BAIL SLIP That the Appellant/Accused namely N.S.Krishnamurthy was directed to be released on bail by order of this Court dated 20.01.2007 in Crl.M.P.No.1/2007 in Crl.R.C.102/2007. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.7.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.102 of 2007 N.S.Krishnamurthy ..Petitioner vs. R.Utchan ..Respondent Petition filed under Section 397 r/w 401 of Cr.P.C. against the order dated 30.11.2006 passed by the Sessions Judge, Nilgiris, Udagamandalam, in C.A.No.43 of 2006 confirming the judgement dated 20.9.2006 passed by the Judicial Magistrate Udagamandalam, in C.C.No.387 of 2004. For Petitioner : Mr.C.Ramkumar For Respondent : Mr.S.K.Raghunathan O R D E R Animadverting upon the order dated 30.11.2006 passed by the Sessions Judge, Nilgiris, Udagamandalam, in C.A.No.43 of 2006 confirming the judgement dated 20.9.2006 passed by the Judicial Magistrate Udagamandalam, in C.C.No.387 of 2004, this criminal revision case is focussed. 2.Compendiously and concisely, the relevant facts which are absolutely necessary and germane for the disposal of this criminal revision case would run thus: (a) The respondent herein filed the complaint in C.C.No.387 of 2004 as against the revision petitioner herein for the offence under Section 138 of the Negotiable Instruments Act. Inasmuch as the revision petitioner/accused pleaded not guilty, trial was conducted. https://hcservices.ecourts.gov.in/hcservices/ (b) During trial, the respondent/complainant examined himself as P.W.1 and Exs.P1 to P4 were marked. On the accused side, the accused/revision petitioner examined himself as R.W.1 and Ex.R1 was marked. (c) Ultimately, the trial Court found the accused guilty and convicted him of the offence under Section 138 of the Negotiable Instruments Act and sentenced him as under:- Case No. Offence Punishment C.C.No.387 of 2004 Section 138 of N.I.Act Three months rigourous imprisonment and compensation of Rs.2,00,000/- (d) Animadverting upon the said judgement of the lower Court, the appeal in C.A.No.43 of 2006 was filed before the Sessions Judge, Nilgiris, for nothing but to be confirmed by the first appellate Court. 3. Impugning and challenging the judgements of both the Courts below, this revision is filed on various grounds, the gist and kernal of them would run thus: Both the Courts below committed serious error in not taking into account the fact that there is actually no pre-existing debt in connection with the issuance of the impugned cheque. Accordingly, the revision petitioner/accused prayed for setting aside the judgements of both the Courts below. 4. The point for consideration is as to whether there is any perversity or non-application of law in convicting the accused and imposing the sentence and also in awarding the compensation in favour of the respondent herein. 5. Indubitably and incontrovertibly, admittedly and unarguably this is a case in which the revision petitioner candidly and categorically admitted that the impugned cheque was issued by him. However, he would only contend that he issued the cheque for the purpose of ensuring the prompt repayment of the debt incurred by one Lalit Kumar, in favour of the respondent herein. 6. The first appellate Court appropriately and correctly commented upon the defence by pointing out that the very Lalit Kumar himself was not examined as a witness and in such a case, the question of the revision petitioner having rebutted the presumption, as contemplated under law, does not arise. https://hcservices.ecourts.gov.in/hcservices/ 7. It is a trite proposition of law that as per Section 139 of the Negotiable Instruments Act, it shall be presumed unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. 8. I am fully aware of the fact that the burden cast on the accused is not as heavy as the one cast on the complainant. Proof beyond all reasonable doubt is not required from the defence. What is expected is that there should be some preponderance of probabilities in the defence that the cheque was not issued for any debt. 9. Here, in this case, the accused candidly and categorically admitted that he only, by way of securing prompt repayment of the debt by Lalit kumar, issued the cheque, even though it was not the case of the respondent herein. The revision petitioner earlier would hasten to add in his defence that the said Lalit kumar also discharged the debt. These are all pleas, which ought to have been proved by the revision petitioner. But, there is no shard or shred, iota or miniscule, scintilla or molecular extent of evidence to buttress and fortify the ipse dixit of the accused. By no stretch of imagination, in a case of this nature, the mere deposition of accused as D.W.1 could be taken as one in support of his defence. 10. Hence, both the Courts below appropriately and correctly applied the law and sentenced the accused to undergo imprisonment for three months, which may not be termed as excessive in view of the fact that the amount involved is Rs.2,00,000/-(two lakhs). The compensation awarded by the lower Court also cannot be found fault with. I could see no infirmity or impropriety, illegality or perversity in the order passed by the lower Court. Hence, there is no merit in the revision and the same is dismissed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar msk To 1. The Sessions Judge, Nilgiris, Udagamandalam. 2. The Judicial Magistrate, Udagamandalam. https://hcservices.ecourts.gov.in/hcservices/ 3. The Superintendent of Prison, Central Prison, Coimbatore. + 1 c.c. to Mr. C. Ramkumar, Advocate. S.R.No.30801. + 1 c.c. to Mr. S.K. Rakhunathan, Advocate. S.R.No.30511. Crl.R.C.No.102 of 2007 SGL (CO) GSK 24.07.2009. https://hcservices.ecourts.gov.in/hcservices/