ORDER

The accused herein has preferred this criminal revision case against the concurrent findings of conviction passed under Section 138 of the Negotiable Instruments Act, 1881 by the Judicial Magistrate Court, Palacode in C.C.No.5 of 2007 and by the Principal Sessions Court, Dharmapuri in Crl.A.No.6 of 2016.

2. The case of the complainant is that he knows the accused and they are business partners. On 09.11.2006, the accused borrowed Rs.7 lakhs from the complainant and issued a cheque drawn on Bharat Overseas Bank, Hosur branch. As per the request of the accused, the complainant presented the cheque on 06.12.2006 for encashment. It was returned for the reason “funds insufficient”. The complainant caused to issue a legal notice on 23.12.2006 to the accused was received by him. He in turn issued a reply notice on 10.01.2007 with false details. As the accused did not choose to return the above said amount, he presented a complaint before the Judicial Magistrate Court, Palacode under Section

138 of the Negotiable Instrument Act.

3. At trial, complainant has examined himself as C.W.1. Ex.C1 to C4 were marked. Ex.C1 is the Cheque dated 09.11.2006. The accused has examined himself as D.W.1 and other six witnesses were examined and Ex.D1 to Ex.D17 were marked.

4. Whereas, the accused would contend that he did not issue any cheque to the complainant. On receipt of legal notice only, he came to know that his cheque was dishonoured by his banker. His father and the complainant are partners in Dhanalakshmi Auto Finance. The business was commenced in the year 2000 and no share was given to the accused's father so far. His further defence is that during the year 2000 and 2001, he was employed at TVS Company, Mysore on contract basis and he had given five signed blank cheques to his father in order to give salary and for payment of rent and for EB payment of his company. The said five cheques were given to the complainant, he encashed four cheques as evident through the statement of account of complainant and remaining one cheque was retained by the complainant. This was not at all known to him. Only on the receipt of legal notice, he came to know that his signed blank cheque was misused and case has been foisted against him.

5. The trial Court after evaluating the evidence held that when the complainant retains cheque of the accused, then without taking any steps to get back the cheque or without taking any legal action, the defence set up by the accused to the effect that among the five cheques, four cheques were encashed by the complainant and the remaining one signed blank cheque was misused and case is foisted against him is totally unbelievable. The defence put forth was only for the purpose of this case and the charge against the accused under Section 138 of the Negotiable Instrument Act was held to have been proved and he was convicted for one year simple imprisonment and within a month, he has to pay compensation of Rs.7 lakhs under Section 357 of Cr.P.C.

6. This was challenged by the accused in Crl.A.No.06 of 2016 by the judgment dated 25.04.2017 before the learned Principal District Court, Dharmapuri. The First Appellate Court having heard the arguments on both sides, concluded that as both are business partners and the accused having accepted that he gave five cheques to the complainant and the complainant encashed the four cheques, which was not mentioned in the reply notice. Without taking any legal action after receipt of legal notice, the accused's contention that one signed blank cheque of the accused was misused by the complainant is totally rejected and the appeal was dismissed.

7. The learned counsel Mr.S.Ayyathurai appearing for the appellant/accused would vehemently argue that out of the five cheques he had given to the complainant, money was encashed through four cheques and one blank cheque was retained by the complainant and in fact, he misused the cheque and falsely foisted this case. He also drew the attention of this