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TMI Blog2022 (4) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... months. On demand for re-payment, the accused has issued two post dated cheques. When the same were presented for encashment, they were returned with an endorsement as "Insufficient Funds". Hence, a legal notice was issued. Despite receipt of notice not paid the amount. Only accused No. 4 gave an untenable reply and not complied with the demand. Hence, a complaint was filed and cognizance was taken. Accused No. 2 did not turn up. Hence, a split up case was registered against him. The complainant examined P.A. holder as P.W. 1 and got marked the documents as Exs. P1 to P20(a and b). Accused No. 1 examined himself as D.W. 1 and got marked the documents viz., Exs. D1 to D3. The learned Magistrate acquitted accused Nos. 3 and 4 for the said offences and convicted accused No. 1 to pay a sum of Rs. 1,50,000/-. Aggrieved by the judgment of conviction, accused No. 1 filed Crl.A. No. 53/2006, wherein, the judgment of conviction was set aside and the matter was remanded to the Trial Court with a direction to give an opportunity to the complainant to depose in the case as witness to prove his complaint-Ex. P18 and to adduce further evidence if any by both the sides and to dispose of the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility and the cheque must be confined to matters covered. 5. The learned counsel also relied upon the judgment of the Apex Court in the case of N. Harihara Krishnan v. J. Thomas reported in AIR 2017 SC 4125, wherein, the Apex held that, offence by company, arraigning company as accused is condition precedent for their prosecution. 6. PER CONTRA, the learned counsel appearing for the respondent-complainant would submit that the issuance of cheque is not disputed. The documents-Exs. D1, D2 and D3, pertaining to the earlier transaction and those documents not helped to the case of the petitioner. The learned counsel would submit that both PWs. 1 and 2 have categorically deposed with regard to the transaction between the petitioner and the respondent. In the cross-examination of D.W. 1, he categorically admitted the capacity to lend the amount of Rs. 1 Lakh by the complainant and now cannot contend that the complainant was not having capacity to lend the amount and contend that the same is not shown in the IT returns. The learned counsel also would submit that in Ex. D3, the ink used in the said document is different and there is an insertion. The petitioner categorically admitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before this Court is that the petitioner has rebutted the case of the complainant. In support of his contentions he also relied upon the judgment in Vijay's case (supra), regarding presumption is concerned; when evidence has been adduced, the cheque was not issued for discharge of any debt or liability. In the case on hand, issuance of cheque is not disputed. The only contention is that there was no any transaction in the year 2004 and the cheque was given in the year 1993 itself. No doubt, these two cheques are bearing No. 40350 dated 15.10.2004 and No. 40349 dated 05.10.2004, respectively, which are marked as Exs. P1 and P2. The petitioner also relies upon the document of cheque, which is marked as Ex. D1. On perusal of Ex. D1 dated 20.04.1993, the same is for an amount of Rs. 50,000/- and the said cheque No. 40347. The learned counsel relying upon the document-Ex. D1, would vehemently contend that when Cheque No. 40347 was given in the year 1993, question of issuing other two cheques bearing No. 40349, 40350 in the year 2004 does not arise and also produced Ex. D3 for having received the amount. The very said contention cannot be accepted for the reason that for the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner is concerned, nothing is available on record. The very contention of the learned counsel for the petitioner cannot be accepted. The other contention is that in the Income Tax returns not shown for having made the judgment also cannot be a ground when the petitioner himself admitted the capacity of the complainant in lending the money. 11. The other contention with regard to the Firm has not been arraigned as accused and the said defense is taken for the first time in the revision petition. No where in the cross-examination of P.W. 1 and also in his evidence produced before the Trial Court, took up the said defense. In order to meet the said contention also, no opportunity was given to the complainant for the first time in revision, the said contention is raised. No doubt, Ex. P1, is signed by accused No. 1 as Partner. But the complaint is very specific that this petitioner only approached him for financial assistance and the complainant has not stated that all of them have approached him. In paragraph No. 2, it is specifically stated that accused No. 1 for their business, he requested to lend the money in the year 2004. No doubt, other averments are that they did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken note of Ex. D3, it does not disclose about the fact that from whom the loan was availed and to whom it was advanced and also there were over writings. Hence, the defense theory has not been accepted and comes to the conclusion that the case of the complainant has not been rebutted. When both the Courts have given the reasoning while convicting the petitioner based on both oral and documentary evidence placed on record, I do not find any error committed by both the courts and only this Court can exercise the revisional jurisdiction if the judgment of the Trial Court and the Appellate Court contrary to the evidence available on record. If any such perverse finding is given or otherwise, the revisional jurisdiction cannot be exercised. Hence, I do not find any circumstances to interfere with the findings of both the Courts. Hence, I answer Point Nos. (i) to (iv) as 'negative'. 14. It is also the contention in the revision petition that there is an order to pay an amount of Rs. 2 Lakhs and to undergo six months simple imprisonment, is unjust and no case was made out for ordering for payment of double the cheque amount. The petitioner had suffered loss in business, which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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