Madras High Court
Shanmugam vs M/S.Niraimathi Diamond on 23 February, 2024
Author: R.Hemalatha
Bench: R.Hemalatha
Crl.R.C.(MD)No.183 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.02.2024
CORAM
THE HON'BLE MRS.JUSTICE R.HEMALATHA
Crl.R.C.(MD)No.183 of 2019
and
Crl.M.P.(MD)Nos.2804 & 2805 of 2019
Shanmugam ... Petitioner
Vs.
M/S.Niraimathi Diamond
Rep.by its working partner,
R.S.Maniyan,
S/o.Ramasamy,
No.306, BI, Bharathi Nagar, 1st floor,
Mahatma Gandhi Road,
Karur-2. ... Respondent
Prayer: Criminal Revision Petition filed under Section 397 r/w 401 of the
Code of Criminal Procedure, to call for the records and set aside the
conviction and sentence passed in C.C.No.66 of 2016 dated 15.11.2017
by the learned Judicial Magistrate (Fast Tract Court-Magistrate Level)
Karur which was confirmed in Crl.A.No.170 of 2017 dated 23.04.2018 by
the learned Additional District and Sessions Judge, Karur.
For Petitioner : Mr.R.Murali
For Respondent : Mr.P.Gunasekaran
https://www.mhc.tn.gov.in/judis
1/10
Crl.R.C.(MD)No.183 of 2019
ORDER
Challenging the judgment and orders passed in Crl.A.No.170 of 2017 by the Additional District and Sessions Judge, Karur, the present criminal revision case is filed.
2.For the sake of convenience, the parties are referred to as per the ranking in the trial Court. Brief facts of the case of the complainant are as follows:-
2(i)The accused borrowed a sum of Rs.3,00,000/- from the complainant to meet his urgent family expenses on 27.06.2012 and executed a promissory note (Ex.P3) promising to repay the principal together interest at the rate of 24% per annum on demand by the latter. On 29.07.2013 he handed over a cheque bearing No.527157 (Ex.P4) for a sum of Rs.3,00,000/- drawn on City Union Bank, Thanjavur Branch. When the cheque was presented by the complainant through his banker, viz, United Bank of India, Karur Branch, on 30.07.2013, the same was returned for the reason Funds Insufficient(Ex.P5). Thereafter, the complainant issued a statutory notice (Ex.P6) dated 26.08.2013 to the accused calling upon him to repay the amount borrowed by him. The said https://www.mhc.tn.gov.in/judis 2/10 Crl.R.C.(MD)No.183 of 2019 notice was returned with a postal endorsement door-locked and intimation was delivered. According to the complainant though the accused was in know of the fact that a legal notice was issued to him, he did not come forward to make good the payment. Therefore, he filed a private complaint under Section 200 Cr.P.C., in C.C.No.7 of 2014 before the Judicial Magistrate (Fast Tract Court-Magistrate Level) Karur against the accused for the offences punishable under Sections 138 & 142 of the Negotiable Instruments Act.
2(ii)The learned Judicial Magistrate took cognizance of the offence and issued summons to the accused under Section 204 Cr.P.C. On the appearance of the accused, copies of records were furnished to him under Section 207 Cr.P.C by the learned Judicial Magistrate. The substance of accusation was put to the accused and the accused pleaded not guilty. Therefore, the case was posted for trial. The complainant examined himself and one another witness and marked Ex.P1 to Ex.P7. The circumstances appearing in evidence against the accused were put to him under Section 313 Cr.P.C., and the accused denied of having committed any offence. He examined himself and two other witnesses. The Court marked Ex.X1 & Ex.Y1.
https://www.mhc.tn.gov.in/judis 3/10 Crl.R.C.(MD)No.183 of 2019 2(iii)On 15.11.2017, the learned Judicial Magistrate, Karur, after analysing the oral and documentary evidence adduced on both sides, convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of five months and to pay fine of Rs.2,000/-, in default, to undergo simple imprisonment of 30 days.
2(iv)Aggrieved over the same, the accused filed an appeal before the learned Additional District and Sessions Judge, Karur in Crl.A.No.170 of 2017. The learned Additional District and Sessions Judge, Karur confirmed the conviction and sentence passed by the trial Court vide its judgment dated 23.04.2018. Challenging the same, the present criminal revision case is filed by the accused.
3.The learned counsel appearing for the petitioner/accused would contend that the petitioner/accused did not hand over the cheque on 29.07.2013 as alleged by the respondent/complainant as he was working on that particular date in Southern Railways at Thiruvarur. In this regard, he has examined the officials working in Southern Railways as R.W.2 and https://www.mhc.tn.gov.in/judis 4/10 Crl.R.C.(MD)No.183 of 2019 R.W.3. His contention is that the evidence of R.W.2 & R.W.3 were not at all considered by both the Courts below. He drew the attention of the Court to the complaint given by the respondent, in which, he had specifically averred that the petitioner borrowed money on 27.06.2012 and handed over the cheque on 29.07.2013. The Master Register, which is an extract of the Attendance Register was produced by R.W.2 and according to the learned counsel, it would clearly reveal the fact that the accused was actually working in Southern Railways at Thiruvarur on 29.07.2013. Therefore, he could not have gone over to the office of the respondent and handed over the cheque.
4.Per contra, the learned counsel appearing for the respondent would contend that the both Courts, after analysing evidence on record had come to a correct conclusion that the accused committed an offence under Section 138 of Negotiable Instruments Act and there are no grounds to interfere with the same.
5.It is seen from the records that the accused did not deny his signature on the cheque dated 29.07.2013 and therefore, there is a presumption under Sections 118 and 139 of Negotiable Instruments Act, https://www.mhc.tn.gov.in/judis 5/10 Crl.R.C.(MD)No.183 of 2019 unless the contrary is proved. The only contention of the present petitioner is that since he was working in Southern Railways at Thiruvarur and he did not hand over the cheque on 29.07.2013 as alleged by the respondent. Though R.W.2 had produced the Master Attendance Register (an extract), which shows that the present petitioner had worked on 29.07.2013, it is pertinent to point out that the petitioner did not produce the Attendance Register for the relevant period. R.W.2 during the course of cross-examination had deposed that they used to destroy the original Attendance Register once in three years and therefore, he was unable to produce the same. On the contrary, in the Authorisation Letter dated 15.05.2017 issued to R.W.2 by the Southern Railways, it is specifically stated that the original Attendance Register was lost and therefore, could not be sent to the Court. This contradiction has been noted down by both the Courts below and had come to a definite conclusion that the accused had not discharged his burden of proof as envisaged under Section 118 of the Negotiable Instruments Act. The observation of the I Appellate Court in this regard is extracted hereunder for better understanding:-
nkYk;> vjphp g[fhh;jhuh; epWtdj;jpw;F tHf;F fhnrhiyia bfhLj;jjhf Twg;gLk; njjpahd 29.07.2013 njjpapy; vjphp jpUthU:upy; gfy; gzpapy; gzpg[upe;jjhft[k;> mjdhy; g[fhh;jhuh; TWtJnghy; tHf;F fhnrhiy bfhLf;fg;gltpy;iy vd;Wk; Vw;fdnt 28.06.2012 Mk; njjp https://www.mhc.tn.gov.in/judis 6/10 Crl.R.C.(MD)No.183 of 2019 thq;fpa flDf;F Mjuthf bfhLj;j epug;gg;glhj fhnrhiyia gad;gLj;jpj;jhd; ,e;j bgha;ahd tHf;F jhf;fy;
bra;ag;gl;Ls;sJ vd;w vjph; jug;g[ thjj;ij guprPypf;Fk;nghJ> vjphp jpUthU:h; bjd;df uapy;nt uapy;ntapy; gzpg[hpe;J tUfpwhh; vd;gJ g[fhh;jhuh; jug;gpy; xg;g[f;bfhs;sg;gl;Ls;sJ. mjdhy; 29.07.2013 njjpapy; vjphp jpUthU:h; bjd;df uapy;ntapy; gzpapy; ,Ue;Js;shuh vd;gijf; fz;lwpa vjphp jug;gpy; epU:gzk; bra;ag;gLtjw;fhf vjphp jug;gpy; bjd;df uapy;ntapy; jpU:thU:h; uapy;nt $q;rdpy; rPdpah; brf;rd; ,d; $pdpauhf ,ae;jputpay; gpuptpy; gzpg[upe;J tUk; jpU.utpr;re;jpud; vd;gth; v.rh.2 Mft[k; gpd;dpl;L bjd;df uapy;ntapy; nfnu$; R{g;gpuz;lhf gzpg[hpe;J tUk; bghd;.fnzrd; vd;gth; v.rh.3 Mft[k; tprhupf;fg;gl;Ls;shu;fs;. v.rh.2 jdJ rhl;rpaj;jpy; vjphp fle;j 29.07.2013 njjp jpUthU:h; uapy;nt $q;rdpy; gfy; neu gzpapy; ,Ue;jjhf Twpa[s;shh;. v.k.rh.2d; rhl;rpaj;jpy; FwpaPL bra;ag;gl;Ls;sJ. 29.07.2013k; njjpapl;l bjd;df uapy;ntapy; guhkhpj;J tUk;
kh];lh; up$];lu; rh.rh.xa;-1d; go 29.07.2013 njjp md;iwa njjpapy; vjpu; gzpapy; ,Ue;jjhf fhzg;gLfpwJ. Mdhy; bjd;df uapy;ntapy; guhku;j;J tUk; vjpupapd; tUif gjpntL ePjpkd;wj;jpy; jhf;fy; bra;ag;gltpy;iy. vjpupapd; tUifg;gjpntL Vd; jhf;fy; bra;atpy;iy vd;W g[fhu;jhuu; jug;gpy; Fwpg;ghf FWf;F tprhuiz bra;jnghJ> v.rh.2 Mdtu; tUifg;gjpntL mHpf;fg;gl;Ltpl;lhjft[k;> 3 tUlq;fSf;F xU Kiw jq;fsJ mYtyfj;jpy; tUif gjpntL mHf;fg;gl;L tpLk; vd;W Twpa[s;shh;. v.rh.2f;F ePjpkd;wj;jpy; rhl;rpak; mspg;gjw;F bfhLj;j mDkjpf; fojk; g[fhu;jhuh; jug;gpy; rh.rh.M.vf;].1 Mf jhf;fy; bra;ag;gl;Ls;sJ. 15.05.2017 njjpapl;l rh.rh.M.vf;].1 mDkjp fojj;ij guprPypf;Fk;nghJ> bjd;df uapy;nt jpUthU:h; fpisapy; ghukupj;J te;j 2013k; Mz;ow;fhd tUifg;gjpntL bjhiye;Jtpl;ljhf Twg;gLfpwJ. https://www.mhc.tn.gov.in/judis 7/10 Crl.R.C.(MD)No.183 of 2019 v.rh.2d; rhl;rpaKk; rh.rh.M.vf;].1 rhl;rpaKk; xd;Wf;bfhd;W Kuz;gl;L fhzg;gLfpwJ. 2013k; Mz;ow;fhd bjd;df uapy;nt jpUthU:h; fpisapy; guhkupj;J tug;gl;l tUifg;gjpntL mHpf;fg;gl;Ltpl;ljh my;yJ bjhiye;J ngha;tpl;ljh vd;gJ Fwpj;J bgUj;j re;njfk; vGfpd;wJ. v.rh. 3 jdJ rhl;rpaj;jpy; tUifg; gjpntl;il itj;J jhd; kh];lh; up$];lu; rh.rh.xa;-1 guhkupf;fg;gl;L tUfpd;wJ vd;W Twpa[s;shh;. Mdhy; mth; jdJ rhl;rpaj;jpy; tUifg;gjpntL bjhiyf;fg;gl;ljh> mHpf;fg;gl;ljh my;yJ fiuahd; mupf;fg;gl;ljh vd;Wk;> vd;dhy; Fwpg;ghf brhy;y ,ayhJ vd;Wk; rhl;rpak; mspj;Js;shh;. nkYk; v.rh.3> 29.07.2013k; njjp nkw;go mYtyfj;jpy; gzpg[upatpy;iy vd;Wk; kh];lh; up$];lu; Mtzj;ij ghu;j;J rhl;rpak; mspg;gjhf bjuptpj;Js;shh;. v.rh.2 bjd;df uapy;ntapy; vjpupf;F fPH; gzpg[hpe;J tUtjhf rhl;rpak; mspj;Js;shh;. vjpup jug;gpy; Fwpg;ghf ntw;wpil thjk; vd;w epiyg;ghL vLf;fg;gl;oUf;Fk;
R{H;epiyapy; ntw;wpil thjj;ij ve;jtpj re;njfj;jpw;Fk; ,lkpd;wp epU:gpf;fntz;oa bghWg;g[ vjpup jug;ig rhu;e;jjhFk;. 29.07.2013k; njjp g[fhu;jhuh; gzpapy; ,Ue;jhh; vd;gjw;F Kf;fpa Mtzkhf tUifg; gjpntL vjpup jug;gpy; FwpaPL bra;ag;glhj epiyapy; tUifg;gjpntl;il guhkupf;fg;gl;L tUk; kh];lh; up$];lu; rh.rh.xa;.1 Mtzj;ij itj;J vjpup nkw;bfhz;Ls;s ntw;wpil thjk; vjpupf;F Mjuthf cs;sjhf fUj ,aytpy;iy.
6.It is also pertinent to point out that P.W.2 in his evidence had deposed that the accused had gone over to the office of the complainant on the previous date ie., 28.07.2013 and handed over the cheque dated 29.07.2013.
https://www.mhc.tn.gov.in/judis 8/10 Crl.R.C.(MD)No.183 of 2019
7.This is a concurrent finding by both the Courts below and this Court cannot interfere with the same while hearing a revision under Section 397 Cr.P.C., unless it is perverse. The first Appellate Court had passed a well reasoned order and by any stretch of imagination can it be termed as perverse. The sentence imposed on the accused also cannot said to be on higher side and therefore, I do not see any reason to interfere with the conviction and sentence passed by both the Courts below. Accordingly, this criminal revision case is dismissed. Consequently, connected miscellaneous petitions are closed.
23.02.2024 Index: Yes/ No Neutral Citation: Yes / No Speaking Order / Non-Speaking Order gns To
1.The Judicial Magistrate (Fast Tract Court-Magistrate Level), Karur.
2.The Additional District and Sessions Judge, Karur.
https://www.mhc.tn.gov.in/judis 9/10 Crl.R.C.(MD)No.183 of 2019 R.HEMALATHA, J.
gns Crl.R.C.(MD)No.183 of 2019 23.02.2024 https://www.mhc.tn.gov.in/judis 10/10