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2020 Supreme(Mad) 2410
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.R.SWAMINATHAN, J.
B.Poongothai - Petitioner
Vs.
K.Karuppusamy - Respondent
Decided On : 16-12-2020
Crl.R.C.(MD)No.345 of 2016
Advocate Appeared:
For the Petitioner: Mr.K.Suresh
For the Respondent: Mr.N.Shanmuga Selvam
Headnote:
Negotiable Instruments Act, 1881 - Section 138 and 139 - Borrowed a Sum - Discharge of Liability - Insufficiency of Funds - Whether he has taken any photocopy of promissory note - Whether transaction has been reflected in returns - Whether evidence projected by accused is probable - Held, Ex.P.6 has been marked as if it is a photocopy of original promissory note - Complainant claims that he is an Income Tax assessee and that he has been filing Income Tax returns - He admitted that transaction in question had not been reflected in his statement of accounts nor in Income Tax returns - Complainant is said to be doing agriculture in 3 acres - He is also running a fertiliser shop and STD booth - A sum of Rs.3,00,000/- is certainly a substantial amount - He claims to have advanced said amount to accused even without taking any security - Accused has to establish defence only by preponderance of probability - Courts below ought to have seen that five successive cheques have been used for launching five prosecutions in different Courts - Of course there is some merit in contention of complainant's counsel that this Court should take note of failure on part of accused in not responding to statutory notice - On that sole ground, her evidence cannot be foreclosed - Case allowed.
ORDER :
Heard the learned counsel on either side.
2. The petitioner herein was prosecuted for the offence under Section 138 of the Negotiable Instruments Act in C.C. No.114 of 2005 on the file of the Judicial Magistrate No.II, Kulithalai.
3. The case ended in conviction and sentence. Challenging the same, the petitioner filed C.A.No.40 of 2014 before the Sessions Judge, Mahila Fast Track Court, Karur. The learned appellate Judge vide Judgment dated 09.02.2016 confirmed the conviction and modified and reduced the sentence. Challenging the same, this criminal revision case came to be filed.
4. The learned counsel appearing for the revision petitioner reiterated all the contentions set out in the memorandum of grounds and wanted this Court to set aside the impugned Judgments and acquit the revision petitioner and allow this revision case.
5. Per contra the learned counsel appearing for the complainant submitted that the impugned Judgment do not call for any interference.
6. I carefully considered the rival contentions and also went through the evidence on record.
7. The case of the complainant is that the accused/revision petitioner borrowed a sum of Rs.3,00,000/- from him on 06.12.2003. She issued complaint cheque Ex.P.1 bearing No.009728 dated 10.01.2005 drawn on Bank of India, Coimbatore for a sum of Rs.3,00,000/- favouring the complainant towards partial discharge of her liability. The complainant presented the same for collection on 18.01.2013. It was returned unpaid on 20.01.2005 for the reason of insufficiency of funds in the account maintained by the accused. The complainant issued Ex.P.4 notice dated 12.02.2005. The same was received by the accused on 14.02.2005. The accused did not respond, nor did she comply with the demand set out in the notice. Therefore, the complainant filed C.C.No.114 of 2005 before the jurisdictional Court. The complainant had examined himself as P.W.1 and marked Ex.P.1 to Ex.P.6. The accused examined himself as D.W.1 and one Rajendran was examined as D.W.2 and one Gunasekaran was examined as D.W.3. Ex.D.1 to Ex.D.4 were marked during the trial.
8. The learned counsel appearing for the complainant would contend that the signature appearing in the cheque is not in dispute. It is true that the complainant had admitted that promissory note was executed by the accused at the time of availing loan and that the same was not marked. The learned counsel would point out that in the complaint itself, it had been stated that when issuing the complaint cheque Ex.P.1, the accused had taken back the original promissory note. The learned counsel would submit that this provides adequate explanation for non-marking of the promissory note. He would also point out that the accused failed to send any reply notice, after receiving Ex.P.4 notice. He wanted this Court to reject the defence version that the accused had dealing only with one Rajedran and Ex.P.1 cheque was given to him as security and he had misused the same. The learned counsel would state that the defence projected by the accused had been considered carefully by the Courts below and negatived. He pointed out that this Court is now exercising revisional jurisdiction and that therefore this Court cannot interfere with the findings of the guilt imposed by the Courts below.
9. I am not persuaded by the objections raised by the learned counsel appearing for the complainant. As rightly pointed out by the learned counsel appearing for the accused, a careful perusal of the deposition of the complainant who examined himself as P.W.1 cannot inspire the confidence of the Court. The revision petitioner is a resident of Coimbatore. The complainant is a permanent resident of Chinnamanaickenpatti, in Karur District. The accused had specifically taken the stand that she was not having any transaction with the complainant. In the cross examination of P.W.1, the complainant a
