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2011 DIGILAW 1981 (MAD)

A. Palanisamy v. R. Murugesen

2011-04-07

R.MALA

body2011
Judgment :- The Criminal Revision Case against the judgment dated 26.11.2008 in Crl.A.No.134 of 2008, on the file of the First Additional Sessions Judge, Erode, confirming the order of conviction and sentence, dated 21.4.2008 in C.C.No.152 of 2007 on the file of the Judicial Magistrate No.1, Erode, whereby the revision petitioner/accused was convicted for the offence under Section 138 read with 142 of the Negotiable Instruments Act and sentenced to undergo two years' simple imprisonment. 2. The respondent/complainant preferred complaint under Section 138 read with 142 of the Negotiable Instruments Act, stating that the revision petitioner/accused borrowed Rs.1 lakh from the complainant on 17.12.2006 and to discharge the same, he issued Ex.P-1 cheque dated 18.1.2007, which was presented for encashment on 19.1.2007 and the cheque has been returned as per Ex.P-2 bank intimation. Statutory notice has been issued under Ex.P-3 and the postal receipt has been marked as Ex.P-4 and Ex.P- 5 is the return postal cover. Since the revision petitioner/accused has not repaid the amount, the respondent/complainant preferred the complaint under Section 138 read with 142 of the Negotiable Instruments Act. 3. The trial Court, after following the procedures and since the petitioner/accused pleaded not guilty, considered the oral evidence of P.W.1/complainant and the documentary evidence of Exs.P-1 to P-5, found the revision petitioner/accused guilty of the offence under Section 138 read with 142 of the Negotiable Instruments Act and convicted and sentenced him as stated above, against which, he preferred Criminal Appeal before the first appellate Court, and the learned first appellate Judge, after considering the arguments of both sides, confirmed the conviction and sentence passed by the trial Court, against which, the present Crl.R.C. is preferred by the revision petitioner/accused. 4. Challenging the conviction and sentence passed by both the Courts below, learned counsel for the revision petitioner/accused submitted that both the Courts below have erroneously held that the revision petitioner/accused has proved his case and the complainant has not proved the guilt of the revision petitioner/accused beyond reasonable doubt and prayed for setting aside the judgments of conviction and sentence passed by both the Courts below. 5. 5. Repudiating the said contentions, learned counsel appearing for the respondent/complainant submitted that notice has been issued even though it was not served, and the same returned, and the revision petitioner/accused appeared before Court and denied the charges and when P.W.1/complainant was in the witness box, the revision petitioner/accused has not cross-examined the witness P.W.1/complainant and so, both the Courts below have considered the oral evidence of P.W.1 and documentary evidence of Exs.P-1 to P-5, invoking the presumption under Section 139 of the Negotiable Instruments Act, and came to the correct conclusion and hence, the judgments of conviction and sentence passed by both the Courts below, do not warrant any interference and he prayed for dismissal of the Crl.R.C. 6. Considering the rival submissions made by learned counsel on both sides, as well as the materials available on record, it is seen that the respondent/complainant has preferred a complaint under Section 138 read with 142 of the Negotiable Instruments Act, stating that the revision petitioner/accused has borrowed Rs.1 lakh on 17.12.2006 and for discharing the same, the revision petitioner/accused issued Ex.P-1 cheque, dated 18.1.2007, which was presented for encashment and that has been returned as per Ex.P-2 bank intimation, and statutory notice was issued to the revision petitioner/accused, which has been returned as per Ex.P-5 postal cover and the postal receipt is Ex.P-4. Admittedly, there is no evidence to show as to whether Ex.P-1 cheque has been issued by him or not. 7. When the revision petitioner/accused was questioned under Section 313 Cr.P.c., he denied the charge when the plea was raised and he never stated that he has not issued the cheque Ex.P-1, which proved that the cheque has been issued by him. 8. Now, it is appropriate to consider the provisions of the Negotibale Instruments Act. When once the issuance of cheque has not been disputed, the holder of the cheque is entitled to invoke the presumption under Sections 118 and 139 of the Negotiable Instruments Act. Admittedly, after the plea was raised at the time of questioning under Section 313 Cr.P.C., P.W.1/complainant was examined and the complainant filed his proof affidavit and also marked the documents. But even though several adjournments have been given before the trial Court, he neither cross-examined P.W.1/complainant, nor he appeared personally to depose before Court. In such circumstances, there is no rebuttable evidence. But even though several adjournments have been given before the trial Court, he neither cross-examined P.W.1/complainant, nor he appeared personally to depose before Court. In such circumstances, there is no rebuttable evidence. As already stated, the presumption under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption and the revision petitioner/accused is entitled to rebut the presumption, but in this case, he has not rebutted the presumption by either cross-examining the complainant/P.W.1, nor by way of letting in oral or documentary evidence. Hence, both the Courts below have correctly held that Ex.P-1 cheque has been issued for the purpose of discharging the existing legal liability. The said cheque has bounced for insufficiency of funds and so, the ingredients of Section 138 of the Negotiable Instruments Act, have been made out. Both the Courts below have considered the same in proper perspective and have come to the come to the correct conclusion that the revision petitioner/accused was guilty of the offence under Section 138 read with 142 of the Negotiable Instruments Act. I do not find any infirmity or irregularity or illegality in the impugned judgments of both the Courts below. The Crl.R.C. deserves to be dismissed. 9. For the above reasons: (a) The Crl.R.C. is dismissed. (b) The conviction and sentence passed by both the Courts below are confirmed. (c) The bail/surety bond, if any executed by or on behalf of the revision petitioner/accused, shall stand cancelled. (d) Since the revision petitioner/accused is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence.