Madras High Court
D.Ramdass vs V.Rajendran … on 19 September, 2023
Crl.R.C.No.1087 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.09.2023
CORAM
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
Crl.R.C.No.1087 of 2023
D.Ramdass ... Petitioner
Vs.
V.Rajendran … Respondent
Prayer : Criminal Revision filed under Section 397 r/w. 401 of Criminal
Procedure Code, to set aside the Judgment and orders dated 20.10.2021
passed in Crl.A.No.343 of 2019 by the III Additional District and
Sessions Judge, Coimbatore.
For Petitioner : Mr.Krishnasamy Chinnasamy
For Respondent : Mr.T.Arul
ORDER
Challenging the orders dated 20.10.2021 passed in
Crl.A.No.343 of 2019 by the III Additional District and Sessions Judge,
Coimbatore, the present criminal revision is filed.
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Crl.R.C.No.1087 of 2023
2. The revision petitioner is the accused in C.C.No.444 of 2017
on the file of the Judicial Magistrate, Fast Track Court at Magisterial
Level I, Coimbatore. The respondent/complainant filed a private
complaint under Section 200 of Cr.P.C., against the revision petitioner /
accused for an offence punishable under Section 138 of the Negotiable
Instruments Act.
3. The case of the complainant in a nutshell is as follows:
The revision petitioner/accused borrowed a sum of Rs.25 lakhs
from the complainant and in order to discharge his liability, the accused
issued the following cheques:
S. Date Cheque No. Drawn on Amount
No.
Axis Bank Ltd.,
1 08.03.2016 140902 Rs.10,00,000/-
Chennai
Axis Bank Ltd.,
2 10.03.2016 140903 Rs.10,00,000/-
Chennai
Axis Bank Ltd.,
3 14.03.2016 140904 Rs.5,00,000/-
Chennai
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Crl.R.C.No.1087 of 2023
4. When the complainant presented the cheques for collection
through his banker viz., City Union Bank Ltd., Pannimadai Branch,
Coimbatore, the same was returned for the reason 'Funds insufficient'.
Therefore, the complainant issued a legal notice dated 02.04.2016 to the
accused demanding the latter to pay the amount due under the Cheque
and the same was received by the accused on 06.04.2016. According to
the complainant, though the accused received the said notice, he did not
make good the payment and also did not send any reply. Thereafter he
filed a private complaint under Section 200 Cr.P.C., in C.C.No.444 of
2017.
5. On receipt of the complaint, the learned Judicial Magistrate
took cognizance of the offence after observing necessary legal formalities
and issued summons for the appearance of the accused under Section 204
(3) of Cr.P.C. Copies of records were furnished to the accused, on his
appearance, under Section 207 of Cr.P.C. When the accused was
questioned with regard to the substance of accusation made against him
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Crl.R.C.No.1087 of 2023
in the complaint, he pleaded not guilty and therefore the case was posted
for trial.
6. The respondent / complainant examined himself as P.W.1
and another witness one S.Dhilip Kumar as P.W.2 and marked Ex.P1 to
Ex.P12 on his side. The complainant had deposed about the borrowal of a
sum of Rs.25 lakhs and the issuance of three cheques towards discharge
of his liability by the accused. He has also deposed about the issuance of
the statutory notice to the accused, demanding him to repay the amount
due under the cheque. P.W.2, the Manager of City Union Bank,
Pannimadai Branch, Coimbatore deposed that the cheques presented by
the complainant were returned for the reason 'funds insufficient' and thus
P.W.2 corroborated the versions of P.W.1. When the accused was
questioned under Section 313 (i) (b) Cr.P.C. with regard to the
incriminating circumstances appearing in evidence against him, he
denied of having committed any offence. However, he did not adduce
any oral or documentary evidence on his side.
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Crl.R.C.No.1087 of 2023
7. The learned Judicial Magistrate I, Coimbatore after
analysing the evidence on record found the accused guilty for the offence
under Section 138 of the Negotiable Instruments Act, convicted and
sentenced him to undergo Simple Imprisonment for a period of six
months and to pay a sum of Rs.25 lakhs as compensation to the
complainant, in default to undergo imprisonment for a period of two
months. The order of Conviction and Sentence was passed on
24.09.2019. Aggrieved over the said Judgment, a Criminal Appeal was
filed in C.A.No.343 of 2019 before the III Additional District and
Sessions Judge, Coimbatore. The III Additional District and Sessions
Judge, Coimbatore vide her orders dated 20.10.2021 dismissed the
appeal, confirming the conviction and sentence passed by the learned
Judicial Magistrate I, Coimbatore. Aggrieved over the same, the present
revision is filed.
8. Mr.Krishnasamy Chinnasamy, learned counsel for the
petitioner contended that the accused did not obtain any loan from the
complainant and that the complainant is a total stranger to him.
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Crl.R.C.No.1087 of 2023
Moreover, the complainant has not explained as to how he lent huge sum
of Rs.25 lakhs to the accused when he is a rank outsider.
9. Per contra, Mr.T.Arul, learned counsel for the respondent
/complainant contended that the accused did not adduce any reply to the
statutory notice issued by the complainant and did not also cross examine
P.W.1 on this aspect of acquaintance though several opportunities were
given to him. Hence, the accused cannot take a stand that the
complainant is a total stranger and that he did not borrow any amount
from the complainant, especially when he had not specifically denied his
signature on the cheque.
10. A perusal of the complaint and the deposition of P.W.1
clearly shows that the accused obtained a loan of Rs.25 lakhs from the
complainant and for discharging his liability, he issued three cheques
bearing Nos.140902, 140903, 140904 drawn on Axis Bank Ltd.,
Chennai. The accused did not specifically deny his signature on the
cheques either at the time of questioning him with regard to the substance
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Crl.R.C.No.1087 of 2023
of the accusation made against him or when he was questioned under
Section 313 (i) (b) Cr.P.C. with regard to the incriminating circumstances
appearing in evidence against him. He did not also cross examine P.W.1.
The learned II Additional District and Sessions Judge, Coimbatore has
observed in her order thus:
“19. The accused by now contends that he was
not given a chance to cross examine Pw1 and Pw2 and his
applications under section 311 were dismissed and only
because of this he was not able to establish his defence.
While considering this contention this court has perused
the lower court records. It shows that the complainant was
examined as Pw1 on 09.11.2017 and the case was posted
for cross examination of Pw1 on 20.12.2017 at the request
of the accused and from 20.12.2017 it was adjourned to
10.01.2018 again at his request and from 10.01.2018 to
16.03.2018 and to 12.04.2018 and finally on 12.04.2018
the evidence of Pw1 was closed as the accused failed to
avail the opportunities to cross examine him. And further
on 14.06.2018 Pw2 was examined and his evidence was
closed, on the same day. A petition to recall the
complainant side witness CMP. No. 1621/2018 was filed
and it was allowed on 12.07.2018 with direction to cross
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Crl.R.C.No.1087 of 2023
Pwl on 14.08.2018. But on 14.08.2018 the accused was not
ready to cross Pw1. So the case was posted for
examination of defence witness by dismissing the recall
petition. A further perusal of lower court notes paper
shows that the accused again filed a 311 petition to recall
Pw1 and it was returned by stating that earlier petition was
dismissed. The records further show that the accused once
again filed a petition to reopen and recall Pw1 and the
same were also dismissed on 25.02.2019.”
11. It is clear that the accused did not avail the opportunity to
cross examine P.W.1. Therefore, P.W.1's evidence remains unrebutted. It
is settled law that while this Court exercising jurisdiction under Section
397 Cr.P.C., cannot act as a second appellate Court. Both the Courts
below had concurrently held that the accused is found guilty of the
offence punishable under Section 138 of the Negotiable Instruments Act.
I do not find any reason to interfere with the same. Accordingly, the
Criminal Revision is dismissed.
19.09.2023
Index: Yes/No
Speaking/Non-Speaking order
vum
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Crl.R.C.No.1087 of 2023
To
1. The III Additional District and Sessions Judge, Coimbatore.
2.The Judicial Magistrate, Fast Track at Magisterial Level I, Coimbatore.
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Crl.R.C.No.1087 of 2023
R. HEMALATHA, J.
vum
Crl.R.C.No.1087 of 2023
19.09.2023
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