C.Gavaskar Vs P.E.Vijayakumar

Prayer: Criminal Revision Case filed under Sections 397 & 401 of C r.P.C. to set aside the judgment by the VI Additional Sessions Judge at Chennai in CA.No.26 of 2020 dated 23.08.2022 call for the records and acquit the petitioner from all the charges.

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For Petitioner : Mr.N.Saravanan

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For Respondent : Mr.M.Deivanandam

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ORDER

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This criminal revision case has been filed against the judgment passed in CA.No.26 of 2020 dated 23.08.2022 on the file of the VI Additional Sessions Judge at Chennai thereby confirming the order of conviction and sentence imposed by the trial court in CC.No.8133 of 2017 dated 02.11.2019 on the file of the Metropolitan Magistrate, Fast

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https://www.mhc.tn.gov.in/judis

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Crl.RC.No.526 of 2023 Track No.II, Egmore, Chennai for the offence punishable under Section 138 of NI Act.

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The respondent lodged complaint against the petitioner alleging that the petitioner is a close relative and he received a sum of Rs.18,37,000/- on various date during the year 2006 as hand loan. In order to repay the said amount, the accused had issued cheque for the said sum of Rs.18,37,000/- and the same was presented for collection. However it was returned dishonoured for the reason ‘insufficient funds’. After causing statutory notice, the respondent lodged complaint and the same was taken cognizance by the trial court.

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In order to prove the complaint, the respondent had

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examined PW1 and PW2 and marked Ex.P1 to Ex.P6. On the side of the accused, no one was examined and no documents were produced to disprove the complaint. On perusal of the oral and documentary evidences, the trial court found the petitioner guilty for the offence punishable under Section 138 of NI Act and sentenced him to undergo one year simple imprisonment. He was also ordered to pay compensation of Rs.18,37,000/-. Aggrieved by the same, the petitioner preferred appeal

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and the same was also dismissed confirming the order of conviction and Page 2 of 8

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Crl.RC.No.526 of 2023 sentence imposed by the trial court. Hence, the present criminal revision case has been filed by the accused.

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The learned counsel for the petitioner would submit that the

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cheque was not issued for any legally enforceable debt. The petitioner

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never borrowed such huge amount from the respondent. The respondent failed to produce any income tax returns and also statement of accounts to show that he had financial source to lend such huge money. Further, the complaint was filed by the power of attorney and he did not know the acquaintance between the petitioner and the respondent and he did not know about the transaction between the petitioner and the respondent. The petitioner was not served with any statutory notice and as such, there is absolutely no cause of action to lodge complaint for the offence punishable under Section 138 of NI Act. Further, it was categorically stated in the statement recorded under Section 313 Cr.P.C. that the accused never issued any cheque for any loan and the cheque was not issued for any legally enforceable debt. Even then, the trial court and the appellate court mechanically convicted the petitioner.

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Per contra, the learned counsel for the respondent submits that the petitioner did not deny the signature found in the cheque and also Page 3 of 8

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Crl.RC.No.526 of 2023 the issuance of cheque. Therefore, the respondent had discharged his initial burden as contemplated under Section 138 of NI Act. In order to rebut the presumption, the accused did not examine anybody and failed to elicit anything during the cross examination of PW2. Further, for the complaint filed through power of attorney, the respondent was examined as PW2. Therefore, the trial court and the appellate court rightly convicted the petitioner for the offence punishable under Section 138 of NI Act and the same does not warrant any interference of this Court.

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Heard the learned counsel appearing on either side and perused all the materials placed before this Court.

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The crux of the allegations in the complaint lodged by the

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respondent is that the petitioner had borrowed a sum of Rs.18,37,000/- on various dates during the year 2006. However, the respondent did not even whisper that on what date and what amount was borrowed by the petitioner. Further, the respondent also failed to state that how the petitioner / accused was acquainted with him to lend such huge amount, that too without any security document. During the cross examination, he stated that the petitioner / accused is a relative. However, no prudent person would lend such huge money without any security document. Page 4 of 8

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Crl.RC.No.526 of 2023 Though the respondent deposed that on various dates, the accused borrowed amount, he did not state any specific date on which the alleged amount was borrowed by the petitioner. Further, the respondent failed to bring any other document to show that he had financial source to lend such huge amount. It was also not accounted by the respondent. Therefore, the respondent was specifically cross examined by the accused about his financial capacity to lend such huge amount. The relevant portion of that cross examination is as follows:

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Vjphpf;F ehd; bfhLj;j bjhiff;F kl;Lnk mth; fhnrhiy bfhLj;jhh;/ tl;oj; bjhif vJt[k; nrh;f;fg;gltpy;iy/ vjphpf;F bjhif bfhLj;j nghbjy;yhk; mjw;fhf Mtzk; vJt[k; vGjpg; bgwtpy;iy/ vjphpf;F fld; bfhLj;j bjhifia vdJ tUkhd thp fzf;F tptuj;jpy; bjhptpj;js;nsdh vd nfl;lhy; vdJ jzpf;ifahsiu nfl;Ljhd; brhy;y ,aYk;/ vjphpf;F bfhLj;j bjhif vdJ iftrk; ,Ue;J bjhifapy; ,Ue;J bfhLf;fg;gl;lJ/ ehd; n~hl;ly; kw;Wk; yhl;$; elj;jpndd;/ mjpy; fpilj;j tUkhdj;ij itj;jpUe;J mjpypUe;J vjphpf;F bjhif bfhLj;njd;/ vjphpf;F bfhLj;j

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bjhifia t';fpapy; ,Ue;J vLj;J bfhLf;ftpy;iy/ vjphpapd; tPl;ow;F ehd; brd;wjpy;iy/ fhnrhiyapy; cs;s bgah; kw;Wk; njjp kw;Wk; bjhif tptu';fis ahh; vGjpaJ vd nfl;lhy; mJgw;wp vdf;F

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Crl.RC.No.526 of 2023 bjhpahJ/ fhnrhiyia vjphpjhd; bfhLj;jhh;/ vjphpaplk; vg;nghJ

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fhnrhiy bgw;nwd; vd;gJ rhpahf "hgfk; ,y;iy/

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Thus it is clear that the cheque was not issued for any legally enforceable debt. Further, the respondent also did not know that on what date the cheque was issued to him. The respondent had lent such huge amount of Rs.18,37,000/-, however no prudent person would fail to remember that on what date cheque was issued to him. In fact, he did not know that who filled the cheque. Therefore the cheque was clearly misused by the respondent to initiate proceedings under Section 138 of NI Act. Though the accused did not enter into box, he categorically rebutted the presumption by way of cross examination. Further, the statement of the accused is also very clear under Section 313 of Cr.P.C, the relevant portion of which is as follows:

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tHf;F fhnrhiy vd;DiliaJ jhd;/ th/rh/2 vd;Dila rpj;jg;gh/ mth; v';fsJ tPl;ow;F te;J nghthh;/ mthplk; fhnrhiy ehd; jutpy;iy/ mthplk; vg;go brd;wJ vd;W vdf;F bjhpatpy;iy/ ePjpkd;w miHg;ghiz te;j gpwF jhd; vdf;F bjhpa[k;/ fhnrhiyapy; cs;s ifbahg;gk; vd;DilaJ jhd;/ FLk;g gpur;rpidahy; tHf;F jhf;fy; bra;Jtpl;lhh;/

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Crl.RC.No.526 of 2023 9. Even then, the trial court mechanically convicted the

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petitioner / accused on the ground that he admitted his signature and not disputed the same. Mere admission of the signature would not amount to admitting the guilt. It should be presumed under Section 139 of NI Act that the cheque was issued for legally enforceble debt. However, it is rebuttable in nature. The accused categorically rebutted the presumption and even then, the respondent failed to prove that the cheque was issued for any legally enforceable debt. Therefore, the impugned judgment is liable to be set aside.

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Accordingly, this criminal revision case is allowed and the judgment passed in CA.No.26 of 2020 dated 23.08.2022 on the file of the VI Additional Sessions Judge at Chennai and the judgment passed in CC.No.8133 of 2017 dated 02.11.2019 on the file of the Metropolitan

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Magistrate, Fast Track No.II, Egmore, Chennai are set aside. The petitioner is acquitted of all the charges under Section 138 of NI Act. He is directed to be set at liberty forthwith. Bail bond, if any, shall stand cancelled. Fine amount, if any paid, shall be refunded forthwith.

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02.04.2026

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Index : Yes/No Neutral citation : Yes/No Speaking/non-speaking order lok

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Crl.RC.No.526 of 2023

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G.K.ILANTHIRAIYAN, J.