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TMI Blog2017 (8) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... he Criminal Revision case is allowed in part. The conviction and sentence imposed against the 3rd accused/ 3rd revision petitioner alone are set aside. The fine amount, if any, paid by the 3rd accused/ 3rd revision petitioner is directed to be refunded to her. The bail bond, if any, executed by her, shall stand cancelled. However, the conviction and sentence imposed by the Courts below on the other accused are confirmed. Nature of the imprisonment would be the same as ordered by the Courts below in the impugned judgments. The period of sentence already undergone by the 2nd accused, if any, is ordered to be set off. The trial Court is directed to take steps to secure the 2nd accused to undergo the remaining period of sentence, if any. - Crl. R.C.No.1772 of 2011 - - - Dated:- 10-7-2017 - N. Sathish Kumar, J. For the Petitioners : Mr.N.Manokaran For the Respondent : Mr.B.Gopalakrishnan ORDER The revision petitioners herein are the accused. Aggrieved over the conviction and sentence by the Judicial Magistrate No.IV, Salem, which was confirmed by the 1st Additional District and Sessions Judge, Salem, awarding simple imprisonment of one year each and to pay a fine o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not return the amount. Thereafter, the accused Firm suffered huge loss in business and that the Principal i.e. New Royal Enfield Motor Cycles also sent a notice to cancel the dealership and at that time Mohan requested the accused to recommend his name. As the accused did not agree for that, the said Mohan, has misused the blank cheques. D.W.2 also stated that blank cheques were misused by the said Mohan. (iii). The complaint preferred by the complainant/ respondent was taken cognizance in ST.C.No.1536 of 2006. After due trial, the learned Judicial Magistrate No.IV, Salem found the accused guilty under Section 138 of the Negotiable Instruments Act and imposed sentence to undergo one year Simple Imprisonment each and also to pay a fine of ₹ 5,000/- each and in default, Simple Imprisonment for two months. Against which, the accused/ revisionists preferred an appeal in Crl.A.No.162 of 2010 and the Additional District and Sessions Court, Fast Track Court No.1, Salem, vide judgment dated 10.11.2011 confirmed the judgment of the Trial Court. Therefore, the accused/revisionists are before this Court. 4. Learned counsel appearing for the revision petitioners /accused submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available under Section 138 of the Negotiable Instruments Act? 8. It is not in dispute that 2nd and 3rd accused, who are husband and wife, are partners of the 1st accused Firm. On a careful perusal of the entire records, it is seen that the 1st accused Firm is the dealer of Royal Enfield Motor cycles and that they had branch office at Salem and Erode. It is the case of the complainant that the accused had approached him and borrowed a sum of ₹ 10,00,000/- on 18.12.2005 for the purpose of their business, and issued Ex.P1 cheque, which has been signed by the 2nd accused. According to the complainant, the 2nd and 3rd accused, being husband and wife and partners of the 1st accused Firm, came together and borrowed the aforesaid amount. It is also the case of the complainant that on the advise given by the 2nd and 3rd accused, he presented the cheque in question on 03.4.2006 but the same was dishonored on account of insufficient funds and that the presentation of cheque for encashment and dishonour has also been clearly established by adducing oral and documentary evidence. 9. Admittedly, P.W.2, Assistant Manager, ICICI bank and P.W.3, Bank Manager, Syndicate Bank, were ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld clearly prove the fact that Ex.P-1 cheque has been issued only for discharging the legally enforceable debt. The cursory glance at the cheque in question would leave no doubt that the same is undisputedly signed by the 2nd accused. At the risk of repetition, this Court once again points out that the signature, presentation as well as dishonour of cheque has been clearly established by the complainant. The statutory presumption also comes into operation in favour of the complainant. 13. It is worthy to mention that at the first instance i.e., in the reply notice issued by the accused, there was no whisper about the handing over of the alleged blank cheques to Mohan. Only during the trial, the said defence has been introduced by the accused for the first time. Though the accused have taken the defence that on 04.10.2004, one Mohan has arranged finance of ₹ 1,30,000/- and at that time, two blank cheques have been handed over to him and that, the same has been misused, the accused have not taken steps to examine the said Mohan. However, the accused have filed letter dated 05.4.2004 said to have been issued by Mohan in this regard, which is marked as Ex.D10. D.W.2 was also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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