Madras High Court
P.Thasamuthu vs S.C.Sekar on 11 April, 2017
Crl.R.C.(MD) No.408 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED : 16.07.2021
ORDER PRONOUNCED : 03.09.2021
CORAM :
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.R.C.(MD) No.408 of 2017
P.Thasamuthu ... Petitioner
vs.
S.C.Sekar ... Respondent
PRAYER:- This Criminal Revision Case filed under Section 397 r/w 401 of the
Code of Criminal Procedure, to set aside the judgment made in C.A.No.2 of
2016 by the Additional District and Sessions Judge, Palani, dated 11.04.2017
confirming the judgment of conviction and sentence made in S.T.C.No.2 of
2014 by the Fast Track Court (Magisterial Level), Palani, dated 22.01.2016.
For Petitioner : Mr.D.Venkatesh
For Respondent : Mr.C.Kishore Kumar
ORDER
This Criminal Revision Case is filed to set aside the judgment made in C.A.No.2 of 2016 by the Additional District and Sessions Judge, Palani, dated 11.04.2017 confirming the judgment of conviction and sentence made in S.T.C.No.2 of 2014 by the Fast Track Court (Magisterial Level), Palani, dated https://www.mhc.tn.gov.in/judis/ 1/8 Crl.R.C.(MD) No.408 of 2017 22.01.2016.
2.The learned Counsel appearing for the revision petitioner submitted that the revision petitioner is a senior citizen and a member of the Madurai Bar Association. He is affected with paralysis. Three cheque leaves were misplaced by him and the same was utilised by the respondent/complainant.
3.After completion of the complainant's evidence and hearing the arguments, the learned Judge, Fast Track Court (Magisterial Level), Palani had convicted the revision petitioner/accused to undergo three months simple imprisonment and to pay Rs.1,00,000/- (Rupees One Lakh only). Therefore, the accused had filed Criminal Appeal in C.A.No.2 of 2016 before the Court of the learned Additional District and Sessions Judge, Palani. After hearing the arguments in the appeal, the learned Additional District and Sessions Judge, Palani had dismissed the appeal and confirmed the judgment of conviction passed by the learned Judge, Fast Track Court (Magisterial Level), Palani. Therefore, this Revision has been filed.
4.Considering the present condition of the revision petitioner/accused, https://www.mhc.tn.gov.in/judis/ 2/8 Crl.R.C.(MD) No.408 of 2017 the learned counsel for the revision petitioner seeks indulgence of this Court to set aside the judgment of the learned trial Judge.
5.The learned counsel for the respondent disputed the contention of the learned counsel for the revision petitioner/accused stating that the learned Judge had discussed the defence of the accused. The learned counsel for the respondent invited the attention of this Court to the following passage in the judgment:
“vjphp jdJ fhNrhiy vg;NghJ fhzhky;NghdJ mJ rk;ge;jkhf tq;fpf;Nfh fhty;JiwapNyh Gfhh; nfhLj;J eltbf;if vLj;jhh; Nghd;w eltbf;ifs; vLf;fhj R+o;epiyapy; vjphp jug;G thjk; Vw;fjf;fjy;y.”
6.Also, the learned counsel for the respondent/complainant invited the attention of this Court to the admission made by the accused, in the reply notice, “nuhf;fk; ngw;Ws;sjhf Fwpg;gpl;Ls;shh;”. As a normal human being, when he had lost three cheques, he ought to have informed the Bank. Before filing of the case, while the complainant issued statutory notice, the petitioner should have denied the borrowal as a defence, but he had not initiated any steps against the complainant. Considering the fact that the revision petitioner is a practicing Lawyer, he cannot be compared with an illiterate and semi-literate https://www.mhc.tn.gov.in/judis/ 3/8 Crl.R.C.(MD) No.408 of 2017 man. Therefore, his conduct in remaining silent cannot be accepted. Therefore, the presumption as per the provisions of Section 138 of Negotiable Instruments Act is in favour of the complainant. The learned Trial Judge had properly analysed and assessed the evidence and had pronounced the judgment holding the accused guilty of the offence under Section 138 of Negotiable Instruments Act, and sentenced the accused to undergo three months simple imprisonment and to pay Rs.1,00,000/- (Rupees One Lakh only) as compensation.
7.Again the accused had agitated his right before the Sessions Court by way of an appeal, where also he took the same defence. The learned Additional District and Sessions Judge, Palani had also rejected the contention of the accused and dismissed the appeal, thereby confirmed the judgment of conviction passed by the learned trial Judge. Therefore, the learned counsel for the respondent/complainant submitted that the revision court cannot go into the evidence of the trial Judge. Only if the finding of either the trial Judge or the appellate Judge is perverse, the High Court as Revision Court can interfere with the same. The Revision Court does not have the power of the appellate Court. Therefore, the Revision has no merits and is to be dismissed.
8.Heard the learned counsel on either side and perused the records. https://www.mhc.tn.gov.in/judis/ 4/8 Crl.R.C.(MD) No.408 of 2017
9.When the case came up for hearing on the previous occasion, the learned counsel for the petitioner sought adjournments for settling the matter. However, the matter is not settled till 16.07.2021. On 16.07.2021, when the case came up for hearing, the learned counsel for the petitioner submitted that the petitioner is affected with paralysis and therefore, the learned counsel sought indulgence of this Court to set aside the judgment of the learned trial Judge.
10.The learned counsel for the respondent submitted that the defence of the accused that he had lost three cheques, had been discussed by the learned trial Judge from the point of view of the ordinary prudent man that the accused had not communicated the bank regarding missing of the cheques and stop payment. He had not preferred any police complaint regarding the cheques being misused by the complainant for fraudulent activities of the complainant. Therefore, the learned trial Judge on appreciation of the evidence had convicted the accused. Not only that the accused herein is not an ordinary man or illiterate, but also he is a Member of the Bar Association. Therefore, he ought to be careful while dealing with Negotiable Instruments Act. He is aware of the limitations as pointed out by the learned counsel for the respondent. After https://www.mhc.tn.gov.in/judis/ 5/8 Crl.R.C.(MD) No.408 of 2017 suffering the judgment of conviction, the accused had exercised his right of appeal, where, the appeal was heard and dismissed by the learned Additional District and Sessions Judge, Palani.
11.Considering the nature of revision, the Revision Court cannot go into the evidence of the trial Judge. Only if the finding of either the trial Judge or the appellate Judge is perverse, the High Court as Revision Court can interfere with the same. The Revision Court does not have the power of the appellate Court. It is to be noted that this Criminal Revision Case is pending from the year 2017 and there had been ample time for the petitioner to settle the matter. Considering the long pendency of the case and considering the arguments of the learned counsel on either side, this Court is not inclined to allow this Revision.
In the result, this Criminal Revision Case is partly allowed. The judgment made in C.A.No.2 of 2016 by the Additional District and Sessions Judge, Palani dated 11.04.2017, confirming the judgment of conviction and sentence made in S.T.C.No.2 of 2014 by the Fast Track Court (Magisterial Level), Palani dated 22.01.2016, is hereby confirmed only with regard to conviction. The sentence of imprisonment is modified to one that of directing https://www.mhc.tn.gov.in/judis/ 6/8 Crl.R.C.(MD) No.408 of 2017 the petitioner to pay the compensation of Rs.1,00,000/- (Rupees One Lakh only) considering the status of revision petitioner who is a practising Advocate and affected with Paralysis. Therefore the conviction alone is upheld. The sentence of imprisonment and fine is modified to that of compensation alone. The petitioner is directed to pay the sum of Rs.1,00,000/- (Rupees One Lakh Only) to the respondent within a period of eight weeks from the date of receipt of a copy of this order. The learned Judicial Magistrate, Fast Track Court (Magisterial Level) is directed to issue warrant against the accused for compliance of Judgment.
Index : Yes / No 03.09.2021
Internet : Yes / No
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To
1.The Additional District and Sessions Judge,
Palani
2.The Judge,
Fast Track Court (Magisterial Level),
Palani
https://www.mhc.tn.gov.in/judis/
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Crl.R.C.(MD) No.408 of 2017
SATHI KUMAR SUKUMARA KURUP, J.
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Pre-delivery order made in
Crl.R.C.(MD) No.408 of 2017
03.09.2021
https://www.mhc.tn.gov.in/judis/
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