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TMI Blog2020 (3) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... have issued directions to his Bank to stop payment, but that was not done. The accused also did not issue any reply notice to the statutory demand notice sent by the complainant. Of course, that by itself, cannot be a reason to hold against the accused. But, that circumstance, if viewed cumulatively with other circumstances, does make this Court to reject the defence theory. The defence theory, that the eight post dated cheques for ₹ 20,000/- each were given in anticipation of a loan that was promised by the complainant, defies credibility. Though the accused can discharge the burden under Section 139 of the Negotiable Instruments Act by preponderance of probability even that has not been done in this case - this Criminal Revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not comply with the demand, the complainant initiated a prosecution in S.T.C.No.182 of 2011 before the Fast Track Court at Magisterial Level No.II, Erode, for the offence under Section 138 of the Negotiable Instruments Act, against the accused. 4.The complainant examined himself as P.W.1 and marked Exs.P1 to P8. 5.When the accused was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him, he denied the allegations and did not give any explanation as to the circumstances under which the impugned cheques came into the hands of the complainant. The accused examined Ganesan, Branch Manager, Canara Bank, Erode, as D.W.1 and marked the statement of accounts of the complainant as Exs.D1 and D2. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Prabu. 3.Post the matter on 04.02.2020 for arguments. 11.Heard Mr.J.Rajendra Prabu, learned Amicus Curiae appearing for the petitioner/accused and Mr.M.Guruprasad, learned counsel appearing for the respondent/complainant. 12.It is trite that while exercising revisional jurisdiction in a case involving concurrent findings of fact arrived at by two Courts below, the High Court cannot act as a second appellate Court [See State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand and Others, etc. (2004) 7 SCC 659]. Very recently, in Bir Singh vs. Mukesh Kumar [(2019) 4 SCC 197], the Supreme Court has held as under: 17.As held by this Court in Southern Sales Services v. Sauermilch Design and Handels GmbH [Southern Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... range the loan and instead, misused the cheques. The complainant denied this suggestion. The defence was not able to make any serious dent in the testimony of the complainant (P.W.1) in the cross-examination. 17.Muthusamy, who examined himself as D.W.2, has stated that he knows the complainant and the accused; two years ago, he had given a loan of ₹ 20,000/- to the accused; six months thereafter, when he asked the accused to return the loan amount, the accused took him to the complainant and asked for a loan of ₹ 50,000/-; at that time, the complainant asked the accused to give ten cheques as security, but the accused gave only eight cheques as security; twenty days later, the accused returned his loan of ₹ 20,000/-; a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on 30.08.2011. If the complainant had failed to arrange the promised loan, the accused would have issued directions to his Bank to stop payment, but that was not done. The accused also did not issue any reply notice to the statutory demand notice sent by the complainant. Of course, that by itself, cannot be a reason to hold against the accused. But, that circumstance, if viewed cumulatively with other circumstances, does make this Court to reject the defence theory. The defence theory, that the eight post dated cheques for ₹ 20,000/- each were given in anticipation of a loan that was promised by the complainant, defies credibility. 20.In Uttam Ram Vs. Devinder Singh Hudan Another (C.A.No.1545 of 2019 decided on 17.10.2019) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remaining sentence. 23. If any amount has been deposited by the accused either in the appellate Court or in the trial Court in connection with this case, the same shall be disbursed with accrued interest to the complainant or to his legal heirs, as the case may be. It is always open to the parties to file an application before the trial Court under Section 147 of the Negotiable Instruments Act for compounding the offence, even after the accused is taken into custody. In the event of the matter being compounded under Section 147, ibid. before the trial Court, the Magistrate shall send a report to the Assistant Registrar (Crl. Side), who shall make it form part of the records in Crl.R.C.No.1480 of 2013. - - TaxTMI - TMITax - Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X
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