ORDER

This Criminal Revision Case has been filed to set aside the judgment of the Appellate Court passed by the Additional District Judge No.VI, Madurai District, in C.A.No.17 of 2020, dated 29.10.2020, confirming the judgment of the Judicial Magistrate (Fast Track) No.II, Madurai District, in S.T.C. No.

447 of 2016, dated 09.12.2019.

2. The case against the revision petitioner is that on 01.06.2014, the petitioner borrowed a sum of Rs.10,00,000/- to meet out his family expenses and for business needs and agreed to pay an interest at the rate of 1.5% and executed an undertaking agreement. But, he failed to repay the amount, even after demand from the revision respondent. When the complainant approached the revision petitioner to repay the amount, he issued a cheque, dated 15.05.2015 drawn in S.B.I., Tallakulam Branch. When the complainant presented the cheque, the cheque was dishonoured as “funds insufficient”. Again, on 05.08.2015, the complainant presented the cheque for collection and the same was returned as “ stop payment”. The revision respondent filed a complaint, which was taken on file as S.T.C.No.447 of 2016 on the file of the Judicial Magistrate No.II, (F.T.C., Magistrate Level), Madurai. The trial Court found the petitioner guilty under Section 138 of N.I.Act and sentenced him to undergo 6 months simple imprisonment and to pay a compensation of Rs.10,00,000/- (Rupees Ten Lakhs only) to the complainant within a period of three months, in default, to undergo a further period of two months simple imprisonment. Against the conviction and sentence the petitioner filed an appeal in C.A.No.17 of 2020 on the file of the VI Additional Sessions Judge, Madurai. That appeal was dismissed by the first appellate Court. Against which, the petitioner has preferred this revision in Crl.R.C.(MD)No.7 of 2021.

3. On the side of the revision petitioner, it is stated that the revision petitioner did not borrow any amount from the respondent. He borrowed some amount from one Sivasubramanian and Seeman and not from the revision respondent. The revision respondent failed to prove that there was a legally enforceable debt.

4. It is further stated that only Rs.4,40,000/- was borrowed by the revision petitioner from Sivasubramanian and Seeman. The said Seeman was working as an appraiser in Indian Overseas Bank. The petitioner filed a case against Sivasubramanian and Seeman and that case was closed by the police and the petitioner filed a private complaint. The respondent failed to prove that he is capable of lending a huge amount of Rs.10,00,000/-. He failed to produce any material, viz., Income Tax return, to show his capacity and that an adverse inference has to be drawn against the respondent. The amount in the cheque leaf was forged only by the respondent, there is ink difference between the signature and the amount and the name mentioned in the cheque.

A person, who was doing primary work could not mobilize such a huge amount and prayed the conviction and sentence to be set aside.

5. On the side of the revision petitioner, it is stated that the trial Court has failed to consider Ex.D3, a notice sent by the petitioner to one Seeman. Reply notice - Ex.D5, Ex.D6- complaint and D7-F.I.R registered against the above Sivasubramanian and Seeman. In Ex.D9, this Court has ordered the revision petitioner to implead the present respondent as an accused in the F.I.R-Ex.D7. The private complaint filed by the respondent is marked as Ex.P10. Without considering Ex.D6 to Ex.D10, the trial Court has wrongly convicted the revision petitioner.

6. On the side of the respondent, it is stated that the paying capacity of the respondent was discussed by the trial Court. The revision petitioner /accused has not challenged the financial capacity of the respondent. He claimed only a Binami transaction. The claim of the revision petitioner is that he has already paid Rs.25,00,000/- for a loan of Rs.4,40,000/-. But, he has failed to file any document to show repayment of