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TMI Blog2015 (6) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... inant has failed to prove that the cheque in question was issued as against any legally enforceable debt. In this case, assuming that the defence taken by the accused, on the face of the transaction between Rajaraman and the accused, may not be true, even then the complainant has to fail in the case, because he has failed to prove the legally enforceable debt on the part of the accused. In view of the same, inclined to allow this revision and set aside the conviction and sentence imposed by the trial Court, which was confirmed by the lower appellate Court.Criminal Revision Petition is allowed and the conviction and sentence imposed on the petitioners are set aside and the petitioners are acquitted. - Crl. R.C. (MD) No. 569 of 2013 - - - Dated:- 9-6-2015 - S.NAGAMUTHU, JJ. JUDGEMENT S. Nagamuthu, ( 1. ) The petitioners are the accused in STC No. 1978 of 2007 on the file of the learned Judicial Magistrate No. III, Trichy. The first accused is a Company, the 2nd accused is its Managing Partner and the third accused is a partner of the said Company. The respondent filed the said case by way of private complaint alleging that the petitioners committed offences puni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the side of the complainant, the complainant was examined as P.W.1 and as many as six documents were exhibited. Ex.P1 is the promissory note and Ex.P2 is the cheque in question. Ex.P3 is the bank advice memo and Ex.P4 is the legal notice issued and Ex.P6 is the reply notice. When the above incriminating materials were put to the accused, they denied the same as false. On their side, the third accused was examined as D.W.1, wherein, he has stated that he had business transaction with one Mr. Rajaraman from whom he borrowed a sum of ₹ 3 lakhs and as a security, he had handed over the cheque in question, which was then blank, but signed by the accused 2 and 3 and also a blank promissory note, but signed by the 2nd accused and the third accused. He has further stated that as early as on 11.05.2005 under Ex.D1, he issued a notice to Mr. Rajaraman to return the cheque in question, the blank promissory note and the documents handed over to him at the time of borrowal, since the amount had been settled. Having received the said notice, Mr. Rajaraman did not send any reply. Thereafter the accused 2 and 3 issued a legal notice on 18.09.2006 to Mr. Rajaraman in respect of the above. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , has admitted that he does not know whether the promissory note was scribed by one Mr. Muthu or his son. The learned counsel would further submit that there is no evidence at all about the execution of the promissory note. The learned counsel would further submit that presumption under section 139 of the Act stands rebutted by the above circumstance. Therefore, according to him, the Courts below were not right in convicting the accused. ( 5. ) The learned counsel for the respondent would stoutly oppose this revision. According to him, so far as Ex.D1 is concerned, it is only a copy of the letter and there is no proof that the original was sent to Mr. Rajaraman. He would further submit that in Ex.D1 notice, there is no mention about the cheque in question as well as the promissory note in question. He would further submit that in the reply sent by Mr. Rajaraman, he has not admitted that the cheque in question and the promissory note were issued to him. The learned counsel would further submit that P.W.1's evidence would clearly go to show that the cheque was issued only to the complainant. He would further submit that the execution of the promissory note has also been proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd when it was executed and who scribed the said document. This creates enormous doubt in the case of the complainant. ( 7. ) Nextly , in order to prove the original debt, which forms part of the original cause of action and for the entire lis, it is for the complainant to prove the execution of the promissory note. As per the Evidence Act, there is a special mode of proof of a promissory note, which requires that atleast one of the attestors should be examined. Here, in this case, the promissory note shows that the 2nd accused is an attestor. Therefore, one cannot expect the complainant to examine him as a witness, as it is not possible. But at the same time, nothing would have prevented the complainant to examine the scribe of the document to speak about the execution. The scribe may be a witness, not only for the scribing of the document but for the entire transaction. It is not explained to the Court as to why the scribe has not been examined. As a result, the promissory note stands not proved and the payment of money by way of loan itself has not been proved. For this, the learned counsel for the respondent would submit that the accused have admitted their signature in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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