9911796707
TMI Blog2023 (12) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the Accused (A2 to A4) are well acquaintance with the complainant and the second Accused(A2) is managing the business of the Firm and the other Accused (A3 & A4) are sharers of the first Accused-Firm. The third Accused(A3), on behalf of the first Accused(A1), in the month of March 2008, borrowed a sum of Rs. 3,00,000/- from the complainant and executed an acknowledgment for the said amount and also had agreed to repay the same within a period of six months. After six months, in spite of repeated demands and requests made by the complainant, the Accused did not repay the said amount. On 01.05.2010, a cheque bearing No. 243025 drawn on Indian Bank, Pudur Branch, Madurai, for a sum of Rs. 3,00,000/- was issued to the complainant by the accused. In that cheque, on behalf of the first Accused (A1), second Accused (A2) signed. On 13.05.2010, the cheque was presented for collection and the said cheque was returned on 14.06.2010 as "insufficient funds" through written memo dated 16.06.2010. (i) Thereafter, on 21.06.2010, the complainant issued notice to the Accused (A1 to A4) and the same was received and replied by the Accused. After notice was issued by the complainant, the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the following grounds: "a. The judgment passed in C.A.No. 1 of 2014 by Learned Additional District and Sessions Judge, is erroneous and liable to be set aside and the judgment of the trial court is well founded and has to be sustained. b. The appellate court ought not to have reversed the findings of the trial court which is well founded on legal principles. c. The complainant had well established her case by both oral and documentary evidence. d. The trial court had rightly concluded as if the complainant had discharged the initial burden of the borrowal by accused by Ex.PI. It is submitted that the accused had denied the signature in Ex.P1. The trial court had availed Section 73 of Evidence Act for comparing the signature and come to the conclusion that ExP1 (undertaking letter) was executed by accused. The 1st Appellate Court discarded the above findings by coming to the conclusion that the court should not resort to comparison of signature in hot fight cases. The above view of the 1st Appellate Court is erroneous and not supported by judgments. It is submitted that when the trial court had come to the above conclusion that the accused should have taken recourse by fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex.X2 were also marked. The trial Court after elaborate discussion, correctly convicted the Accused and sentenced them to undergo six months Rigorous Imprisonment and ordered to pay a compensation of Rs. 3,00,000/-, in default of payment, to undergo a further Simple Imprisonment of three months. 6.1. In the appeal, the Appellate Court, without considering the evidences adduced on the side of the complainant, had erroneously reversed the judgment of the trial Court and acquitted the Accused by holding that the complainant has not proved the case. In fact, the complainant categorically deposed about the relationship of the parties and loan borrowed by the third Accused (A3) on behalf of the first Accused (A1) and issuance of cheque. The Appellate Court failed to consider the evidence of P.W.1 that she is capable to lend money to the Accused. Moreover, the Accused did not take steps to compare the signature found in the cheque through expert and the presumption under Section 139 of the Negotiable Instruments Act is in favour of the complainant. In order to rebut the above said presumption under Section 139 of the Negotiable Instruments Act, the Accused have failed to establish the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case against the Accused for the offence under Section 138 of the Negotiable Instruments Act. 9. This is a case filed by the wife of erstwhile employee of the Accused company, alleging that the Accused borrowed a sum of Rs. 3,00,000/- from the complainant in the month of March 2008 and then issued a cheque dated 01.05.2010 for a sum of Rs. 3,00,000/- and the cheque was presented for collection, but it was returned and thereby the complainant issued notice to the Accused and the notice was received by the Accused, but the Accused issued reply and not settled the amount, thereby the complainant has filed this complaint. 10. The contention of the Accused is that the complainant has no source of income to lend such a huge amount. The Accused and the Accused company having turnover of transaction around Rupees One Crore per year and thereby there is no need of borrowal of such amount from the complainant. The husband of the complainant was the erstwhile employee of the Accused company, working under the first Accused as Accountant. At that time, the Accused used to give the cheques for business purpose and the same was misused by the husband of the complainant and now filed this compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat earlier she was working in Urban Bank in the year 1995 and 1996 and thereby she knew the procedures with regard to the payment of money. While so, under what reason, she obtained such acknowledgement without any receipt or promissory note with stamp, has to be explained by the complainant. But there is no proper explanation by the complainant. 12.2. Further according to the complainant, the Accused borrowed a sum of Rs. 3,00,000/- from the complainant in the month of March 2008 and the cheque was issued in the Month of May 2010. While so, what about the interest, has to be explained by the complainant. When the amount was given for interest for business purpose, then whey the complainant has not demanded interest from the Accused, also creates serious doubts over the case of the complainant. Further the complainant has issued notice to the Accused. In the said notice also, there is no mention about the date and the place, where the amount was given to the Accused. Further, the complainant has produced Ex.P7 receipt for a sum of Rs. 75,100/- dated 12.10.2010, alleging that the said amount was paid for the pledged jewels, but the alleged money was given in the year 2008 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned office. But, on perusal of evidence of D.W.1, it reveals that already the claim amount of Provident Fund was settled to Mr.S.P.S.Muthuraman/P.W.2. In this context, D.W.1 has deposed that the P.W.2 namely Mr.S.P.S.Muthuraman was working at Caltech Gas India Private Limited, Paaraipatti from April 2002 to February 2005 and his Provident Fund amount was paid in the month of March 2011. On 03.03.2011, he applied the form for payment of Provident Fund amount. On 15.12.2010, he received a letter from Paramasivam and Sons by stating that on 17.03.2011, the Provident Fund amount of Mr.S.P.S.Muthuraman/P.W.2 was claimed. 16. Therefore, the contention of the complainant that the accused failed to settle the Provident Fund amount is not acceptable one. Further the accused has examined the income tax officials to show that from the year 2008 to 2011, they filed income tax for around Rupees One Crore. To that effect, D5 to D7 were marked. D.W.3 has stated that the second accused (A2) had account in the Indian Bank and having Old Account No. 286, New Account No.4084854480 and the account was operated from 01.04.1995 to 23.07.2005. As per Ex.P8, M/s.Paramasivam & Sons company has autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds sold on credit. Though the Complaint contains no specific averments that the Cheques were issued for the purchase made on credit, in his evidence, PW1 clearly stated that the Cheques were issued for the commodities purchased on credit. The Courts below erred in brushing aside the evidence of PW1 on the ground that there were no averments in the Complaint as to the purchases made by cash and purchase [sic credit]. The Courts below also erred in not raising the Statutory presumption under Section 139 of the Act that the complainant received the Cheques to discharge the debt or other liability in whole or in part. 19. It is for the Respondent-Accused to adduce evidence to prove that the Cheques were not supported by consideration and that there was no debt or liability to be discharged by him. The Receipts-Ex.22/C (colly) relied upon by the Respondent- Accused do not create doubt about the purchases made on credit and the existence of a legally enforceable debt for which the Cheques were issued. The Courts below erred in saying that by the Receipts-Ex.22/C (colly), the Respondent-Accused has rebutted the Statutory presumption raised under Section 139 of the Negotiable Instruments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceable debt is to be presumed in favour of the Complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not. The other observations as regards any variance in the Statement of Complainant and Witness; or want of knowledge about dates and other particulars of the Cheques; or washing away of the earlier Cheques in the rains though the office of the Complainant being on the 8th floor had also been of irrelevant factors for consideration of a probable defence of the Appellant. Similarly. the factor that the Complainant alleged the Loan amount to be 22,50,000 and seven Cheques being of ?3,00,000 each leading to a deficit of ?1,50,000 is not even worth consideration for the purpose of the determination of real questions involved in the matter. May be, if the total amount of Cheques exceeded the alleged amount of loan, a slender doubt might have arisen, but, in the present matter, the total amount of 7 Cheques is lesser than the amount of loan. Significan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has taken a view that the Accused has not denied the signature found in the complaint and the complainant proved her financial capacity to pay the amount by pledging her jewels and mortgaging the properties. But those mortgaged documents are unregistered documents and cannot be relied and those documents were also not marked. Further, the alleged pledging of jewels were not proved and only the complainant produced the redemption of jewels in the year 2010. But the alleged lending money was given in the year 2008. Further the trial Court failed to consider that P.W.2 himself admitted the employment under the first accused company and he only managed the accounts of the company and had transactions with the Bank and the Bank account was inoperative from 24.09.2005 onwards. Thereby the accused has probablized his defense. 19. Considering the above said aspects, the trial Court has erroneously convicted the Accused by holding that the complainant has proved her case. 20. The Appellate Court after elaborate discussion and discussing the citations of the Hon'ble Supreme Court of India as well as the High Courts, had elaborately gone into the facts and evidences of the case and correctl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
