1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:30.06.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.RC(MD)No.137 of 2011 P.Jeyakumar :Revision Petitioner/Accused -Vs- R.Eazil Arasu :Respondent/Complainant Prayer:Criminal Revision Case is filed under Sections 397 read with 401 of the Criminal Procedure Code, against the judgment of conviction and sentence imposed by the Court of Sessions Judge, Kanyakumari Division at Nagercoil in C.A.No.9 of 2008 dated 23.12.2010, confirming the judgment of conviction and sentence imposed by the Court of Judicial Magistrate No.II, Nagercoil in S.T.C.No.5691 of 2004 dated 14.12.2007. For petitioner: Mr.C.K.M.Appaji For Respondent: Mr.L.George Paul Anto ORDER By consent, the Criminal Revision Case itself is taken up for final disposal. 2.The revision petitioner is the accused in S.T.C.No.5691 of 2004 on the file of the Court of Judicial Magistrate No.2, Nagercoil and it has been filed by the respondent to prosecute the revision petitioner under Section 138 of the Negotiable Instruments Act. 3.The averments made in the complaint would disclose that the revision petitioner/accused and the respondent/complainant are very close friends and the accused borrowed a sum of Rs.3,00,000/- for his personal need and also for business development from the respondent and for the repayment of the same, he issued a cheque bearing No.828922 drawn on State Bank of India, Karungal Branch. The said cheque was presented for collection and it was returned with endorsement "Insufficient Funds". Thereafter, the respondent/complaint sent the statutory notice dated 28.06.2004 to the revision petitioner/accused and even though the revision petitioner/accused has received the same, he failed to issue any reply and not paid the amount due and payable under the cheque. Therefore, the respondent/ complainant filed the above said complaint. 4.The complaint was taken on file and the revision petitioner was questioned and he pleaded not guilty of the charge. 5.During the course of trial, the complainant examined himself as P.W.1 and marked Exs.P.1 to 4 and the revision petitioner/accused examined himself as D.W.1 and no documents were marked. https://hcservices.ecourts.gov.in/hcservices/ 2 6.The trial Court considering the oral and documentary evidence convicted the revision petitioner/accused under Section 138 of the Negotiable Instruments Act and imposed the sentence of 6 months simple imprisonment and to pay a fine of Rs.5,000/- with default sentence of one month simple imprisonment vide judgment dated 14.12.2007. 7.The accused aggrieved by the said conviction and sentence preferred Criminal Appeal in C.A.No.9 of 2008 on the file of the Court of Sessions Judge, Kanyakumari Division at Nagercoil and the said appeal was dismissed and thereby confirmed the conviction and sentence passed by the trial Court. 8.Mr.C.K.M.Appaji, learned counsel appearing for the revision petitioner/accused would submit that for lending a sum of Rs.3 lakhs there is absolutely no evidence adduced by the respondent/ complainant and therefore, the defence projected by the revision petitioner/accused that he received a sum of Rs.50,000/- which has been subsequently discharged has been probabilised. 9.It is the further submission of the learned counsel appearing for the revision petitioner that he has properly disproved the burden caste upon him and the respondent has failed to probabilise the case and the Courts below have committed a grave error in convicting and sentencing the revision petitioner and hence, prayed for setting aside the conviction and sentence imposed on him. 10.Per contra, the learned counsel appearing for the respondent/complainant would submit that the Courts below on proper appreciation of evidence has rightly arrived at the conclusion that the revision petitioner is guilty of the offence under Section 138 of the Negotiable Instruments Act and imposed a sentence of six months simple imprisonment and to pay a fine of Rs.5,000/- with default sentence of 3 months simple imprisonment and interference cannot be warranted on the hands of this Court in exercise of its revisional jurisdiction. 10.This court carefully considered the rival submissions and also the materials in the form of typed set of papers. 11.A perusal of the judgment of the trial Court as well as the lower appellate Court would disclose that the revision petitioner/accused pleaded that he only borrowed a sum of Rs.50,000/- and for security purpose he issued two signed blank cheques and two signed stamp papers and he also repaid the sum of Rs.50,000/- to the respondent/ complainant, however, the cheques as well as stamp papers were not returned by the respondent and misusing one of the cheques has filed the complaint. 12.It is pertinent to point out at this juncture that though the revision petitioner has pleaded discharge of Rs.50,000/-, he has not produced any evidence to show that he discharged the said amount and admittedly the revision petitioner has admitted his signature in the impugned cheque and though he pleaded that the said cheque was signed and issued in blank and also one other cheque and two signed stamp papers, such defence has not been probabilised through documentary evidence. https://hcservices.ecourts.gov.in/hcservices/ 3 13.Admittedly, the revision petitioner/accused has issued signed blank cheque without filling it up and in that connection Section 20 of the Negotiable Instruments Act will come into operation. The Courts below had properly appreciated the oral and documentary evidence and arrived at a finding that the revision petitioner is guilty of the offence under Section 138 of the Negotiable Instruments Act and imposed the sentence of imprisonment and fine. This Court on independent application to the entire materials available on records finds that there is no illegality or error apparent on the face of the impugned judgment passed by the lower appellate Court. 14.At this juncture, the learned counsel appearing for the revision petitioner/accused would plead leniency in quantum of sentence and on the said submissions, this Court heard the learned counsel appearing for the respondent/complaint also. 15.In the result, the Criminal Revision Case is dismissed confirming the conviction under Section 138 of the Negotiable Instruments Act passed by the trial Court as well as confirmed by the lower appellate Court. In so far as the quantum of sentence is concerned, it is reduced from 6 months simple imprisonment to 3 months simple imprisonment and the sentence of fine as well as the default sentence stand confirmed. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To: 1.The Court of Judicial Magistrate No.II, Nagercoil. 2.The Court of Sessions Judge, Kanyakumari Division at Nagercoil. +1CC to M/s.L.George Paul Anto, Advocate. SR.No.21036. +1CC to Mr.C.K.M.Appaji, Advocate. SR.No.20934. Sj RP/18.07.2011/3P/5C. Crl.R.C.(MD) No.137 of 2011 30.06.2011 https://hcservices.ecourts.gov.in/hcservices/