Crl.R.C.(MD)No.538 of 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Date : 25.04.2023

CORAM:

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

Crl.R.C.(MD)No.538 of 2018

S.Muthukumar

... Petitioner/Appellant/Accused

Vs.

V.Muthuraj

... Respondent/Respondent/Complainant

PRAYER : This Criminal Revision Case has been filed under Section

397 r/w 401 of Cr.P.C., to set aside the judgment passed in C.A.No.12 of

2017 on the file of the learned VI Additional District Court, Madurai,

dated 14.06.2018 which confirmed the judgment in STC.No.442 of 2012

on the file of the learned Judicial Magistrate No.I, Fast Track Court at

Magistrate Level, Madurai, dated 05.01.2017.

For Petitioner : Mr.T.C.S.Thillainayagam

For Respondent : Mr.R.J.Karthick

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Crl.R.C.(MD)No.538 of 2018

O R D E R

This Criminal Revision Case has been filed to set aside the

judgment passed in C.A.No.12 of 2017 on the file of the learned VI

Additional District Court, Madurai, dated 14.06.2018, which confirmed

the judgment made in STC.No.442 of 2012 on the file of the learned

Judicial Magistrate No.I, Fast Track Court at Magistrate Level, Madurai,

dated 05.01.2017.

2. The petitioner is an accused in the complaint lodged by the

respondent for the offence punishable under Section 138 of the

Negotiable Instrument Act, 1881.

3. The crux of the complaint is that the petitioner and the

respondent were jointly doing real estate business. Due to some

misunderstanding between them, both of them decided to windup their

partnership business. As per the settlement, the petitioner was proposed

to pay a sum of Rs.1,13,20,000/- to the respondent. The petitioner also

issued a letter of confirmation in favour of the respondent and admitted

his liability. Towards part settlement, the petitioner issued a cheque

bearing No.534514, dated 20.04.2011, for a sum of Rs.20,77,000/- in

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Crl.R.C.(MD)No.538 of 2018

favour of the respondent. The cheque was presented for collection,

however, the same was returned as dishonored for the reason 'account

closed'. After issuance of a statutory notice, the respondent initiated

proceedings under Section 138 of the Negotiable Instrument Act, 1881.

4. On the side of the respondent, he has been examined as P.W.1

and four documents have been marked as Ex.P.1 to Ex.P.4. On the side

of the petitioner, no witness has been examined and two documents have

been marked as Ex.D1 and Ex.D2. On perusal of the oral and

documentary evidence, the trial Court found the petitioner guilty for the

offence under Section 138 of the Negotiable Instrument Act, 1881 and

sentenced him to undergo one year Simple Imprisonment and also

awarded compensation to the tune of the cheque amount. Aggrieved by

the same, the petitioner preferred an appeal and the same was also

dismissed by the appellate Court by confirming the conviction and

sentence imposed by the trial Court. Hence, the present revision.

5. The learned counsel for the petitioner would submit that the

respondent failed to produce the letter of acknowledgement as alleged in

the complaint in order to prove his case beyond any doubt. In fact, the

original cheque was misplaced before the trial Court and thereafter, the

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Crl.R.C.(MD)No.538 of 2018

xerox copy of the same was permitted to be marked and the material

record was reconstructed. There was material alteration in the cheque.

Therefore, the petitioner could not be able to get the expert opinion

insofar as the material alteration is concerned. Therefore, the non-

production of the letter of confirmation in respect of liability is fatal to

the case of the respondent. No adverse inference can be drawn, if the

petitioner failed to take any steps under Section 91 of the Cr.P.C. The

Courts below