Madras High Court
A. Fathimuthu Bibi vs S. Venkatesh on 17 April, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.Rc. No.1423 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.04.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Revision No.1423 of 2017
and
Crl.M.P. Nos. 14049 and 14050 of 2017
---
A. Fathimuthu Bibi .. Petitioner
Versus
S. Venkatesh .. Respondent
Criminal Revision is filed under Section 397 and 401 of Cr.P.C., praying
to set aside the Judgment dated 19.07.2017 passed in Crl.A. No. 207 of 2016
on the file of the Additional District and Sessions Court – II, Erode confirming
the Judgment dated 31.05.2016 passed in STC.No.420 of 2012 on the file of
the learned Judicial Magistrate, Fast Track Court-II, Erode
For Petitioner : Mr. P. Narayana Prasadh
for Mr. M.N. Balakrishnan
For Respondent : Mrs. Nisha
for Mr. K.S. Jeyaganeshan
ORDER
This Criminal Revision had been filed to set aside the Judgment dated
19.07.2017 passed in Crl.A. No. 207 of 2016 on the file of the learned
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Additional District and Sessions Judge – II, Erode confirming the Judgment
dated 31.05.2016 passed in STC.No.420 of 2012 on the file of the learned
Judicial Magistrate, Fast Track Court-II, Erode.
2. The brief facts, which are necessary for the disposal of this
Criminal Revision Case, are as follows:-
2.1. As per the complaint before the learned Judicial Magistrate, Fast
Track Court-II, Erode, the Accused was alleged to have borrowed
Rs.10,00,000/- (Rupees Ten lakhs only) from the Complainant on 19.04.2012
to meet her urgent family expenses. At the time of borrowing the amount, the
Accused alleged to have issued a post-dated cheque, mentioning the date as
19.06.2012, for the amount borrowed. When the said cheque was presented by
the Complainant on 29.06.2012 with his Bank, it was returned as “Account
Dormant”. Therefore, the Complainant had issued a notice on 07.07.2012
calling upon the Accused to pay the cheque amount. Though the notice was
received by the Accused on 10.07.2012, he had not given any reply. After
waiting for a reasonable time, the Complainant had filed the Complaint before
the learned Judicial Magistrate, Fast Track Court-II, Erode to punish the
Accused for having committed the offence under Section 138 of The
Negotiable Instruments Act, 1881.
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2.2. On appearance of the Accused , copies of the documents filed by
the Complainant were furnished to him. When the Accused was questioned
about the incriminating materials available against him, he denied the same.
Therefore, the learned Judicial Magistrate, Fast Track Court-II, Erode ordered
trial. During trial, the Complainant examined himself as P.W-1 and marked
documents under Ex.P-1 to Ex.P-4. After completion of evidence of the
Complainant, the Accused was examined by the learned Judicial Magistrate,
Fast Track Court-II, Erode, under Section 313 of Cr.P.C. but he denied the
evidence made available. After the proceedings under Section 313 of Cr.P.C,
the Accused summoned the Manager of the Canara Bank, Karungalpalayam,
Mr.Thamaraiselvan and examined him as D.W-1 and marked Ex.D-1.
2.3. The learned Trial Judge, on consideration of the oral and
documentary evidence concluded that the Accused had not issued a reply
notice to the notice dated 07.07.2012 sent by the Complainant. There is no
material evidence filed by the Accused to show that the cheque was not issued
for a legally enforceable debt or liability. When the Complainant had proved
the initial presumption under law that the cheque was issued for a legally
enforceable debt and liability, it is for the Accused to rebut such presumption.
However, the Accused failed and neglected to rebut the initial presumption
raised by the Complainant. While so, the Accused had committed an offence
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punishable under Section 138 of The Negotiable Instruments Act, 1881.
Accordingly, the trial Court by the Judgment dated 31.05.2016 convicted the
Accused for the offence punishable under Section 138 of The Negotiable
Instruments Act, 1881 and sentenced her to undergo simple imprisonment for a
period of one year with fine of Rs.5,000/-, in default, to undergo three months
simple imprisonment.
2.4. On appeal, the learned II Additional Sessions Judge, Erode
concluded that there is no merits in the Appeal preferred by the Accused and
accordingly, by judgment dated 19.07.2017 dismissed the Criminal Appeal No.
207 of 2016 filed by the Accused and confirmed the Judgment of conviction
passed by the trial Court.
2.5. Aggrieved by the dismissal of Appeal by the learned II Additional
Sessions Judge, Erode, in Crl.A.No.207 of 2016, dated 19.07.2017, the
Accused had filed this Criminal Revision Case.
3. The learned Counsel for the Revision Petitioner submitted that the
complaint itself is vague. The Complainant does not state in the complaint,
how he was acquainted with the Accused. The complaint is also silent as to
whether the Complainant has the resources to pay such a huge amount. It was
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stated that the Accused borrowed Rs.10,00,000/- (Rupees Ten Lakhs) for
meeting the family expenses whereas when he was cross-examined by the
learned Counsel for the defence, he had stated so many reasons other than
household expenses. The learned Judicial Magistrate, Fast Track Court-II,
Erode, failed to appreciate the materials available in the cross-examination and
erroneously convicted the Accused based on the presumption under the
Negotiable Instruments Act. Aggrieved by the same, the Accused had preferred
an Appeal in Crl.A.No.207 of 2016 before the learned II Additional District
and Sessions Judge, Erode. The Appeal was made over to the learned II
Additional District and Sessions Judge, Erode. After hearing the arguments of
the learned Counsel for the Appellant and the learned Counsel for the
Respondent/complainant, the learned II Additional District and Sessions Judge,
Erode had dismissed Crl.A.No.207 of 2016 by Judgment dated 19.07.2017.
4. The learned Counsel for the Revision Petitioner further submitted
that there is no relationship or acquaintance between the Petitioner and
Respondent and it is not clearly stated in the complaint. The learned Counsel
for the Revision Petitioner relied on the reported ruling of the Hon'ble Supreme
Court in the case of K. Subramani -vs- K.Damodara Naidu [(2015) 1 SCC
99], wherein it is held that the Complainant has to specifically state how he
came to know about the Accused or for what purpose the money was borrowed.
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Also, the Complainant has to state clearly the resources with him to extend a
loan. When the complaint is bereft of those details merely under presumption
available in favour of the drawee/holder of the cheque, the Accused cannot be
convicted for the offence under Section 138 of The Negotiable Instruments
Act, 1881.
5. Per contra, the learned Counsel for the Respondent/Complainant
vehemently objected to the line of arguments made by the learned Counsel for
the Revision Petitioner and contended that the concurrent findings given by the
Courts below need not be interfered with by this Court in this Revision. The
Accused in this case did not deny the signature or issuance of the cheque.
Therefore, the presumption is against the Accused that the cheque was issued
for a legally enforceable debt and liability. Further, the Accused did not issue a
reply to the statutory notice issued by the Complainant. Considering the
above, the Courts below have rightly convicted the Accused . This Court, in
exercise of revisional power, need not re-assess the evidence to interfere with
the judgment of the Courts below.
6. The learned Counsel for the Respondent/Complainant relied on
the reported ruling of the Hon'ble High Court of Karnataka in the case of
Umaswamy -vs- K.N.Ramanath reported in CDJ 2006 KAR HC 521 and
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submitted that even if the cheque was issued for the purpose of security, it will
not be a ground for the Accused to get acquittal. In this case, the cheque was
not allegedly issued for security and it was allegedly issued for clearance of
past debt.
7. The learned Counsel for the Respondent/Complainant also invited
the attention of this Court to paragraph Nos. 8, 9 and 10 of judgment of the trial
Court and contended that when the Accused had received the statutory notice
and did not issue a reply, his defence, if any, in the trial need not be accepted.
By issuing a statutory notice, an opportunity is given to the Accused to
repudiate the statement of the Complainant. At the earliest point of time, when
the Accused did not issue a reply, the defence, if any, raised at a later point of
time need not be accepted. The Courts below, on proper analysis of the oral
and documentary evidence, rightly convicted the Accused. The learned
Counsel for the Respondent submitted that this Revision lacks merit and is to
be dismissed.
Point for consideration:
Whether the Judgment of conviction recorded by the
learned Judicial Magistrate, Fast Track Court – II, Erode in
STC.No.420 of 2012 dated 31.05.2016 and confirmed by the
Judgment of the learned Additional District and Sessions
Judge – II, Erode in Crl.A.No.207 of 2016 dated 19.07.2017
are to be set aside as perverse?
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8. Heard the learned Counsel for the Petitioner and the learned
Counsel for the Respondent. Perused the Judgment of the learned Judicial
Magistrate, Fast Track Court – II, Erode in STC.No.420 of 2012 and the
Judgment of the learned Additional District and Sessions Judge – II, Erode in
Crl.A.No.207 of 2016.
9. It is the submission of the learned Counsel for Revision Petitioner
that the trial Court as well as the Appellate Court failed to consider the
evidence of the Complainant in cross-examination and erroneously convicted
the Accused merely based on the presumption available under Section 139 of
the Negotiable Instruments Act, 1881. In the Complaint, the Complainant had
not stated about the facts as to how he had acquainted with the Accused, for
what purpose the Accused sought money, whether he had the resources to pay
such a huge amount etc., Even though the Accused did not issue a reply notice,
it will not be a sole ground to convict the Accused. At first, the Complainant
must state about the relationship between him and the Accused, particularly,
the proximity of such relationship which made him to advance such a huge
sum. Further, it is not known as to whether the Complainant had paid such a
huge amount of Rs.10,00,000/- (Rupees Ten Lakhs) to the Accused by way of
cash or cheque or any other mode.
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10. On a careful perusal of the complaint, it is seen that the complaint
contains 6 paragraphs in 2 pages. The complaint was casually filed without
any material particulars. While filing the complaint under Section 138 of The
Negotiable Instruments Act, 1881, the Complainant thinks that it is enough if it
is shown that a cheque signed by the Accused was presented for collection and
it was rejected by the Bank. This complaint, in the opinion of this Court, has
been filed under such notion by the Complainant in this case. Unfortunately,
such a vague complaint presented by the Complainant was also accepted by the
Courts below and recorded conviction against the Accused. The complaint is
also silent as to how the Complainant knows the Accused. The complaint is
also bereft of any material particulars as to how the amount of Rs.10 lakhs was
paid by the Complainant to the Accused. In a complaint under Section 138 of
The Negotiable Instruments Act, 1881 it is for the Complainant to raise an
initial presumption that the amount was paid to the Accused through a legally
acceptable mode. In other words, the Complainant must say as to the mode in
which the amount was paid to the Accused . This is one of the important
requirements while filing a complaint. In the present case, the Complainant
merely states that he paid Rs.10 lakhs, the Accused issued a post-dated
cheque, which he presented but dishonoured for the reason “account dormant”.
Thereafter, the Complainant issued a statutory notice for which reply was not
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received, hence, he had filed the complaint. This is the sum and substance of
the complaint.
11. As rightly pointed out by the learned Counsel for the Revision
Petitioner, what is the relationship between the Complainant and the Accused
itself is not mentioned in the complaint. In the cross-examination of the
Complainant, he had stated that the Accused and her husband have been very
close for many years. It is not known what prevented the Complainant to
disclose this in the complaint but only in his cross-examination after he was
confronted with a question as to the relationship between the parties. Further,
the Complainant merely stated that the Accused borrowed Rs.10,00,000/-
(Rupees Ten Lakhs) for her urgent family expenses. However, the
Complainant did not whisper anything as to how the sum of Rs.10,00,000/-
(Rupees Ten Lakhs) was paid. Whether the amount was paid in cash or by way
of cheque or any other mode is not mentioned. Therefore, the conduct of the
Complainant gives rise to a suspicion as to whether he would have really paid
such an amount to the Accused. Further, along with the complaint, the
Complainant had filed five documents and they are (i) dishonoured cheque in
original; (ii) copy of the dishonoured cheque; (iii) return memo of canara Bank;
(iv) legal notice and (v) acknowledgment. The Complainant had not filed the
Bank statement maintained by him to prove that he was resourceful enough to
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pay Rs.10 lakhs. In any event, there is nothing to show the mode in which the
sum of Rs.10 lakhs was paid to the Accused. When this initial requirement had
not been fulfilled by the Complainant, he cannot question the non-issuance of
reply by the Accused in this case.
12. When the cheque was presented by the Complainant, the cheque
was returned, not for “insufficient funds”, but for reason “Account Dormant”
which is not at all stated in the provisions under Section 138 of the Negotiable
Instruments Act, 1881. The Accused had examined the Manager of the Bank
where the Complainant maintains his account. The Accused maintained her
account with the Indian Overseas Bank whereas the Complainant maintained
his account with Canara Bank. The Manager of the Canara Bank was
examined as D.W-1, who, in his deposition stated that the amount available
with the account of the Complainant was Rs.7,000/- and odd on the alleged
date of presenting the cheque. It shows that the Complainant did not have
sufficient means on the date when he allegedly extended loan to the Accused.
The Complainant as P.W-1 was cross-examined exhaustively by the learned
Counsel for the Accused wherein he had stated that he has the means to pay
Rs.10,00,000/- to the Accused. The Complainant further stated that he was
maintaining a canteen in a Cinema Theatre and he was resourceful enough to
pay such an amount to the Accused. In the further cross-examination, he had
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stated that the Cinema Theatre was closed two years prior to the date of cross-
examination. It was suggested by the learned Counsel for the Accused that the
Cinema Theatre viz., Manickam and Srinivasa Theatre at Gobichettipalayam
where he claims to have been running a canteen is closed for five years. He
denied such a suggestion and claimed that only for two years, it had been
closed. The next question is whether the Complainant has filed any document
as proof of the claim that he is running a canteen in a Cinema Theatre and
whether he had obtained license from the Competent Authorities for running a
canteen. It was stated that he had entered into an agreement with the owner of
the building where the Cinema Theatre is operating but he had not furnished
any document to substantiate the same. The next question is whether the owner
of the building will be examined as a witness. His answer is that owner of the
building will not appear before the Court but he is ready to give a letter stating
that the Complainant is running a canteen through which the Complainant
earns Rs.40,000/- per month. However, the Complainant did not file any such
document during the trial in the case.
13. When the Complainant was confronted with the question as to
what is the intention of the Accused to borrow money from him, he replied
that she borrowed money for marriage expenses. When asked as to whose
marriage expenses the Accused borrowed money, especially when the children
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of the Accused are in their tender age studying in nursery School, he replied
that the amount was borrowed for the daughter of sister of the Accused.
However, the Complainant was confronted with the fact that the daughter of
the Accused's sister was given in marriage even in the year 2012, and not at
the time of borrowing the money, the Complainant simply denied it as false.
14. As to the resourcefulness to lend the money, the Complainant
stated that he had obtained money from his close contacts and friends who are
traders in Gobichettipalayam. When questioned as to whether it is recognised
or registered trade, he was unable to answer.
15. On an overall assessment, the Complainant had filed the complaint
without any material particulars. It is found that the Complainant does not
have the wherewithal to extend a loan of Rs.10,00,000/- (Rupees Ten Lakhs) to
the Accused. The Complainant had to establish his case that he had enough
resources to extend loan supported by documentary proof. In this case, the
Manager of the Canara Bank where the Complainant maintains his account was
summoned by the Accused and examined as D.W-1 and he states that the
amount available in the account of the Complainant is Rs.7,000/- and odd.
This clearly proves the wherewithal of the Complainant to advance a huge sum
of Rs.10 lakhs to the Accused. Even otherwise, if the Accused has the
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resource to pay the amount through some other means, he ought to have filed
documents to clear the air of controversy surrounding his case. Thus, it is clear
that merely based on presumption under Section 139 of the Negotiable
Instruments Act, 1881 conviction had been recorded by the learned Judicial
Magistrate, Fast Track Court – II, Erode and which was confirmed in Appeal
by the learned Additional District and Sessions Judge – II, Erode dismissing
the Appeal by the Accused .
16. The learned Counsel for the Revision Petitioner/Accused relied on
the ruling in the case of P. Dhanam Vs. G. Arjunan reported in 2019 1 MLJ
Crl. 166. Further, As per the reported ruling of the Hon'ble Supreme Court in
the case of Rangappa Vs. Srimohan reported in (2010) 11 SCC 441, the
Accused need not enter the witness box to rebut the initial presumption raised
by the Complainant. The Accused is well within his/her discretion to create
preponderance of probability of the case regarding the claim made by the
Complainant. Here, the Accused disputes the claim of Complainant through
the cross-examination. From the cross-examination, it is found that the
Complainant does not possess the wherewithal to advance Rs.10 lakhs to the
Accused.
17. The averments in the Complaint itself create suspicion. When the
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Complaint is silent as to how the Complainant was acquainted with the
Accused, his resources to extend loan for a sum of Rs.10,00,000/- (Rupees Ten
Lakhs) without getting any proper document from the Accused, the case of the
Complainant has to be disbelieved. Both the trial Court and the Appellate
Court had ignored the vital part of evidence available in the cross-examination
of Complainant. Therefore, the argument of the learned Counsel for the
Revision Petitioner is accepted and the argument of the learned Counsel for the
Respondent is rejected.
18. Added to that, as per the guidelines of the Reserve Bank of India,
the amount of Rs.25,000/- and above shall be transferred only as cheque or
draft and not as cash. Here, the Complainant claims that he had handed over
the money to the Accused purportedly in cash as there is nothing mentioned
about it. Added to that, the Complainant had not furnished Income Tax as
proof of his claim that he had wherewithal to extend such huge amount. The
rulings cited on behalf of the Respondent in the case of Umaswamy -vs-
K.N.Ramanath reported in CDJ 2006 KAR HC 521 will not help the
Respondent/Complainant because in the reported decision, the learned Judicial
Magistrate found that the cheque was issued as security and such a cheque can
be legally enforceable. Therefore, the learned Judge of the Karnataka High
Court had convicted the Accused . Here, the defence of the Accused is that the
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Complainant does not have wherewithal. Therefore, the reliance placed by the
learned Counsel for the Respondent in the case of Umaswamy -vs-
K.N.Ramanath reported in CDJ 2006 KAR HC 521 and the Judgment of the
Kerala High Court reported in the case of P.K.Uthupppu Vs. N.J.Varghese and
Ors reported in MANU/KE/3126/2023 are not helpful to his case. The learned
Judge of the Kerala High Court had in the Judgment observed that the Revision
Court can even rely on the materials submitted by the Complainant in order to
raise a probable defence which creates doubt about the existence of affair,
legally enforceable debt or liability without adducing separate evidence. The
facts of the reported decision even though same are not applicable to the facts
of this case. Hence, the reported rulings cited by the learned Counsel for the
Respondent in the Revision Petition are rejected.
19. The learned Counsel for the Respondent had placed reliance on
the case of Payal Malhotra Vs. Sulekh Chand in WP(Crl.).No.1366 of 2023,
the Judgment of the Delhi High Court and it is not found acceptable to the facts
of this case. The Accused had raised an objection regarding the capacity of the
Complainant to extend a huge amount. Here, the materials available in the
cross-examination itself are sufficient to reject the claim of the Complainant on
the basis of the presumption available.
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20. In the light of the above discussion, the point for consideration is
answered in favour of the Revision Petitioner/Accused and against the
Respondent/Complainant. The Judgment of conviction recorded by the learned
Judicial Magistrate, Fast Track Court – II, Erode in STC.No.420 of 2012, dated
31.05.2016 and confirmed by the Judgment of the learned Additional District
and Sessions Judge – II in C.A.No.207 of 2016 dated 19.07.2017 are found
perverse and the same are to be set aside.
In the result, this Criminal Revision Case is allowed. The Judgment of
conviction recorded by the learned Judicial Magistrate, Fast Track Court – II,
Erode in STC.No.420 of 2012, dated 31.05.2016 and confirmed by the
Judgment of the learned Additional District and Sessions Judge – II, Erode in
Crl.A.No.207 of 2016 dated 19.07.2017 are set aside. Consequently, connected
Miscellaneous Petitions are closed.
17.04.2025
dh
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
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To
1. The Additional District and Sessions Judge-II,
Erode.
2. The Judicial Magistrate,
Fast Track Court – II,
Erode.
3.The Section Officer,
Criminal Section,
High Court Madras.
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SATHI KUMAR SUKUMARA KURUP, J
dh
Order made in
17.04.2025
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