Madras High Court
S.Jayanthi vs K.A.C.Kumar on 31 January, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.No.1182 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 24.10.2024
PRONOUNCED ON : 31.01.2025
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.1182 of 2024
S.Jayanthi ... Petitioner / Accused
Vs.
K.A.C.Kumar ... Respondent / Complainant
PRAYER: Criminal Revision Petition filed under Section 397 r/w
Section 401 of Cr.P.C., to set aside the Judgment dated 28.10.2023 in
C.A.No.2 of 2023 passed by the learned Additional District and
Sessions Judge, Dharmapuri, confirming the Judgment and Sentence
of Imprisonment and compensation passed by the learned Judicial
Magistrate, Fast Track Court (ML) Dharmapuri in C.C.No.71 of 2019,
as per the Judgment, dated 18.02.2020.
For Petitioner : Mr.D.Ramesh Kumar
For Respondent : Mr.M.Santhosh Nagarajan
Page No.1 of 14
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1182 of 2024
ORDER
Challenging the Judgment dated 28.10.2023 in C.A.No.2 of 2023
passed by the learned Additional District and Sessions Judge,
Dharmapuri, confirming the Judgment and Sentence of Imprisonment
and compensation passed by the learned Judicial Magistrate, Fast
Track Court (ML) Dharmapuri in C.C.No.71 of 2019, dated
18.02.2020, the present Revision is filed.
2. Mr.D.Ramesh Kumar, the learned counsel appearing for the
Revision Petitioner would submit that the complaint filed by the
respondent is unsustainable as there was no legally enforceable
liability for the cheque under Ex.P1 as no hand loan obtained by the
Revision Petitioner on 13.03.2018 from the respondent / complainant
and Ex.P1, dated 13.05.2018 not issued to the complainant for Rs.
5,00,000/- either on 13.03.2018 or any other date to discharge the
alleged hand loan, as falsely claimed by the complainant. The
complainant not proved that the accused borrowed Rs.5,00,000/-, as
hand loan from the complainant on 13.03.2018 and issued Ex.P1, post
dated cheque, bearing No 569175, dated 13.05.2018, to discharge
the said loan as falsely claimed by the complainant as per notice
under Ex.P3. On the contrary, the accused has proved by way of cross
https://www.mhc.tn.gov.in/judis
examination of PW.1 that the said cheque was issued as blank and
signed cheque, as security to one Suresh, who was running a house
hold articles shop, towards hire purchase monthly installment for the
house hold articles purchased by the accused from the said Suresh on
hire purchase basis.
3. The learned counsel appearing for the petitioner further
submitted that the complainant not filed any documentary evidence to
prove that he lent a loan amount of Rs.5,00,000/- to the accused on
13.03.2018. The complainant has admitted in his cross examination
that he did not obtain any demand promissory note or any other
document, as proof of loan, from the petitioner for the alleged loan.
The complainant has not examined any other witness to prove his
claim that he lent hand-loan to the petitioner on 13.03.2018 and the
petitioner issued Ex.P1, post dated cheque, on the same day to
discharge the said non existing hand loan amount. P.W.1 in his
evidence admitted that he was not having sufficient source of income
to lend the huge amount of Rs.5,00,000/- as hand loan to the
petitioner. PW1 in his cross examination stated that he was running a
medical shop as owner. For the next question he answered that he was
not owner of the medical shop but he was an employee of that medical
https://www.mhc.tn.gov.in/judis
shop working on a meager monthly salary. PW.1 in cross stated that
he has not disclosed the alleged loan of Rs.5,00,000/- to the accused
in his Income Tax Return, but the said loan amount disclosed in the
Income Tax Returns filed by his wife and the same not produced by
him before the trial court.
4. The learned counsel appearing for the petitioner further
submitted that PW.1 not stated in his evidence what was the interest
amount payable by the accused on the alleged loan amount. The
Courts below passed the Judgment only by observing that when the
accused admitted her signature in Ex. P1 cheque, offence u/s 138 of
NI Act has been made out against the accused, thereby, completely
and arbitrarily ignoring the entire cross examination of PW 1 on
several vital and material facts. The learned counsel relied on the
decision of this Court in S. Nagalakshmi Vs R. Nagalingam
reported in 2012 (3) MLJ Crl. 174 for the point that "if no material
is produced by the complainant to prove that he advanced loan to the
accused that cannot be any legally enforceable liability and the
complaint U/S 138 is liable to dismissed." Further, the learned
counsel also relied the decision of this Court N.Seerangan Vs.
Khalid Haaji reported in 2012(1) MLJ Crl.741 for the point that
https://www.mhc.tn.gov.in/judis
when the complainant has failed to prove existence of legally
enforceable liability between the complainant and the accused, the
complainant is not entitled to relief.
5. The learned counsel further relied on the Judgment of Hon'ble
Apex Court in Krishna Janardhan Bhat Vs. Dattatraya G.Hedge
reported in 2008 (1) CTC 433 that the presumption U/S 139 of the
NI Act can be raised only to show that the cheque was issued to
discharge part or whole of the liability and there cannot be any
presumption for the existence of the mandatory legally enforceable
liability and the same has to be proved only by the complainant by
letting in documentary evidence. The blank and signed cheque was
issued on to one Suresh, owner of a household articles shop towards
security for payment of monthly purchase installment of Rs. 3,500/-
and the same has been illegally handed over to the complainant by the
said Suresh to file the compliant against the revision petitioner.
6. The learned counsel for the petitioner relied on a decision of
this Court in S.S. Ummul Habiba Vs. B. Rajendran reported in
2004 (3) Crimes 505 wherein it has been stated that "Presumption
could be rebutted by the accused either by direct evidence or from
facts and circumstances and by eliciting the cross examination of the
https://www.mhc.tn.gov.in/judis
complainant. When the complainant has not proved that the cheque
was issued to discharge any legally enforceable liability the accused is
entitled to be acquitted " Further relied on a decision of this Court in
Kumaraguru Finance Vs. M. Ganesan reported in 2009 (2) MLJ
(Crl) 971 wherein it has been held that "When the complainant failed
to prove that the cheque was drawn only for discharging a subsisting
liability, he is not entitled to the relief U/S 138 of Negotiable
Instrument Act. Further relied on the decision of this Court in the
decision Yashpal Vs. Vijayakumar reported in 2008 (2) MLJ (Crl)
wherein it has been held that "When the complainant did not get any
document for the alleged loan presumption U/S 139 of NI Act is
rebutted and burden of proving that there was a legally enforceable
debt or liability shifts to the complainant. If the same is not
discharged by the complainant the accused is entitled to be
acquitted". Further relied on the Judgment of Apex Court in
Rev.Mother Marykutty Vs Reni C. Kottaram and Another
reported in 2012 (4) MLJ (Crl) 526 wherein it has been held that,
“When the accused sufficiently rebutted initial presumption as
regards issuance of cheque under Sections 138 and 139 of NI Act
Preponderance of probabilities fully supports stand of the accused and
the accused is entitled to be acquitted ".
https://www.mhc.tn.gov.in/judis
7. Mr.M.Santhosh Nagarajan, the learned Counsel appearing for
the Respondent / Complainant would submit that the
Petitioner/Accused borrowed a sum of Rs.5,00,000/- from the
complainant on 13.03.2018 and promised to repay the amount. The
Petitioner failed to repay the amount as promised and after repeated
request, the petitioner issued a Cheque, dated 13.05.2018. When the
complainant presented the Cheque on 15.06.2018 in IDBI,
Dharmapuri, for collection, the same was returned on 18.06.2018
within an endorsement, 'Account Closed”. Thereafter, the
complainant issued Legal Notice to the petitioner on 04.07.2018
requesting her to repay the said loan amount, but she failed to repay
the amount. Hence, the complainant lodged the complaint under
Sections 138 and 142 of Negotiable Instruments Act, on the file of the
learned Judicial Magistrate (FTC), Magisterial Level, Dharmapuri,
which was taken on file in C.C.No.71 of 2018. After trial, the trial
Court found the petitioner is guilty for offence under Section 138 of
Negotiable Instruments Act and sentenced her to undergo four
months Simple Imprisonment and to pay the cheque amount of
Rs.5,00,000/-, as compensation to the complainant, within a period of
two months, in default, the accused undergo simple imprisonment for
the period of one month.
https://www.mhc.tn.gov.in/judis
8. Aggrieved over the same, the petitioner preferred an Appeal
in Crl.A.No.2 of 2023 before the learned Additional District and
Sessions Judge, Dharmapuri. The learned Additional District and
Sessions Judge, dismissed the Criminal Appeal preferred by the
Revision Petitioner and confirmed the Judgment of the learned Judicial
Magistrate, Fast Track Court, (Magisterial Level), Dharmapuri in
C.C.No.71 of 2018, on 18.02.2020. Against which, the present
Revision. Hence, the learned counsel for the Complainant prays for
dismissal of the Revision.
9. I have heard the learned counsel appearing on either side
and perused the materials available on record.
10. On perusal of the records it is seen that earlier this Court, in
Crl.M.P.No.9968 of 2024 in Crl.R.C.No.1182 of 2024, by order dated
12.07.2024, suspended the substantive sentence of imprisonment
alone, imposed on the petitioner on condition that the petitioner to
deposit 50% of the cheque amount within a period of four weeks from
the date of receipt of a copy of that order, to the credit of C.C.No.71 of
2018, on the file of the learned Judicial Magistrate, Fast Track Court
https://www.mhc.tn.gov.in/judis
(ML) Dharmapuri. Thereafter, the petitioner filed a Criminal
Miscellaneous Petition in Crl.M.P.No.12281 of 2024 in
Crl.R.C.No.1182 of 2024 praying to extend the time by four weeks to
surrender and deposit the conditional order, dated 12.07.2023, on the
ground that the petitioner's mother suffered heart attack and she was
attending her mother and for that reason she was unable to deposit
the amount within the stipulated period and under take to comply
with the conditional order, dated 12.07.2024, on or before 26.09.2024.
Accordingly, this Court extended the time till 26.09.2024 on
humanitarian grounds. When the matter came up for hearing on
26.09.2024, it is reported that the petitioner not deposited the
amount, as ordered by this Court. Hence, this Court directed the
Registry to list the matter on 24.10.2024 and on that day, after
hearing the parties, orders were reserved in this case to decide the
matters on merits.
11. Among the contentions, which the petitioner/accused raised,
the prime contention was regarding denial of having issued the
cheque to the Complainant, although she admits her signature
therein. As the signature in the cheque is admitted to be that of the
accused, the presumption envisaged in Section 118 the Act can legally
https://www.mhc.tn.gov.in/judis
be inferred that the cheque was made or drawn for consideration on
the date which the cheque bears. Section 139 of the Act enjoins on the
Court to presume that the holder of the cheque received it for the
discharge of any debt or liability. The burden was on the accused to
rebut the aforesaid presumption. According to the petitioner, a signed
cheque was issued in blank, as security to one Suresh, who was
running a house hold articles shop, towards hire purchase monthly
installment for the house hold articles purchased by the petitioner
from the said Suresh on hire purchase basis. The complainant
examined himself as PW-1 and in his evidence in examination-in-chief
in tune with the averments in the complaint. The petitioner has not
disputed or denied the signature in the cheque. It is admitted that
Ex.P1/Cheque, for Rs.5,00,000/-. The petitioner has not proved her
case with acceptable evidence that the cheque was issued as security
and she is not liable to pay any amount to the complainant.
12. In the case of Section 138 of Negotiable Instruments, when
legal presumption stands in favour of complainant that the cheque
was issued by accused in discharge of her legal liability, the burden is
actually upon the accused to rebut such presumption and the Court
cannot proceed, as if the complainant was required to prove his own
https://www.mhc.tn.gov.in/judis
case. However, the standard of proof upon the accused is only
preponderance of probability. Merely setting up a plea that the
cheque was not issued in discharge of legal liability is not sufficient.
Something which is probable has to be brought on record for shifting
the burden of proof. To disprove the presumption, the accused should
bring on record such facts and circumstances, upon consideration of
which, the court may either believe that the consideration and debt
did not exist or their non-existence was so probable that a prudent
man would under circumstances of the case, act upon the plea that
they did not exist. In view of legal presumption, which already stood
in favour of complainant, by virtue of Section 139 of Negotiable
Instruments Act, the burden was in fact, upon the accused to rebut
such presumption and prove that she did not borrow any such amount
from the complainant.
13. It is seen from the records that there is no contradiction in
the evidence of P.W.1 and pleadings as to date of lending of money and
date of issuance of cheque by the Petitioner. Nothing has been
elicited from the evidence of P.W.1 to disbelieve the same. The
petitioner has not chosen to take any step against the said Suresh, for
not returning the signed blank cheque. Further, the said Suresh not
https://www.mhc.tn.gov.in/judis
examined by the Petitioner to establish the fact that the cheque was
issued only to the said Suresh. In the considered opinion of this
Court, both the Courts below have properly analysed and appreciated
the evidence and rightly decided the case against the petitioner and
I do not find any infirmity in the order passed by the Courts below.
14. In the result, the Criminal Revision Case stands dismissed.
The conditional order already granted by this Court on 12.07.2024 in
Crl.M.P.No.9968/2024 in Crl.R.C.No.1182 of 2024, and subsequently,
extended till 26.09.2024, suspending the sentence imposed on the
petitioner, stands vacated. The trial Court to take steps by executing
conviction warrant against the petitioner/accused to undergo the
conviction and sentence passed against her.
31.01.2025
Index : Yes/No
Speaking Order/Non Speaking Order
Neutral Citation: Yes/No
vv2/mpk
https://www.mhc.tn.gov.in/judis
To
1.The Additional District and Sessions Judge,
Dharmapuri.
2.The Judicial Magistrate,
Fast Track Court (ML)
Dharmapuri.
https://www.mhc.tn.gov.in/judis
M.NIRMAL KUMAR, J.
vv2
Pre-Delivery Order made in
31.01.2025
https://www.mhc.tn.gov.in/judis
