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2023 DIGILAW 884 (MAD)

G. S. Uma Maheswari v. R. Kalimuthu

2023-03-07

G.JAYACHANDRAN

body2023
JUDGMENT (Prayer: Criminal Revision Petition is filed under Sections 397 and 401 of Cr.P.C., pleased to set aside the conviction imposed in the judgment dated 19.12.2019 made in C.A.No.21 of 2019 on the file of the Learned III Additional District and Sessions Court, Erode at Gobichettipalayam, confirming the conviction imposed in judgment dated 01.07.2019 made in S.T.C.No.4764 of 2014 on the file of the Learned Judicial Magistrate Court No.I, Gobichettipalayam, by allowing this Criminal Revision Petition.) 1.This Criminal Revision petition is filed against the concurrent finding of the Courts below in the matter arising out of private complaint filed under Section 138 of N.I Act, 1881. 2. The appellant is the accused in S.T.C.No.4764 of 2014. The case of the complainant is that, the accused borrowed a sum of Rs.4,50,000/- as a hand loan to meet her family and business expenses. On 18.08.2013, the accused executed a pro-note on the same day, agreeing to repay the amount with 12% interest. Thereafter, cheque for Rs.4,50,000/- was issued on 15.09.2013, to discharge the debt arising out of the pro-note. When the said cheque was presented for collection, it was returned stating “funds insufficient”. Hence, after causing notice to the accused, the complaint has been filed. 3. The complainant examined himself as P.W.1 and summoned the Mr.Venkatramanan, (P.W.2) Assistant Manager, Indian Bank, where the accused maintaining her account. Seven exhibits were marked to prove the execution of the pro-note, issuance of cheque, pay slip, return of the cheque for funds insufficient, statutory notice dated 05.10.2013, acknowledgement card to prove the receipt of the notice by the accused on 08.10.2013 and the statement of account. 4. The Learned Counsel for the petitioner would submit that, the accused denied the issuance of the cheque and had contended that, there was money transaction between complainant and her husband and the said cheques, pro-notes were obtained from her husband. The signatures found in those documents are not her signature or written by her. Further, the statutory notice under Section 138-B of N.I Act, 1881, was not served on her and the signature found in postal acknowledgement card is not her signature. 5. The trial Court, after considering the rival submissions has held that, the accused has not rebutted the presumption even by preponderance of probability. Further, the statutory notice under Section 138-B of N.I Act, 1881, was not served on her and the signature found in postal acknowledgement card is not her signature. 5. The trial Court, after considering the rival submissions has held that, the accused has not rebutted the presumption even by preponderance of probability. Though she denies the signature found in the pro-note and in the postal acknowledgement, she has not taken any steps to compare the signature by hand writing expert opinion. Further, the plea that, statutory notice not served on her is also incorrect in view of the acknowledgement card marked as Ex.P.6, which indicates that, the statutory notice dated 05.10.2013 received by the accused on 08.10.2013. Hence, the trial Court convicted the accused and sentenced her to undergo six months S.I and liable to pay compensation of Rs.4,50,000/- being the cheque amount. 6. Aggrieved by the order of conviction, the present appeal is preferred by the accused. 7. The Learned Counsel appearing for the petitioner contended that, the oral and documentary evidence not properly appreciating by the trial Court. The complainant has failed to prove his source for lending Rs.4,50,000/- and he has not produced any statement of account or his income tax returns to support his complaint. For borrowal of Rs.4,50,000/- on 18.08.2013, issuing a cheque within a month is highly improbable and the trial Court on the sole ground ought to have accepted the defence of the accused by applying the degree of preponderance of probability. The plea of non-service of statutory notice canvassed before the Appellate Court also reiterated. 8. The Appellate Court, after considering the provisions of law governing the disputes and the dictum of Hon''ble High Courts and Apex Court had reappreciated the evidence, particularly, the admission of the accused regarding the cheque and the pro-note, that the cheque was issued in connection with money transaction with the complainant, however, it was only between her husband and the complainant and not between the petitioner and the complainant. Having admitted the issuance of cheque, the presumption against the petitioner has to be rebutted in the manner known to law. Having failed to rebut the presumption, the Lower Appellate Court has confirmed the order of the trial Court. In the course of the discussion, the Lower Appellate Court has also declined to accept the defence that statutory notice was not served on the petitioner/accused. Having failed to rebut the presumption, the Lower Appellate Court has confirmed the order of the trial Court. In the course of the discussion, the Lower Appellate Court has also declined to accept the defence that statutory notice was not served on the petitioner/accused. Taking into consideration that, though the accused in her cross examination said that, she was not residing in the place where the statutory notice was sent and she was residing at Door No.115, Rasi Nagar, Vadugapalayam Pirivu, Modachur, during the year 2013. She has not produced any document to substantiate her claim and the voter identity card marked as Ex.D.1, which was relied by the accused, was issued in the year 2019, much after the issuance of the subject cheque. 9. Being aggrieved by the concurrent finding of the Courts below, the present revision petition is filed on the ground that the presumption under Section 138 of N.I Act, 1881, has been properly rebutted by suggesting in the cross examination of P.W.1 and Chief examination of D.W.1 and Ex.D.1. While so, the Courts below ought not to have applied the same degree of proof which requires for the complainant to draw presumption against the accused. The variation in the signature found in the pro-note and the postal acknowledgement card marked as Ex.P.6 would clearly show that, the statutory notice was not served on the accused and therefore, the cause of action to file a complaint under Section 138 of N.I Act does not arise. 10. Per contra, the Learned counsel appearing for the respondent would submit the defence that, she did not receive any money from the complainant, gets falsified in her own admission, in the cross examination as well as the execution of pro-note marked as Ex.P.1. Though, she denies that, the signature was not of her signature, she has not taken any steps to establish her defence by sending the document to get opinion of the hand writing expert. Further, she also admits that, there was transaction between her husband and the complainant. The cheque and pro-note are issued in connection with the said money transaction, if it is so, she should have atleast examined her husband and produce document. Further, she also admits that, there was transaction between her husband and the complainant. The cheque and pro-note are issued in connection with the said money transaction, if it is so, she should have atleast examined her husband and produce document. What was the money transaction between her and the husband which prompted her to give the pro-note marked as Ex.P.1 and the cheque marked as Ex.P.2 and whether the amount due under the pro-note and cheque was repaid by her husband. 11. Further, the learned counsel for the respondent would submit that the accused having not disproved the signature found in the pro-note in the manner known to law, the presumption under Section 139 of N.I, 1881, to be drawn since the complainant has proved the fundamental facts required to draw the presumption. 12. This Court, on appreciating the rival submissions hold that, the evidence as appreciated by the Courts below does not carry any infirmity or illegality for interference. Though the accused has taken a defence of denying the signature found in the pro-note as well as legally enforceable debt, to substantiate the defence, the accused had not come forward to produce any evidence which could carry the trappings of probability. Without probabilising her defence through prima facie evidence, the plea of rebuttal will not sustain. 13. The Learned Counsel appearing for the revision petitioner would submit that being a lady, the incarceration period of 6 months S.I may be considered and modified. Taking into account that, the appellant has already deposited a sum of Rs.2,00,000/- in the account of S.T.C.No.4764 of 2014, pursuant to the direction of this Court while granting suspension of sentence vide order dated 21.01.2020. 14. This Court, on considering the said submission, modifies the conviction and sentenced as under: The petitioner/accused sentenced to pay a sum of Rs.4,50,000/- as compensation which include Rs.2,00,000/- already deposited in the S.T.C account before the trial Court. The balance sum of Rs.2,50,000/- to be paid within a period of two months and in default, to undergo S.I for a period of four months. The complainant/respondent is permitted to withdraw the said sum of Rs.2,00,000/- lying in S.T.C account on filing proper application. 15. With this modification, this Criminal Revision Petition is partly- allowed.