed in
C.C.No.207/2015 on the file of the Judicial Magistrate, Fast Track
Court No.1 at Magistrate Level, Coimbatore, are confirmed.
ii. The revision petitioner/accused shall surrender before the Judicial
Magistrate, Fast Track Court No.1 at Magisterial Level,
Coimbatore, within 15 days from the date of receipt of copy of this
order, failing which, the Trial Court shall take steps to secure him
for undergoing the sentence.
13.09.2023
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
mtl
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1574 of 2023
and Crl.M.P.No.14529 of 2023
R. HEMALATHA, J.
mtl
To
1.The IV Additional District and Sessions Court, Coimbatore.
2.The Judicial Magistrate, Fast Track Court No.1 at Magistrate Level,
Coimbatore
Crl.R.C.No.1574 of 2023
and Crl.M.P.No.14529 of 2023
13.09.2023
https://www.mhc.tn.gov.in/judis
