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2019 DIGILAW 260 (MAD)

Shanmugavel v. M. Albert

2019-01-25

RMT.TEEKAA RAMAN

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ORDER : 1. The unsuccessful private complainant is the appellant herein. He has filed this Criminal Appeal against the judgment passed by the learned Judicial Magistrate, Valliyoor in C.C.No.71 of 2003, dated 08.12.2008, wherein the accused was ordered for acquittal. 2. The case of the private complainant before the learned Judicial Magistrate, Valliyoor is that on 01.04.2002, the accused came to the house of the private complainant and requested him to give a sum of Rs.3,00,000/- (Rupees Three Lakhs Only) and the complainant has given the same. Since the accused is the friend of the complainant, he has not insisted him to execute any document and the accused has also given assurance that he would return the amount within one month, but the accused has not discharged his liability as agreed by him. On 02.05.2002, the complainant has gone to the house of the accused and the accused has given a cheque bearing No.797792, dated 03.05.2002, payable at Valliyoor, Tranvancore State Bank Branch. When the cheque has been presented for collection, the same was returned on 13.05.2002 with an endorsement “Account Closed”. Therefore, the complainant has given a statutory notice on 23.05.2002 to the accused and the accused has received the same on 27.05.2002. Even after receipt of the notice, he has not discharged the liability and also has not given any reply to the notice. 3. During the trial, the private complainant has examined himself as P.W.1 and marked Exs.P.1 to P.5. The respondent / accused made a suggestive case that the accused has given three cheques to one Anandaraj, who was the business partner of the private complainant herein and due to misunderstanding arose between the said Anandaraj and the accused, one of the cheque out of three cheque leafs bearing No.797791 was presented by the said Anandaraj and the same was dishonored on 08.06.2000. Thereafter, he setting up his business partner had instituted this false case and according to the accused, he does not know the private complainant. To substantiate his suggestive case, he examined one Jeyaraman, Branch Manager of his Banker as D.W.1 and one Bellarmine as D.W.2. 4. During the cross-examination of P.W.1, it is specifically suggested that the private complainant P.W.1 does not have any sufficient means to pay a sum of Rs.3,00,000/- to him and he disputed the means to pay such an amount as loan. 4. During the cross-examination of P.W.1, it is specifically suggested that the private complainant P.W.1 does not have any sufficient means to pay a sum of Rs.3,00,000/- to him and he disputed the means to pay such an amount as loan. As stated supra, the accused has taken an unique defence that he never received any hand loan on 01.04.2002 from the private complainant and he never issued any cheque in question to the complainant on 03.05.2002. It is the specific suggestive case of the defence that he had chit transaction with the business partner of the private complainant viz., Anandaraj with whom he deposited three leafs and one of the cheques was deposited by the said Anandaraj himself, which was dishonored. The private complainant has lodged the present false complaint. 5. After analyzing the oral and documentary evidence adduced before the trial Court, the trial Court has given a specific finding that except the ipse dixit of P.W.1 in the witness box, there is no document produced or any witness is examined to prove the alleged handing over of the hand loan of Rs.3,00,000/- and in the cross examination, P.W.1 has deposed that since the accused himself did not want any document evidencing such a payment, no document has been created evidencing such loan transaction. 6. This Court is unable to accept the said contention for more than one reason. The loan is for the amount of Rs.3,00,000/- in the year 2002. Hence, the answer given by P.W.1 that no document is necessary for evidencing the money transaction only as per direction of borrower, is only a self serving statement to safeguard himself from the suggestive case. 7. It remains to be stated that while P.W.1 in the cross-examination has categorically admitted that the brother of the accused knows about the handing over of the loan exchange of amount by way of hand loan, however, to disprove the said version of P.W.1, the accused examined his brother as D.W.2, who had categorically denied the same and hence, such passage of consideration or payment of hand loan as pleaded by P.W.1 goes against the private complainant's case as rightly pointed out by the trial Court. 8. Furthermore, the documentary evidence of Exs.D.3 and D.4 categorically gives a conclusion that the accused is a member of the chit fund run by the said Anandaraj. 8. Furthermore, the documentary evidence of Exs.D.3 and D.4 categorically gives a conclusion that the accused is a member of the chit fund run by the said Anandaraj. Furthermore, D.W.1 in his evidence has clearly demonstrated that the cheque having No.797791 issued to the said Anandaraj was dishonored on 08.06.2000 and the account was closed on 21.01.2001. From the documentary evidence of Exs.D.2 and D.3, it is seen that the cheque having No.797791 was dishonored on 08.06.2000 and the other cheque having next serial No. 797792 was dishonored only on 13.05.2002, which causes serious doubt as to the case of the private complainant. Such finding given by the trial Court that the case of the private complainant is doubtful as found on the documentary evidence, does not warrant any interference by this Court. 9. Furthermore, P.W.1 has stated that the cheque has been written by the accused himself. However, in the cross-examination, he has categorically admitted that the signature in the cheque was in different ink and the amount and the name and the quantum in words were written in different ink, which also causes serious doubt as to the answer of P.W.1 in the cross-examination that the contents of the cheque in entirety was written by P.W.1, which also goes against the private complainant's case on cumulative analysis of the material contradiction between the version of P.W.1 with that of the documentary evidence of Exs.D.1 to D.4. Therefore, the trial Court has come to the conclusion that the suggestive case of the accused is more probable, while the case of the private complainant is found to be doubtful. The said finding is well merited and well considered and accordingly, the order of acquittal passed by the trial Court does not warrant any interference by this Court. 10. In this view of the matter, this Criminal Appeal is dismissed. Therefore, the order of acquittal passed by the learned Judicial Magistrate, Valliyoor in C.C.No.71 of 2003, dated 08.12.2008 is hereby confirmed.