High Court · 2025

Crl.R.C.No.39 of 2023IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.06.2025CORAM:THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYANCrl.R.C.No.39 of 2023M.Palanisamy... PetitionerVs.K.P.Velusamy... RespondentPRAYER: Criminal Revision has been filed under Sections 397 & 401 of Cr.P.C., praying to set aside the judgment passed in C.A.No.115 of 2021 on the file of the I Additional District and Sessions Judge, Coimbatore dated 23.08.2022 confirming the judgment passed in C.C.No.359 of 2017 by the Judicial Magistrate No.VI, Coimbatore, dated 09.03.2021 by allowing this revision. For Petitioner: Mr.B.KumarasamyFor Respondent: Mr.A.R.SureshORDERThis Criminal Revision has been preferred against the judgment dated 23.08.2022 passed by the learned I Additional District and Sessions Judge, Coimbatore, in C.A.No.115 of 2021, confirming the conviction and sentence imposed on the petitioner dated 09.03.2021 passed by the learned Judicial Magistrate No.VI, Coimbatore, in C.C.No.359 of 2017, for the Page 1 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.39 of 2023offences punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as “the NI Act”).2.The petitioner is an accused in the complaint lodged by the respondent for the offence punishable under Section 138 of the NI Act, alleging that the petitioner was doing brick business and he borrowed a sum of Rs.15,00,000/- from the respondent as a hand loan for interest at the rate of 24% per annum, on 23.02.2014. On the very same day, the petitioner also executed pronote and agreed to repay the principal amount with accrued interest within a period of 24 months. While the respondent made demand for repayment of loan, the petitioner had issued post dated cheque for the loan amount. It was presented for collection and the same was returned dishonoured for the reason funds insufficient. It was informed to the petitioner and the petitioner requested the respondent to re-present the same once again. On the second time also it was returned dishonoured for the reason funds insufficient. After causing statutory notice, the respondent filed complaint and the same has been taken cognizance by the trial Court in C.C.No.359 of 2017. Page 2 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.39 of 20233.On the side of the respondent, he had examined P.W.1 & P.W.2 and marked documents in Ex.P.1 to Ex.P.6. On the side of the petitioner, he examined D.W.1 and D.W.2 and marked documents in Ex.D.1 & Ex.D.2. On perusal of oral and documentary evidences, the trial Court found the petitioner guilty for the offence punishable under Section 138 of NI Act and sentenced him to undergo one year rigorous imprisonment and also awarded compensation to the tune of cheque amount. Aggrieved by the same, the petitioner preferred an appeal and the appellate Court dismissed the appeal by confirming the order of conviction and sentence imposed by the trial Court. Hence the present revision.4.The learned counsel appearing for the petitioner submitted that the cheque was not issued for legally enforceable debt as such, no offence is made out under Section 138 of the NI Act. No presumption can be drawn under Section 138 of the NI Act. Except the cheque, the respondent failed to mark any document to show that the petitioner borrowed the sum of Rs.15,00,000/-. Though, the respondent specifically stated that the petitioner executed pronote on the date of borrowal, it was not marked before the trial Court to prove the borrowal. Therefore, the cheque was not issued for legally Page 3 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.39 of 2023enforceable debt. He further submitted that the respondent failed to produce any document to show that he had source of income to lend such a huge amount. He further submitted that now the petitioner is aged about 76 years and hence he prayed to modify the sentence imposed by the trial Court and the appellate Court. 5.Per contra, the learned counsel appearing for the respondent submitted that the respondent discharged his initial burden as contemplated under Section 138 of NI Act and had drawn presumption as contemplated under Section 139 of the NI Act. Though the petitioner can rebut the presumption, he failed to rebut the presumption and as such the trial Court rightly convicted the petitioner and the same was also confirmed by the appellate Court. 6.Heard the learned counsel appearing on either side and perused the materials placed before this Court. 7.The petitioner borrowed a sum of Rs.15,00,000/- as hand loan from the respondent for development of his business and his urgent needs. On the date of borrowal, the petitioner agreed to repay the same with interest at the Page 4 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.39 of 2023rate of 24% per annum and had executed pronote. Though the said pronote was not marked by the respondent, it would not cause any prejudice to the petitioner and it is not fatal to the case of the respondent. The respondent initially discharged his burden to draw presumption under Section 139 of NI Act.8.The defacto complainant filed complaint through his son by way of Power of Attorney. He was examined as P.W.1 and the principal was examined as P.W.2. Though the petitioner cross-examined P.W.1 and P.W.2, he failed to elucidate anything from P.W.1 & P.W.2 to rebut the presumption. The specific defence taken by the petitioner was that in the year 2010 itself, the petitioner borrowed a sum of Rs.3,00,000/- and on the date of borrowal, the petitioner had executed pronote and issued a cheque as security. Even after repayment of the entire amount in the year 2012, the respondent failed to return the pronote as well as the cheque. Since the respondent is a close relative viz., his co-brother, the petitioner did not ask for return of those documents which were executed by him during the borrowal of loan in the year 2010. Both the pronote and the cheque were misused by the respondent by presenting the same for collection as if, the petitioner borrowed a sum of Rs.15,00,000/- in the year 2022. Further stand taken by the petitioner is that Page 5 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.39 of 2023the respondent is his co-brother as such, he did not insist the respondent to return those documents. 9.On perusal of the evidence of D.W.1, it is revealed that he admitted the issuance of cheque and pronote at the time of borrowal. However, the petitioner created one more borrowal in the year 2010 as if, he borrowed a sum of Rs.3,00,000/- and had executed pronote and issued post dated cheque. But the petitioner filed to substantiate the said contention by any material. The petitioner also marked document in Ex.D.1 viz., the statement of account from 01.01.2010 to 31.03.2017. It did not disclose any thing that Ex.P.1was issued in the year 2010 and the same was misused by the respondent in the year 2017. 10.In fact, initially the cheque viz., Ex.P.1 was presented for collection on 11.01.2017 and the same was returned dishonoured for the reason funds insufficient on 12.01.2017. Immediately, it was informed to the petitioner. The petitioner apologized and requested to re-present the said cheque on 02.03.2017. Further, he also assured that the cheque would be honoured. On the said request, the respondent once again presented the cheque for collection on 02.03.2017 and once again it was returned dishonored for the very same reason funds insufficient on 03.03.2017. If at all, the cheque was Page 6 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.39 of 2023misused by the respondent, the petitioner would have instructed his banker to stop the payment. On the first return of the cheque, it was duly reflected in the petitioner's account. Even then, the petitioner did not take any steps to stop the deposit of cheque for collection to his banker. 11.Therefore, the petitioner in order to escape from the clutches of law, he created a story that he had borrowed a sum of Rs.3,00,000/- from the respondent during 2010 and on the date of borrowal, he had issued pronote and cheque. Though the petitioner and the respondent are co-brothers, no prudent man would keep quiet even after repayment of the entire loan from taking steps to return the documents which were executed at the time of borrowal of loan. Therefore, the trial Court and the appellate Court rightly convicted the petitioner. 12.However, considering the age of the petitioner, this Court is inclined to modify the sentence alone. Accordingly, the conviction imposed on the petitioner dated 23.08.2022 passed by the learned I Additional District and Sessions Judge, Coimbatore, in C.A.No.115 of 2021, and dated 09.03.2021 passed by the learned Judicial Magistrate No.VI, Coimbatore, in C.C.No.359 of 2017, are hereby confirmed. However, the sentence of one year simple Page 7 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.39 of 2023imprisonment alone is reduced for the period of six months. The trial Court is directed to secure the petitioner for the purpose of sentencing him to undergo the reduced/modified period of sentence. Further, the period of remand already undergone by the petitioner if any, is ordered to be set off against the sentences imposed. 13.In the result, the Criminal Revision Case stands partly allowed. 09.06.2025Internet:YesIndex:Yes/NoSpeaking/Non speaking orderrtsPage 8 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.39 of 2023To 1.The I Additional District and Sessions Judge, Coimbatore.2.The Judicial Magistrate No.VI, CoimbatorePage 9 of 10 https://www.mhc.tn.gov.in/judis Crl.R.C.No.39 of 2023G.K.ILANTHIRAIYAN. J,rtsCrl.R.C.No.39 of 202309.06.2025Page 10 of 10