Martin Felix Celvia vs K. Kumar

C.T. Selvam, J.—When the matter came up on 05.09.2014, there was no representation on behalf of the petitioner and therefore, Registry was directed to post the revision on 08.09.2014 under the caption ''for orders''. On 08.09.2014, at request of learned counsel for petitioner, the matter was adjourned to 09.09.2014, finally. Even today, there is no appearance on behalf of the petitioner.

This revision is preferred against two concurrent judgments of the Courts below convicting the petitioner for offence under Section 138 of the Negotiable Instruments Act and sentencing her to undergo 1 year S.I. and fine of Rs. 5,000/- i/d 6 months S.I. Out of the fine amount, a sum of Rs. 2,500/- was directed to be paid as compensation to the complainant.

The respondent preferred a complaint informing that the petitioner borrowed a sum of Rs. 2,00,000/- from him and towards repayment thereof, the petitioner issued a cheque bearing No. 320421 dated 12.03.2008. When presented for payment, the same was returned unpaid with the endorsement "insufficient funds". The respondent/complainant caused statutory notice and the petitioner/accused has also received the same, but failed to effect repayment. Hence, in keeping with the provisions of Section 138 of the Negotiable Instruments Act, the respondent/complainant preferred a complaint.

Before the trial Court, the respondent examined himself and two other witnesses and marked five exhibits. None were examined on behalf of the defence nor were any exhibits marked.

On appreciation of evidence, the trial Court convicted the petitioner and sentenced her to undergo 1 year S.I. and fine of Rs. 5,000/- i/d 6 months S.I. Out of the fine amount, a sum of Rs. 2,500/- was directed to be paid as compensation to the complainant. Against the conviction, the petitioner moved C.A. No. 146 of 2010 before learned Additional District and Sessions Judge, Fast Track Court III, Virudhachalam, which came to be dismissed under judgment dated 09.08.2011. There against this revision.

The trial Court found that the respondent/complainant, by adducing oral and documentary evidence, has proved that the accused has issued Ex. P1, cheque, towards discharging her liability. Though it was the accused''s case that her husband was doing lorry transport business, that he had obtained loan from the complainant, that towards security therefor she has issued a blank cheque, that the same was misused by the complainant and that she has not borrowed any sum from the complainant, she has chosen not to examine herself or her husband to prove her case nor has she filed any document in support of her claim. The trial Court has found that even assuming that the accused''s case was true, she should have filed a complaint against the complainant after receiving Ex. P4, legal notice issued by the complainant, or she should have caused a reply to such notice. Further, it was found that when the accused was questioned under section 313 Cr.P.C., she only denied the borrowing and she has not raised any issue of misuse of cheque by the complainant. In the circumstances of the case, this Court would concur with the finding of the Courts below as the petitioner has failed to rebut the initial presumption which arises against her under Section 139 of the Negotiable Instruments Act. This Court finds no reason to interfere with the finding of conviction.

In the result, this Criminal Revision stands dismissed. The concurrent judgments of the Courts below convicting the petitioner for offence Section 138 of the Negotiable Instruments Act stands confirmed. The petitioner shall now be taken into custody towards serving the remaining portion of the sentence yet to be undergone by her.