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2021 DIGILAW 2673 (MAD)

C. P. Siva Arasu v. S. Sridhar

2021-10-01

RMT.TEEKAA RAMAN

body2021
JUDGMENT : (Prayer: This Criminal Appeal has been filed under Section 378 of the Criminal Procedure Code, to set aside the order passed by the learned Principal Sessions Judge, Chennai dated 18.02.2014 in Criminal Appeal No.182 of 2012 and confirm the order passed by the learned Metropolitan Magistrate, Fast Track Court-I, Egmore in C.C.No.3199 of 2012 and convict the respondent/accused for offence under Section 138 of the Negotiable Instruments Act.) (The case has been heard through Video Conference) 1. The unsuccessful private complainant is the appellant herein. 2. This appeal has been filed against the order passed by the learned Principal Sessions Judge, Chennai, in Crl.A.No.182 of 2012, dated 18.02.2014, wherein, the learned Judge has confirmed the order passed by the learned Metropolitan Magistrate, Fast Track Court-I, Egmore in C.C.No.3199 of 2012, dated 27.09.2012. 3. For the sake of convenience, the parties are referred to the complainant and the accused as per the rankings before the Trial Court. 4. The private complainant has filed a complaint under Section 200 of Cr.P.C., for the offence under Section 138 of the Negotiable Instruments Act, against the accused, for the dishonoured cheque to the tune of Rs.2,00,000/- and the same is taken up on file as C.C.No.353 of 2006 before the learned Judicial Magistrate at Ambattur, Chennai, and the learned Judge had transferred the said C.C. to the learned Metropolitan Magistrate, Fast Track Court No.I, Egmore, Chennai and renumbered as C.C.No.3199 of 2012. 5. After the trial, the learned Metropolitan Magistrate, Fast Track Court No.I, has convicted the accused for the offence under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period one year and to pay cheque amount of Rs.2,00,000/- as compensation within a period of one month from that date, in default to undergo simple imprisonment for a period of three months. Aggrieved by the said conviction and sentence, the accused has preferred Criminal Appeal No.182 of 2012, before the Court of Sessions, Chennai and by order dated 18.02.2014, the learned Judge has allowed the appeal. Hence, the present Criminal Appeal has been preferred by the complainant before this Court. 6. Heard the learned counsel for the appellant and learned counsel for the respondent and perused the materials placed on record. 7. Hence, the present Criminal Appeal has been preferred by the complainant before this Court. 6. Heard the learned counsel for the appellant and learned counsel for the respondent and perused the materials placed on record. 7. Brief facts leading to file of the private complaint are as under: a) Both the complainant viz., Siva Arasu and accused viz., Sridhar were friends and doing leather exporting business. Having well acquaintance with each other, the accused had borrowed a sum of Rs.2,00,000/- for his urgent business expenses, during February 2004. b) To repay the said loan, the accused had issued two cheques, vide (i) Cheque bearing number 598200 drawn on Punjab National Bank, dated 18.02.2006 & (ii) Cheque bearing No-127405, drawn on HDFC Bank dated 27.02.2006 each for a sum of Rs.1,00,000/- c) On 12.04.2006, both cheques were dishonored by the respective drawee banks for the reason “Payment stopped by the drawer” and “Account Closed” respectively. d) The said dishonour of the cheques were brought to the knowledge of the accused, the drawer, through the statutory legal notice dated 26.04.2006, demanding the amount due on the cheques to be paid within 15 days. e) On receipt of the said notice, the accused had replied on 16.05.2006 by stoutly denying the loan transaction and put forth his version that the cheques were given during the course of business without any consideration, for security at the time of receipt of advance commission for procuring foreign orders, had been misused. 8. Exs.P1 & P3 are the cheques issued by the accused as a proprietary of the Sun Shine Trading Company but in cheque it is mentioned as Letter of Authority, since, the accused is proprietaryship company. 9. On a perusal of Exs.P2 & P4/return memo and legal notice under Ex.P5, the Trial Court has rightly come to the conclusion that since the accused has not disputed that the cheques were belonged to him and he has also not disputed the signature on the cheques, the private complainant is entitled to statutory presumption under Section 139 of the Negotiable Instruments Act. Hence, it is for the accused to rebut the presumption by probablise the suggestive case of the defence to the level of preponderance of probability. 10. Hence, it is for the accused to rebut the presumption by probablise the suggestive case of the defence to the level of preponderance of probability. 10. In order to elicit and create a dent on the prosecution theory the accused has successfully elicited in the cross examination of PW1, the payee, besides the initiation of prosecution on the cheques addressed to him had initiated two other prosecutions, through his wife K.Amudha Priya and one Jothi Ramalingam, on identical pleadings. 11(a). It is admitted by PW1 during his cross-examination that he has borrowed money from the third party and given same to the accused and thereafter the complainant had repaid the said loan to that third party and the relevant portion of deposition is extracted hereunder: “TAMIL” 11(b). Further, the complainant could not remember from whom he had borrowed and when he repaid the said borrowing, etc. much less the name of the third party from whom he had borrowed he could not be recollected. This evidence had clearly revealed that the complainant had suppressed some facts and did not initiate the prosecution with true facts. 11(c). The complainant has not averred the basic material facts of the alleged “loan”i.e., the date of borrowing, place of borrowing, mode of borrowing & witness to the borrowing if any, in order to defeat the contention of the reply notice and to substantiate the prosecution case. Even after initiating prosecution, in sworn statement as well in proof affidavit, the complainant could not furnish those details before the Court, enabling it to believe the alleged loan transaction. “TAMIL” 11(e). Moreover, the complainant had admitted in his cross examination that he had not stated the above stated material facts of loan in his legal notice, complaint, sworn statement and proof affidavit and during the cross examination the complainant could not able to furnish those details of alleged “loan”. 12. The complainant is the business man and Income Tax assessee and not an agent but he could not able to give any particulars of the loan for a sum of Rs.2,00,000/-. From the inspection of the case it creates serious doubt as to the allegation of loan transaction with the accused. Furthermore, in the cross examination, the complainant has also admitted that he has borrowed money from the third party but he could not given the details of the person from whom he has borrowed. From the inspection of the case it creates serious doubt as to the allegation of loan transaction with the accused. Furthermore, in the cross examination, the complainant has also admitted that he has borrowed money from the third party but he could not given the details of the person from whom he has borrowed. In one portion of the cross-examination he has stated that he has no means to lend two lakhs to others, so, he has borrowed money from the third party. As extracted supra, he has not given the details of the person from whom he has repaid and he has not known when he has paid the loan to them. The relevant portion of the deposition is extracted hereunder: “TAMIL” 13. Further, during the cross-examination the complainant had deposed that he has not accounted the alleged “Borrowing” in his Income Tax Returns. Categorically stated that it is “Unaccounted Money”. 14. Thus, this Court finds that from the answer elicited in the cross examination of the private complainant he is unable to give details on date of borrowing, place of borrowing, mode of borrowing and whether any person had witnesses the borrowing. These all are basic material facts for the alleged loan. Neither in the complaint nor in the affidavit nor in his evidence he has chosen to disclose the same. As extracted supra by his own admission, he is unable to re-collect those days. The cheque amount is two lakhs. In the year 2006, the complainant was a business man and Income Tax assessee, it is hard to believe that he has given hand loan without any proof about the basic factors touching upon hand loan for a sum of Rs.2,00,000/- in the year 2006. 15. Yet another point is that the sum and substance of the answer elicited in the cross examination of the complainant is that he has no means to lend Rs.2,00,000/- so he borrowed the amount from the third party. 15. Yet another point is that the sum and substance of the answer elicited in the cross examination of the complainant is that he has no means to lend Rs.2,00,000/- so he borrowed the amount from the third party. In this connection also his admission was to the effect that he has borrowed the amount from various other persons and paid the said loan to the accused and he could not recollect from whom he has received the amount nor he is in a position to say when he has re-paid that amount and in the further cross he could say that he has loan of unaccounted money and hence, this Court finds that the accused has successfully probablised the suggestive case as to the non passing of consideration. Furthermore, he has created the dent in the prosecution theory. The basic features disclosed in the evidence of PW1 chief examination has been projected successfully in the cross examination by way of admission and hence, the Lower Appellate Court has rightly come to the conclusion that the accused has successfully rebutted the presumption by probablising the suggestive case to the preponderance of probability level and the same does not suffer from any illegality or irregularity, does not warrant any interference. 16. Hence, it is turn on the complainant to show the existence of legally enforceable debt and to accept the oral assertion no such document has been filed. In view of the answer elicited in the cross examination of PW1, this Court has no hesitation to held that the complainant has measurably failed to demonstrate the existence of legally enforceable debt as he filed to do so. 17. Accordingly, this Criminal Revision Case devoid of merits and stands dismissed. The order passed by the learned Principal Sessions Judge, Chennai, in Crl.A.No.182 of 2012, dated 18.02.2014, by confirming the order of the learned Metropolitan Magistrate, Fast Track Court-I, Egmore in C.C.No.3199 of 2012, dated 27.09.2012, is hereby confirmed.