Madras High Court
Meganathan vs R.Jeyaraj on 8 December, 2017
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.12.2017
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.R.C.(MD) No.462 of 2008
Meganathan .. Petitioner/Appellant/Sole Accused
Versus
R.Jeyaraj .. Respondent/Respondent/Complainant
Criminal Revision filed under Section 397 r/w 407 Cr.P.C., against the
order of the learned Judicial Magistrate, Vallioor, Tirunelveli in C.C.No.297
of 2003 dated 6.9.2005 which was confirmed in C.A.No.254 of 2005 on the file
of the Tirunelveli I Additional Sessions Judge, dated 15.2.2006.
!For Petitioner .. Mr.S.Saji Bino
^For Respondent .. Mr.V.Sasikumar
:ORDER
This Criminal Revision Petition has been filed by the accused challenging the Judgment rendered by the Tirunelveli I Additional Sessions Judge, in C.A.No.254 of 2005 dated 15.2.2006, confirming the conviction and sentence of Simple Imprisonment for a period of one year and to pay a fine of Rs.5,000/- in default to suffer 6 months simple imprisonment, imposed against the petitioner in C.C.No.297 of 2003 dated 6.9.2005 by the learned Judicial Magistrate, Vallioor, Tirunelveli District, under Section 138 of the Negotiable Instruments Act.
2. The respondent/complainant filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act, on the file of the Judicial Magistrate Court, Vallioor, alleging that on 18.1.2003, the complainant lent Rs.1.00 lakhs to the petitioner for friendship and the petitioner has executed a promissory note agreeing to repay the said sum on demand by the respondent/complainant with interest at the rate of 12% per annum. On 11.7.2003, the petitioner had also issued a cheque dated 26.7.2003 for Rs.1.00 lakh drawn on Tamil Nadu Mercantile Bank, Rathapuram Branch and as per the instructions of the petitioner the respondent presented the said cheque for collection at Tamil Nadu Mercantile Bank, Thisayanvilay Branch. The said cheque was dishonoured and returned to the respondent/complainant on 30.7.2003 with a memo dated 29.7.2003 stating that there is no sufficient funds in the account of the petitioner. Thereafter, on 11.8.2003, the respondent/complainant issued a legal notice to the petitioner to pay the cheque amount. Since the petitioner refused to receive the notice it was returned to the respondent/complainant on 21.8.2003. The petitioner knowing fully well about the insufficiency of funds in his bank account had issued the cheque with an intention to deceive the respondent/complainant. The act of the petitioner amounts to an offence under Section 138 of the Negotiable Instruments Act.
3. The learned Magistrate finding that there was enough evidence to proceed against the petitioner under Section 138 of the Negotiable Instruments Act, had taken cognizance of the offence on file and furnished copy of the complaint and other material documents filed by the respondent/complainant and when questioned, the petitioner pleaded not guilty of the offence and pleaded to contest the case.
4. The respondent/complainant appeared in person before the trial court examined himself as P.W.1 by filing proof affidavit and on his behalf Exs.P1 to P6 were marked. Ex.P1 is the promissory note executed by the petitioner in favour of the respondent/complainant for a sum of Rs.1.00 lakh agreeing to repay the same on demand with interest at the rate of 12% per annum. Ex.P2 is the cheque dated 26.7.2003 issued by the petitioner in favour of the respondent/complainant on 11.7.2003 for a sum of Rs.1.00 lakh drawn on Tamil Nadu Mercantile Bank, Rathapuram Branch. Ex.P3 is the memo dated 29.7.2003. Ex.P4 is the memo dated 30.7.2003 sent by the Tamil Nadu Mercantile Bank, Thesayanvilay. Ex.P5 is the copy of legal notice issued by the respondent/complainant to the petitioner. Ex.P6 is the postal cover returned by the petitioner. During cross-examination a suggestion had been made to the complainant that the accused had repaid the amount, According to the respondent/complainant since the petitioner has neither chosen to repay the cheque amount nor chosen to reply to the legal notice, the petitioner has deceived the respondent/complainant and hence he is liable for punishment under Section 138 of the Negotiable Instruments Act.
5. During the course of examination of the petitioner/accused under Section 313 Cr.P.C, when incriminating materials and circumstances were put to the petitioner / accused, he pleaded that they are all false. Though the petitioner/accused pleaded that he had some witnesses to prove his case, he had not examined any witness on his side.
6. The learned Magistrate after analyzing the complaint and other materials placed before him, has come to the conclusion that the petitioner/accused has not produced any evidence before the court to show that the petitioner/accused had repaid the amount borrowed under Ex.P1 pronote. The learned Magistrate further held that if really the petitioner/accused had repaid the amount borrowed under Ex.P1 pronote, he would have chosen to take steps to get back the pronote executed by him in favour of the respondent/complainant for a sum of Rs.1.00 lakh and the cheque issued by him for realization of the amount borrowed by him under pronote Ex.P1 and in the failure of the petitioner/accused having taken any steps to get back the pronote and cheque and in the failure to prove by sufficient documents rendered a finding negating the claim of the petitioner/accused. Whereas the trial court held that the respondent/complainant has reliable evidence under Exs.P1 to P6 to prove his case filed against the petitioner/accused. Ultimately, the learned Magistrate has found the petitioner/accused guilty of the charge under Section 138 of the Negotiable Instruments Act and convicted and sentenced as stated above.
7. On appeal, the learned appellate court on reappreciation of the evidence and the materials on record, had confirmed the findings of the trial Court convicting and sentencing the petitioner/accused. Aggrieved by the judgement of the courts below, the petitioner/accused has come up with the present revision.
8. Now in this revision the contention raised by the learned counsel for the Revision Petitioner is that though the a suggestion had been made to the complainant in the witness box, that the petitioner/accused had repaid the amount borrowed from him, the trial Court as well as the Appellate Court failed to take into consideration the aspect of repayment and had wrongly convicted the petitioner/accused.
9. The learned counsel for the respondent/complainant submitted that it was only a bare suggestion and it had been denied by the respondent/complainant and further since no proof either by way of oral or documentary evidence was adduced by the petitioner/accused, the trial Court rendered a finding that the petitioner/accused has not filed any proof to show the repayment made by him, had convicted the petitioner/accused. The counsel further submitted that no case has been made out by the petitioner/accused for setting aside the well considered judgments of both the courts below and prayed for dismissal of the Revision Petition.
10. Heard the arguments of the learned counsel appearing on both sides and perused the materials on record.
11. Excepting the suggestion that had been made while the complainant was in witness box that the accused had repaid the amount, no other materials had been filed by the petitioner/accused either by way of documentary or oral evidence to prove that the petitioner/accused has discharged the liability. The respondent/complainant by cogent documentary and oral evidence had proved the charges against the petitioner/accused and thereby the trial Court has rightly convicted him and the appellate court has confirmed the same. I see no infirmity in the judgment of conviction and sentence passed by the courts below.
12. In the result, this Criminal Revision Petition is dismissed. The Judgment rendered by the I Additional Sessions Judge, Tirunelveli in C.A.No.254 of 2005 dated 15.2.2006 confirming the judgment of conviction and sentence passed passed against the petitioner by the Judicial Magistrate, Vallioor, Tirunelveli District, in C.C.No.297 of 2003 dated 6.9.2005, under Section 138 of the Negotiable Instruments Act is hereby confirmed.
13. Bail bond executed by the petitioner/accused pursuant to the bail granted to him by order dated 30.4.2007 in M.P.No.2 of 2008 shall stand cancelled. The Trial Court is directed to secure the petitioner/accused to undergo the remaining period of sentence.
Copy to:
The I Additional Sessions Judge, Tirunelveli. The Judicial Magistrate, Vallioor, Tirunelveli.
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