High Court · 2025

Crl.RC.No.564 of 2023 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.03.2025Coram:THE HONOURABLE MR. JUSTICE P.VELMURUGAN Crl.RC.No.564 of 2023Babu... PetitionerVs.Vengadesan... RespondentPrayer: Criminal Revision Case filed under Section 397 read with 401 Cr.P.C. to set aside the order dated 27.01.2023 in Crl.M.P.No.65 of 2022 in C.C.No.92 of 2021 on the file of the Judicial Magistrate, Fast Track Court, Magistrate Level at Tiruvannamalai.For Petitioner : Mr.T.P.SekarFor Respondent : Mr.T.Ganesan ORDER This Criminal Revision Case has been filed by the petitioner to set aside the order dated 27.01.2023 in Crl.M.P.No.65 of 2022 in C.C.No.92 of 2021 on the file of the Judicial Magistrate, Fast Track Court (Magistrate Level) at Tiruvannamalai.1/8 https://www.mhc.tn.gov.in/judis Crl.RC.No.564 of 20232. The case of the petitioner is that that the respondent filed a complaint under Section 138 and 142 of the Negotiable Instruments Act against the petitioner alleging that the petitioner borrowed a sum of Rs.2 lakhs from him and in order to discharge the liability, the petitioner issued a cheque bearing No.000104 dated 25.07.2021 drawn on Karur Vysya Bank, Gingee Branch for a sum of Rs.2 lakhs and when the same was presented for collection 27.08.2021 through his bank, the same was returned on 30.08.2021 with an endorsement "funds insufficient". Hence, the respondent sent a legal notice to the petitioner on 18.09.2021 and after the receipt of the same, the petitioner neither replied nor repaid the amount, whereas the fact is that the petitioner's wife had borrowed amount from their neighbour Mangaiyarkarasi and the amount due with interest accumulated was Rs.1,45,000/- and the said Mangaiyarkarasi had instructed them to settle the amount to the respondent herein. The respondent had obtained a cheque from the petitioner's wife and the same was destroyed by the respondent on receipt of Rs.70,000/-. For the 2/8 https://www.mhc.tn.gov.in/judis Crl.RC.No.564 of 2023balance amount of Rs.80,000/-, the respondent obtained a cheque from the petitioner. Subsequently, on 09.02.2021, the petitioner repaid the balance amount and at that time, the respondent informed that he forgot to bring the cheque and the pro-note and assured to destroy the same. Believing his words the petitioner remained silent. Subsequently, by misusing the said cheque, the respondent filed the complaint against the petitioner. 3. The contention of the petitioner is that when the petitioner put a suggestion to the respondent that he repaid the amount of Rs.80,000/- to the respondent, he denied the same, whereas at the time of repaying the amount of Rs.80,000/-, the petitioner's wife had taken video of the said transaction and hence, he filed the Compact Disk (CD) before the Court as evidence on their side and the same has also been marked as Ex.D3. Pending complaint, the petitioner filed a petition in Crl.M.P.No.65 of 2022 invoking Section 45 of the Indian Evidence At to send the Compact Disk (CD) marked as Ex.D3 for expert opinion so as to verify the genuineness of the same, but the said petition 3/8 https://www.mhc.tn.gov.in/judis Crl.RC.No.564 of 2023was dismissed by the Magistrate by order dated 27.01.2023 stating that there is no denial of the presence of the complainant in the said video and no objection was raised as to the genuinity of the said video except that it did not pertain to the present case and that mere sending of the video CD to Forensic Examination is a futile exercise. Aggrieved by the same, the present revision is filed.4. Heard both sides and perused the materials available on record.5. It is pertinent to state that mere borrowal of amount is not an offence. Issuance of a cheque or presentation of the cheque are not an offence. Mere dishonouring of a cheque is also not an offence. After receipt of the statutory notice, if an accused fails to repay the money related to the dishonoured cheque within the statutory period, then the cause of action would arise for the offence under Section 138 of the Negotiable Instruments Act. 6. In this case, admittedly the respondent sent a statutory notice to the petitioner which is mandatory under Section 138 of Negotiable Instruments 4/8 https://www.mhc.tn.gov.in/judis Crl.RC.No.564 of 2023Act. Even after receipt of the notice, the petitioner neither sent a reply nor repaid the amount. Therefore, the respondent filed the complaint in C.C.No.92 of 2021 before the Judicial Magistrate, Fast Track Court (Magistrate Level) at Tiruvannamalai. Thereafter, the petitioner appeared before the Court on receipt of summons and subsequently, the trial commenced and the respondent was examined as P.W.1. The petitioner also cross examined the respondent. During cross examination, though the petitioner marked Ex.D2 which is only an acknowledgement for the receipt of Rs.80,000/-, he had not shown him the said videograph and also not put any suggestion. Only during defense side witness, the petitioner marked the said Compact Disk (CD) containing the alleged video as Ex.D3 and thereafter, filed the petition invoking Section 45 of the Indian Evidence Act. The learned Magistrate considering the entire submissions made by both the counsel and on finding that there is no proof to show that the contents in the alleged videograph are related to the present case and mere sending of the videograph to the expert opinion would be a futile exercise, 5/8 https://www.mhc.tn.gov.in/judis Crl.RC.No.564 of 2023dismissed the petition.7. On a perusal of the records, this Court also finds that there is no merit in this revision. In this case, the expert opinion will not be a conclusive proof. Even assuming that the alleged videograph is a genuine one, still the petitioner has to prove that the same is related to the receipt of the alleged cheque amount pertaining to present case and mere sending of the videograph for expert opinion will not improve the case of the petitioner.8. Under these circumstances, this Court does not find any reason to interfere with the order passed by the Magistrate. 9. Accordingly, this Criminal Revision Case is dismissed.10. However, the petitioner is at liberty to work out his remedy in the manner known to law.17.03.2025Index : Yes / No Speaking Order: Yes / NoNeutral Citation Case : Yes/Noksa-26/8 https://www.mhc.tn.gov.in/judis Crl.RC.No.564 of 2023ToThe Judicial Magistrate, Fast Track Court, Magistrate Level Tiruvannamalai.7/8 https://www.mhc.tn.gov.in/judis Crl.RC.No.564 of 2023P.VELMURUGAN. J.Ksa-2Crl.RC.No.564 of 202317.03.20258/8