In view thereof, I am not able to agree with the contention of the learned Counsel for the petitioner/accused and especially, when both the Courts below, upon appraisal of the evidence, have come to the finding that the petitioner/accused has not rebutted the presumption to the level of preponderance of probability and convicted the petitioner/accused. The same cannot be upturned in the Revision Case unless the findings are perverse or wholly unsustainable. Even the sentence imposed is only three months imprisonment and the cheque amount is ordered to be paid as compensation. 10. In view thereof, findings no merits, this Criminal Revision Case stands dismissed. 10.06.2025 Neutral Citation : yes grs To 1. The Sessions Judge of the Nilgiris, Udhagamandalam. 2. The Judicial Magistrate, Udhagamandalam. D.BHARATHA CHAKRAVARTHY, J., grs Crl.R.C.No.768 of 2022 10.06.2025 1 (2024) 8 SCC 573 2 (2023) 16 SCC 125 3 2004 (12) SCC 83
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.06.2025
CORAM :
THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.768 of 2022
Sumethira .. Petitioner
Versus
K.B.Halan .. Respondent
Prayer: Criminal Revision Case is filed under Section 374 of Cr.P.C., to set aside the order, dated 07.12.2021, in Criminal Appeal No.61 of 2019, on the file of the learned Sessions Judge of the Nilgiris, Udhagamandalam, and confirming the judgment made in S.T.C.No.1135 of 2015, dated 31.10.2019 on the file of the learned Judicial Magistrate, Udhagamandalam.
For Petitioner : Ms.Avanthika Vasu,
for Mr.S.Rajamakesh
For Respondent : Mr.J.Franklin
ORDER
This Criminal Revision is filed by the petitioner/accused aggrieved by the judgment, dated 31.10.2019 in S.T.C.No.1135 of 2015 by the learned Judicial Magistrate, Udhagamandalam, whereby, the petitioner/accused was convicted for the offence under Section 138 of the Negotiable Instruments Act, 1881 and was imposed with Rigorous Imprisonment of three months and was also ordered to pay the cheque amount as compensation and the judgment, dated 07.12.2021 of the learned Sessions Judge at Nilgiris, Udhagamandalam made in Crl.A.No.61 of 2019 dismissing the appeal and confirming the conviction and sentence imposed by the learned Judicial Magistrate.
2. Heard Ms.Avanthika Vasu, learned Counsel for the petitioner/accused and Mr.J.Franklin, learned Counsel for the respondent/complainant.
3. Ms.Avanthika Vasu, the learned Counsel for the petitioner, firstly, pointing out to the evidence on record, would submit that in this case, the respondent/complainant did not marshal any evidence with reference to any advancement of loan for a sum of Rs.4,00,000/-. There is no documentary evidence that was produced by the respondent/complainant. The respondent/complainant rests his case only on the presumption. As far as the defence is concerned, it is the case of the defence that there were earlier transactions, pursuant to which, this cheque leaf, which was left as security is misused by the respondent/complainant.
4. In order to prove the said contention to the level of preponderance of probability, the respondent/complainant cross-examined and as a matter of fact, Ex.D-1, which is a receipt pertaining to the earlier transaction, was also marked. Therefore, once the petitioner/accused has successfully rebutted the presumption, thereafter, the Trial Court ought not to have convicted the accused, especially, in the absence of any evidence whatsoever from the complainant, it can be seen that though the respondent/complainant states that he sold carrots for a sum of Rs.4,00,000/-, from which he is advancing the money, no proof either for sale of carrots or any banking transaction for withdrawal of the said huge amount of Rs.4,00,000/-, was produced before the Trial Court. Therefore, the Trial Court ought to have seen that this is a fit case where the respondent/complainant should have established his capability and also produce the accounts including the Income Tax accounts to prove the loan. In the absence of the same, both the Courts below erred in convicting the petitioner herein.
5. Per contra, Mr.J.Franklin, learned Counsel for the respondent/complainant would submit that in this case, firstly, when the respondent/complainant issued a demand notice under Section 138 of the Negotiable Instruments Act, 1881, the petitioner/accused did not even reply to the same. Secondly, when the petitioner/accused borrow the amount as hand loan, apart from the cheque, she also entrusted property documents which was made out even in the cross-examination of the respondent/complainant. There is no explanation whatsoever as to why the original title deed in respect of the property has been handed over to the respondent/complainant. The same would fortify the case of the respondent/complainant. In this case, the respondent/complainant pleaded that out of agricultural income by selling carrots, he got the money and therefore, there cannot be any Income Tax for the said purpose and accordingly, the same cannot be a ground to non-suit the complainant.
6. I have considered the rival submissions made on either side and perused the material records of the case.
7. It is now settled that though the respondent/complainant is entitled for the presumption under the Negotiable Instruments Act, 1881, in the absence of any other documentary proof, it is for the respondent/complainant to let in further proof with reference to the capability as well as the accounts, especially, when the transaction is denied by the petitioner/accused. But, at the same time, it is well settled that it is not in every case for non-production of the Income Tax Returns or adducing further documentary evidence, the Court will non-suit the complainant. The facts and circumstances of the case should be such that the non-production of the Income Tax Returns or letting in any further evidence with regard to the capability of the complainant, should cast a doubt on the very transaction. Useful reference in this regard can be made to the judgments of the Hon’ble Supreme Court of India in Dattatraya Vs. Sharanappa1, Rajaram (Since Deceased) through L.Rs. Vs. Maruthachalam (Since Deceased) through L.Rs.2 and G.Pankajakshi Amma and Ors. Vs. Mathai Mathew (D) through L.Rs. and Ors.3.
8. Looked from that angle, in this case, the loan amount is said to be Rs.4,00,000/- and it can be seen that there have been prior transactions between the respondent/complainant and the petitioner/accused also. Further, the petitioner/accused cross-examined the respondent/complainant that at the time of taking loan, the respondent/complainant has also taken the property documents and that the property documents are still with the respondent/complainant and no other suggestion was made on behalf of the accused as to for what purpose the property documents were handed over to the respondent/complainant. Therefore, in the facts and circumstances of the case, upon reading the entire evidence on behalf of the respondent/complainant in full, including the cross-examination, this is not a case where it throws any doubt as to the capacity of the respondent/complainant or the accounts, especially, when the respondent/complainant has pleaded about the agricultural income.
9. In view thereof, I am not able to agree with the contention of the learned Counsel for the petitioner/accused and especially, when both the Courts below, upon appraisal of the evidence, have come to the finding that the petitioner/accused has not rebutted the presumption to the level of preponderance of probability and convicted the petitioner/accused. The same cannot be upturned in the Revision Case unless the findings are perverse or wholly unsustainable. Even the sentence imposed is only three months imprisonment and the cheque amount is ordered to be paid as compensation.
10. In view thereof, findings no merits, this Criminal Revision Case stands dismissed.
10.06.2025
Neutral Citation : yes
grs
To
1. The Sessions Judge of the Nilgiris,
Udhagamandalam.
2. The Judicial Magistrate,
Udhagamandalam.
D.BHARATHA CHAKRAVARTHY, J.,
grs
Crl.R.C.No.768 of 2022
10.06.2025
1 (2024) 8 SCC 573
2 (2023) 16 SCC 125
3 2004 (12) SCC 83
