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2012 DIGILAW 2694 (MAD)

N. R. Imayavaramban v. Shanmugamani

2012-06-28

C.S.KARNAN

body2012
Judgment :- 1. The respondent herein / complainant had filed a case in C.C.No.1023 of 2003, 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.76,000/-, on 09.03.1999, 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 for a sum of Rs.1,00,000/-, on 03.06.2000. The said cheque was presented on 27.12.2000 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 Duraisamy, 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-acknowledgment card, 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-Shanmugamani had adduced evidence that the accused is a relative of her husband and she had paid a sum of Rs.76,000/- as loan on 09.03.1999. The said principal amount and accrued interest was not paid by the accused. On her repeated demands, the accused had issued a cheque for a sum of Rs.1,00,000/- on 03.07.2000, drawn on Central Co-operative Bank Head Office, Coimbatore. She further stated that the said cheque was presented for encashment on 27.12.2000 with her bankers, viz., Bank of Baroda and the same was returned on 29.12.2000. P.W.1 further stated that she had issued legal notice 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. P.W.1 had marked the above mentioned seven documents as exhibits. 4. P.W.2-Doraisamy, Assistant Manager of Central Co-operative Bank, Coimbatore had adduced evidence stating that the accused is an account holder in their bank and that his account number is 9183; that the said cheque came to their bank on 29.12.2000 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.658.53. 5. 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, but had stated that the cheque was issued to one Krishnasamy. He further stated that the cheque had been signed by him, but the amount, name and date had not been written by him. He further stated that the cheque was filled by one C. Radha, who had collected the money from him on various occasions. 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.76,000/-as a loan and in order to discharge the said loan, he had issued the cheque for a sum of Rs.1,00,000/-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 one year 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, wherein the accused had raised a vital point stating that the cheque was issued on 09.03.1999 but the cheque was presented on 29.12.2000. As such, the cheque had been presented beyond the period of six months and hence the cheque was invalid. 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 C.A.No.87 of 2007, on 11.07.2007, and confirmed the trial Court's conviction and sentence. 9. 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 C.A.No.87 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. Actually, there was money transaction between one Radha and himself. The said cheque amount, a sum of Rs.1,00,000/- was paid on various occasions to the said Radha, but the said cheque had not been returned by her. The said cheque was misused and filled by the complainant, due to enmity between himself and one Sivakumar. The disputed cheque was issued on 09.03.1999 and the same was presented for collection on 29.12.2000, i.e., beyond the validity period of the cheque. 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 205 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 the complainant viz., D. Shanmugakani is the daughter of Doraiswami, who was the accused in C.C.No.371 of 2000 filed by the revision petitioner herein. The second and third accused, are brothers of the complainant and the fourth accused is the sister-in-law of the complainant. 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. 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 the transaction between the complainant's father and himself as well as the complainant's husband, Vadivelu. The revision petitioner further submitted that A. Vadivelu, husband of the complainant, Shanmuga Kani, was working as a staff member of the District Central Co-operative Bank Ltd., Coimbatore. He had encashed the revision petitioner's cheque on 22.01.1999 and 29.12.2000. 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 father and brothers and sister-in-law of the complainant, exists and that in that complaint, the second accused viz., the brother of the complainant was arrested and remanded into judicial custody on 23.12.2000. Thereafter, the complaint in C.C.No.1023 of 2001 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 her case beyond doubt . 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 her 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.87 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.1023 of 2003, dated 21.02.2007, on the file of Judicial Magistrate-II, Coimbatore is set-aside. Consequently, connected miscellaneous petition is closed.