V.S.Poovarasan v. Santhiya
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.11.2016
CORAM:
THE HON'BLE MR.JUSTICE C.T. SELVAM Crl.R.C.No.656 of 2016 and Crl.M.P.Nos.4608 to 4610 of 2016 V.S.Poovarasan .. Petitioner/Accused Vs.
Santhiya .. Respondent/Complainant Criminal Revision filed under Sections 397(1) and 401 Cr.P.C. to set aside the judgment dated 21.11.2015 in C.A.No.107 of 2014 on the file of I Additional Sessions Judge, Salem, modifying the judgment dated 30.07.2014 in C.C.No.61 of 2013 on the file of the Judicial Magistrate III, Salem. For Petitioner : Mr.S.Kalyanaraman For Respondent : Mr.D.Selvaraj
O R D E R
This revision challenges the order of learned I Additional Sessions Judge, Salem, passed in C.A.No.107 of 2014 dated 21.11.2015.
2. Revision petitioner faced prosecution for offence under section 138 of Negotiable Instruments Act in C.C.No.61 of 2013 on the file of learned Judicial Magistrate No.III, Salem.
3. The case of the respondent/complainant was that the petitioner borrowed a sum of Rs.10,00,000/- and issued cheque bearing Nos.030109 dated 10.10.2012 and 030110 dated 30.10.2012 for a sum of Rs.6,00,000/- and Rs.4,00,000/- respectively. On presentation, the cheques were dishonoured and respondent caused statutory notice under Section138 of the N.I. Act and following the procedure enumerated therein filed a complaint, which was tried in C.C.No.61 of 2013 before the trial Court. The respondent examined P.W.1 and marked Ex.P.Nos.1 to 8. None were examined on behalf of the revision petitioner/accused. On consideration, the trial Court rendered a finding of conviction
and sentence of 3 months S.I. and fine of Rs.2000/- i/d 1 month S.I. Petitioner preferred an appeal in C.A.No.107 of 2014 on the file of learned I Additional Sessions Judge, Salem and respondent/complainant sought enhancement by way of revision in Crl.R.C.No.56 of 2014. While disposing both matters by a common judgement dated 21.11.2015, the Appellate Court upheld conviction and sentence and enhanced the fine to Rs.10,10,000/-. Thereupon, the petitioner is before this Court.
4. Heard learned counsel for petitioner and learned counsel for respondent.
5. Learned counsel for petitioner took this Court through the cross examination of the respondent/P.W.1. There from, it is seen that respondent had no personal knowledge of the petitioner or of his avocation and claimed acquittance with him for a period of 3 years through her father. She has deposed to not having any independent source of income or property and has admitted to residing in rented premises at the time of the transaction.
6. Defence case is that the petitioner had dealings with the father of the respondent and had cleared all dues and at the instance of the father and misusing the cheques earlier left with him, respondent had preferred a false complaint. In cross, respondent has also admitted that she was aware of the petitioner having preferred police complaint against her father, even before presenting the cheque.
7. The evidence also shows that the pronote allegedly executed by the petitioner had been produced before the Court, but, for whatever reason, had not been marked. In fact, it is the evidence of the respondent that the attestor to such pronote had not informed his address. The attestor is neither respondent's father nor her husband. While Sections 118 and 139, cast initial burden upon the accused, the moment the accused is able to raise a reasonable doubt on the genuineness of the transaction alleged by the complainant and in the opinion of this Court, such requirement has been met by the petitioner herein, it becomes the duty of the respondent/complainant to prove the debt.
8. Learned counsel for respondent contended that in her re-examination, respondent has informed that at the time of her marriage, her father had given a sum of Rs.5,00,000/- instead of jewellery and the remaining sum of Rs.5,00,000/- came out of her earnings as a school teacher (she has deposed, that she earned of Rs.5,000/- per month as a teacher) and sums given by her brother and sister, who were employed in the I.T. field. Mere say so of the respondent would not suffice to discharge her
burden. Respondent ought to have let in evidence in support there of. Respondent has not even examined the attestor of the pronote.
9. On the facts of the present case, this Court is satisfied that the petitioner/accused has been successful in shifting the initial burden cast upon him. As a consequence, it has became the duty of the respondent/complainant to prove the debt, which she has failed to do. For the above said, this revision stand allowed.
The Criminal Revision is allowed. The judgment of learned I Additional Sessions Judge, Salem, passed in C.A.No.107 of 2014 dated 21.11.2015, is set aside. As a consequence, the fine amount enhanced to Rs.10,10,000/- by appellate court is also set-aside. Petitioner shall stand acquitted. Fine amount, if any, paid shall be refunded to petitioner. Bail bond, if any, executed by petitioner shall stand cancelled. Connected miscellaneous petitions are closed.
-s/d- Assistant Registrar(CS-III) True Copy Sub-Assistant Registrar mrp/gm To
1. The I Additional Sessions Judge, Salem.
2. Do Thro The Principal Sessions Judge Salem.
3. The Judicial Magistrate No.3, Salem.
4. Do Thro The Chief Judicial Magistrate Salem.
5. The Section Officer Criminal Section High Court, Madras.
+1 CC to Mr.S. Kalyanaraman, Advocate sr 68039 Crl.R.C.No.656 of 2016 AK(CO) sp/30/6