Dismissed

T.Muniraj, 35 Years v. M.Shanmugam

Madras HC8 Nov 2021CRL RC/54/2017

Case brief

AI extract

What is this about?

In this criminal revision, the High Court of Madras dismissed the revision petition challenging the conviction and sentence for cheque dishonour under Section 138 of the Negotiable Instruments Act, upholding the statutory presumption due to lack of rebuttal.

What did the court decide?

Criminal Revision Case dismissed and the order of conviction and sentence by the Principal District and Sessions Judge confirmed.

T.Muniraj, 35 Years Vs M.Shanmugam — Cheque Dishonour | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 25.10.2021 PRONOUNCED ON : 08.11.2021

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CORAM:

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THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

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CRL.R.C.NO.54 OF 2017

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T.Muniraj

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...Petitioner/Accused

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Vs.

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M.Shanmugam

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... Respondent/Complainant

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Prayer: This Criminal Revision Case has been filed under Section 397 and 401 of Cr.P.C., against the Judgment of the learned Principal District and Sessions Judge, Dharmapuri, made in Crl.Appeal.No.7 of 2015, dated 17.08.2016, in confirming the orders of the learned Judicial Magistrate (Fast Track Court), Dharmapuri, made in STC.No.12 of 2014, dated 13.02.2015.

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For Petitioner : Mr.S.Samual Raja Pandian for Mr.G.Jeremiah

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For Respondent : Mr.R.John Sathyan

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O R D E R

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The convicted accused is the revision petitioner herein.

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2.This Criminal Revision Case is filed challenging the Judgment passed by the learned Principal District and Sessions Judge, Dharmapuri, in Crl.Appeal.No.7 of 2015, dated 17.08.2016, confirming the orders of the learned Judicial Magistrate (Fast Track Court), Dharmapuri, in STC.No.12 of 2014, dated 13.02.2015.

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3(i).The respondent herein/accused has preferred a private complaint against the revision petitioner/accused in STC.No.12 of 2014, before the learned Judicial Magistrate (Fast Track Court) Dharmapuri, alleging the commission of offence under Section 138 of the Negotiable Instruments Act, based upon Ex.P1/cheque for Rs.5,00,000/-.

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https://hcservices.ecourts.gov.in/hcservices/

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3(ii).In support of the said complaint, during the course of trial, the revision petitioner/complainant examined himself as PW1; Bank Manager was examined as PW2; Exs.P1 to P5 were marked. On the side of the defence, Ex.R1/reply notice was issued by the accused to the complaint, was marked.

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3(iii).After taking into consideration the oral and documentary evidence, and on perusal the records, the learned Judicial Magistrate (Fast Track Court) Dharmaputi has laid the conviction against the accused for the offence under Section 138 of the Negotiable Instruments Act and sentenced him to undergo one year simple imprisonment and to pay compensation for a sum of Rs.5,00,000/- being the cheque amount within a period of one month, in default to undergo one month simple imprisonment. Aggrieved against the said conviction and sentence the accused has preferred an appeal before the learned Principal District and Sessions Judge, Dharmapuri, in Criminal Appeal No.7 of 2015 and by an order dated 17.08.2016, the learned Judge has dismissed the appeal. Hence, the Criminal Revision Case.

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4.Heard both the respective counsels and perused the materials placed on record.

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5.On a combined analysis of PW1 & PW2 coupled with the documentary evidence of Ex.P1, it is seen that the revision petitioner/accused had issued a cheque on 13.11.2013 to the respondent herein/complainant viz., Shanmugam for a sum of Rs.5,00,000/- and the same has been returned as payment stopped by drawee on 28.11.2013 and the return memo was marked as Ex.P2. The complainant has issued a legal notice to the revision petitioner/accused on 19.12.2013 and the same has been marked on Ex.P3. The revision petitioner/accused issued reply notice to the complainant and the same has been marked as Ex.P5. In Ex.P5, it is stated that he had already given an instruction to his Bank to stop payment even before the letter dated 21.12.2013. The revision petitioner/accused gave a cheque to the complainant on 13.11.2013, after that only the accused wantonly stop the account and the same has been admitted by the appellant/accused in Ex.P5/reply notice.

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6.Further, PW2 has stated that the respondent running an Auto consultancy and Xerox shop. In the cross examination also it is admitted by PW1 that not only the accused other persons also having money transaction with him. From the evidence of PW2 the complainant having sufficient source of income for giving loan.

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7.Hence, this Court finds that in view of the admitted position of the fact that the cheque was issued from the account of the revision petitioner/accused and the signature is not

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https://hcservices.ecourts.gov.in/hcservices/

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disputed by the accused, the respondent/private complainant is entitled for statutory presumption under Section 139 of the Negotiable Instruments Act. To rebut the presumption, the accused/respondent has filed Ex.R1/reply notice and also made suggestive case to PW1 in the cross-examination. The suggestive case has been denied by PW1.

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8.As per the revision petitioner/accused version, he has not borrowed Rs.5,00,000/- from respondent herein/complainant neither PW1 is having source to lent such huge amount of Rs.5,00,000/- to him.

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9.In the case of Rangappa Vs. Mohan – (2010) 3 MLJ (Crl) 547 (SC) in the Hon'ble Supreme Court has held that the presumption under Section 139 of the Negotiable Instruments Act includes pre existence of legally enforcible debt.

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10.In this connection the contents of Ex.R1/reply notice that was marked during the cross examination of PW1 assumes significance

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11.On careful perusal of the letter dated 21.09.2013, the revision petitioner /accused wrote a letter to the respondent/complainant by stating as follows:

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@fle;j 20/6/2012 njjp md;W cd;dplk; ehDk;. VdJ tpahghu Tl;lhspahd uhn$e;jpud; ,UtUk; nru;e;J vd;Dila bghwg;gpy; tpahghuj;jpw;fhf U:/1 ,50,000/tl;of;fhf fld; bfhLj;Js;sPu; vd;Wk;. nkw;go bjhiff;fhf ,UtUf;Fk; nru;e;J ,uz;L fhyp brf; vz; 094959 kw;Wk; 094960 bjhif nghlhky; ifbaGj;J kl;Lk; nghl;L 21/6/2012 md;W bfhLj;njd; vd;Wk;. Mjd; gpwF ehd; bfhLj;j fhyp brf; vz; 094959 I U:/2 ,00,000/- f;F epug;gp /tNYf;fhf t';fpapy; nghl;L mJ jpUg;gg;gl;lJ vd;Wk;. c';fs; flid tU';fhy';fspy; bfhLj;J tpLfpnwd;@ vd;W brhy;yg;gl;Ls;sJ@/

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From the above contents it is clear that the revision petitioner has admitted that the cheque bearing No.094959 was issued by him and also admitted his signature.

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12.From the reply given by the revision petitioner/accused under Ex.R1, it is seen that he has issued a post dated cheque bearing No.094959 for repayment of first installment amount viz., Rs.2,00,000/- and the same was dishonoured. Since the first cheque was dishonoured, he has given the blank signed cheque bearing No.094960. Handing over of the blank singed cheque was admitted by the accused under Ex.R1/notice under Section 20 of the Negotiable Instruments Act. The cheque has been admittedly issued from the account of the accused and signature of the accused in Ex.P1/cheque is admitted.

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https://hcservices.ecourts.gov.in/hcservices/

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13.In the absence of any positive evidence to rebut the presumption both the Courts below have rightly come to the conclusion that based upon PW1 coupled with the documentary evidences viz., Exs.P1 to P6 and reply notice under Ex.R1, the private complainant is entitled to statutory presumption under Section 138 of the Negotiable Instruments Act, however, the accused has miserably failed to probablise the suggestive case. Furthermore, reason for handover of the cheque is also mentioned under Ex.R1 assumes significance. Hence, the finding by the both the Courts below that the accused has failed to probablise the suggestive case to the level of preponderance of probability, is well merited and well considered and does not suffer from any illegality or irregularity and the finding rendered thereon does not suffer from any perversity. In the absence of any illegality or irregularity or perversity in the finding, considering the scope of the revision, the conviction and sentence passed by Trial Court as confirmed by the Appellate Court cannot be interfered with.

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14.In this view of the matter, this Criminal Revision Case devoid of merits and stands dismissed. The order of conviction and sentence passed by the learned Principal District and Sessions Judge, Dharmapuri, in Crl.Appeal.No.7 of 2015, dated 17.08.2016, confirming the orders of the learned Judicial Magistrate (Fast Track Court), Dharmapuri, in STC.No.12 of 2014, dated 13.02.2015 is hereby confirmed.

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Sd/Assistant Registrar(CS-VII)

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//True Copy//

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Sub Assistant Registrar

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dua

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To:

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1.The Principal District and Sessions Judge, Dharmapuri.