Madras High Court
Mariadasan S/O. Gnanaprakasam vs Mohanan S/O. Kuttan Pillai on 3 November, 2023
Crl.R.C.(MD) No.176 of 2019
IN THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 13.09.2023
PRONOUNCED ON : 03.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE P.DHANABAL
Crl. R.C. (MD) No.176 of 2019
and
Crl. M.P. (MD) Nos.2720 and 2721 of 2019
Mariadasan S/o. Gnanaprakasam ... Petitioner /Accused
Vs.
Mohanan S/o. Kuttan Pillai ... Respondent
PRAYER: Criminal Revision case has been filed under Section 397 r/w
401 of Criminal Procedure Code, praying to call for the records and set
aside the conviction and sentence passed in C.A. No.46 of 2014 on the file
of the learned Principal District Sessions Judge, Kanniyakumari at
Nagercoil dated 03.01.2019 confirming the judgment and sentence imposed
on the petitioner by the learned Judicial Magistrate, Fast Track Court No.I,
Nagercoil in C.C. No.770 of 2012 dated 31.07.2014.
1/23
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD) No.176 of 2019
For Petitioner : Ms. G. Kavitha
For Respondent : Mr. V.M. Balamohan Thampi
ORDER
This Criminal Revision in Crl. R.C. (MD) No.176 of 2019 has been preferred by the appellant as against the Judgment and conviction in C.A. No.46 of 2014 passed by the Principal District Sessions Judge, Kanniyakumari at Nagercoil dated 03.01.2019 confirming the judgment and sentence imposed on the petitioner by the learned Judicial Magistrate, Fast Track Court No.I, Nagercoil in C.C. No.770 of 2012 dated 31.07.2014.
2. The respondent/complainant has filed a cheque complaint as against this petitioner in C.C. No.770 of 2012 and the Trial Court has convicted the petitioner for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced to undergo Simple Imprisonment for 6 months and to pay a compensation of Rs.2,50,000/- and in default to to undergo simple imprisonment for 1 month. As against the above judgment and conviction, this petitioner/accused has preferred an appeal in C.A. No.46 of 2014 before the Principal District Sessions Judge, 2/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 Kanniyakumari at Nagercoil. The Appellate Court also dismissed the appeal by confirming the judgment of the Trial Court. Aggrieved by the above said judgment, the present revision petition has been filed by the petitioner.
3. In the Trial Court, the complainant, the respondent herein, had filed a cheque complaint under Section 138 of Negotiable Instruments Act alleging that the accused had borrowed a sum of Rs.2,50,000/- from the complainant on 20.01.2011. After obtaining the loan, on the same day itself, the accused ie., the petitioner herein, had issued a cheque dated 20.05.2011 for a sum of Rs.2,50,000/- drawn on South Indian Bank, Thakkalai Branch. When the same was presented for collection on 27.05.2011, through his banker namely Punjab National Bank, Nagercoil, the same was returned as 'insufficient funds' with a return memo dated 03.06.2011. Thereafter, the complainant had issued a notice dated 07.06.2011 calling upon the accused to repay the loan amount and the said notice was received by the accused on 09.06.2011. Thereafter, on 25.06.2011, the accused had issued a reply notice with false averments and not repaid the amount. Hence, the complainant filed a cheque complaint 3/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 under Section 138 of Negotiable Instruments Act before the learned Judicial Magistrate, Fast Track Court No.I, Kanniyakumari @ Nagercoil District.
4. The learned Judicial Magistrate, Fast Track Court No.I, Kanniyakumari @ Nagercoil, had taken cognizance of case for the offence under Section 138 of Negotiable Instruments Act and then issued process to the accused and on appearance, the documents relied on by the complainant, were furnished to the accused under Section 207 of Cr.P.C. and thereafter the accused was questioned about the substance of the charge for the offence under Section 138 of Negotiable Instruments Act. The accused denied the same. Hence the Trial Court has examined PW1 and marked Ex.P.1 to Ex.P.6. On the side of accused, he examined DW1 and DW2 and marked Ex.D1 to Ex.D7. After completion of complainant side evidence, the accused was examined under Section 313(1)(b) of Cr.P.C. with regard to the incriminating evidence adduced against him and the accused denied the same. Then, the Trial Court, after considering the oral and documentary evidences adduced on either side, found the accused guilty of offence punishable under Section 138 of Negotiable Instruments Act and sentenced to undergo Simple Imprisonment for 6 months and to pay a compensation of 4/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 Rs.2,50,000/- and in default to pay compensation, to undergo simple imprisonment for further one month. As against the above said conviction, the accused had preferred an appeal before the learned Principal District and Sessions Judge, Kanniyakumari @ Nagercoil District in C.A. No.46 of 2014 and the Appellate Court also, after an elaborate discussion, had confirmed the judgment of the Trial Court and dismissed the appeal through its judgment dated 03.01.2019.
5. Aggrieved over the above said judgment and conviction, the present revision petition has been preferred by the petitioner / accused under the following grounds:-
5(i) The Judgment and conviction of the Trial Court is contrary to law, weight of evidence and probabilities of the case.
5(ii) The fact that this revision petitioner had issued cheque to the respondent on 05.10.2010, was not considered by the Appellate Court, though 5/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 it was proved by the revision petitioner under Section 103 of Evidence Act.
5(iii) The Appellate Court, due to non-prosecution of respondent, dismissed the appeal.
5(iv) The Trial Court had committed error in interpreting the revision petitioner side averments.
6. The learned counsel appearing for the revision petitioner would contend that the petitioner has not borrowed the alleged loan amount as stated by the respondent and the cheque was not issued for discharging legally enforceable debt but the Courts below have failed to appreciate the evidence adduced by the defence side and the Courts below have only analyzed the evidence of the complainant side. Further, the disputed cheque was issued for only the security purpose for the loan obtained by the petitioner in earlier occasion. The complainant failed to establish the borrowal of amount on 20.01.2011 but not utilized for the purpose for which the amount was borrowed. The complainant has not filed any other 6/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 document to prove the existence of loan between the petitioner and the complainant. The Trial Court failed to note that the revision petitioner has rebutted his presumption under Section 139 of Negotiable Instruments Act by examining DW1 and marked Ex.D1 to Ex.D7. The defence of the revision petitioner is that his daughter had issued two incomplete cheques duly signed by her, bearing Nos.981653 and 981654 drawn on South Indian Bank, Thuckalay Branch and one of the relatives Mr. Robert Singh had also come forward to execute a mortgage deed in favour of the revision petitioner as security for the said Rs.2 lakhs loan amount, borrowed by the petitioner. Further, the Trial Court failed to consider that the petitioner is ready to settle the above said Rs.2 lakhs but the complainant was not ready to receive the amount. Therefore, the defence case was probabilized through sufficient evidence and the complainant failed to prove the existence of legally enforceable debt and the cheque was issued for that purpose. Therefore the judgment and conviction passed by both the Appellate Court and the Trial Court are to be set aside. The learned counsel has also filed his elaborate written arguments.
6.1. In support of his contention, the learned counsel appearing for 7/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 the revision petitioner has relied upon the following judgments:-
6.1.1. R. Mohana Prabha v. N.P. Arunkumar reported in 2022 (2) MWN (Cr.) DCC 151 (Mad).
6.1.2. M. Sampathkumar v. A.K. Khaja Imam reported in 2021 (2) T.N.L.R. 657 (MAD).
6.1.3. S. Mukanchand Bothra (D) Through L.R. v. R.K. Productions Private Ltd., and another reported in 2022 (2) T.N.L.R. 335 (MAD).
6.1.4. P.Sreerangan v. S. Sivasankar reported in (2021) 1 LW (Cri) 450.
6.1.5. Rajapoomani v. Balakalaivani reported (2021) 1 LW (Cri) 427.
7. The learned counsel appearing for the respondent / complainant would contend that the petitioner herein, being the accused in the Trial Court, admitted the issuance of cheque and the signature found in the cheque. While so, it is his duty to prove his contention as to why the cheque was issued by him. The complainant, in order to prove his case, had 8/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 examined himself as PW1 and marked Ex.P.1 to Ex.P6. Thereby, the complainant has discharged his burden of proving the case and the presumption under Section 139 of Negotiable Instruments Act is also in his favour. Therefore, it is the duty of the accused to rebut the presumption under Section 139 of Negotiable Instruments Act by adducing sufficient evidence, but, in this case, on the side of defence, DW1 and DW2 were examined and marked Ex.D1 to Ex.D.7. The evidence on the defence side, are not believable and not cogent and hence, the accused has not probabilized his defence through sufficient evidence. Therefore the Trial Court, after elaborate discussion, has correctly convicted the accused and the Appellate Court also, after elaborate discussion, has confirmed the judgment of the Trial Court and dismissed the appeal. Therefore the complainant has proved his case through sufficient evidence and defence side, without adducing proper evidence, has failed to rebut the presumption under Section 139 of Negotiable Instruments Act and therefore, the judgment and conviction of the Trial Court as well as the Appellate Court are liable to be confirmed by dismissing this Criminal Revision Petition.
8. Heard both sides and perused the entire materials available on 9/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 record, the Judgments passed by the Courts below and the grounds of revision.
9. Now the point for determination in this revision petition is whether the judgment and conviction made in C.A. No.46 of 2014 on the file of the learned Principal District Sessions Judge, Kanniyakumari at Nagercoil dated 03.01.2019 confirming the judgment and sentence imposed on the petitioner by the learned Judicial Magistrate, Fast Track Court No.I, Nagercoil in C.C. No.770 of 2012 dated 31.07.2014 is sustainable in law and on facts.
10. Points:- The case of the complainant / respondent before the Trial Court is that the petitioner/accused had borrowed a sum of Rs. 2,50,000/- from the respondent/complainant on 20.01.2011. After the borrowal of said amount, the accused had issued a post dated cheque for Rs. 2,50,000/- dated 20.05.2011 drawn on the South Indian Bank, Thuckalay Branch, Madurai. When the cheque was presented for collection through his banker, Punjab National Bank, Nagercoil Branch, the said cheque was 10/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 returned as 'insufficient funds' with a return memo dated 03.06.2011. Thereafter, the complainant had issued a notice dated 07.06.2011 to the accused and the same was received by the accused on 09.06.2011. Thereafter, the accused by alleging with false allegations, had issued a reply notice dated 25.06.2011, but he has not repaid the amount. Therefore the complainant had filed a cheque case under Section 138 of Negotiable Instruments Act against the accused.
11. The case of the defence is that the accused wanted money for his son's studies and he, along with one Shahul Hameed and his son-in-law Robert Singh, went to the office of the complainant. At that time, the complainant demanded a cheque for offering loan of Rs.1 lakh. Accordingly, on 01.09.2010, the accused received a sum of Rs.1 lakh as loan from the complainant after depositing blank cheque with signature bearing No.9816007 drawn on South Indian Bank, Thuckalay Branch payable with interest @ 6% per month. Thereafter he paid interest for 7 months and thereafter again, he approached the complainant for his daughter's studies for a sum of Rs.2 lakhs. The complainant also demanded two cheque leaves of her daughter. Accordingly, the complainant had 11/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 obtained two cheque leaves drawn on South Indian Bank, Thuckalay Branch. Again the complainant insisted to execute a Mortgage Deed in his favour. Accordingly, the Son-in-law of the accused viz., Robert Singh, DW2 had executed a Deed of Mortgage for the said loan for a sum of Rs.2 lakhs. Periodically, he had paid interest for that amount. After some time, when the accused approached the complainant to settle the dues and demanded to return back the three cheque leaves and to redeem the mortgage deed, the complainant refused to receive the said amount. Thereby, the accused along with the said Robert Singh had lodged a criminal complaint against the complainant before the Superintendent of Police, Nagercoil on 16.05.2011. Thereafter the police enquired the matter and the same is now pending. While the case is pending before the Judicial Magistrate No.I, Nagercoil, the complainant has filed this cheque complaint by misusing the above said cheque leaves issued for the above said amount.
12. In order to prove the case of the complainant, he himself examined as PW1 and he deposed about the borrowal of amount by the accused and about the issuance of cheque and about the return of cheque when presented for collection and also deposed about the notice issued by 12/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 him and about the reply notice issued by the accused. The accused has also admitted the borrowal of amount for a sum of Rs.3 lakhs and issuance of cheque. But the contention of the accused is that he borrowed a loan by issuing a cheque leaf for Rs.1 lakh and thereafter he deposited two cheque leaves for his daughter's studies and obtained Rs.2 lakhs as loan and apart from that, the complainant has obtained a Mortgage Deed from his son in law. In order to prove the same, he examined DW1 and DW2 and the accused during his examination, as DW1, has deposed about the borrowal of loan, issuance of three cheque leaves and also about the execution of mortgage deed in favour of the complainant. DW2 Robert Singh has also deposed about the loan obtained by the accused and about the issuance of three cheque leaves and also about the execution of Mortgage Deed. Therefore, the accused has himself admitted the issuance of cheque and the borrowal of amount. But he denied that he has not issued the cheque for the above said Rs.2,50,000/-. Initially he obtained Rs.1 lakh and for that he deposited a blank cheque with signature and further, the accused has also filed documents to show that already he gave a criminal complaint against the complainant before the Superintendent of Police and thereafter FIR has been registered as against the complainant. On perusal of the said 13/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 document, it reveals that the complaint was given on 16.05.2011 but the notice was issued on 07.06.2011. But the accused failed to produce the copy of FIR registered against the complainant, based on the complaint given by him. Per contra, Ex.D.2 reveals that FIR has been registered based on the complaint given by DW2, who is the Son-in-law of the complainant. Further the accused as well as DW2 have not taken any steps to cancel the Mortgage Deed through Civil Court. Therefore, the evidence adduced by the accused are not sufficient to prove his contention and once the accused admitted the issuance of cheque and the signature found in the cheque, presumption under Section 139 of Negotiable Instruments Act is in favour of the complainant and the accused has to rebut the presumption. But in order to rebut the presumption under Section 139 of Negotiable Instruments Act, the available evidence adduced by the accused is not sufficient and thereby, the defence has failed to establish his case. Per contra, the complainant has proved his case by examining PW1 and through the documents marked as Ex.P.1 to Ex.P.7. Therefore as discussed above, this Court is of the opinion that the complainant has proved his case through sufficient evidences.
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13. The learned counsel for the petitioner has argued that the petitioner has deposited the cheques for security purpose and thereby the proceedings initiated against him are not maintainable. In support of his contention, he relied upon the following judgment:
R. Mohana Prabha v. N.P. Arunkumar reported in 2022 (2) MWN (Cr.) DCC 151 (MAD) -
In the said case, it was admitted that the cheque in question was issued as a security but in the case on hand, the complainant has not admitted that the cheque was issued for security purpose and the accused had failed to prove that the cheque was issued for security purpose.
13.1. Further, the learned counsel appearing for the petitioner has argued that the complainant failed to prove his case through sufficient evidence, per contra, the defence has proved his case and the accused need not prove his innocence and it is for the complainant to prove his case beyond all reasonable doubts. In the case on hand also, the complainant has failed to prove his case and the accused has probabilized his defence. 15/23
https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 To support his contention, the learned counsel has relied upon the following judgment:-
13.2. M. Sampathkumar v. A.K. Khaja Imam reported in 2021 (2) T.N.L.R. 657 (MAD).
Wherein this Court held that it is settled law that the accused need not prove his innocence and it is for the complainant to prove his case beyond all reasonable doubts. If the respondent has not stated that for what purpose he borrowed money, the specific date of borrowal and whether any document has been executed on the date of lending money, then the complainant has to explain in the manner known to law. But in the case on hand, the complainant has categorically stated about the borrowal of money and the date of borrowal and the accused also admitted the borrowal of money and the issuance of cheque. Thereby, the above said judgment will not be applicable to the facts of the present case on hand.
13.3. Further the learned counsel appearing for the petitioner has argued that the accused issued a blank signed cheque for the loan obtained 16/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 by him as security and the same was misused by the complainant, thereby the accused is entitled for acquittal. To support his contention, the learned counsel for the petitioner has relied upon the following judgment:
13.4. S. Mukanchand Bothra (D) Through L.R. v. R.K. Productions Private Ltd., and another reported in 2022 (2) T.N.L.R. 335 (MAD) -
Wherein this Court held that holding blank signed cheque and pronotes, filling it up the figure of the choice will not Ipson facto give an advantage to them to presume that they were issued to them for any existing enforcible liability. The Court is unable to find any piece of evidence which will indicate that there was any transaction on the alleged date and for discharging the said debt.
13.5. In the present case on hand, though the defence taken by the accused that he issued blank signed cheque, he has not proved the same and he admitted that loan was borrowed by him and failed to prove his contention. Thereby, the above said case law will not be applicable to the 17/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 facts of the present case on hand.
13.6. The learned counsel for the petitioner further argued that the complainant has issued notice dated 07.06.2021 and the same was suitably replied by the accused through a reply notice dated 25.06.2011, thereby the accused has rebutted the presumption under Section 139 of Negotiable Instruments Act. To support his contention, he has relied upon the following judgment:
P.Sreerangan v. S. Sivasankar reported in (2021) 1 LW (Cri) 450 – wherein this Court has held that “in as much as Ex.P.7 was marked by the complainant himself, I am of the view that the contents of the said reply notice can very well be taken note of by the Court. The specific stand of the complainant is that he had no money dealings with the said Deivasigamani at any point of time” and further held that “it is true that the accused is obliged to rebut the presumption under Section 139 of the Negotiable Instruments Act. But then, the standard cast on the accused is only preponderance of probability and not beyond any reasonable doubt. It is only for the complainant to establish his case beyond reasonable doubt”. 18/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 But in the case on hand, the complainant was examined as PW1 and he categorically deposed about the borrowal of amount by the accused, issuance of cheque, signature found in the cheque and thereby, the accused, somehow, denied the allegations levelled in the notice issued by the complainant by way of his reply notice itself is not sufficient to prove the case of the accused. Therefore, the above said case law will not be applicable to the facts of the present case on hand.
13.7. Further the learned counsel appearing for the petitioner argued that “the presumption under Section 139 of Negotiable Instruments Act is a rebuttable presumption and the onus is on the accused to raise the probable defence. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence”. To support his contention, he has relied upon the following judgment:
Rajapoomani v. Balakalaivani reported (2021) 1 LW (Cri) 427 – wherein this Court further relied upon the judgment of Hon'ble Apex Court 19/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 in Basalingappa v. Mudibasappa reported in (2019) 5 SCC 418 held that “ the presumption under Section 139 of Negotiable Instruments Act is a rebuttable presumption and the onus is on the accused to raise the probable defence”.
13.8. A careful perusal of the above judgment, it is clear that the presumption under Sectio 139 of Negotiable Instruments Act is a rebuttable presumption and the onus is on the accused to raise the probable defence and the standard of proof for rebutting the presumption is that of preponderance of probabilities.
13.9. But in the case on hand, the accused failed to rebut the presumption under Section 139 of Negotiable Instruments Act by adducing sufficient evidence. Thereby, the above case law will not be applicable to the facts of the present case.
14. The Trial Court also in its judgment, elaborately discussed about the evidence of PW1, DW1 and DW2 and also about the fact that he issued the present cheque for the amount borrowed by him for Rs.1 lakh in a blank signed cheque and thereafter he borrowed a sum of Rs.2 lakhs by depositing 20/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 two cheque leaves for his daughter's studies and further he executed a Mortgage Deed in favour of the complainant through his Son-in-law. The above said facts have been elaborately discussed by the Trial Court as well as by the Appellate Court and both the Courts have come to the conclusion that the the complainant proved his case and the accused has not probabilized his defence and thereby, convicted the accused under Section 138 of Negotiable Instruments Act. The Appellate Court also, in its judgment, has elaborately discussed about the evidence adduced on both sides and there is no explanation as to why the Mortgage Deed was executed by DW2 when the amount was borrowed by the accused and further when already three cheque leaves were deposited, what necessity arises to him to execute such a Mortgage Deed when the loan was borrowed by the accused by depositing the blank cheques. Therefore, the judgments of both the Trial Court and the Appellate Courts are well reasoned and there is no warrant to interfere with the said judgments passed by the Courts below. Therefore, as discussed supra, this Court is of the opinion that the complainant has proved his case in accordance with law as against the accused with sufficient evidence and the accused failed to probabilize his defence.
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15. Therefore, this Court finds that there is no merit in this petition and the same deserves to be dismissed.
16. In the result, this Criminal Revision Petition is dismissed and the judgment and conviction made in C.A. No.46 of 2014 by the learned Principal District Sessions Judge, Kanniyakumari at Nagercoil dated 03.01.2019 confirming the judgment and sentence imposed on the petitioner by the learned Judicial Magistrate, Fast Track Court No.I, Nagercoil in C.C. No.770 of 2012 dated 31.07.2014 is hereby confirmed.
17. Consequently, the connected miscellaneous petitions are closed.
03.11.2023 Index : Yes / No Internet : Yes / No Neutral Citation Case :Yes/No mjs To
1. The Principal District Sessions Judge, Kanniyakumari at Nagercoil .
2. The Judicial Magistrate, Fast Track Court No.I, Nagercoil .
22/23 https://www.mhc.tn.gov.in/judis Crl.R.C.(MD) No.176 of 2019 P.DHANABAL., J.
mjs Crl.R.C.(MD) No.176 of 2019 03.11.2023 23/23 https://www.mhc.tn.gov.in/judis