The convicted sole accused is the revision petitioner herein. He has filed this Criminal Revision Case to set aside the judgment and http://www.judis.nic.in 2 sentence passed in C.A.No.107 of 2008 on the file of the learned Additional Session Judge (Fast Track Court -I), Thoothukudi, dated 04.05.2009, confirming the judgment and sentence passed in C.C.No.103 of 2004 on the file of the learned Judicial Magistrate, Sathankulam, dated 02.07.2008.
2.The respondent / private complainant has filed a private complaint in C.C.No.103 of 2004 before the learned Judicial Magistrate, Sathankulam, alleging the offence under Section 138 of the Negotiable Instruments Act. After contesting the case, by judgment dated 02.07.2008, the learned Judicial Magistrate, Sathankulam, has convicted the petitioner / accused and sentenced her to undergo five months simple imprisonment and to pay a fine of Rs.2,500/- (Rupees Two Thousand and Five Hundred Only) in default to undergo simple imprisonment for three months.
3.Aggrieved by the said conviction and sentence, the petitioner / accused has preferred an appeal in C.A.No.107 of 2008 on the file of the learned Additional Sessions Judge, Fast Track Court No.I, Thoothukudi and the same was dismissed, by order dated 04.05.2009, confirming the order of the learned Judicial Magistrate, http://www.judis.nic.in 3 Sathankulam. Hence, this Criminal Revision Case has been filed by the revision petitioner / accused.
4.The learned counsel appearing for the revision petitioner / accused would contend that the specific case of the petitioner is that the cheque was issued towards security for the transaction and pledged the Ambassador car with one Balu, who is none other than the brother of the respondent and the said cheque has been utilized by the respondent for the present prosecution. The specific admission of the respondent that the Ambassador car is with him as contended by the petitioner. Therefore, the petitioner / accused has rebutted the presumption either under Sections 118 and
139 of the Negotiable Instruments Act by probablising the defense version, whereas the complainant has not proved the case. The evidence of D.W.1 and D.W.2 clearly proves that the allegation of debt, the contract for the debt and the issuance of the cheque to the respondent cannot be true.
5.The learned counsel appearing for the respondent would submit that the signature in the cheque was not disputed by the accused. Therefore, the private complainant is entitled for presumption under
Section 139 of the Negotiable Instruments Act and http://www.judis.nic.in 4 both the Courts below have rightly laid conviction and sentence as stated supra.
6.Heard the learned counsel appearing for the revision petitioner, the learned counsel appearing for the respondent and perused the materials available on record carefully.
7.Points for determination are whether the order of conviction passed by the Courts below is sustainable in law or not? and whether the sentence awarded by both the Courts below is excessive or not?.
8.The respondent / private complainant has filed the above C.C.No.103 of 2004 alleging that on 30.08.2005 the petitioner / accused has borrowed a sum of Rs.3,00,000/- (Rupees Three Lakhs Only) and on demand, for the amount of Rs.1,00,000/- he has handed over the Ambassador car bearing Registration No.TN 22 D 4087 and for balance amount of Rs.2,00,000/-, he handed over the cheque. When it was presented for collection, the same was returned with an endorsement 'insufficiency of fund', hence, the private complainant has issued a legal notice. Inspite of the intimation given by the postal http://www.judis.nic.in 5 department, the revision petitioner / accused has not collected the same and the same was returned.
9.In support of his averments, the private complainant has examined himself as P.W.1 and marked Exs.P.1 to P.4.
10.On going through the oral evidence of P.W.1 / private complainant and documentary evidence of Exs.P1 to P4, both the Courts below have rightly come to the conclusion that the private complainant is entitled for presumption under
Section 139 of the Negotiable Instruments Act, since the signature in the cheque was admitted by the revision petitioner / accused.
11.The suggestive case of the revision petitioner is that he has not borrowed the amount from the respondent / private complainant. He had money transaction only with the elder brother of the private complainant / now deceased. In the interregnum period, they have also seized the car. During the cross examination of P.W.1, it was suggested that the car belonging to the accused has been taken away forcibly by the private complainant. However, in the chief examination, D.W.1 has stated that they themselves have handed over http://www.judis.nic.in 6 the car. While handing over the car, some signed blank cheques were kept in the dash board of the car and the same has been misused for filing this complaint. However, during further cross examination of D.W.1, he stated that there was one cheque leaf that was signed and by using the blank signed cheque, the false case has been filed.
12.As stated supra, the private complainant has examined himself as P.W.1 and marked Exs.P.1 to P.4. Based upon the oral and documentary evidence of the private complainant, both the Courts below have rightly come to the conclusion that the private complainant is entitled for statutory presumption under
Section 139 of the Negotiable Instruments Act. Thus, it is now for the revision petitioner / accused to demonstrate and to rebut such statutory presumption. However, to dismay no documentary evidence has been filed by the accused to substantiate his various suggest plea raised for the reply notice or in the evidence as D.W.1. The evidence of D.W.1 appears to be more inconsistent with his own case in the chief and cross-examination.
13.At one point of the evidence, D.W.1, husband of the accused has pleaded that they are availed the loan of Rs.1,75,000/- by http://www.judis.nic.in 7 depositing the R.C.Book of the car having Registration No.TN 22 D 4087 and after some time, E.M.I., was not paid. Hence, the private complainant has taken a car. However, in his further cross- examination, he stated that the cheque book was kept in the dash board of the car, which was taken away by the respondent / private complainant. In further cross-examination, he stated that there was one signed blank cheque kept in the dash board of the car and when the car was seized by the respondent / private complainant for non-payment of E.M.I, by misusing that cheque, the prosecution has been lodged.
14.It remains to be stated that the revision of D.W.1 in chief examination is totally inconsistent with the answer elicited in the cross-examination. As narrated supra, this Court finds that the suggestive case of the defence is not only inconsistent, but they are mutually contradictory to each other on material particulars. It is the specific case of the private complainant that the accused has taken a sum of Rs.3,00,000/- as loan for commencing a new business. As he failed to pay the amount in the year 1997, they have given a car having Registration No.TN 22 D 4087 by quantifying the car at the rate of Rs.1,00,000/- and for the balance amount of Rs.2,00,000/-, the http://www.judis.nic.in 8 accused has issued a cheque in issue viz., Ex.P.1. While in chief examination of D.W.1, he has admitted that the car is handed over to the private complainant, during the cross-examination of P.W.1, it was suggested to P.W.1 that the car has been taken away unlawfully and illegally from the possession of the accused. In the chief examination of D.W.1, he deposed that the R.C.Book was taken away by the revision petitioner on payment of Rs.1,75,000/-. However, in further cross-examination, he has given another inconsistent development that in the dash board there was a signed blank cheque and the same was misused.
15.Considering the inconsistent with regard to the theory of the suggestive case and in the absence of any positive evidence, both the Courts below have concurrently, come to the conclusion that the revision petitioner / accused has failed to probablise her suggestive case and thereby held that she has failed to rebut such statutory presumption in favour of the respondent / private complainant and accordingly, laid conviction and ordered for sentence. Hence, the concurrent finding of the Courts below that the revision petitioner / accused has failed to prove her suggestive case, being well merited and well considered, does not warrant any interference by this Court. http://www.judis.nic.in 9
16.In this view of the matter, this Criminal Revision Case is dismissed. The judgment and sentence passed in C.A.No.107 of 2008 on the file of the learned Additional Session Judge (Fast Track Court
-I), Thoothukudi dated 04.05.2009, confirming the judgment and sentence in C.C.No.103 of 2004 on the file of the learned Judicial Magistrate, Sathankulam, dated 02.07.2008 is hereby confirmed. The Lower Appellate Court shall take steps to secure the accused / revision petitioner to commit her in prison to serve out the remaining period of sentence. Bail bond, if any, executed by the petitioner and the sureties shall stand cancelled. Consequently, connected miscellaneous petition is also closed.
25.01.2019 Index: Yes / No Internet: Yes / No Myr http://www.judis.nic.in 10 RMT. TEEKAA RAMAN, J.
Myr To
1.The Additional Session Judge, Fast Track Court -I, Thoothukudi.
2.The Judicial Magistrate, Sathankulam.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Pre-Delivery Order made in CRL.R.C(MD)No.10 of 2010 25.01.2019 http://www.judis.nic.in