P.M.Sundarraj vs V.Ganesan
2023 Latest Caselaw 13152 Mad

                                                                                Crl. R.C.(MD)No.316 of 2019



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  Dated : 26.09.2023

                                                        CORAM

                                  THE HONOURABLE MR. JUSTICE P. DHANABAL

                                             Crl. R.C.(MD)No.316 of 2019
                                                         and
                                             Crl.M.P.(MD)No.4613 of 2019


            P.M.Sundarraj                                                     .. Petitioner

                                                           Vs.

            V.Ganesan                                                         .. Respondent

            Prayer : This Criminal Revision Case is filed under Sections 397 and 401 of
            Cr.P.C., to call for the records in C.A.No.82 of 2018 dated 05.04.2019 on the file of
            the II Additional District and Sessions Judge, Tiruchirappalli, confirming the
            judgment in S.T.C.No.340 of 2017 dated 06.06.2018 on the file of the learned
            Judicial Magistrate, Manapparai and duly set aside the judgment of the Courts below
            by acquitting the revision petitioner.
                                      For Petitioner         : Mr.J.Jeyakumaran
                                      For Respondent         : Mr.N.R.Balaji

                                                     ORDER

This petition has been filed by the petitioner to set aside the judgment and

conviction passed in C.A.No.82 of 2018 dated 05.04.2019 on the file of the learned

1 / 10 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.316 of 2019

II Additional District and Sessions Judge, Tiruchirappalli, confirming the judgment

in S.T.C.No.340 of 2017 dated 06.06.2018 on the file of the learned Judicial

Magistrate, Manapparai. In the trial Court, the complainant filed a complaint under

Section 138 of Negotiable Instruments Act as against the petitioner and the trial

Court convicted the accused and sentence him to undergo three months simple

imprisonment and to pay a sum of Rs.2,00,000/- (Rupees Two Lakhs only) as

compensation within one month by a judgment, dated 06.06.2018. As against the

said conviction and judgment, the petitioner filed a criminal appeal in C.A.No.82 of

2018 and the same was dismissed by the learned II Additional District and Sessions

Judge, Tiruchirappalli, by dismissing the appeal through its judgment dated

05.04.2019. Aggrieved by the said judgment, this present Criminal Revision Case is

filed.

2.The case of the complainant is that the accused borrowed a sum of

Rs.2,00,000/- from the defacto complainant on 15.08.2016 and the accused issued a

cheque dated 05.04.2017 in favour of the complainant for a sum of Rs.2,00,000/-

drawn on Indian Overseas Bank, Vaiyampatti. When the cheque was presented for

collection by the complainant through his banker, City Union Bank, Nadupatty, on

08.06.2017, the said cheque was returned as 'insufficient funds' on 09.06.2017 and

the same was intimated to the complainant on 17.06.2017. The complainant issued a

2 / 10 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.316 of 2019

legal notice to the accused on 20.06.2017. The accused received the same but not

issued any reply or settled the cheque amount. Hence, the complainant filed the

complaint under Section 138 of Negotiable Instruments Act before the Judicial

Magistrate Court, Manapparai. The learned Magistrate had taken cognizance in

C.C.No.340 of 2017 for the offence under Section 138 of Negotiable Instruments

Act. Thereafter, issued process to the accused and the accused was served copies

under Section 207 of Cr.P.C., and then substance of the charge was explained to the

accused and he denied charges.

3.The complainant had examined P.W.1 and marked Exs.P.1 to P.5 and on

the side of the accused, D.W.1 and D.W.2 were examined and marked Exs.D.1 and

D.2. After examination of prosecution witnesses, the accused was examined under

Section 313(1)(b) of Cr.P.C., with regard to incriminating circumstances found in the

complainant side evidences but the accused denied the evidences.

4.Upon perusing the oral and documentary evidence, the trial Court found

the petitioner guilty for the offence punishable under Section 138 of Negotiable

Instruments Act and sentenced him to undergo three months simple imprisonment

and imposed compensation of Rs.2,00,000/- (Rupees Two Lakhs only) by a

judgment, dated 06.06.2018. Aggrieved by the said conviction and judgment, the

3 / 10 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.316 of 2019

petitioner filed a criminal appeal in C.A.No.82 of 2018 before the II Additional and

Sessions Court, Tiruchirappalli. The appellate Court also confirmed the judgment

and conviction of the trial Court and dismissed the appeal through its judgment dated

05.04.2019.

5.Aggrieved by the said judgment, this revision case has been filed on the

following grounds:-

The judgments of the both the Courts below are against law, weight of

evidence and all probabilities of case. The Courts below ought not to have believed

the case of the respondent, since it is full of contradictions and infirmities. The

Courts below have failed to consider the case of the petitioner, evidences and

documents adduced on his side and wrongly convicted the petitioner. The Courts

below failed to consider that the petitioner's father in law borrowed a sum of Rs.

50,000/- from the complainant and at that time, the cheque of the petitioner was

given as security and the same was misused by the complainant and that the said loan

was also discharged. But the trial Court has not considered the same and convicted

the petitioner. The trial Court failed to consider that the cause of action narrated in

the complaint and also in the evidence of P.W.1 was not proved by the complainant.

The trial court failed to consider the evidences of D.W.1 and D.W.2 and also Ex.D1

and Ex.D2.

4 / 10 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.316 of 2019

6.The learned counsel appearing for the petitioner would contend that the

respondent has filed cheque case against the petitioner alleging that the petitioner

borrowed a sum of Rs.2,00,000/- from him and thereafter, cheque was presented for

collection, the cheque was dishonored and thereafter, issued notice to the petitioner

and the notice was also received by the petitioner but not sent reply. But in fact the

petitioner has not borrowed any amount from the respondent. Per contra the

petitioner previously borrowed Rs.15,000/- from the complainant and the cheque

was given as security and the same was misused. In order to prove the same on the

defense side, they examined D.W.1 and D.W.2 who are Officers of TADCO and they

deposed that the petitioner borrowed loan for a tune of Rs.4,00,000/- from the

Government Subsidy. To that effect, Ex.D1 and Ex.D2 were marked but the trial

Court failed to consider the same. Hence, the judgment of the Courts below are liable

to be set aside by allowing this revision.

7.The learned counsel appearing for the respondent would contend that the

petitioner has admitted the signature found in the cheque and thereby, he has to rebut

the presumption under Section 139 of Negotiable Instruments Act. In order to rebut

the presumption under Section 139 of Negotiable Instruments Act, no sufficient

evidence was adduced. In order to prove the case of the complainant, he has

5 / 10 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.316 of 2019

examined P.W.1 and marked Exs.P1 to P5. Thereby, the case of complainant was

proved and the presumption under Section 139 of Negotiable Instruments Act also in

favour of the complainant. But the accused failed to rebut the presumption and

thereby, the trial Court has correctly convicted the accused and awarded punishment.

The appellate Court also after elaborate discussion dismissed the appeal and thereby,

the revision is liable to be dismissed.

8.Upon hearing both sides, perusing the documents and evidences adduced

on both sides and upon perusing the judgments of lower Courts, the points for

determination in this petition is whether the judgment of the II Additional District

and Sessions Court, Tiruchirappalli in Crl.A.No.82 of 2018 on 05.04.2019, in

confirming the conviction and sentence imposed by the learned Judicial Magistrate,

Manapparai in C.C.No.340 of 2017 on 06.06.2018 is sustainable according to law

and facts.

Point:-

9.In this case, the complainant has filed cheque case as against the

petitioner alleging that he borrowed a sum of Rs.2,00,000/- on 15.08.2016.

Thereafter, he issued a post dated cheque dated 05.04.2017 for a sum of Rs.

2,00,000/-. When the same was presented for collection on 08.06.2017, the cheque

6 / 10 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.316 of 2019

was dishonored with a memo that 'insufficient funds'. Thereafter, the notice was

issued to accused and after notice, the accused neither repaid the amount nor sent

reply. Thereby, the complaint has been lodged before the learned Judicial Magistrate.

10.The contention of the petitioner is that he has not borrowed any amount

from the complainant. Already his father in law borrowed amount and at that time,

cheque was presented for security and the said loan was discharged. While so burden

of proof is lies on the accused to prove that the cheque was given as security and not

issued for legally enforceable debt. In order to prove the contention, the accused

examined D.W.1 and D.W.2 and marked Ex.D1 and Ex.D2 and they stated about the

loan obtained by accused from TADCO. On careful perusal of the evidences of D.W.

1 and D.W.2 and Ex.D1 and Ex.D2, they revealed that the petitioner obtained loan

for a sum of Rs.4,00,000/- in the year 2013 through TADCO. The contention of the

petitioner is that he has not borrowed the amount and the cheque was issued for

security purpose for the loan obtained by his father in law. In order to prove that

contention, no evidence was adduced. Per contra the defence side evidence shows

that he obtained loan from TADCO in the year 2013 and no piece of evidence

produced to prove that the cheque was issued for security purpose for the loan

obtained by his father in law. Therefore, the petitioner side evidences no way helpful

to decide the case in his favour and the same are totally irrelevant to this case.

7 / 10 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.316 of 2019

11.On careful perusal of the document Ex.P1 and evidence of P.W.1, the

accused borrowed the amount and issued cheque and he signed in the cheque and the

accused also not denied the signature found in the cheque and issuance of the

cheque. The initial burden of the complainant was discharged by him and the

accused failed to rebut the presumption under Section 139 of Negotiable Instruments

Act. Therefore, the complainant proved his case that the accused borrowed amount

and issued cheque to discharge the said amount, but the accused failed to prove that

the cheque was issued for security purpose. The trial Court as well as the appellate

Court elaborately discussed about the evidence adduced on both sides and correctly

fixed the burden on the side of the accused and he failed to discharge his burden and

failed to rebut the presumption under Section 139 of Negotiable Instruments Act.

Thereby, the Courts below rightly came to the conclusion by convicting the accused.

There is no infirmity found in the judgment of the Courts below and this Court has

no warrant to interfere with the judgments passed by the Courts below. Therefore as

discussed above, this Court is of the opinion that this revision petition has no merits

and deserved to be dismissed.

12.In the result, the Criminal Revision Petition is dismissed and the

judgment and conviction passed by the learned II Additional District and Sessions

8 / 10 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.316 of 2019

Judge, Tiruchirappalli in Crl.A.No.82 of 2018 on 05.04.2019, in confirming the

judgment and conviction passed by the learned Judicial Magistrate, Manapparai in

C.C.No.340 of 2017 on 06.06.2018 are confirmed. The bail bond if any executed by

the petitioner shall stand cancelled. The trial Court is directed to take steps to secure

the accused according to law. Consequently, connected miscellaneous petition is

closed.

                                                                                       26.09.2023

            NCC      : Yes/No
            Index    : Yes/No
            Internet : Yes/No
            Mrn

            To

1.The II Additional District and Sessions Judge, Tiruchirappalli.

2.The Judicial Magistrate, Manapparai.

3.The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.

9 / 10 https://www.mhc.tn.gov.in/judis Crl. R.C.(MD)No.316 of 2019

P.DHANABAL, J.

Mrn

Crl. R.C.(MD)No.316 of 2019

26.09.2023

10 / 10 https://www.mhc.tn.gov.in/judis