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TMI Blog2011 (4) TMI 1468X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of ₹ 2,00,000/- deposited before the trial Court by the accused was allowed to be withdrawn by the complainant and the balance amount of ₹ 2,85,000/- was directed to be paid by the accused before the trial Court within two months from the date of judgment of the appellate Court, and upon such payment, the complainant was entitled to withdraw the said sum of ₹ 2,85,000/- and the fine of ₹ 5,000/- deposited by the accused, was appropriated to the cost of the proceedings. 5. Crl.R.C.No.807 of 2005 is filed by the complainant, for enhancement of the punishment. 6. The case of the complainant is as follows: On 21.3.1996, the accused borrowed ₹ 2 lakh from the complainant and executed Exs.P-4 and P-5 promissory notes and gave a letter of undertaking on the same day under Ex.P-6 to repay the same within three months. The accused further borrowed ₹ 3 lakhs from the complainant on 10.10.1996 and executed Ex.P-7 promissory note and to discharge the same, she issued Ex.P-1 cheque dated 3.2.1997, which was presented and the same returned as per Ex.P-2 dated 4.2.1997 and the accused has not arranged for payment and the statement of accounts s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because, she dragged on the proceedings from 1997 till now, i.e.2011 and hence, he prayed for enhancing the sentence and for confirming the conviction under Section 138 of the Negotiable Instruments Act. 10. Now, this Court has to consider as to whether both the Courts below are correct in holding the accused guilty of the offence under Section 138 of the Negotiable Instruments Act. 11. The issuance of the cheque and promissory notices are admitted. In such circumstances, the complainant is entitled to invoke the presumption under Sections 118 and 139 of the Negotiable Instruments Act. It is a rebuttable presumption. It is true that the defence can be proved based on preponderance of probabilities and not beyond reasonable doubt . It can be proved on the basis of the oral and documentary evidence let in by the complainant. 12. At this juncture, it is appropriate on the part of this Court to consider the evidence of P.W.1 and P.W.2 /complainant and Exs.P-1 to P-10, which have clearly proved that the cheque has been issued only for discharging the existing liability. Exs.P-4 to 7 clearly proved that she has borrowed money and for discharging the same, she has not filed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose on evidentiary burden and not a persuasive burden. 14. It is true that the presumption under Sections 118 and 139 of the Negotiable Instruments Act, is rebuttable and the defence can be proved based on preponderance of probabilities and it can be proved on the basis of the oral and documentary evidence let in by the complainant. While considering the abovesaid judgment of this Court, wherein this Court relied on the judgment of the Apex Court reported in 2010 (4) CTC 118 (Rangappa Vs. Sri Mohan), along with the facts of the present case, P.Ws.1 and 2 and Exs.P-4 to 7 have clearly proved that Ex.P-1 cheque has been issued only for discharging the legally enforceable debt. 15. Learned counsel appearing for the accused further submitted that no notice has been issued, but the above argument does not merit acceptance, because, while perusing Ex.P-9, it is clearly proved that the notice has been issued in the correct address, and the notice was refused by the accused. In such circumstances, I am of the view that the said notice is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o law. (c) 2011 (1) TLNJ 331 (Criminal) (Madurai Bench of Madras High Court) (V.Deivanayagam Vs. K.Saravanan): 8. In the result, the revision petition is modified, so far as the sentence is concerned and accordingly, the revision petitioner/accused is directed to pay a fine of ₹ 1,00,000/- (Rupees one lakh only) in addition to the fine amount already paid and the same shall be paid as compensation to the respondent/complainant, instead of the sentence for a period of one year S.I., imposed by the Court below. The fine amount shall be paid before the Court below within six weeks from the date of receipt of a copy of this order. If the fine amount is not paid and the conditional order is not complied with, the petitioner/accused shall undergo the sentence already imposed by the Court below. 17. The complainant-in-person relied upon the decision rendered by this Court in Crl.A.No.261 of 2000 and Crl.R.C.No.736 of 1999 and Crl.M.P.No.6440 of 2000, dated 25.1.2002, { (2002) RD-TN 16} (Y.Sreelatha @ Roja Vs. Mukanchand Bothra), wherein, this Court observed as follows: 71. It is noticed that the fine of ₹ 5,000/- has already been paid in the trial Court. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the abovesaid judgment of the first appellate Court, two months' time has been granted to the accused to deposit the balance amount of ₹ 2,85,000/- and the judgment of the first appellate Court is dated 10.5.2006, but she has not paid the amount till today. In such circumstances, the accused is not entitled to any leniency. 20. As already stated, the cheque issued is dated 3.2.1997 and the accused has not paid the amount, even though the judgment of the first appellate Court was rendered on 10.5.2006. Furthermore, she has been facing so many cases in the same nature of Section 138 of the Negotiable Instruments Act, which shows that she is in the habit of borrowing money and issuing cheque and not made arrangements for honouring the cheque, which resulted in initiation of criminal proceedings under Section 138 of the Negotiable Instruments Act. In such circumstances, the conduct of the accused clearly proved that she is not entitled to any leniency in the sentence imposed. 21. At this juncture, it is appropriate to consider the argument advanced by the complainant-in-person that the sentence imposed by the first appellate Court is not sufficient to meet out the e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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