Madras High Court
S.Gopi vs S.Babu on 18 June, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.R.C.No.234 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 18.06.2025
CORAM
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C.No.234 of 2023
S.Gopi ... Petitioner
Vs.
S.Babu ...Respondent
Prayer:
Criminal Revision Case filed under Section 397 r/w Section 401 of
Criminal Procedure Code to set aside the Judgment and Conviction dated
29.11.2022 in C.A.No.199 of 2019 by the II Additional City Civil and
Sessions Court, Chennai confirming the Judgment of Conviction dated
27.04.2019 passed in C.C.No.1455 of 2016 by the learned Metropolitan
Magistrate, Fast Track Court No.IV, George Town, Chennai
For Petitioner : Mr.J.N.Naresh Kumar
For Respondent : Mr.P.G.Thiyagu
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ORDE R
The present Revision has been preferred as against the Judgment
passed in C.A.No.199 of 2019 dated 29.11.2022 on the file of II Additional
City Civil and Sessions Court, Chennai wherein the Judgment of Conviction
and Sentence imposed in C.C.No.1455 of 2016 dated 27.04.2019 passed
by the learned Metropolitan Magistrate, Fast Track Court No.IV, George
Town, Chennai for offence punishable under Section 138 of Negotiable
Instruments Act was confirmed.
2. The petitioner is the accused in the complaint lodged by the
respondent for offence punishable under Section 138 of Negotiable
Instruments Act. The respondent alleged that the petitioner borrowed a
sum of Rs.8 Lakhs for the purpose of business and he had also agreed to
repay the amount and issued two cheques. When the cheques were
presented for collection, both the cheques were dishonoured on the ground
'funds insufficient'. After causing legal notice, the respondent lodged a
complaint.
3. On the side of the respondent, P.W.1 and P.W.2 were examined
and exhibits Ex.P.1 to Ex.P.6 were marked. On the side of the petitioner,
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no one was examined and no documents were marked. On a perusal of
the documents placed on record, the trial court found the petitioner guilty
for the offence under Section 138 of Negotiable Instruments Act and
sentenced to undergo simple imprisonment for a period of ten months and
to pay a compensation of Rs.8,00,000/- with an interest at the rate of 9%
per annum from the date of dishonour to the complainant within one month,
in default of payment of compensation, to undergo a further period of two
months simple imprisonment. Aggrieved by the same, the petitioner has
preferred an appeal and the same was also dismissed, hence the petitioner
has come up with the present Revision.
4. The learned counsel for the petitioner submits that the petitioner
categorically rebutted the presumption during the cross examination,
however, the trial court without considering the same, mechanically
convicted the petitioner. That apart, the legal notice was not at all served
to the petitioner. The respondent failed to file any acknowledgment proof
to show that the statutory notice was served on the petitioner, therefore,
there was absolutely no cause of action to file a complaint.
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5. The learned counsel for the petitioner also contends that the
respondent also failed to produce any record to show that there was loan
transaction between the petitioner and the respondent. Further, the
amount, which was allegedly lent to the petitioner does not reflect in the
account of the respondent in the IT Assessment. The respondent failed to
produce any IT Assessment and the Statement of Accounts of his bank in
order to prove the lending of loan to the petitioner. In support of his
contention, the petitioner also relied on several judgments.
6. Per contra, the learned counsel for the respondent submitted that
the respondent caused legal notice to the petitioner and produced the
postal track indicating that the legal notice was duly served on the
petitioner. Even after receipt of the same, the petitioner failed to reply and
also failed to let in any evidence. Further, mere suggestion would not
amount to preponderance of probabilities and cannot be construed as
rebuttable of presumption. Therefore, the trial court and the appellate court
rightly convicted the petitioner under Section 138 of Negotiable Instruments
Act, which does not require any interference from this Court.
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7. Heard the learned counsel on either side and perused the
documents placed on record carefully.
8. It is relevant to point out that the petitioner borrowed a sum of
Rs.8 Lakhs and issued two cheques in order to repay the amount. When
both the cheques were presented for collection, the same were dishonored
for the reason 'funds insufficient', immediately, the respondent caused
notice, which is marked as Ex.P.5 and the postal track report and receipt
was marked as Ex.P.6. Accordingly, as per Ex.P.6, the legal notice was
delivered to the petitioner, even then the petitioner did not cause any reply
notice and did not let in any evidence in support of his contention raised
before this Court.
9. Further, by marking the Exhibits P.1 to P.6, the respondent
discharged his initial burden, as contemplated under Section 138 of
Negotiable Instruments Act and the presumption arise under Sections 118
and 139 of Negotiable Instruments Act. However, the petitioner failed to
rebut the same by any material. Therefore, the Judgments relied on by the
petitioner are not at all applicable to the present case on hand. Hence the
both the courts below have rightly convicted the petitioner and this Court
finds no infirmity or illegality in the order passed by the courts below.
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Accordingly, the present Revision is dismissed.
18.06.2025
Index : Yes/No
Internet : Yes/No
Speaking /Non-Speaking order
ssd
To
1. The II Additional City Civil and Sessions Court,
Chennai
2. The learned Metropolitan Magistrate,
Fast Track Court No.IV, George Town,
Chennai
3. The Public Prosecutor,
High Court, Madras
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G.K.ILANTHIRAIYAN, J.,
ssd
18.06.2025
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