Madras High Court
P.Ramakrishnan vs Kathiravan on 30 August, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.R.C.No.621 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.08.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.621 of 2019
P.Ramakrishnan .. Petitioner
Vs
Kathiravan .. Respondent
Prayer: Criminal Revision Case filed under Section 397 read with 401
Code of Criminal Procedure, to set aside the judgment 05.01.2019 of the
Judicial Magistrate Court, Perambalur in STC.No.10 of 2018 as confirmed
by the judgment dated 24.06.2019 of the Principal District and Sessions
Judge, Perambalur in Criminal Appeal No.01 of 2019 confirming the trial
court's judgment and consequently acquit the petitioner by allowing the
revision.
For Petitioner : Mr.M.Shreedhar
for Mr.A.S.Vijayaragavan
For Respondent : No Appearance
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Crl.R.C.No.621 of 2019
ORDER
The revision is filed by the petitioner / accused, aggrieved by the conviction for offence under Section 138 of the Negotiable Instruments Act by the Trial Court which is confirmed by the Appellate Court.
2. The respondent herein filed a private complaint under Section 200 of the Code of Criminal Procedure, stating that the complainant borrowed a sum of Rs.5 lakhs on 10.05.2017 promising to repay the same within a week. In discharge of the said liability, the accused issued a cheque for the said sum of Rs.5 lakhs, which upon deposit in the bank returned dishonored and hence after issue of statutory notice, the accused issued only a reply notice containing false particulars and did not pay the amount due under the cheque and therefore, a complaint was filed. After recording the sworn statement of the complainant, the complaint was taken on file as STC.No.10 of 2018 and upon appearance of the accused and furnishing of the copies, the accused denied the commission of offence and stood trial. Thereafter, the complainant examined himself as P.W.1 and Exhibit P.1 to Exhibit P.5 were marked on the side of the complaint. Upon being questioned about the material evidences and incriminating circumstances on record, the accused denied the same. Thereafter, no evidence was let in https://www.mhc.tn.gov.in/judis 2/10 Crl.R.C.No.621 of 2019 on behalf of the defence. The Trial Court therefore proceeded to consider the matter and after hearing learned counsel on either side, by judgment dated 05.01.2019, found the accused guilty for the offence under Section 138 of the Negotiable Instruments Act and imposed punishment of six months simple imprisonment and also to pay the sum of Rs.5 lakhs to the complainant as compensation and in default, to undergo another period of six months simple imprisonment. Aggrieved by the same, the petitioner / accused filed Crl.A.No.1 of 2019 on the file of the Principal District and Sessions Judge, Perambalur and by judgment dated 24.06.2019, the Appellate Court dismissed the appeal and confirmed the conviction and sentence imposed by the Trial Court, against which the present revision is filed.
3. Heard Mr.M.Shreedhar, learned counsel for the petitioner and even though notice was served on the complainant, there was no appearance on behalf of the complainant.
4. Learned counsel for the petitioner submitted that, in this case, the accused has taken a specific defence that the petitioner / accused had transactions with the father of the accused, from whom a sum of https://www.mhc.tn.gov.in/judis 3/10 Crl.R.C.No.621 of 2019 Rs.50,000/- was borrowed and a cheque was given to him for security purpose. The amount borrowed was discharged. But, however, the cheque was misused and presented by making material alteration, as if the cheque was issued for a sum of Rs.5lakhs and it is the specific case of the petitioner / accused that there is a material alteration in the cheque. He would submit that as far as the Trial Court is concerned, the Trial Court did not even advert to the contention regarding material alteration and gave the finding in paragraph 12 that it is in the nature of delivery of money and is a negotiable instrument and once it is completed, it is to be taken as such. Therefore, he would submit that the Trial Court greviously erred in not even considering the plea of material alteration.
5. He would further submit that when a specific ground has been taken before the Lower Appellate Court, the Lower Appellate Court, again, without giving any finding as to the overwriting with darker ink on “5” and also without giving any finding as to the darker ink in the last “0” in the cheque, which is only equivalent to the other writings in the cheque and without comparing the slightly lighter / duller ink, which is used for signature and the other “0”s between “5” and the last “0” in the sum of Rs.5 lakhs written in the cheque, merely brushed aside that it was the coma https://www.mhc.tn.gov.in/judis 4/10 Crl.R.C.No.621 of 2019 which is found after the second “0” was only a mistake. It has also further rendered a perverse finding that it was not the case of the accused that the cheque was materially altered. In this regard, he would draw the attention of this Court to the reply notice as well as the cross examination of the complainant whereunder a specific plea has been taken. Therefore, he would submit that when, in this case, a material alteration is alleged, the Lower Appellate Court convicting the petitioner / accused by placing reliance on the Section 20 of the Negotiable Instruments Act does not arise. Therefore, he would plead that this is a case for interference by this Court.
6. I have considered the said submissions and perused the original records of this case.
7. At the outset, I am in agreement with the learned counsel for the petitioner that when there is a plea as to the material alteration of the cheque, the Trial Court errored in not even considering the same. The First Appellate Court also errored in relying upon Section 20 of the Negotiable Instruments Act. When a blank cheque is given to the complainant for security purpose with the authority to fill the cheque, then Section 20 would come into play that even inculcate document if it is duly filled up by https://www.mhc.tn.gov.in/judis 5/10 Crl.R.C.No.621 of 2019 the authority given to the holder, can be relied upon as a valid Negotiable Instruments. But, in this case, it is the defence of the accused that he had borrowed a sum of Rs.50,000/- to the father of the accused. Therefore, the cheque was given as security for the said sum of Rs.50,000/-. The coma after the letters “50” would clearly demonstrate the same that the cheque was filled up for the sum of Rs.50,000/-. There is overwriting on the letter “5” also with the darker ink, which is the same ink which is used for adding last “0” in the cheque. Therefore, the material alteration is visible even to the naked eye in the said cheque. The said material alteration is corroborated by the defence of the accused.
8. The consistent defence is taken right from the reply notice and to the cross examination of the complainant. The case of the complainant is that he paid the money by way of cash, that too a huge sum of Rs.5 lakhs, which is alleged to have been repaid within a week by way of the present cheque. There is no other document such as promissory note or any other evidences to prove the said fact. Therefore, considering the entire background and circumstances of the case and also the admission of the complainant that after the death of his father, he came to know about the accused and that he does not have any accounting whatsoever for https://www.mhc.tn.gov.in/judis 6/10 Crl.R.C.No.621 of 2019 advancing of the said loan and he did not produce any income details or other documents for advancing the said loan, I am of the view that the accused has rebutted the presumption under Section 118 and 139 of the Negotiable Instruments Act. When the accused has rebutted the presumption to the level of preponderance of probability and in the absence of any other corroborating evidence from the complaint for the advancing of the loan, especially when the loan is said to have been advanced as cash and is said to have to repaid within a week by way of cheque, I am of the view that the petitioner / accused is entitled to the benefit of doubt. This is a fit case for interference with the finding of the Trial Court and the Lower Appellate Court because, the Trial Court did not even advert and consider the plea of material alteration and the Lower Appellate Court gave two findings which are not possible at all.
9. Firstly, the Lower Appellate Court gave a finding that it is not a case of the accused, while it is the consistent case of the accused from the reply notice itself. The Lower Appellate Court gave a finding relying upon the Section 20 of the Negotiable Instruments Act which may not be applicable in the case of material alteration, which may be applicable in a case where the blank cheque is given with the authority to fill up. https://www.mhc.tn.gov.in/judis 7/10 Crl.R.C.No.621 of 2019
10. Therefore, this case calls for interference by way of this revision and accordingly, this revision is allowed on the following terms:
(i) The finding of guilty by the judgment dated 05.01.2019 of the Judicial Magistrate Court, Perambalur in STC.No.10 of 2018 and confirmed by the judgment dated 24.06.2019 of the Principal District and Sessions Judge, Perambalur in Criminal Appeal No.01 of 2019, is set aside;
(ii) The accused is acquitted of all the offence;
(iii) Fine amount if any paid, is ordered to be refunded.
Index : yes/no 30.08.2022
Speaking/Non-speaking order
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To
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Crl.R.C.No.621 of 2019
1. The Principal District and Sessions Judge, Perambalur.
2. The Judicial Magistrate Court, Perambalur .
3. The Public Prosecutor, High Court of Madras.
https://www.mhc.tn.gov.in/judis 9/10 Crl.R.C.No.621 of 2019 D.BHARATHA CHAKRAVARTHY, J.
drm Crl.R.C.No.621 of 2019 30.08.2022 https://www.mhc.tn.gov.in/judis 10/10