PERUMAL vs SURESHKUMAR
- Court
- Madras High Court
CRL RC No. 735 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29-10-2026
CORAM
THE HON'BLE MR.JUSTICE SHAMIM AHMED
CRL RC No. 735 of 2021
and
CRL MP Nos.11339 & 11340 of 2021
CNR: {HCMA011381082021}
Perumal
S/o. Kolandai Chetti , 9a Ward No.4, Karuppannan
Veedhi, Kannankurichi Post, Salem 636 008.
..Petitioner(s)
Vs
Sureshkumar
S/o. P.Palanisamy, D.No.371/1, Vijayaraj Nagar,
Sivadapuram Post, Salem 636 307.
..Respondent(s)
Prayer: To call for the records and set aside the judgment in Crl.A.No.50 of
2019 dated 02.11.2020 passed by the Hon’ble I Additional District and Sessions
Judge, Salem and confirming Judgment made in STC No.61 of 2018 dated
27.11.2018 passed by the Learned Special Judicial Magistrate Court (Land
Grabbing Cases), Salem, and set the petitioner at liberty and thus render justice.
.
For Petitioner(s): No appearance
For Respondent(s): Mr. M Dharwish for Mr. A.Sathasivam
ORDER
This Criminal Revision Case has been filed seeking to set aside the
judgment dated 02.11.2020 passed in Crl.A.No.50 of 2019 on the file of the
Learned I Additional District and Sessions Judge, Salem, confirming the
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judgment of conviction and sentence dated 27.11.2018 passed in S.T.C.No.61 of
2018 on the file of the Learned Special Judicial Magistrate (Land Grabbing
Cases), Salem.
2.When the matter was taken up in the revised call today, there was no
representation on behalf of the petitioner. Mr.M.Dharwish, learned counsel,
appeared on behalf of the respondent/complainant. It is pertinent to note that
this Court, vide order dated 25.11.2021 passed in Crl.M.P.Nos.11339 and 11340
of 2021 in Crl.R.C.No.735 of 2021, had passed the following order:
“The Criminal Miscellaneous Petition Crl.M.P.No.11339 of
2021 has been filed by the petitioner/accused, seeking
suspension of sentence of imprisonment and
Crl.M.P.No.11340 of 2021 has been filed seeking to exempt
the petitioner from surrendering to undergo sentence of
imprisonment, imposed on the petitioner in conviction
Judgment made in Crl.A.No.50 of 2019, dated 02.11.2020
passed by the Hon'ble I Additional District and Sessions
Judge, Salem confirming Judgment made in S.T.C.No.61 of
2018 dated 27.11.2018 passed by the Learned Special
Judicial Magistrate Court (Land Grabbing Cases), Salem
and enlarge the petitioner on bail pending disposal of the
Criminal Revision Case.
2.In and by both the impugned judgments, the
petitioner/accused was convicted for the offence under
Section 138 of the Negotiable Instruments Act read with
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Section 200 of the Criminal Procedure Code and sentenced
to undergo three months Simple Imprisonment.
3.According to the learned counsel for the
petitioner/accused, there are arguable points available in
the Criminal Revision Case, which is not likely to be taken
for final hearing in the near future and the
petitioner/accused has got a fair chance of succeeding in
the Criminal Revision Case and hence, the substantive
sentence imposed against the petitioner/accused may be
suspended and the petitioner may be exempted from
surrendering before the Trial Court.
4.This Court heard the learned counsel for the petitioner
and also perused the materials placed on record.
5.Earlier, this Court by order dated 09.11.2021, has
granted interim suspension of sentence and exemption from
surrendering till 25.11.2021. Considering the facts and
circumstances of the case and also considering the
submissions of the learned counsel for the petitioner, this
Court is of the view that the substantive sentence of
imprisonment alone can be suspended on certain
conditions. Accordingly, till the disposal of the Criminal
Revision Case, the reliefs of exemption from surrender
before the Trial Court, suspension of sentence and bail are
granted on the following conditions:
(a) The petitioner/accused shall deposit 50% of the cheque
amount (Rs.5,00,000/-), namely, Rs.2,50,000/- (Rupees Two
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Lakhs Seventy Five Thousand Only) before the Trial Court,
within two weeks from the date of receipt of a copy of this
order and on such deposit being made, the Trial Court shall
redeposit the said amount in a fixed deposit account in any
nationalized bank, so that the amount accrues interest. The
disbursal of this amount shall be decided at the culmination
of the Criminal Revision Case. Thereafter, the
petitioner/accused is ordered to be released on bail, on his
executing a bond for a sum of Rs.10,000/- (Rupees Ten
Thousand Only) with two sureties, of whom, one should be
a blood relative, each for a like sum to the satisfaction of
the Special Judicial Magistrate (Land Grabbing Cases),
Salem.
(b) The petitioner/accused and the sureties shall affix their
photographs and Left Thumb Impressions in the surety
bonds and the Magistrate may obtain a copy of their
Aadhaar Cards or Bank Pass Books to ensure their
identities.
(c) The petitioner shall appear before the Trial Court on the
first working day of every English Calendar month at 10.30
a.m., until the disposal of the revision petition and if he is
not able to appear before the Trial Court on any day, he
shall make arrangements to file an application under
Section 317 Cr.P.C. and shall appear before the Trial Court
on any other day in lieu of the date of his absence, as
directed by the Trial Court.
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(d) On the failure of the petitioner/accused depositing the
said amount, it is open to the Trial Court to commit the
petitioner/accused into custody for undergoing the sentence.
6.These Criminal Miscellaneous Petitions stand ordered
accordingly.
7.Notice to the respondent returnable on 16.12.2021.
Private notice is also permitted. Post the matter on
16.12.2021 for reporting compliance.”
3.Thereafter, when the matter was taken up for hearing on 16.12.2021,
this Court passed the following order:
“This Court, on 25.11.2021, while granting suspension of
sentence and exemption from surrendering, has passed the
conditional order, directing the petitioner/accused to deposit
50% of the cheque amount before the Trial Court within a
period of two weeks from the date of receipt of a copy of that
order.
2.On failure to deposit the said amount, this Court had directed
the Trial Court to commit the petitioner/accused into custody
for undergoing sentence.
3.When the matter is taken up for hearing, it is reported by the
learned counsel for the petitioner/accused that the conditional
order has not been complied with, so far.
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4.Mr.A.Sadhasivam, learned counsel undertakes to file Vakalat
for the respondent.
5.List the matter after four weeks.”
4.Thereafter, the matter was listed on several occasions. On 19.10.2024,
the learned counsel appearing for the petitioner sought time to file translated
copies of the depositions of the witnesses and other connected documents,
before advancing final arguments. The request was considered and time was
granted. Subsequently, when the matter was listed on 18.12.2024, the learned
counsel for the petitioner again sought time to file the translated copies of the
judgment of the Trial Court and other connected documents, before the
commencement of final arguments. Accordingly, time was granted.
5.Again, when the matter was listed on 23.01.2025, the learned counsel
for the petitioner sought further time to comply with the order dated 18.12.2024
and to file the translated copies of the judgment of the Trial Court and other
connected documents. Thereafter, when the matter was listed on 18.03.2026, the
learned counsel appearing for the petitioner filed a memo dated 16.03.2026
seeking permission to withdraw his appearance on behalf of the petitioner.
6.Subsequently, when the matter was listed on 15.06.2026, this Court
directed issuance of fresh notice to the petitioner, calling upon him to engage
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another counsel and proceed with the matter. As per the office report dated
23.07.2026, the said Court notice was duly served on the petitioner in person,
thereby informing him about the pendency of the present Criminal Revision
Case and the requirement to appear before this Court.
7.However, when the matter was taken up on 27.07.2026, there was no
representation on behalf of the petitioner, either through counsel or in person.
The learned counsel for the respondent was present. Considering the fact that
the petitioner had already been served with notice and to afford him one final
opportunity to prosecute the revision petition, this Court passed the following
order:
“Inspite of the order passed by this Court dated 15.06.2026, no
one appeared on behalf of the petitioner. Even the petitioner
also not present before this Court to argue this case.
2.Learned counsel for the respondent is present.
3.To give one last opportunity to the petitioner to argue this
case, put up this case on 29.10.2026.
4.In the meantime, learned counsel for the respondent may file
counter affidavit, if so desire, after obtaining copies from the
Registry on usual charges.”
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8.Today, when the matter is taken up for hearing, there is once again no
representation on behalf of the petitioner, either in person or through counsel,
despite the specific notice having been served on him and despite this Court
having granted him a final opportunity to appear and advance his arguments.
The learned counsel for the respondent is present. This Court has also perused
the pleadings, the grounds raised in the revision petition and the judgments of
the Courts below.
9.The brief facts leading to the filing of this revision petition are that the
respondent/complainant initiated proceedings against the petitioner under
Section 138 of the Negotiable Instruments Act. The case of the complainant is
that the petitioner borrowed a sum of Rs.5,00,000/- on 07.10.2015 on execution
of a promissory note and agreed to repay the same. In order to discharge the
said liability, the petitioner issued a cheque bearing No.041810 dated
03.04.2016 for a sum of Rs.5,00,000/-, drawn on Tamil Nadu Mercantile Bank,
Kannankurichi Branch, Salem. The said cheque was presented for collection on
04.04.2016 and was returned unpaid with the endorsement "Funds Insufficient".
Thereafter, the complainant issued a statutory demand notice dated 25.04.2016,
which was served on the petitioner on 26.04.2016. Despite receipt of the
statutory notice, the petitioner failed to pay the cheque amount, resulting in the
filing of the complaint.
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10.The complaint was taken on file in S.T.C.No.61 of 2018 on the file of
the Learned Special Judicial Magistrate (Land Grabbing Cases), Salem. During
trial, the complainant examined himself as PW1 and his father-in-law
Krishnamoorthy as PW2 and marked five documents as Ex.P1 to Ex.P5. On the
side of the defence, two witnesses were examined as DW1 and DW2, and no
documents were marked. Upon consideration of the oral and documentary
evidence, the Trial Court, by judgment dated 27.11.2018, found the petitioner
guilty of the offence under Section 138 of the Negotiable Instruments Act and
sentenced him to undergo three months Simple Imprisonment.
11.Aggrieved by the said conviction and sentence, the petitioner preferred
an appeal in Crl.A.No.50 of 2019 before the Learned I Additional District and
Sessions Judge, Salem. The petitioner raised various grounds, contending that
the judgments of the Courts below were contrary to law and the evidence
available on record. It was specifically contended that there was no legally
enforceable debt, that the evidence of PW2 was self-contradictory, and that the
complainant had allegedly initiated another similar proceeding against the
petitioner before another Court. It was further contended that the petitioner had
rebutted the statutory presumption through the evidence of DW1 and DW2 and
through the cross-examination of the complainant and his witness. However, the
Learned Appellate Court, after considering the evidence and the grounds raised
by the petitioner, dismissed the appeal on 02.11.2020, thereby confirming the
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conviction and sentence imposed by the Trial Court. Aggrieved by the
concurrent judgments of the Courts below, the petitioner has preferred the
present Criminal Revision Case.
12.This Court has carefully considered the grounds raised in the revision
petition and perused the judgments passed by both the Courts below. The
principal contention of the petitioner is that the complainant failed to establish
the existence of a legally enforceable debt and that the petitioner had
successfully rebutted the statutory presumption through the defence evidence
and the cross-examination of the prosecution witnesses. However, the mere
raising of such contentions, without demonstrating any patent illegality,
perversity or material irregularity in the appreciation of evidence by the Courts
below, cannot by itself constitute a ground for interference in the exercise of
revisional jurisdiction.
13.It is well settled that once the execution of the cheque is admitted or
proved, the statutory presumptions under Sections 118 and 139 of the
Negotiable Instruments Act operate in favour of the holder of the cheque.
Though such presumptions are rebuttable in nature, the accused is required to
raise a probable defence to rebut the same. The defence may be established even
on the basis of the materials elicited during the cross-examination of the
complainant and need not necessarily be proved by leading independent
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evidence. Nevertheless, the question as to whether the statutory presumption has
been successfully rebutted is essentially a matter to be determined on the basis
of the entire evidence and circumstances of each case.
14.In the present case, the Trial Court had the benefit of recording the
evidence of PW1 and PW2, as well as DW1 and DW2, and had considered the
rival versions before arriving at its conclusion. The Appellate Court, in turn,
independently reassessed the evidence and confirmed the findings of the Trial
Court. The contentions relating to the alleged contradictions in the testimony of
PW2, the existence of another similar proceeding and the alleged rebuttal of the
statutory presumption were grounds available to the petitioner before the
Appellate Court. The petitioner has not demonstrated before this Court any
specific patent illegality, perversity or jurisdictional infirmity warranting
interference with the concurrent findings of the Courts below.
15.It is further relevant to note that this Court, on the specific request
made on behalf of the petitioner, had granted suspension of sentence, exemption
from surrendering and bail by order dated 25.11.2021, subject to the condition
that the petitioner should deposit 50% of the cheque amount, namely
Rs.2,50,000/-, before the Trial Court within two weeks from the date of receipt
of a copy of the order. The said condition was imposed after considering the
submissions made on behalf of the petitioner and as an equitable measure,
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pending disposal of the revision petition. However, even as on 16.12.2021, the
learned counsel appearing for the petitioner reported that the conditional order
had not been complied with. The petitioner has not produced any material
before this Court to establish that the said deposit condition has subsequently
been complied with.
16.Thus, the petitioner has failed to comply with the conditional order
passed by this Court, despite the passage of several years. Further, the petitioner
repeatedly sought time for filing translated copies of the depositions and
judgments of the Courts below, but ultimately his counsel sought permission to
withdraw his appearance. Even thereafter, this Court issued fresh notice to the
petitioner, which was duly served on him in person, and granted one final
opportunity to appear and prosecute the revision petition. Despite having full
knowledge of the pendency of the present proceedings and the opportunity
specifically granted by this Court, the petitioner has neither appeared in person
nor engaged another counsel to advance his arguments.
17.The conduct of the petitioner, viewed cumulatively, clearly indicates
that he has failed to take effective steps to prosecute the present revision
petition. The revision petition is pending from the year 2021, and the petitioner
has been afforded sufficient opportunities to place his case before this Court. In
spite of the same, he has neither complied with the conditional deposit order nor
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availed himself of the final opportunity granted to advance arguments. This
Court cannot indefinitely keep the proceedings pending at the instance of a
petitioner who, despite due notice and sufficient opportunities, has failed to
prosecute the case.
18.It is well settled that the jurisdiction of this Court under Sections 397
and 401 of the Criminal Procedure Code is supervisory and revisional in nature
and is not intended to provide another opportunity for a complete re-
appreciation of the evidence as in a regular appeal. In the absence of any patent
illegality, perversity, material irregularity or jurisdictional error in the
concurrent findings of the Courts below, this Court finds no valid ground to
interfere with the conviction and sentence imposed upon the petitioner. Having
considered the available materials on record, this Court is of the view that the
petitioner has not made out any ground warranting interference in the present
Criminal Revision Case.
19.Consequently, this Criminal Revision Case is dismissed . The
judgment dated 02.11.2020 passed by the Learned I Additional District and
Sessions Judge, Salem, in Crl.A.No.50 of 2019, confirming the judgment dated
27.11.2018 passed by the Learned Special Judicial Magistrate (Land Grabbing
Cases), Salem, in S.T.C.No.61 of 2018, is hereby confirmed . There shall be no
order as to costs.
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20.In view of the dismissal of the Criminal Revision Case, the interim
order of suspension of sentence and exemption from surrendering granted by
this Court, subject to the conditions imposed in the order dated 25.11.2021,
shall stand vacated . The Trial Court is directed to take immediate and
appropriate steps, in accordance with law, to secure the presence of the
petitioner/accused to undergo the sentence imposed upon him. The Trial Court
shall also take appropriate steps in accordance with law regarding the recovery
of the cheque amount, if any, in terms of the judgment passed by it.
21.Let a copy of this order be sent by the Registry of this Court to the
Court concerned for necessary compliance and information.
29-10-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
SHA
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To
1.The I Additional District and Sessions Judge, Salem.
2.The Special Judicial Magistrate Court (Land Grabbing Cases), Salem.
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SHAMIM AHMED, J.
SHA
CRL RC No. 735 of 2021
29-10-2026
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