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2022 DIGILAW 464 (MAD)

V. Abuthahir v. Thirupathi

2022-02-22

R.THARANI

body2022
JUDGMENT : (Prayer: This criminal revision case filed under Section 397 r/w Section 401 of Cr.P.C., to call for the records from the lower Courts and set aside the judgment of the Appellate Court passed by the Additional District Judge No.VI, Madurai District, in C.A.No.17 of 2020, dated 29.10.2020, confirming the judgment of the Judicial Magistrate (Fast Track) No.II, Madurai District, in S.T.C. No.447 of 2016, dated 09.12.2019 by allowing the Revision.) 1. This Criminal Revision Case has been filed to set aside the judgment of the Appellate Court passed by the Additional District Judge No.VI, Madurai District, in C.A.No.17 of 2020, dated 29.10.2020, confirming the judgment of the Judicial Magistrate (Fast Track) No.II, Madurai District, in S.T.C. No. 447 of 2016, dated 09.12.2019. 2. The case against the revision petitioner is that on 01.06.2014, the petitioner borrowed a sum of Rs.10,00,000/- to meet out his family expenses and for business needs and agreed to pay an interest at the rate of 1.5% and executed an undertaking agreement. But, he failed to repay the amount, even after demand from the revision respondent. When the complainant approached the revision petitioner to repay the amount, he issued a cheque, dated 15.05.2015 drawn in S.B.I., Tallakulam Branch. When the complainant presented the cheque, the cheque was dishonoured as “funds insufficient”. Again, on 05.08.2015, the complainant presented the cheque for collection and the same was returned as “stop payment”. The revision respondent filed a complaint, which was taken on file as S.T.C.No.447 of 2016 on the file of the Judicial Magistrate No.II, (F.T.C., Magistrate Level), Madurai. The trial Court found the petitioner guilty under Section 138 of N.I.Act and sentenced him to undergo 6 months simple imprisonment and to pay a compensation of Rs.10,00,000/- (Rupees Ten Lakhs only) to the complainant within a period of three months, in default, to undergo a further period of two months simple imprisonment. Against the conviction and sentence the petitioner filed an appeal in C.A.No.17 of 2020 on the file of the VI Additional Sessions Judge, Madurai. That appeal was dismissed by the first appellate Court. Against which, the petitioner has preferred this revision in Crl.R.C.(MD)No.7 of 2021. 3. On the side of the revision petitioner, it is stated that the revision petitioner did not borrow any amount from the respondent. He borrowed some amount from one Sivasubramanian and Seeman and not from the revision respondent. That appeal was dismissed by the first appellate Court. Against which, the petitioner has preferred this revision in Crl.R.C.(MD)No.7 of 2021. 3. On the side of the revision petitioner, it is stated that the revision petitioner did not borrow any amount from the respondent. He borrowed some amount from one Sivasubramanian and Seeman and not from the revision respondent. The revision respondent failed to prove that there was a legally enforceable debt. 4. It is further stated that only Rs.4,40,000/- was borrowed by the revision petitioner from Sivasubramanian and Seeman. The said Seeman was working as an appraiser in Indian Overseas Bank. The petitioner filed a case against Sivasubramanian and Seeman and that case was closed by the police and the petitioner filed a private complaint. The respondent failed to prove that he is capable of lending a huge amount of Rs.10,00,000/-. He failed to produce any material, viz., Income Tax return, to show his capacity and that an adverse inference has to be drawn against the respondent. The amount in the cheque leaf was forged only by the respondent, there is ink difference between the signature and the amount and the name mentioned in the cheque. A person, who was doing primary work could not mobilize such a huge amount and prayed the conviction and sentence to be set aside. 5. On the side of the revision petitioner, it is stated that the trial Court has failed to consider Ex.D3, a notice sent by the petitioner to one Seeman. Reply notice - Ex.D5, Ex.D6- complaint and D7-F.I.R registered against the above Sivasubramanian and Seeman. In Ex.D9, this Court has ordered the revision petitioner to implead the present respondent as an accused in the F.I.R-Ex.D7. The private complaint filed by the respondent is marked as Ex.P10. Without considering Ex.D6 to Ex.D10, the trial Court has wrongly convicted the revision petitioner. 6. On the side of the respondent, it is stated that the paying capacity of the respondent was discussed by the trial Court. The revision petitioner/accused has not challenged the financial capacity of the respondent. He claimed only a Binami transaction. The claim of the revision petitioner is that he has already paid Rs.25,00,000/- for a loan of Rs.4,40,000/-. But, he has failed to file any document to show repayment of the loan, even to the said Sivasubramanian and Seeman. 7. The revision petitioner/accused has not challenged the financial capacity of the respondent. He claimed only a Binami transaction. The claim of the revision petitioner is that he has already paid Rs.25,00,000/- for a loan of Rs.4,40,000/-. But, he has failed to file any document to show repayment of the loan, even to the said Sivasubramanian and Seeman. 7. On the side of the revision respondent, it is stated that the revision petitioner has admitted the signature in the cheque and presumption under Section 139 of N.I. Act is applicable to this case. The complaint given by the revision petitioner against one Sivasubramanian and Seeman was closed as 'mistake of fact'. The revision petitioner has failed to file any protest petition against the closure of F.I.R. The revision petitioner himself has admitted that the revision petitioner is rich and hence, there is no necessity to examine any witnesses to prove the capacity of the respondent. 8. The date when the revision petitioner borrowed some amount from Sivasubramanian and Seeman was not specifically stated in the revision petition, when the revision petitioner repaid the said loan amount was also not stated in the petition. Ex.D3, D5, D6, D7, D9 and D10 are insufficient to prove that the revision petitioner did not borrow any amount from the revision petitioner. The revision petitioner failed to produce any documents to show that the defacto complainant was acting as a Binami to the said Seeman. Mere allegation that the defacto complainant is the brother-in-law of the said Seeman is insufficient to prove the case of the revision petitioner. 9. The revision petitioner has admitted his signature in the cheque leaf marked as Ex.P2. Promissory Note was marked as Ex.P12. Loan confirmation document was marked as Ex.P13. Since the revision petitioner has admitted his signature in the cheque leaf, duty is cost upon him to disprove the execution of the cheque leaf. The revision petitioner has questioned only the wordings and amount mentioned in the cheque leaf and he is claiming that the name and amount were in different ink and the signature is in a different ink. When a person is handing over a signed cheque to some one, he is giving that person liberty to fill up the blanks in the cheque leaf. Hence, this contention of the revision petitioner is unsustainable. 10. When a person is handing over a signed cheque to some one, he is giving that person liberty to fill up the blanks in the cheque leaf. Hence, this contention of the revision petitioner is unsustainable. 10. The revision petitioner himself has admitted that the accused is a rich man and he failed to prove that the defacto complainant is not having sufficient means to lend money. The revision petitioner has not denied Ex.P8, undertaking affidavit. He has admitted his signature in Ex.P8, wherein, it is clearly stated that the petitioner has executed the undertaking affidavit in favour of the defacto complainant. The evidence of P.W.3 is clear as to the borrowal of the revision petitioner and the execution of Ex.P8. Since the revision petitioner himself has admitted his signature in Ex.P1 – cheque leaf and since the revision petitioner himself has admitted that the defacto complainant is rich and his wife also belong to rich family and since the revision petitioner failed to prove that the loan transaction was not between the petitioner and the defacto complainant, the revision petitioner failed to disprove the case under Section 139 of N.I.Act. The defacto complainant has examined three witnesses and has proved his case. The defacto complainant has proved that the cheque was presented for collection and the same was first returned as 'insufficient fund' and then again, when the cheque was presented, the cheque was returned as 'stop payment', which clearly reveals that the intention of the revision petitioner is not to repay the loan amount. 11. For the above reasons, it is decided that there is nothing sufficient enough to interfere in the orders of the both the Courts below and hence, this Criminal Revision Case is dismissed. Registry is directed to send a copy of this order to the trial Court for taking action.