Madras High Court
T.K.C.Shanthakumar vs K.Vijayakumar on 14 June, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.R.C.No.338 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.06.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.338 of 2022
T.K.C.Shanthakumar,
S/o.Chelladurai. ... Petitioner
Versus
K.Vijayakumar,
S/o.V.R.Kalahi. ... Respondent
Criminal Revision Case filed under Section 397 read with 401
Cr.P.C, to call for records and to set aside the order of conviction dated
23.08.2021 passed in C.A.No.23 of 2020 by the V Additional Sessions
Judge, City Civil Court at Chennai, by confirming the order of conviction
dated 03.12.2019 passed in C.C.No.883 of 2012 by the learned
Metropolitan Magistrate fast Track Court II, Egmore at Allikulam Chennai
3 and acquit the petitioner by allowing the Criminal Revision Petition.
For Petitioner : Mr.A.Balasingh
*****
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Crl.R.C.No.338 of 2022
ORDER
This revision is filed by the petitioner-accused aggrieved by the Judgment dated 03.12.2019 of the learned Metropolitan Magistrate, Fast Track Court No.II, Egmore at Allikulam, Chennai 600 003, in C.C.No.883 of 2012, thereby, the petitioner was found guilty of an offence under Section 138 of the Negotiable Instruments Act and he was sentenced to undergo one year simple imprisonment and to pay a sum of Rs.50,000/- being the cheque amount as compensation to the respondent-complainant and the Judgment of the learned V Additional Sessions Judge, City Civil Court, Chennai in Crl.A.No.23 of 2020, thereby, dismissing the appeal and confirming the conviction and sentence imposed against the petitioner.
2. Heard Mr.A.Balasingh, learned counsel appearing on behalf of the petitioner. Even though, the notice has been served, none appears on behalf of the respondent-complainant.
3. The learned counsel for the appellant would submit that this is the case where to the decree of preponderance of probability, the petitioner/accused had duly cross examined the complainant and letting in https://www.mhc.tn.gov.in/judis 2/7 Crl.R.C.No.338 of 2022 his own evidence has rebutted the presumption and the complainant has not produced any document, whatsoever, in support of either the disbursement of the loan or about the transactions of re-payment. Therefore the trial Court as well as the first Appellate Court commited an error in not granting the benefit of doubt. This apart, the learned counsel would submit that this is the case where only photo copy of the cheque and other documents were produced. Even though the production of the photo copies were objected to be marked and it was a case where the counsel had lost the original documents along with the bundle, the Trial Court and the First Appellant Court has not given any finding, whatsoever, about the genuineness of the reason. The counsel was also not examined in this case to prove the said facts. Therefore, without recording the reasons for actual loss of originals, permitting secondary evidence to be taken on file, is not in confirmity with Section 65(c) of the Indian Evidence Act. He further submitted that, in spite of the specific plea being taken, both before the Trial Court as well as the First Appellant Court, including circulation of the relevant judgements, the courts below simply brushed aside the said issue and convicted the petitioner and therefore he would submit that this is the case of perverse finding which warrants interference in exercise the powers of revision by this Court.
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4. I have considered the said submissions and gone through the material records of this case. In this case, on perusal evidence of PW1, it is clear that PW1 in his cross examination admitted that there were transactions with one Rafael and that cheques will be taken in advance as security, and during the said transactions the petitioner/accused had given such cheques as security. This apart for question about the grant of loan the complainant would answer as follows:
"///////// vjphpf;F eP'f ; s; vg;nghJ fld; mspj;jPhf ; s;
vd;W brhd;dhy; vdf;F rhpahf epidtpy;iy
10/02/2011y; eP'f
; s; vjphpf;F fld; mspj;jjhf
Twpa[s;sPh;fs; vd;W brhd;dhy; rhpjhd;/ vjphp c';fsplk; Kd;njjpapl;l fhnrhiy mspj;jjhf Twpa[s;sPhf ; s;
vjphpaplk; vg;nghJ me;j fhnrhiyia bgw;Ws;sPhf ; s;
vd;why; vd;dplk; bkhj;jk; 4. 5 ngkd;l; bgw;Ws;shh; mnj nghy; 4. 5 !;blg; ig !;blg; Mf bgw;nwd;/ //////"
Thus when it is the specific case of the complainant that he had advanced a sum of Rs.2 lakhs as loan, he does not even remember as to when and how said loan was disbursed and no evidence has been let in as to whether the remaining amount is paid or not and when the cheque was issued was also not known to the complainant.
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5. On the contrary, on behalf of the accused, the counterfoil of the cheque book issued to accused has been marked and through PW2 the date of issue of the cheque has been elicited. In these circumstances, when the petitioner/accused through his examination has raised a probable case of defence, the non consideration thereafter by the Courts below amounts to illegality and therefore the Judgment of the trial Court as well as the first Appellant Court are unsustainable.
6. This apart, even though, for the loss of the original cheque by the counsel during the course of the hearing, the photo copies can be marked, however, the same could be considered only after giving a finding that it was lost in the manner as mentioned by the complainant. Even though, document missing complaint was marked as Ex.P6, it is again seen that the number of the case bundle, that is year of the number of the lost case bundle also differs and it is in this context that to establish that it is a mistake, appropriate witness namely, either the Inspector of police, who had given non-traceable certificate or the counsel, who was the complainant was not examined and the trial Court went on presumptions and surmises in this case. In that view of the matter, the petitioner is entitled for the benefit of doubt.
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7. Therefore, the finding of guilt by the trial Court as well as the first Appellate Court is unsustainable in law and therefore this Criminal Revision Case is allowed. The conviction and sentence imposed by the Judgment dated 03.12.2019 and 23.08.2021 are set aside. The amount that has been already deposited is ordered to be refunded to the petitioner.
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