JUDGMENT

(Prayer in Cr.R.C. No. 594 of 2017: Criminal Revision Case is filed under Section 397 r/w 401 of Cr.P.C., to set aside the judgment and conviction dated 24.03.2017 made in C.A.No.31 of 2016 on the file of the III Additional District and Sessions Court, Gobichettipalayam confirming the judgment dated 28.01.2016 made in C.C.No.214 of 2007 on the file of Judicial Magistrate No.I, Gobi.)

1.The revision petition is filed against the concurrent findings of the Courts below. The subject matter of the revision is the cheque dated 09.04.2007 issued for Rs.9,00,000/- by the revision petitioner, in favour of the respondent. According to the respondent, the cheque was given by the revision petitioner to discharge the loan. On presentation, the cheques was returned for “insufficiency of fund”, hence after serving statutory notice, a complaint filed under Section 138 of Negotiable Instruments Act, 1881.

2. To prove the case, the complainant/S.Natarajan (P.W.1) and Ranganathan (P.W.2), Postal Inspector were examined. In support of the complainant, 6 exhibits were marked.

3. On behalf of the petitioner/accused, two witnesses were examined and 11 exhibits were marked.

4. The Trial Court held the accused guilty and sentenced him to undergo one year S.I and to pay fine of Rs.5,000/- in default one month S.I.

5. Aggrieved by that, the accused preferred appeal before the III Additional District and Sessions Court, Gopichettipalayam.

6. The Appellate Court, after re-appreciation of evidence confirmed the findings of the Trial Court and dismissed the appeal. While dismissing the appeal, the Trial Court in addition awarded compensation of Rs.9,00,000/- being the value of the cheque amount.

7. Aggrieved by the concurrent findings of the Courts below, the present revision is filed on the ground that, the Courts below failed to take note of the fact that the statutory notice was not served to the accused. The Courts below failed to take note of the fact that the complainant, in his chief examination has stated that, Rs.9,00,000/- was borrowed by the revision petitioner on 09.04.2007. Whereas, the cheque is dated much prior to the said date i.e., 02.05.2007. This sole fact destroy the entire case of the complainant. The said discrepancy cannot be reconciled by any other evidence. Therefore, when the transaction itself is much later to the date of cheque, the Courts below ought to have believed the version of the accused that the complainant herein has misused the cheque given by the petitioner to one S.Nagarajan, Advocate who is the colleague of the complainant, having joint office. The self contradictions of the complainant P.W.1, in his evidence, regarding filling up of blank cheque will prove that cheque was not issued to him for any legally enforceable debt. But, the unfilled cheque handed over to the colleague of the petitioner, filled and misused to extract money.

8. The Learned counsel appearing for the petitioner/accused submit that, there is no privity of contract between petitioner/accused and respondent/complainant. The petitioner herein had earlier transaction only with one S.Nagarajan, colleague of the respondent/complainant. The respondent had no wherewithal to advance loan of Rs.9,00,000/-. His bank transaction as spoken by D.W.1 would clearly indicate that, at relevant point of time, the respondent/complainant never had cash balance exceeding Rs.5,00,000/-.

9. The subject cheque was given to Nagarajan in respect of property, which he was holding the power of attorney. During the course of the said transaction, the blank cheque given to S.Nagarajan has been misused by his friend Natarajan/the complainant and same has been presented, filling the amount as Rs.9,00,000/-. The petitioner has proved that, the complainant had no wherewithal to advance loan of Rs.9,00,000/- and the complainant has failed to prove how Rs.9,00,000/- was given to the petitioner herein. Hence, the Courts below ought to have dismissed the complaint.

10. The two cheques