IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.3.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.R.C.No.1433 of 2007 R.Raju .. Petitioner/appellant/accused Vs. K.Sivasamy .. Respondent/respondent/complainant Criminal Revision Case against the judgment dated 13.8.2007 in Crl.A.No.524 of 2006 on the file of the Additional Sessions Court- cum-Fast Track Court No.2, Coimbatore, against the judgment dated 21.11.2006 in C.C.No.202 of 2004 on the file of the Judicial Magistrate No.2, Pollachi. For petitioner : Mr.S.Thiruvengadam For respondent: Mr.V.Sai Ram ORDER The Crl.R.C. is filed against the judgment dated 13.8.2007 in Crl.A.No.524 of 2006 on the file of the Additional Sessions Court- cum-Fast Track Court No.2, Coimbatore, confirming the judgment dated 21.11.2006 in C.C.No.202 of 2004 on the file of the Judicial Magistrate No.2, Pollachi, whereby the revision petitioner/accused was convicted for the offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo one year simple imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for three months. 2. The respondent as a complainant, filed a complaint under Section 138 of the Negotiable Instruments Act; the revision petitioner/accused borrowed Rs.3 lakhs on 20.11.2002 and executed a Promissory Note and for discharging the same, he paid interest @ Rs.30,000/- in cash and issued cheque for Rs.3 lakhs on 12.12.2003, i.e. Ex.P-2, which was presented for encashment and that has been returned as evidenced by Ex.P-3; statutory notice had been issued under Ex.P-4, which has been received by the petitioner/accused under Ex.P-5; after receipt of the notice, the revision petitioner/accused neither sent a reply nor repaid the amount to the https://hcservices.ecourts.gov.in/hcservices/ respondent/complainant, and hence, the respondent preferred the complaint. 3. The trial Court after following the procedures and since the revision petitioner/accused pleaded not guilty, examined P.Ws.1 and 2 and marked Exs.P-1 to P-6 and found the revision petitioner/accused guilty of the offence under Section 138 of the Negotiable Instruments Act and convicted and sentenced him as stated above. 4. Challenging the said judgment of the trial Court, the revision petitioner/accused preferred Crl.A.No.524 of 2006, and the learned appellate Judge confirmed the conviction and sentence passed by the trial Court, against which, the present Crl.R.C. has been filed by the revision petitioner/accused. 5. Challenging the conviction and sentence passed by both the Courts below, learned counsel appearing for the revision petitioner/accused submitted that the Bank of Madura merged with ICICI Bank in 2000, whereas Ex.P-2 cheque was alleged to have been issued on 12.12.2003. In the year 2000, the revision petitioner- accused borrowed by loan an amount of Rs.75,000/-, which has already been discharged, and the same is accepted by P.W.1 complainant while he was in the box and so, Ex.P-2 cheque is not supported by any consideration, and it has been fabricated for the purpose of the case, and hence, he prayed for allowing the Crl.R.C. and to set aside the conviction and sentence passed by the Courts below. 6. Repudiating the said contentions, learned counsel for the respondent/complainant submitted that it is true that there was previous transaction between the revision petitioner and the respondent and while P.W.1 complainant was in the witness box, he fairly conceded that he lent Rs.75,000/- which was discharged. He further submitted that as soon as the cheque has been dishonoured, the statutory notice under Ex.P-4 was issued and that has been received by the revision petitioner/accused under Ex.P-5 acknowledgement card and he neither gave any reply nor he got into the box rebutting the presumption under Section 139 of the Negotiable Instruments Act and so, both the Courts below have considered this aspect in proper perspective and found the revision petitioner/accused guilty of the offence under Section 138 of the Negotiable Instruments Act. He further submitted that the conviction and sentence passed by the Courts below do not suffer from any irregularity or illegality and he prayed for dismissal of the Crl.R.C. 7. Considering the rival submissions made by both sides, it is seen that the issuance of cheque Ex.P-2 is accepted by the revision petitioner/accused and his defence is that he issued the same only when he borrowed Rs.75,000/- from the respondent/complainant in 2000. The presumption under Sections 118 and 139 of the Negotiable Instruments Act, is rebuttable, which must be concrete and convincing. https://hcservices.ecourts.gov.in/hcservices/ 8. It is to be seen that whether the revision petitioner/accused rebutted the presumption under Section 139 of the Negotiable Instruments Act. Admittedly, no one has been examined and no document has been filed on the side of defence. 9. On a perusal of the oral evidence of P.W.1, in cross examination, he has stated that the account book was marked through him. But this document does not find place in the records and it is also not mentioned in the list of documents. Furthermore, it is appropriate on the part of the Court to consider as to whether this document played vital role for deciding the case. Admittedly, as per the evidence of P.W.1, in cross examination, his candid admission is that there is a previous transaction and that the amount of Rs.75,000/- has been discharged by the revision petitioner. It is stated that P.W.1 has already handed over the Promissory Note and cheque to him. In such circumstances, the burden has been shifted on the revision petitioner to prove the same. Admittedly, there is no contra evidence for P.W.1's evidence. 10. One more adding circumstance is that the cheque has been issued only to discharge the Promissory Note Ex.P-1, dated 20.11.2002. Furthermore, it is pertinent to note that the revision petitioner is doing business and he is having account books and he may very well produce the document to show that he has not borrowed any money on 20.11.2002. Admittedly, there is no evidence and so, I am of the view that the respondent/complainant has proved that Ex.P-2 cheque is issued for discharging the subsisting liability on the date, i.e. 12.12.2003. 11. Now, this Court has to decide as to whether the revision petitioner/accused is guilty of the offence under Section 138 of the Negotiable Instruments Act. As already decided, Ex.P-2 has been issued for discharging the subsisting liability, but the cheque has been presented for encashment, which was returned for insufficiency of funds, as evidenced by Ex.P-3 and immediately, the statutory notice under Ex.P-4 was issued on 26.12.2003 and the said notice was received by the revision petitioner under Ex.P-5 (acknowledgement card), but he neither gave any reply, nor repaid the amount, which shows that the petitioner is guilty of the offence under Section 138 of the Negotiable Instruments Act. So, I am of the view that both the Courts below have considered this aspect in proper perspective and came to the correct conclusion that the revision petitioner/accused is guilty of the offence under Section 138 of the Negotiable Instruments Act, which does not warrant interference. 12.Considering the nature of the case, the quantum of sentence awarded by the Courts below, is fair and proper and the same does not warrant any interference by this Court. https://hcservices.ecourts.gov.in/hcservices/ 13. As narrated above, I am of the view that both the Courts below have considered all the legal aspects in proper perspective and correctly concluded that the revision petitioner/accused is guilty of the offence under Section 138 of the Negotiable Instruments Act and accordingly convicted and sentenced him, as stated above. Hence, the conviction and sentence imposed on the revision petitioner/accused do not warrant any interference by this Court. 14. For the foregoing reasonings: (a) The Crl.R.C. is dismissed. (b) The conviction and sentence imposed on the revision petitioner/accused, are confirmed. (c) Since the revision petitioner/accused is on bail, the trial Court is directed to take steps to secure his custody, to undergo the remaining period of sentence. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar cs To 1. Additional Sessions Court (Fast Track Court No.2), Coimbatore. 2. Judicial Magistrate No.2 Pollachi. 3. DO Chief Judicial Magistrate, Coimbatore 1 cc To Mr.V.Sairam, Advocate, SR.20816 Crl.R.C.No.1433 of 2007 KJ (CO) RH (9.4.11) https://hcservices.ecourts.gov.in/hcservices/