IN THE HIGH COURT OF JUDICATURE AT MADRAS

[RESERVED ON : 17.06.2022]

[PRONOUNCED ON : 24.06.2022]

CORAM

THE HONOURABLE MR.JUSTICE SUNDER MOHAN

CRL.R.C.NO.1146 OF 2017

P.Thangaraj

S/o.Palanisami Gounder

... Petitioner/

Appellant/Accused

vs.

K.K.Srinivasan

S/o. Gurusami Gounder

... Respondent/

Respondent/Complainant

Prayer:

Criminal Revision petition filed under Sections 397 r/w 401

of Cr.P.C, to set aside the Judgement and conviction dated

19.07.2017 made in C.A.No.118 of 2016 on the file of II

Additional District Judge, Erode confirming the Judgement dated

02.05.2016 made in S.T.C.No.523 of 2013 on the file of Judicial

Magistrate (F.T.C.No.I), Erode.

For Petitioner : Mr.C.S.Saravanan

For Respondent : Mr.I.C.Vasudevan

ORDER

This Criminal Revision petition is filed to set aside the

Judgement and conviction dated 19.07.2017 made in C.A.No.118 of

2016 on the file of II Additional District Judge, Erode

confirming the Judgement dated 02.05.2016 made in S.T.C.No.523

of 2013 on the file of Judicial Magistrate (F.T.C.No.1), Erode.

2. The respondent filed a complaint under Section 138 of

Negotiable Instrument Act alleging that he had given a loan of

Rs.4,00,000/- (Rupees Four Lakhs) to the accused/petitioner

herein and towards discharge of the said loan, the petitioner

https://hcservices.ecourts.gov.in/hcservices/

had issued a cheque for Rs.4,00,000/- (Rupees Four Lakhs) dated

27.12.2012; that the cheque was presented for collection and was

returned by the Banker for the reason “Funds insufficient”; that

he had issued a statutory notice to the correct address and the

same was returned unserved. The respondent examined himself as

P.W.1 and marked Ex.P.1 to Ex.P.4. The petitioner examined two

witnesses on his side and marked five documents. The

petitioner's defence during the trial was that the cheque was

not issued in discharge of his liability.

3.The petitioner's case is it was one Vadivel D.W.2 who had

taken loan from one Mr.Devaraj and the cheque was given as

security for the said loan; that in spite of Vadivel D.W.2

clearing the entire loan the said Devaraj had not returned the

cheque; that the petitioner had no connection with the

complainant whatsoever. In support of that defence the

petitioner examined D.W.2, on his side. The further defence of

the accused was that the notice was not served on him and hence

the complaint was not maintainable.

4.After considering the evidence on record and hearing

either side, the trial Court by the Judgement and order dated

02.05.2016 in S.T.C No.523 of 2013 convicted the petitioner

under Section 138 of Negotiable Instrument Act and sentence him

to undergo Six (6) months Simple Imprisonment and to pay a fine

of Rs.5,000/- (Rupees Five Thousand Only) and in default 15 days

Simple Imprisonment. The petitioner challenged the conviction

and sentence before the II Additional Sessions Judge, Erode in

C.A.No.118 of 2016. The learned Sessions Judge dismissed the

appeal and confirmed the Judgement of the trial Court. Aggrieved

by the concurrent findings of the Courts below, the accused has

preferred the present Criminal Revision.

5. Heard Mr.C.S.Saravanan, learned counsel appearing for the

revision petitioner and Mr.I.C.Vasudevan, learned counsel

appearing for the respondent.

6.The learned counsel for the revision petitioner would

submit that the Courts below erred in convicting the petitioner

without considering the material fact that there was no legally

enforceable debt. The revision petitioner had examined D.W.2 to

support his defence that the cheque was given a security for a

loan obtained by D.W.2 viz. Vadivel, from one Devaraj. The

learned counsel further submitted that no statutory notice was

served on the petitioner.

https://hcservices.ecourts.gov.in/hcservices/

7.The learned counsel for the respondent/complainant would

submit