Muthumani vs V. Shanmugam (died) represented by his son Ramachandran

Honourable Mr. Justice P.R. Shiva Kumar

The submissions made by Mr. T.A. Ebenezer, learned counsel for the petitioner were heard. The grounds of revision, certified copy of the

judgments of the courts below and other connected papers filed by the petitioner in the form of typed set of papers were also perused. The sole

accused in STC No. 3967 of 2007 on the file of the learned Judicial Magistrate No. IV, Tirunelveli, is the revision petitioner in the present Criminal

Revision Case. The said Criminal Case was instituted on a private complaint by one V. Shanmugam, the respondent herein in whose favour the

petitioner allegedly gave a cheque for Rs. 30,000/- in discharge of a debt which was dishonoured when presented for collection. During the

pendency of the trial, the said V. Shanmugam died and his son Ramachandran was impleaded to represent him as the complainant. At the end of

trial, the learned Judicial Magistrate No. IV, Tirunelveli came to the conclusion that the revision petitioner herein was proved to have committed an

offence punishable u/s 138 of the Negotiable Instruments Act, convicted her for the said offence and punished her with simple imprisonment for six

months. The learned Judicial Magistrate also directed payment of Rs. 30,000/- (the cheque amount) as compensation to the respondent with a

further direction that in default of payment of compensation, the revision petitioner should undergo simple imprisonment for a further period of three

months.

Aggrieved by the conviction and sentence as well as the order of compensation, the revision petitioner/accused preferred an appeal to the

Sessions Court as C.A. No. 190 of 2010, which came to be disposed of by the learned Additional Sessions Judge, Fast Track Court No. I,

Tirunelveli. The learned appellate Judge by her judgment dated 08.06.2011, confirmed the judgment of conviction and also the sentence as well as

the order of compensation in all respects. Now the revision petitioner/accused has come forward with the present Criminal Revision Case

questioning the correctness and legality of the above judgment of the learned Appellate Judge.

The case of the complainant is that the revision petitioner/accused on 7.5.2005 borrowed a sum of Rs. 30,000/- for her family expenses and for

the improvement of her tailoring and T.V. Mechanic Training Institute she was running, promising to repay the same within six months from the date

of borrowal and failed to repay the same within the said period of six months. The further case of the complainant is that when the revision

petitioner/accused was approached after the said period of six months and demanded repayment of the amount borrowed by her, she issued a

cheque dated 05.06.2007 drawn on Indian Overseas Bank, Tirunelveli Junction Branch for a sum of Rs. 30,000/- ; that when the said cheque was

presented for collection through the City Union Bank, the same was returned without payment with the endorsement ""Insufficient Funds""; that on

receipt of the intimation regarding the dishonour of the cheque, the complainant issued a statutory notice on 21.06.2007 demanding payment of the

cheque amount; that though an intimation was given to the revision petitioner/accused regarding the receipt of a registered tapal, she did not claim it

and that since the revision petitioner/accused did not make payment of the cheque amount as demanded in the notice and did not even issue any

reply, the complainant was constrained to file a complaint u/s 200 Cr.P.C. for prosecuting and punishing the revision petitioner/accused for an

offence u/s 138 of the Negotiable Instruments Act. Following the private complaint procedure, the same was taken on file in STC No. 3967 of

2007 on the file of the learned Judicial Magistrate No. IV, Tirunelveli.

On service of process, the revision petitioner/accused appeared and denied having committed the offence alleged. Accordingly, a summary trial

was conducted by the trial court, in which the above said Shanmugam was examined as the sole witness on the side of the complainant. Four

documents were produced in proof of the averments made in the complaint. The revision petitioner/accused chose to examine herself as the 2nd

witness on her side, besides examining one Venkatesh as DW1. Two documents were marked as Exs.D1 and D2 on her side.

The learned Judicial Magistrate, on a meticulous consideration of the contents of the complaint, evidence adduced on both sides and in the light

of the submissions made during the arguments advanced on both sides, came to the conclusion that the offence u/s 138 of the Negotiable

Instruments Act stood proved beyond reasonable doubt. Accordingly, the revision petitioner/accused was convicted and sentenced to undergo

imprisonment and directed to pay compensation as indicated supra.

The learned Additional Sessions Judge, Fast Track Court No. I, Tirunelveli, also in the appeal preferred by the revision petitioner/accused

reappraised the evidence and came to the conclusion that the trial court''s decision to convict the revision petitioner/accused for the offence u/s 138

of the Negotiable Instruments Act could not be interfered with and in every aspect, the same should be confirmed.

The only plea of defence that is taken by the revision petitioner/accused is that there was no transaction between the complainant and the

revision petitioner/accused; that no cheque was issued to the complainant and on the other hand, a blank cheque had been handed over as security

to one Ganesan for the work done by him as a building contractor and that the same was filled up in the name of the complainant and thus, a false

complainant came to be preferred against the revision petitioner/accused. Both the courts below have considered the evidence touching the above

said plea of defence made by the revision petitioner/accused in proper perspective and came to the conclusion that such a plea was not

substantiated and on the other hand, it was proved that the revision petitioner/accused borrowed Rs. 30,000/- which was paid in the following

manner: Rs. 10,000/- in cash and Rs. 20,000/- by cheque. Though the revision petitioner/accused would have taken a stand that there was no

transaction between the complainant and the revision petitioner/accused, during her evidence as DW2 she candidly admitted that she borrowed a

sum of Rs. 30,000/- from the complainant which amount was paid partly in cash and partly by cheque. Further more, by way of suggestion made

to PW1 certain admissions have been made to the effect that there was a transaction between the complainant and the revision petitioner/accused

and in respect of that transaction, a pro-note and an agreement had been executed and that the above said Ganesan acted as mediator. The

complainant has made a clear case stating that though the complainant did not know the name of the sister of the accused or any other relatives of

the accused, the amount was lent on the recommendation of the above said Ganesan. Further more, DW2 (accused) in her evidence has admitted

the receipt of a sum of Rs. 30,000/- which was paid partly in cash and partly by cheque.

It is not in dispute that the revision petitioner/accused signed in the cheque and issued it. It is also not in dispute that the cheque pertains to the

account maintained by the revision petitioner/accused with her banker. As such, the presumption u/s 139 of the Negotiable Instruments Act stands

attracted, more so when the complainant was able to prove that there was a loan transaction between the complainant and the revision

petitioner/accused, in discharge of which debt the cheque in question was issued. Even the opportunity given after the dishonour of the cheque by

issuing a statutory notice was not made use of by the revision petitioner/accused. The efforts made by the revision petitioner/accused seem to be to

drag on the case as long as possible. The same is obvious from the fact that, after the filing of the appeal and after getting a number of

adjournments, the revision petitioner/accused did not proceed with the appeal and the appellate court had to pronounce the judgment after

perusing the records and hearing the arguments advanced on the side of the respondent therein/complainant.

For all the reasons stated above, this court comes to the conclusion that this court can find no defect or infirmity, much less illegality in the

judgment of the learned appellate Judge, confirming the judgment of the trial court convicting the revision petitioner/accused for an offence u/s 138

of the Negotiable Instruments Act. Even in respect of the sentence and also the order of compensation, this court finds no scope for interference

by this court in exercise of the revisional powers of this court. There is no merit in this Criminal Revision Case. The Criminal Revision Case does

not even merit admission and it deserves to be dismissed in limini at the stage of admission itself. Accordingly, the Criminal Revision Case is

dismissed. Consequently, connected Miscellaneous Petitions are closed.