Madras High Court
Sumethira vs K.B.Halan on 10 June, 2025
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
2025:MHC:1321
Crl.R.C.No.768 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.06.2025
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.768 of 2022
Sumethira .. Petitioner
Versus
K.B.Halan .. Respondent
Prayer: Criminal Revision Case is filed under Section 374 of Cr.P.C., to set
aside the order, dated 07.12.2021, in Criminal Appeal No.61 of 2019, on the
file of the learned Sessions Judge of the Nilgiris, Udhagamandalam, and
confirming the judgment made in S.T.C.No.1135 of 2015, dated 31.10.2019
on the file of the learned Judicial Magistrate, Udhagamandalam.
For Petitioner : Ms.Avanthika Vasu,
for Mr.S.Rajamakesh
For Respondent : Mr.J.Franklin
ORDER
This Criminal Revision is filed by the petitioner/accused aggrieved by
the judgment, dated 31.10.2019 in S.T.C.No.1135 of 2015 by the learned
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Judicial Magistrate, Udhagamandalam, whereby, the petitioner/accused was
convicted for the offence under Section 138 of the Negotiable Instruments
Act, 1881 and was imposed with Rigorous Imprisonment of three months
and was also ordered to pay the cheque amount as compensation and the
judgment, dated 07.12.2021 of the learned Sessions Judge at Nilgiris,
Udhagamandalam made in Crl.A.No.61 of 2019 dismissing the appeal and
confirming the conviction and sentence imposed by the learned Judicial
Magistrate.
2. Heard Ms.Avanthika Vasu, learned Counsel for the
petitioner/accused and Mr.J.Franklin, learned Counsel for the
respondent/complainant.
3. Ms.Avanthika Vasu, the learned Counsel for the petitioner, firstly,
pointing out to the evidence on record, would submit that in this case, the
respondent/complainant did not marshal any evidence with reference to any
advancement of loan for a sum of Rs.4,00,000/-. There is no documentary
evidence that was produced by the respondent/complainant. The
respondent/complainant rests his case only on the presumption. As far as
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the defence is concerned, it is the case of the defence that there were earlier
transactions, pursuant to which, this cheque leaf, which was left as security
is misused by the respondent/complainant.
4. In order to prove the said contention to the level of preponderance
of probability, the respondent/complainant cross-examined and as a matter
of fact, Ex.D-1, which is a receipt pertaining to the earlier transaction, was
also marked. Therefore, once the petitioner/accused has successfully
rebutted the presumption, thereafter, the Trial Court ought not to have
convicted the accused, especially, in the absence of any evidence
whatsoever from the complainant, it can be seen that though the
respondent/complainant states that he sold carrots for a sum of
Rs.4,00,000/-, from which he is advancing the money, no proof either for
sale of carrots or any banking transaction for withdrawal of the said huge
amount of Rs.4,00,000/-, was produced before the Trial Court. Therefore,
the Trial Court ought to have seen that this is a fit case where the
respondent/complainant should have established his capability and also
produce the accounts including the Income Tax accounts to prove the loan.
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In the absence of the same, both the Courts below erred in convicting the
petitioner herein.
5. Per contra, Mr.J.Franklin, learned Counsel for the
respondent/complainant would submit that in this case, firstly, when the
respondent/complainant issued a demand notice under Section 138 of the
Negotiable Instruments Act, 1881, the petitioner/accused did not even reply
to the same. Secondly, when the petitioner/accused borrow the amount as
hand loan, apart from the cheque, she also entrusted property documents
which was made out even in the cross-examination of the
respondent/complainant. There is no explanation whatsoever as to why the
original title deed in respect of the property has been handed over to the
respondent/complainant. The same would fortify the case of the
respondent/complainant. In this case, the respondent/complainant pleaded
that out of agricultural income by selling carrots, he got the money and
therefore, there cannot be any Income Tax for the said purpose and
accordingly, the same cannot be a ground to non-suit the complainant.
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6. I have considered the rival submissions made on either side and
perused the material records of the case.
7. It is now settled that though the respondent/complainant is entitled
for the presumption under the Negotiable Instruments Act, 1881, in the
absence of any other documentary proof, it is for the
respondent/complainant to let in further proof with reference to the
capability as well as the accounts, especially, when the transaction is denied
by the petitioner/accused. But, at the same time, it is well settled that it is
not in every case for non-production of the Income Tax Returns or adducing
further documentary evidence, the Court will non-suit the complainant. The
facts and circumstances of the case should be such that the non-production
of the Income Tax Returns or letting in any further evidence with regard to
the capability of the complainant, should cast a doubt on the very
transaction. Useful reference in this regard can be made to the judgments of
the Hon'ble Supreme Court of India in Dattatraya Vs. Sharanappa1,
Rajaram (Since Deceased) through L.Rs. Vs. Maruthachalam (Since
1 (2024) 8 SCC 573
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Deceased) through L.Rs.2 and G.Pankajakshi Amma and Ors. Vs. Mathai
Mathew (D) through L.Rs. and Ors.3.
8. Looked from that angle, in this case, the loan amount is said to be
Rs.4,00,000/- and it can be seen that there have been prior transactions
between the respondent/complainant and the petitioner/accused also.
Further, the petitioner/accused cross-examined the respondent/complainant
that at the time of taking loan, the respondent/complainant has also taken
the property documents and that the property documents are still with the
respondent/complainant and no other suggestion was made on behalf of the
accused as to for what purpose the property documents were handed over to
the respondent/complainant. Therefore, in the facts and circumstances of
the case, upon reading the entire evidence on behalf of the
respondent/complainant in full, including the cross-examination, this is not
a case where it throws any doubt as to the capacity of the
respondent/complainant or the accounts, especially, when the
respondent/complainant has pleaded about the agricultural income.
2 (2023) 16 SCC 125
3 2004 (12) SCC 83
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9. In view thereof, I am not able to agree with the contention of the
learned Counsel for the petitioner/accused and especially, when both the
Courts below, upon appraisal of the evidence, have come to the finding that
the petitioner/accused has not rebutted the presumption to the level of
preponderance of probability and convicted the petitioner/accused. The
same cannot be upturned in the Revision Case unless the findings are
perverse or wholly unsustainable. Even the sentence imposed is only three
months imprisonment and the cheque amount is ordered to be paid as
compensation.
10. In view thereof, findings no merits, this Criminal Revision Case
stands dismissed.
10.06.2025
Neutral Citation : yes
grs
To
1. The Sessions Judge of the Nilgiris,
Udhagamandalam.
2. The Judicial Magistrate,
Udhagamandalam.
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D.BHARATHA CHAKRAVARTHY, J.,
grs
10.06.2025
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