Madras High Court
P.Ramalingam vs N.Jaganathan
Author: C.T.Selvam
Bench: C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 28.02.2017 DELIVERED ON : 22.09.2017 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.R.C.No.1384 of 2016 and Crl.M.P.Nos.12175 and 12176 of 2016 P.Ramalingam S/o.P.A.Pattiyappa Mudhaliear . Petitioner vs. N.Jaganathan S/o.Nanjappa Gounder . Respondent Criminal Revision Case filed under Section 397 r/w 401 Cr.P.C. against the judgment of learned IV Additional District and Sessions Judge, Coimbatore, passed in C.A.No.136 of 2014 on 17.03.2016 confirming the judgment of learned Judicial Magistrate I, Pollachi, passed in C.C.No.451 of 2004 on 30.09.2014. For Petitioner : Mr.Doraisamy, senior counsel for Mr.P.Saravana Sowmiyan For Respondent : Mrs.P.T.Asha for M/s.Sarvabhauman Associates ***** O R D E R
This revision arises against concurrent judgments of Courts below convicting petitioner for offence u/s.138 of the Negotiable Instruments Act and sentencing him to 1 year S.I. and fine of Rs.1,000/- i/d 1 month S.I.
2. Respondent/complainant moved prosecution informing that on 10.10.2002, petitioner/accused borrowed a sum of Rs.3,00,000/- from him and executed a promissory notice in his favour agreeing to repay the sum with interest at 12% p.a. Petitioner/accused issued a cheque dated 22.12.2003 drawn on South India Bank, Pollachi Branch, in a sum of Rs.3,00,000/- towards repayment, which upon presentation was returned unpaid for the reason 'funds insufficient'. Respondent/complainant caused statutory notice and following the procedure envisaged under Section 138 of the Negotiable Instruments Act, preferred complaint. The complaint was taken on file in C.C.No.451 of 2004 on the file of learned Judicial Magistrate I, Pollachi.
3. Before trial Court, respondent/complainant examined himself and marked 6 exhibits. Petitioner/accused was examined on the side of defence and 1 exhibit was marked. On appreciation of materials before it, trial Court, under judgment dated 30.09.2014, convicted petitioner/accused and sentenced him to 1 year S.I. and fine of Rs.1,000/- i/d 1 month S.I. There against, petitioner/accused preferred C.A.No.136 of 2014 on the file of learned IV Additional District and Sessions Judge, Coimbatore, which came to be dismissed under judgment 17.03.2016. Hence, this revision.
4. Heard learned senior counsel for petitioner and learned counsel for respondent.
5. In affirming the finding of conviction arrived at by trial Court, Appellate Court has found as follows:
(i)Though it was the case of petitioner/accused that he has not borrowed any sum from respondent/complainant, that he had borrowed a sum of Rs.60,000/- from respondent/complainant's father for which he deposited his title deed and issued a blank cheque, which was misused by respondent/complainant, that he had preferred a complaint regards the same before District Collector and Superintendent of Police, Coimbatore, on 10.12.2003 and 11.12.2003 and yet another complaint before Mahalingapuram Police Station on 23.03.2003 alleging collection of exorbitant interest by respondent/complainant, petitioner/accused has not chosen the cross-examine respondent/complainant in 2012. However, after two years of respondent/complainant's chief-examination, i.e., on 04.01.2014, PW-1 was recalled and cross-examined. Neither in the cross-examination, any question regards complaints preferred by petitioner/accused has been put nor in his evidence has DW-1 made mention there regards. Having failed to raise such defence before trial Court, it was not open to petitioner/accused to take a new stand before appellate Court.
(ii)While it was the case of petitioner/accused that respondent/complainant had threatened him saying that he would misuse the cheque issued by him, then petitioner/accused ought to have issued stop payment instructions to his banker. Further, petitioner/accused has not produced any document to establish that he borrowed money from the father of respondent/complainant, that he settled the same and demanded return of cheque issued as security.
(iii)The contention of petitioner/accused that the disputed cheque was issued in the year 1994 to the father of respondent/complainant and not in the year 2003 as alleged by respondent/complainant, has been negated on the reasoning that petitioner/accused has not chosen to examine his banker to establish such contention.
(iv)Once the issuance of cheque and the signature thereon has not been disputed, then it is for the petitioner/accused to establish that the cheque has not been given towards a legally enforceable debt, which petitioner/accused has failed to do.
(v)The contention of petitioner/accused that in a civil dispute between parties, respondent/complainant has deposed that on 21.12.2003 and 22.12.2003 he did not see the accused was rejected on the ground that PW-1 consistently stated that petitioner/accused issued a cheque dated 22.12.2003 and hence, merely on the basis of a stray sentence in cross-examination, it could not be presumed that the accused had rebutted legal presumption u/s.139 of the Negotiable Instruments Act.
For the aforesaid reasons and other reasons, Courts below have found that respondent/complainant has established his case beyond all reasonable doubt and petitioner/accused has failed to rebut the presumption that arises u/s.139 of the Negotiable Instruments Act and accordingly, arrived at a finding of conviction.
6. Learned senior counsel relied on jdugment of Apex Court in Sudhir Kumar Bhalla v. Jagdish Chand and others [2008 (7) SCC 137]. The factual circumstances attending that case was there was a running account between parties and cheques signed by accused had been left with complainant and particulars therein admittedly had been filled in by complainant. It was in such circumstance that Apex Court found the cheques to have been issued by way of security. It may also be noted that in such case, complainant had made apparent interpolations on the instrument.
The Criminal Revision Case is dismissed. Finding and sentence imposed by Court below is confirmed. Connected miscellaneous petitions are closed.
22.09.2017 Index:yes Internet:yes gm To
1.The IV Additional District and Sessions Judge, Coimbatore.
2.The Judicial Magistrate I, Pollachi.
C.T.SELVAM, J gm Pre-delivery order in Crl.R.C.No.1384 of 2016 22.09.2017