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2012 DIGILAW 2693 (MAD)

N. R. Imayavaramban v. V. Ramakrishnan

2012-06-28

C.S.KARNAN

body2012
Judgment :- 1. The respondent herein / complainant had filed a case in C.C.No.205 of 2004, on the file of Judicial Magistrate-II, Coimbatore, against the revision petitioner / accused for an offence under Section 138 of Negotiable Instruments Act, stating that the accused had received a sum of Rs.20,000/-, on 01.08.1999, as a loan, agreeing to pay interest at the rate of 24% per annum. In order to discharge the liability of the said loan amount, he had issued a cheque on 02.12.2000 for a sum of Rs.31,500/-, dated 20.12.2000. The said cheque was presented on 08.01.2001 for collection. It was returned unpaid. Hence, the case was levelled against the revision petitioner herein. 2. On the side of the complainant, the complainant was examined as P.W.1 and one Govindarajan, Bank official was examined as P.W.2 and seven documents were marked as Exs.P1 to P7, viz., Ex.P1-dishonoured cheque, Ex.P2-returned memo, Ex.P3-debit advice, Ex.P4-legal notice, Ex.P5-copy of pronote, Ex.P6-accused bank statement and Ex.P7-authorization letter. On the side of the accused, the accused was examined as D.W.1 and he had marked a document, viz., bank statement. 3. P.W.1-Ramakrishnan had adduced evidence that the accused is his relative and that he had paid a sum of Rs.20,000/- as loan on 01.08.1999. The said principal amount and accrued interest was not paid by the accused. On his repeated demands, the accused had issued a cheque for a sum of Rs.31,500/- on 02.12.2000, drawn on State Bank of India, R.S. Puram Branch. He further stated that the said cheque was presented for encashment on 08.01.2001 with his bankers, viz., Central District Co-operative Bank and the same was returned on 09.01.2001 due to insufficient funds through return memo marked as Ex.P2. P.W.1 further stated that he had issued legal notice on 11.01.2001 to the accused and asked him to pay the cheque amount. Even after receipt of the said notice, the complainant did not pay the said amount. He had further adduced evidence that the case in O.S.No.140 of 2001 registered in the Sub Court, against the accused herein had been decided in favour of him and that the copy of the pronote has been marked as Ex.P5. P.W.1 had marked the above mentioned seven documents as exhibits. 4. He had further adduced evidence that the case in O.S.No.140 of 2001 registered in the Sub Court, against the accused herein had been decided in favour of him and that the copy of the pronote has been marked as Ex.P5. P.W.1 had marked the above mentioned seven documents as exhibits. 4. P.W.2-Govindarajan, Manager of State Bank of India, R.S. Puram, Coimbatore had adduced evidence stating that the accused is an account holder in their bank and that his account number is 01190006350; that the said cheque came to their bank on 20.12.2000 and was returned unpaid as, there was insufficient funds in his account; that in the relevant period, the balance of amount in the account of accused was Rs.7,020/-. 5. On the side of the accused, the accused had adduced evidence stating that he had no business directly with the complainant. He further stated that he had not received any money from the complainant and had also not issued the cheque; that one Mr. Vadivelu is his uncle's son; that the said Vadivelu had borrowed the said sum from one Jayanthi; that to discharge the said loan, he had given the impugned cheque to Vadivelu; that his account in the said Central Co-operative Bank was 9183; that he had only signed in the said cheque and had not filled up, the date and name; that the said cheque has been misused by the complainant herein, who had filed a false case against him; that he had given another cheque to and in favour of the said Vadivelu for discharge of the said debt to Jayanthi; that Vadivelu had also deposited the cheque and received the cheque amount; that he had given the cheque dated 16.04.1998, which is a self cheque to Vadivelu and another cheque dated 02.06.1998 bearing cheque No.191570 to the said Vadivelu and he had encashed both the cheques; that on asking the said Vadivelu to return the cheques, the said Vadivelu had informed that the cheques had been misplaced somewhere and that it would be returned shortly. But he had not returned the said cheques so far. The impugned cheque in the present case is the one which had been given to the said Vadivelu. He further stated that the cheque had been signed by him, but the amount, name and date had not been written by him. But he had not returned the said cheques so far. The impugned cheque in the present case is the one which had been given to the said Vadivelu. He further stated that the cheque had been signed by him, but the amount, name and date had not been written by him. D.W.1 further stated that he had filed a case in C.C.No.371 of 2000, before the Judicial Magistrate against one Sivakumar and as he did not appear in the said case, non-bailable warrant was issued against him and the same was executed and he was jailed. As such, it was stated that there was enmity between the complainant and himself. 6. On recording the evidence of both sides and on perusing the documentary evidence, and after hearing the arguments of both the sides, the learned Magistrate had come to a conclusion that the accused had received a sum of Rs.20,000/-as a loan and in order to discharge the said loan, he had issued the cheque for a sum of Rs.31,500/-and the same was dishonoured. Therefore, the accused was found guilty under Section 138 of Negotiable Instruments Act and was sentenced to undergo simple imprisonment for a period of six months and was also imposed a fine of Rs.5,000/-in default of payment of fine, he was to undergo further period of simple imprisonment for one month. 7. Aggrieved by the said judgment and conviction, the accused had filed an appeal before the Additional District and Sessions Judge cum Fast Track Court-I, Coimbatore. 8. On considering the appeal grounds and on hearing the arguments of the learned counsels on both sides, and on perusal of the trial Court's conviction and sentence, the learned District Judge dismissed the said appeal in in C.A.No.88 of 2007, on 11.07.2007, and confirmed the trial Court's conviction and sentence. 9. Aggrieved by the said conviction and sentence, the above revision has been filed. 10. The revision petitioner has appeared as a party-in-person and submitted that the case was misconstrued against him. The impugned cheque was misused and filled by the complainant, due to enmity between himself and one Sivakumar. The disputed cheque was issued on 02.12.2000 for a sum of Rs.31,500/-, dated 20.12.2000 and the said cheque was presented on 08.01.2001 for collection. 10. The revision petitioner has appeared as a party-in-person and submitted that the case was misconstrued against him. The impugned cheque was misused and filled by the complainant, due to enmity between himself and one Sivakumar. The disputed cheque was issued on 02.12.2000 for a sum of Rs.31,500/-, dated 20.12.2000 and the said cheque was presented on 08.01.2001 for collection. The revision petitioner further submitted that he had filed a complaint in C.C.No.371 of 2000, on the file of Judicial Magistrate-I, Coimbatore, against four persons viz., 1) Doraiswami Chettiar, 2) D. Sivakumar, 3) S. Kannan and 4) Radha, for offence under Sections 406, 463, 442, 380 and 209 of I.P.C. In the said case, all the four accused did not appear before the Judicial Magistrate-I, Coimbatore on 20.12.2000. Hence, non-bailable warrant was issued on the accused. The same was executed against the second accused, viz., Sivakumar and he was remanded into judicial custody till 26.12.2000. The revision petitioner further submitted that on 08.01.2001, i.e., 13 days after the release of the second accused in his private complaint, the State Bank of India cheque bearing No.186003, was fabricated in the name of V. Ramakrishnan, nephew of the first accused in his private complaint and the date was put as 20.12.2000 and the same was presented for collection 08.01.2001. Therefore, all the above mentioned persons have colluded with each other and fabricated the cheque for their own convenience and filed the case. The revision petitioner further submits that there is no prima facie case on the side of the complainant. 11. The revision petitioner further submits that P.W.2, Bank Manager had stated in his evidence that the handwriting and ink in which the name is written differs from the handwriting and ink in which the amount had been written in words and numbers and the handwriting and ink in which the date is written in numbers differs from the handwriting and ink in which the amount is written in numbers. The revision petitioner has filed a statement of accounts, in order to prove who all had money transactions with him and that he did not have any money transactions with any of the proxies of the accused in his private complaint. 12. The revision petitioner has filed a statement of accounts, in order to prove who all had money transactions with him and that he did not have any money transactions with any of the proxies of the accused in his private complaint. 12. On considering the entire facts and circumstances of the case and arguments advanced by the revision petitioner and on scrutinizing the impugned judgment of the Courts below and on going through the statement of accounts furnished by the revision petitioner, this Court is of the considered view that a criminal complaint in C.C.No.371 of 2000, on the file of Judicial Magistrate-I, Coimbatore against the relatives of the complainant, exists and that in that complaint, the second accused was arrested and remanded into judicial custody on 23.12.2000. Thereafter, the complaint in C.C.No.205 of 2004 had been filed against the revision petitioner. It clearly shows that there is bias and a clear motive, on the part of the complainant in making the said complaint. Further, it is seen that the contentions of the revision petitioner regarding the impugned cheque cannot be swept away as not credible as he had backed his contentions by reliable evidence. It is also seen that there is discrepancy in the handwritings found in the body of the cheque and in the name and date mentioned in the cheque. Hence, taking everything into account, this Court is of the view that the respondent has not proved his case beyond doubt . Hence, this Court allows the revision and the accused is set at liberty. 13. In the result, the Criminal Revision is allowed. Consequently, the judgment and conviction passed in C.A.No.88 of 2007, on the file of Additional District and Sessions Judge cum Fast Track Court-I, Coimbatore, dated 11.07.2007 confirming the conviction and sentence passed in C.C.No.205 of 2004, dated 21.02.2007, on the file of Judicial Magistrate-II, Coimbatore is set-aside. Consequently, connected miscellaneous petition is closed.