Advocates:
['M/S R SELVAKUMAR', 'M/S V R ANNAGANDHI', '', 'R RAJARAMANI']

Crl.R.C.No.651 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20.10.2022

CORAM:

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

Crl.R.C.No.651 of 2018

V.Senthil Kumar

....

Petitioner

Vs

D.M.Basuvaraj

....

Respondent

Prayer: Criminal Revision case filed under Section 397 r/w Section 401

of Code of Criminal Procedure, to set aside the judgment dated

20.02.2018 in Crl.A.No.28 of 2017 on the file of the learned Additional

District and Sessions Judge, Dharmapuri, confirming the Judgment dated

03.07.2017 in C.C.No.126 of 2012 on the file of the learned Judicial

Magistrate, Palacode.

For Petitioner

: M/s.R.Selvakumar

For Respondent

: Mr.V.R.Annagandhi

ORDER

This Criminal Revision Case has been filed as against the

Judgment dated 20.02.2018 passed in Crl.A.No.28 of 2017 on the file of

the Additional District and Sessions Judge, Dharmapuri, thereby

confirming the Judgment dated 03.07.2017 in C.C.No.126 of 2012 on the

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Crl.R.C.No.651 of 2018

file of the learned Judicial Magistrate, Palacode, thereby convicted the

petitioner for the offence punishable under Section 138 of Negotiable

Instrument Act.

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

respondent for the offence punishable under Section 138 of Negotiable

Instrument Act. The case of the respondent is that the petitioner is the

close relative of the respondent. He is doing business with JCB vehicle.

While being so, on 25.01.2011 for his urgent needs, he borrowed a sum

of Rs.5,00,000/- from the respondent. He also assured that he will repay

the same within a period of two months. However, he failed to return the

same and as such, after repeated demand, he issued a cheque for a sum of

Rs.5,00,000/-. When it was presented for collection, the same was

returned for the reason 'funds insufficient'. It was duly informed to the

petitioner and again the petitioner requested the respondent to present the

cheque once again. On such instruction, again the respondent presented

the cheque for collection and the same was retuned for the reason 'funds

insufficient'. Therefore, after causing statutory notice, the respondent

lodged a complaint.

3. On the side of the respondent, he examined himself as P.W.1

and marked Exs.P1 to P6. On the side of the petitioner, he examined

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Crl.R.C.No.651 of 2018

himself as D.W.1 and no document was marked.

4. On perusal of the oral and documentary evidence, the Trial

Court found the petitioner guilty for the offence punishable under Section

138 of Negotiable Instrument Act and he was sentenced to undergo one

year rigorous imprisonment and also awarded a compensation to the

cheque amount. Aggrieved by the same, the petitioner preferred an

appeal and the same was also dismissed and the order of the Trial Court

was confirmed. Hence, this revision.

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

petitioner, in his cross examination, categorically rebutted the

presumption arising out of Sections 118 and 139 of Negotiable

Instrument Act. Even according to the respondent, he categorically

admitted that failed to remember as to from whom he received the

amount to lend money to the petitioner. Thus it is clear that the

respondent had no source of income to lend such a huge amount. The

petitioner never had issued cheque for any legally enforceable debt. He

handed over the cheque to one Mathesh, in turn the cheque was misused

by the respondent. The petitioner never issued cheque as alleged in the

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Crl.R.C.No.651 of 2018

complaint. Actually, the said Mathesh has stolen the cheque and handed

over to the respondent, in turn it was misused by the respondent by

initiating the proceedings under Section 138 of Negotiable Instrument

Act.

6. Heard, Mr.R.Selvakumar, learned