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A.J. Asana Vs. Sittrarasu - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberCrl.R.C.No. 744 of 2016 & Crl.M.P.No. 5648 of 2016
Judge
AppellantA.J. Asana
RespondentSittrarasu
Excerpt:
.....against conviction - revision petitioner/accused challenged against said conviction and sentence, accused/revision petitioner herein had preferred an appeal before trial court, after perusing entire records, confirmed conviction and sentence passed by trial court - against said judgments of courts, present criminal revision case was preferred by revision petitioner/accused - hence this criminal revision petition court held - court was of considered view that finding of trial court and first appellate court that revision petitioner issued cheque in question and since cheque was dishonoured as 'insufficient funds' and even after receiving statutory notice, revision petitioner had not paid amount, offence under section 138 of act clearly proved against revision petitioner/accused -..........amount of rs.90,000/- within two months. as against the said conviction and sentence, the accused/revision petitioner herein had preferred an appeal in crl.a.no.1 of 2015 before the sessions court, and the learned principal district and sessions judge, ariyalur, after perusing the entire records, confirmed the conviction and sentence passed by the learned judicial magistrate, jayankondam. as against the said judgments of the courts below, the present criminal revision case is preferred by the revision petitioner/accused. 3. the learned counsel appearing for the petitioner would contend that both the courts below, have not analysed the oral and documentary evidence let in on the side of the accused in proper perspective. it is further contended that the lower court has failed to.....
Judgment:

(Prayer: Criminal Revision Case filed under Section 397 (1) r/w. Section 401 of the Code of Criminal Procedure, against the judgment of the learned Principal District and Sessions Judge, Ariyalur, dated 22.02.2016 made in Crl.A.No.1 of 2015 confirming the conviction and sentence passed by the learned Judicial Magistrate, Jayankondam, in S.T.C.No.1125 of 2014, dated 17.12.2014.)

1. This Criminal Revision Case is directed against the order dated 22.02.2016 passed by the learned Principal District and Sessions Judge, Ariyalur, in Crl.A.No.1 of 2015, confirming the conviction and sentence passed by the learned Judicial Magistrate, Jayankondam, in S.T.C.No.1125 of 2014, dated 17.12.2014.

2. The brief facts of the case are as follows:-

The revision petitioner, who is the accused in S.T.C.No.1125 of 2014, has borrowed a sum of Rs.50,00,000/- from the complainant and he issued a cheque for Rs.15,00,000/- vide cheque bearing No.334428, dated 21.01.2009. The said cheque was presented by the respondent/complainant for collection in his bank and the same was returned as 'insufficient funds'. Immediately, the respondent had issued a statutory lawyer notice to the revision petitioner/accused and even though said notice was received by the accused, he has not paid the money to the respondent/complainant. Hence, the complaint was lodged by the respondent before the learned Judicial Magistrate, Jayankondam. The learned Judicial Magistrate, Jayankondam, after considering the evidence and documents adduced on both sides, finally found the accused guilty under Section 138 of the Negotiable Instruments Act and convicted and sentenced him to undergo three months simple imprisonment and to pay fine of Rs.1,00,000/- as fine, in default, to undergo 15 days simple imprisonment. The fine amount was ordered to be given as compensation to the complainant and further, the accused was directed to pay Rs.10,000/- on 17.12.2014 and the remaining amount of Rs.90,000/- within two months. As against the said conviction and sentence, the accused/revision petitioner herein had preferred an appeal in Crl.A.No.1 of 2015 before the Sessions Court, and the learned Principal District and Sessions Judge, Ariyalur, after perusing the entire records, confirmed the conviction and sentence passed by the learned Judicial Magistrate, Jayankondam. As against the said judgments of the Courts below, the present criminal revision case is preferred by the revision petitioner/Accused.

3. The learned counsel appearing for the petitioner would contend that both the Courts below, have not analysed the oral and documentary evidence let in on the side of the accused in proper perspective. It is further contended that the lower Court has failed to consider the fact that the petitioner disputed the financial capacity of the respondent to lend a huge sum of Rs.15,00,000/- and the same was admitted by the respondent himself as P.W.1. Further, even though the respondent claimed that he received the amount of Rs.15,00,000/- from four persons, he neither mentioned the names of the four persons nor examined them as witnesses to prove his case. It is also submitted by the learned counsel for the petitioner that considering the admission made by the respondent, who was examined as P.W.1, about his inability to pay Rs.15,00,000/-, the trial Court ought to have dismissed the complainant. In view of the above facts and circumstances, the order of the trial Court has to be set aside and the criminal revision case has to be allowed.

4. Even though notice was served on the respondent, he has not chosen to appear either in person or through counsel.

5. In the grounds of revision, the petitioner has admitted about the issuance of cheque by him. The only allegation is that inability of the respondent/complainant to lend Rs.15,00,000/- and even though the respondent/complainant claimed that he received Rs.15,00,000/- from four persons, he has not mentioned their name and he has not examined them as witnesses on the side of the complainant. Apart from the above two grounds, no other grounds were raised on the side of the prosecution. In the above facts and circumstances of the case, the revision petitioner has not denied about the issuance of cheque.

6. In this case, it is useful to extract Section 118 of the Negotiable Instruments Act which reads as follows:-

"118. Presumptions as to negotiable instruments. -- Until the contrary is proved, the following presumptions shall be made:--

(a) of consideration. - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

(b) as to date. -- that every negotiable instrument bearing a date was made or drawn on such date;

(c) as to time of acceptance. -- that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d) as to time of transfer. -- that every transfer of a negotiable instrument was made before its maturity;

(e) as to order of indorsements. -- that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

(f) as to stamp. -- that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) that holder is a holder in due course. -- that the holder of a negotiable instrument is a holder in due course:

Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."

7. Since the petitioner himself has admitted the issuance of cheque, as per Section 118 of the Negotiable Instruments Act, there is a legal presumption that consideration of the cheque also passed to the revision petitioner. In this case, even though the respondent/complainant was not able to pay Rs.15,00,000/-, he specifically stated that he received money from four persons and lend money to the revision petitioner. Hence, the lending of money of Rs.15,00,000/- by the respondent/complainant to the revision petitioner/accused is proved by the evidence of P.W.1.

8. In this case, since the revision petitioner/accused admitted the issuance of cheque, there is no necessity on the part of the respondent/complainant to examine the four persons from whom the amount was received. Hence, the argument of the learned counsel for the revision petitioner that non-examination of four persons mentioned by the complainant is fatal to the case of the complainant is not acceptable and the said argument is rejected.

9. Further, in this case, even though the petitioner mainly contended that a cheque was issued to one Iqbal, before the First Appellate Court, he contested the case on the grounds that he has not issued any cheque in favour of the respondent/complainant. One Balaguru has filed a case against the accused in the Court of Judicial Magistrate No.2, Karaikal, by placing reliance on the cheque No.334429, dated 10.06.2008. But the previous cheque number namely 334428, dated 21.01.2009 has been misused by the respondent in this case. These cheques have been misused by the respondent as well as the said Balaguru. The accused, who was examined as D.W.1, had specifically stated that Iqbal was played fraud and the cheques were utilized for filing this case against the revision petitioner. Further, D.W.1, in his deposition, has specifically stated as follows:-

( Language )

10. The argument of the learned counsel for the revision petitioner that the cheque was issued to one Iqbal and Iqbal misused the cheque and filed the present case is not acceptable by the trial Court itself. Further, even the revision petitioner has not raised any ground with regard to the above fact that the cheque was not issued to the complainant, but he has raised only ground about the financial inability of the complainant to lend Rs.50,00,000/- alone.

11. Hence, this Court is of the considered view that the finding of the trial Court and the First Appellate Court that the revision petitioner issued the cheque in question and since the cheque was dishonoured as 'insufficient funds' and even after receiving the statutory notice, the revision petitioner has not paid the amount, the offence under Section 138 of the Negotiable Instruments Act clearly proved against the revision petitioner/accused. Hence, this Court is of the considered view that there is no infirmity or illegality in the orders passed by the Courts below. This Court finds no reason to interfere with the orders passed by the Courts below which do not warrant any interference by this Court and hence, the criminal revision case is liable to be dismissed.

12. In the result, this Criminal Revision Case is dismissed. Consequently, the connected miscellaneous petition is closed.


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