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IN THE HIGH COURT OF JUDICATURE AT MADRAS
RMT. TEEKAA RAMAN, J.
Ramkumar – Appellant
Versus
Chelladurai – Respondent
Crl.R.C. No. 999 of 2015
Decided on : 13-08-2021
Criminal Procedure Code,1973 - Section 397 r/w. 401, 200 and 91 - Negotiable Instruments Act - Section 138 and 139 - Indian Evidence Act, 1872 - Section 65 (g) and 63 - Appeal against Conviction – Dishonor of cheque - Whether the accused has discharged the presumption under Section 139 of Negotiable Instruments Act - Whether the entry contained therein still requires to be examined in the facts and circumstances of the case - whether documents produced in the Court or contents thereof have any probative value - Respondent herein preferred private complaint in C.C.No. the file of the learned Judicial Magistrate, Fast Track Court, Thiruthuraipoondi alleging that appellant had borrowed a sum from the respondent and handed over a blank signed post dated cheque for drawn on the Indian Bank, Thiruthuraipoondi in Cheque - When postdated cheque was presented for encashment with Branch and the same was returned on 17.11.2009 with a bank memo as insufficient funds. He issued advocate notice on 12.12.2009 to appellant and the appellant received the same - But he had not given any reply - Respondent knowing very well that there is no sufficient funds in his account, he had issued the postdated cheque to cheat the respondent –
Finding of the Court:
, Financial capacity has been .built up by the complaint 10 days before the filing of complaint under Section 138 of Negotiable Instrument Act was stands exposed by the cross-examination of P.W.1 and thus this Court holds that when statutory presumption has been disloged by the accused it is for private complainant to demonstrate the financial ability to Rs.10 lakhs. None of Exs.P4 to P9 could go to show that the financial ability to lend and for the reasons recorded in previous paragraphs, the Ex.P10 which was came into existence only after allowing of the sent for petition 91 of Cr.P.C and hence this Court has no hesitation to hold that the same lacks probative value and hence the same cannot be taken on evidence accordingly, in sequel thereto complainant has not demonstrated to pay a sum of Rs.10 lakhs as a loan to the accused - Court holds that the private complainant has not proved the pre-existing legally enforceable debt in manner known to law and hence the conviction passed by both the Courts below are liable to be set aside –
Result: Criminal Revision is allowed
JUDGMENT :
(Prayer: Criminal Revision Case filed under Section 397 r/w. 401 of Cr.P.C., to call for the records pertaining to the judgment dated 17.04.2015 in C.A.No.20 of 2012 on the file of the Principal District and Sessions Judge, Thiruvarur District and judgment dated 07.09.2012 in C.C.No.179 of 2011 on the file of the Fast Track Judicial Magistrate Court, Thiruthuraipoondi and set aside the same.)
1. The convicted respondent/accused is the revision petitioner herein.
2. The respondent herein has filed a private complaint before the learned Judicial Magistrate, Fast Track Court, Thiruthuraipoondi, in C.C.No.179 of 2011, under Section 200 of Cr.P.C r/w Section 138 of Negotiable Instruments Act.
3. The respondent herein preferred the private complaint in C.C.No.179 of 2011, on the file of the learned Judicial Magistrate, Fast Track Court, Thiruthuraipoondi alleging that the appellant had borrowed a sum of Rs.10,00,000/- from the respondent on 07.11.2009, and handed over a blank signed post dated cheque for Rs.10,00,000/- drawn on the Indian Bank, Thiruthuraipoondi in Cheque No.937169, dated 16.11.2009. When the postdated cheque was presented for encashment with the Lakshmi Vilas Bank, Thiruthuraipoondi Branch and the same was returned on 17.11.2009 with a bank memo as insufficient funds. He issued advocate notice on 12.12.2009 to the appellant and the appellant received the same on 16.12.2009. But he had not given any reply. The respondent knowing very well that there is no sufficient funds in his account, he had issued the postdated cheque to cheat the respondent. Hence the complaint.
4. He examined himself as P.W.1 and Ex.P1 to Ex.P11 were examined on the side of the revision petitioner/accused, no witness were examined.
5. The trial Court has convicted the accused and the appellate Court dismissed the appeal in C.A.No.20/2012 and hence the revision.
6. The learned counsel for the revision petitioner/accused contended that:-
(ii) Exs.P5 to P10 were filed before the authorities, after the accused had filed petition under Section 91 of Cr.P.C on 28.09.2010.
(iii) The time of alleged borrowing and time for handing over the cheque is too short which is impossible in the regular course of business.
(iv) The complainant claimed that he had lent unaccounted money to others including the revision petitioner and hence the same cannot be termed as legally enforcible debt. In the absence of any proof for establishment of payment of money and Rs.10 lakhs by the complainant the case of the complainant has to be thrown out.
7. Heard the learned counsel for the respondent. Written submissions of both the counsels were taken into consideration.
8. Written submission filed on behalf of the revision petitioner is that the case of the respondent/complainant that he had lent a sum of Rs.10,00,000/- to this revision petitioner/accused on 07.11.2009. For which, the accused is said to have given a cheque bearing number 937169 dated 16.11.2009 for the said loan, which on presentation was returned on 17.11.2009 for “Insufficient Funds”.
9. The case of the revision petitioner/accused is that:-
(ii) Thereafter, the respondent herein has chosen to file Exs.P5 to P10, Income Tax returns through auditor to prove that some amount has been paid and hence, Exs.P5 to P10 filed subsequent to the above said petition has to be disbelieved. He would further contend that the alleged loan was said to be on 07.11.2009 while, the cheque was d
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