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2016 DIGILAW 3030 (MAD)

G. Swaminathan v. Y. Babu

2016-08-30

G.CHOCKALINGAM

body2016
ORDER : 1. This Criminal Revision is directed against the order passed by the learned I Additional District and Sessions Judge, Coimbatore made in CA.No.25 of 2015, dated 29.03.2016 confirming the order passed by the learned Judicial Magistrate (FTC No. II, Magisterial level), Coimbatore made in STC.No.184 of 2012, dated 08.01.2015. 2. The brief facts of the case is as follows:- The respondents is the complainant, preferred complaint under Section 138 of the Negotiable Instruments Act before the learned Judicial Magistrate in STC.No.184 of 2012, in which he has stated that the revision petitioner has borrowed a sum of Rs.3,75,000/- and agreed to repay the amount in short time and issued a cheque bearing No.018403 dated 14.09.2011, when the cheque was presented for collection, the same was returned with an endorsement "funds insufficient" in the account of the revision petitioner. The complainant issued notice and the same was received by the revision petitioner and there is no reply or payment as demanded in the notice, thereafter, the complainant preferred complaint before the trial Court. After appreciating the evidence adduced on either side, the trial Court finally come to a conclusion that the revision petitioner found guilty and convicted him to undergo simple imprisonment for one year and sentenced him to pay a fine of Rs.4,000/- in default to undergo two months simple imprisonment. Aggrieved over the said order, the revision petitioner/accused preferred appeal in CA.No.25 of 2015 before the I Additional District and Sessions Judge, Coimbatore. The appellate Court after analyzing the entire judgment and documents and after hearing both sides, dismissed the appeal and confirmed the order of the trial Court. Against the said order, the revision petitioner is before this Court by way of present criminal revision. 3. The learned counsel for the petitioner mainly contended that there was no legally recoverable debt was proved on the side of the complainant, further no notice was issued properly. During the pendency of the proceedings a sum of Rs.1,25,000/- was paid to the complainant. In view of the above, the trial Court ought to have dismissed the complaint, hence the trial Court erroneously convicted the accused which is liable to be set aside. The presumption of preponderance of probabilities, the trial Court without considering the above fact erroneously dismissed the petition and the same was confirmed by the lower appellate Court. In view of the above, the trial Court ought to have dismissed the complaint, hence the trial Court erroneously convicted the accused which is liable to be set aside. The presumption of preponderance of probabilities, the trial Court without considering the above fact erroneously dismissed the petition and the same was confirmed by the lower appellate Court. The learned counsel prays to set aside the judgments of the Court below and to allow the revision. 4. The learned counsel for the complainant/first respondent contended that the trial Court and the appellate Court after appreciating the entire facts and evidence comes to a correct conclusion and found guilty and convicted the revision petitioner and during the pendency of the case, the accused admitted that he has paid sum of Rs.1,25,000/- to the complainant. In view of the above, there is no illegality or infirmity in the order passed by the Courts below, hence, prays for dismissal of the revision petition. 5. It is clearly averred and proved by the complainant that the petitioner borrowed the amount from the complainant for his personal expenses and issued the cheque in dispute to the complainant. It is also admitted that when the cheque was presented for payment, the same is returned with an endorsement "insufficient funds" for which, the complainant issued legal notice, which is also received by the accused and issued reply to the said legal notice. In this case, even though there is no specific averments has been stated in the legal notice, as if more than ten cheques was issued and the cheque was filled up by some other persons, the same is not averred in the legal notice. The revision petitioner/accused during the course of cross examination as DW3 has stated that:- xxx xxx xxx 6. On reading of the above admission made by the accused during the course of cross examination clearly reveals that the present submission made on the side of the accused was not stated in the reply notice, further, the petitioner admitted the liability and paid Rs.1,25,000/-. According to the revision petitioner, the complainant has admitted only the receipt of Rs.70,000/- only. 7. According to the revision petitioner, the complainant has admitted only the receipt of Rs.70,000/- only. 7. The memo filed by the complainant counsel which reads as follows:- "It is most respectfully submitted that the accused gave two cheques dated 07.01.2014 and 11.03.2014 bearing numbers 98263277 and 98263279 drawn on City Union Bank, R.S. Puram, Coimbatore for Rs.50,000/- (fifty thousand rupees only) and Rs.20,000/- (twenty thousand rupees only) respectively, to the complainant towards part settlement of the amount covered under the cheque in the above complaint. The said two cheques were encashed by the complainant on the said dates. This memo may kindly be received and recorded." 8. It is admitted on the side of the complainant that during the pendency of the trial proceedings, the accused paid a sum of Rs.70,000/- toward part payment and the cheque was also encashed by the complainant. It is clear that the accused admitted the liability and made part payment to the complainant. The arguments of the learned counsel for the petitioner there is no illegally enforceable debt and he rebutted legal presumption are not correct and the said arguments of the revision petitioner has to be rejected. 9. The trial Court after analyzing the entire facts and circumstances, evidence and materials adduced on either side came to a conclusion, which was also confirmed by the lower appellate Court. This Court finds there is no illegality or infirmity in the order passed by the Courts below and the same does not warrant any interference by this Court. 10. In the result, the criminal revision petition stands dismissed. Consequently, connected miscellaneous petitions are closed.