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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.N. Manjula, J.
Tamilarasan - Petitioner
Versus
Murugan – Respondent
Crl.R.C.No.414 of 2016 and Crl.M.P.No.3415 of 2016
Decided On : 24-11-2021
Negotiable Instruments Act - Section 138 - Criminal Procedure Code,1973 - Section 255(2) – Dishonor of Cheque – Appeal against conviction - Insufficient funds - Since the complainant did not prove that he had procured funds from his alleged friends and relatives by way of examining them, that would shift the preponderance of probabilities in favour of the accused. So it is unbelievable that the complainant had lent a huge sum in a short span of 40 days and that too to a person like the accused who is his casual acquaintance. Since the Courts below have not properly appreciated the preponderance of probabilities available in favour of the petitioner/accused, from the short falling evidence of the complainant, I feel it is fit for interference. Para 15.
Finding of the Court:
In case in hand petitioner/accused has consistently stated that complainant did not have sufficient funds and it is not possible or probable to presume that he had lent huge sum to accused - Unless cheques which were returned for insufficient funds were proved to have been issued for legally enforceable debt action taken Section 138 of N.I. Act will fail - Since complainant did not prove that he had procured funds from his alleged friends and relatives by way of examining them that would shift preponderance of probabilities in favor of accused - So it is unbelievable that complainant had lent a huge sum in a short span of days and that too to a person like accused who is his casual acquaintance - Since Courts below have not properly appreciated preponderance of probabilities available in favor of petitioner/accused from short falling evidence of complainant court feel it is fit for interference.
Result: Criminal Revision Allowed.
ORDER :
This Criminal Revision Case has been preferred challenging the judgment of the learned II Additional Sessions Judge, Pondicherry dated 18.01.2014 made in C.A.No.40 of 2014.
2. This case has arisen out of a private complaint filed by the respondent/complainant on the allegations that the petitioner borrowed a sum of Rs.5,00,000/- on 13.11.2006, another sum of Rs.5,00,000/- on 09.01.2007, Rs.4,00,000/- on 04.01.2007 and Rs.5,00,000/- on 09.01.2007, totally Rs.19,00,000/- for his business purpose. After repaying a part amount, he had issued two cheques dated 20.01.2007 and 05.02.2007 for the sum of Rs.6,90,000/- and Rs.8,99,000/- respectively towards discharging the loan amount. The cheques were drawn on the Federal bank, Pondicherry. The respondent/complainant presented the cheque for collection through his bank ICICI, Puducherry and the same was returned on 30.01.2007 and on 06.02.2007 for the reason 'insufficient funds'. After having issued the statutory notice and complying the legal mandates, the complainant has filed the private complaint against the accused for the offence under Section 138 of Negotiable Instruments Act.
3. After the case was taken on file and after completing the legal formalities, on the side of the complainant, he examined himself as PW.1 and marked 9 exhibits as Ex.P.1 to Ex.P9. On the side of the accused, no witness was examined and no documents were marked.
4. At the conclusion of the trial and on consideration of the available material on record, the learned trial Judge had found the accused guilty for the offence under Section 138 of N.I.Act, convicted and sentenced the accused to undergo Simple Imprisonment for 2 years and ordered to pay a sum of Rs.19,00,000/- as compensation. Aggrieved over that the accused had preferred the appeal before the Sessions Court, Puducherry in C.A.No.40 of 2014. The appellate Court dismissed the appeal by confirming the judgment of the trial Court. Now this criminal revision case has been filed challenging the judgment of the appellate Court.
5. The learned counsel for the petitioner submitted that the Courts below had not appreciated the evidence in proper perspective. The complainant did not have sufficient means to lend a sum of Rs.19,00,000/- to the accused; though the complainant has stated that he had arranged loan amount by getting money from various persons, he has not chosen to examine them as witnesses; according to the petitioner/accused he had borrowed loan only from his brotherin- law through Balakrishnan; he had given the cheques for security and the complainant had misused the same. By making such statements, it is prayed that the criminal revision case should be allowed by setting aside the judgment of the appellate Court.
6. The learned counsel Amicus Curiae for the respondent submitted that the Courts below have properly appreciated the evidence on record and convicted the accused and it has to be upheld.
7. The point for consideration is
8. The main ground on which the petitioner has challenged the judgment of the Courts below is that the respondent/complainant did not have any means to lend Rs.19,00,000/- to the accused and that too without getting any proper security and other documents. The complainant himself admitted that he is working in Hindustan Unilever Company as an operator, his monthly salary Rs.13,000/-. In the evidence of PW.1 (complainant) it is stated that the accused was known to him. The accused is said to be running a lorry transport, Tea shop, Xerox shop and Courier Agency. The loan amount of Rs.19,00,000/- was given within a short period of 40 days. It is not the contention of PW.1, that he had the entire sum of Rs19,00,000/- in his hands in order to lend it to the accused. His categorical submission is tha
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