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TMI Blog2021 (4) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... cquittal. The complainant/appellant alleged that, in discharge of an amount of Rs. 81,500/- due to the complainant, the accused/first respondent issued cheque No. 021301 dated 29.03.2006 drawn on Killipalam branch of the Indian Overseas Bank. On presenting through Vellayambalam branch of the Corporation Bank, the cheque was returned dishonoured on 12.04.2006 with the endorsement "funds insufficient". Thereafter, the first respondent was alerted through a lawyer notice on 29.04.2006, demanding payment of the amount within 15 days. Though the notice was served on him, the amount was not paid and thus the complaint was instituted before the trial court on 27.05.2006. 2. Pursuant to the summons, the accused/first respondent entered appearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability of the first respondent and also regarding the execution of Ext. P2 cheque by the first respondent towards a legally enforceable debt. On that premise the case ended in acquittal. 3. The appeal was preferred after obtaining special leave of this Court under Section 378(4) of the Cr.P.C. 4. I heard the learned counsel for the appellant as well as the learned counsel for the first respondent. Trial court records were also summoned and examined. 5. According to the learned counsel for the appellant, it was a chitty transaction, the sala of the chitty was Rs. 1,00,000/-, the first respondent had bid the chitty and a sum of Rs. 75,000/- was paid to him, the Ext. D4 ledger extract would reveal that he had paid only an amount of Rs. 42, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 75,000/- was received by him. It has also come out that the first respondent was given a passbook for making periodical entries of remittances. 8. Basing on Ext. D4 ledger extract, the learned counsel for the appellant submitted that the first respondent had paid only an amount of Rs. 42,000/-, that the principal amount of Rs. 58,000/- is due to the appellant; that along with interest is also payable by him; when the fact was apprised to the first respondent, he gave the Ext. P2 cheque, which, on presentation was dishonoured due to insufficiency of funds and that gave rise to the cause of action for initiating the prosecution case. 9. As noticed earlier, the fact that the first respondent was a subscriber to the chitty and had rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference. In other words, after remitting only Rs. 42,000/- towards the chitty with a sala of Rs. 1,00,000/-, it is only a matter of mathematical calculation that Rs. 58,000/- is due to the appellant. As rightly pointed out by the learned counsel for the appellant, Section 21(1)(c) of the Chit Funds Act 1982, enables the Foreman to claim interest and penalties, if any, payable or in default of payment of instalment and such other amounts as may be payable to him under the provisions of the Chit Funds Act. The appellant is the Foreman of the chitty and the first respondent is a defaulted subscriber. In the circumstances, the appellant is entitled to get back an amount of Rs. 58,000/- together with interest, penalty and other incidental expens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has admitted the chitty transaction. He has also no case that after getting the prize money, the entire amount was paid back. In other words, he has neither taken a plea of discharge nor attempted to make it out. His non sending a reply to the lawyer notice, non production of the pass book, vouchers etc., also have to be considered in this backdrop. 14. Much has been argued about the Ext. D2 counter foils of cheques kept by him. In my assessment, no inference can be drawn on the arguments based on Ext. P2. It can be assumed that it is a document maintained in regular course of business. Even otherwise, the other circumstances adverted to earlier give a clear upper hand to the appellant. He has proved execution of Ext. P2 cheque and thus is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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