High Court · 2025

Crl.R.C No.208 of 2023IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 28.08.2025CORAM:THE HON`BLE MR.JUSTICE G.K.ILANTHIRAIYANCrl.R.C No.208 of 2023M.Sunderasan... Petitioner ..Vs.Umapathy ... RespondentPrayer: This Criminal Revision Petition is filed under Section 397 r/w 401 Cr.P.C, to set aside the judgment dated 20.04.2022 passed in Crl.A.No.3 of 2022 by the file of the learned Principal District and Sessions Judge, Dharmapuri, dismissing the appeal and confirming the conviction and sentence awarded by the learned Judicial Magistrate Fast Track Court (ML) Dharmapuri in C.C No.79 of 2018 dated 21.12.2021. For Petitioner : Mr.V.RajamohanFor Respondent: Mr.C.Kulanthaivel O R D E RThis criminal revision has been filed as against the judgment dated 20.04.2022 passed in Crl.A.No.3 of 2022 by the Principal District and Sessions Judge, Dharmapuri , thereby confirming the order of conviction and sentence imposed by the Judicial Magistrate, Fast Track Court, 1/8 https://www.mhc.tn.gov.in/judis Crl.R.C No.208 of 2023Magistrate Level, Dharmapuri, in C.C No.79 of 2018 dated 21.12.2021 for the offence punishable under Section 138 of Negotiable Instruments Act. 2. The respondent lodged a complaint as against the accused for the offence under Section 138 of Negotiable Instruments Act, alleging that the petitioner had borrowed a sum of Rs.5,00,000/- from the respondent/complainant promising to repay the said amount within a period of 2 months. On 18.03.2018, the respondent had lent Rs.5,00,000/- to the petitioner, out of his retirement benefits. Thereafter, when the respondent asked for the repayment of the money, the petitioner issued a post dated Pallavan Grama Bank cheque bearing No.364762 in favour of the complainant for Rs.5,00,000/- dated 18.05.2018. The said cheque was presented for collection and it was returned for the reason “insufficient funds”. After causing a statutory notice, the respondent filed a complaint. In order to prove the complaint, the respondent had examined PW1 to PW5 and marked Ex.P1 to P13. On the side of the petitioner/accused, he had examined DW1 and DW2 and marked Ex.D1 to D7. On perusal of the oral and documentary evidence, the trial Court found the petitioner/accused guilty for the offence under Section 138 of 2/8 https://www.mhc.tn.gov.in/judis Crl.R.C No.208 of 2023Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of 6 months and to pay a compensation of Rs.5,00,000/-, indefault to undergo one month simple imprisonment. Aggrieved by the same, the petitioner preferred an appeal in Crl.A.No.3 of 2022 before the Principal District and Sessions Judge, Dharmapuri and the same was dismissed. Hence, the present revision is filed. 3. The learned counsel for the petitioner would submit that the alleged cheque was marked as Ex.P1 which was not issued for any legally enforceable debt. The respondent conducted a chit in which the petitioner and his family members had subscribed two chits. At the time of chit transaction, a cheque was issued for the security purpose. No such borrowal as alleged by the respondent to the tune of Rs.5,00,000/-. That apart, the respondent failed to prove the source of income to lend such a huge amount of Rs.5,00,000/-. He would further submit that no prudent person would lend a loan of Rs.5,00,000/- without any security documents. The petitioner had examined himself as DW1. The subscriber to the chit transaction was also examined as DW2. She also categorically deposed that the respondent was running a chit transaction. In order to prove the chit transaction, the petitioner marked Ex.D1 to D7. Therefore, 3/8 https://www.mhc.tn.gov.in/judis Crl.R.C No.208 of 2023the petitioner categorically rebutted the presumption as contemplated under Sections 118 and 139 of Negotiable Instruments Act. Even then, both the trial Court and the appellate Court mechanically convicted the respondent for the offence under Section 138 of Negotiable Instruments Act. 4. Per contra, the learned counsel for the respondent would submit that though the petitioner marked Ex.D1 to D7 and examined DW1 and DW2, has failed to rebut any presumption. In fact, the petitioner failed to rebut the initial presumption discharged by the respondent, since the petitioner did not deny the signature found in the cheque and also issuance of the same. After receipt of the statutory notice, the respondent did not even liable to rebut the initial presumption as contemplated under Section 138 of Negotiable Instruments Act. Ex.D1 to D7 were cooked up in order to escape from the clutches of proceedings initiated under Section 138 of Negotiable Instruments Act. Therefore, the trial Court as well as the Appellate Court rightly convicted the petitioner and the concurrent findings of both the Courts does not warrant any interference by this Court. 5. Heard the learned counsel on either and perused the materials 4/8 https://www.mhc.tn.gov.in/judis Crl.R.C No.208 of 2023available on record.6. The only defence was taken by the petitioner that the cheque was issued for the security purpose at the time of subscribing to the chit transaction by his family members. In order to substantiate the same, the petitioner marked Ex.D1 to D7 and also examined DW1 and DW2. On perusal of deposition of DW1, in his cross examination, it is revealed that the documents, Ex.D1 to D7 were not even sustained any stain, though it was used from 2016 and Ex.D1 to D7 are new one. Therefore, the specific cross examination was that Ex.D1 to D7 were fabricated one only for the purpose of marking the same before the trial Court, in order to escape from the clutches of the proceedings initiated under Section 138 of Negotiable Instruments Act. Further, even assuming that the respondent was running a chit business, no one would have received the cheque for the security purpose even before paying the price chit money. Even according to the petitioner, he along with his family members subscribed to various chit schemes, when the petitioner even assuming that the petitioner and his family members subscribed to the chits of the respondent, they would have issued separate cheques for each subscription to the chits. Though further chits were subscribed by the 5/8 https://www.mhc.tn.gov.in/judis Crl.R.C No.208 of 2023petitioner and his family members, they would have issued only one cheque for the security purpose. No person would have issued a cheque at the time of subscribing to the chits. The security would arise only at the time of taking the chit price money. Therefore, the cheque was not issued for any security purpose and the petitioner/accused failed to rebut the presumption with probable defence. Hence the petitioner failed to rebut the presumption discharged by the respondent as contemplated under Section 138 of Negotiable Instruments Act. In fact, after duly receiving the statutory notice as contemplated under Section 138 of Negotiable Instruments Act, the petitioner failed to reply with the probable defence. Though the petitioner raised a question about the financial capability of the respondent to lend such a huge amount, the respondent explained that it was lent from his retirement benefits. Admittedly, the respondent was retired as Headmaster at the time of borrowal of loan by the petitioner. Therefore, both the Courts rightly convicted the petitioner for the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, the concurrent findings of the trial Court as well as the Appellate Court cannot be intervened when there is no rebuttal of presumption by the petitioner. In view of the same, this Court find no infirmity or illegality in the order passed by the trial 6/8 https://www.mhc.tn.gov.in/judis Crl.R.C No.208 of 20237. Accordingly, this Criminal Revision Case is dismissed.28.08.2025Index:Yes/NoInternet:Yes/NoumaTo1. The Principal District and Sessions Judge, Dharmapuri.2.The Judicial Magistrate, FTC, Dharmapuri 7/8 https://www.mhc.tn.gov.in/judis Crl.R.C No.208 of 2023 G.K.ILANTHIRAIYAN,J umaCrl.R.C No.208 of 202328.08.20258/8