S.BURUSHOTHAM ALWYN Vs. A.GUNASING IMMANUEL

JUDGEMENT

(1.) These Criminal Appeals have been filed challenging the Judgment of acquittal passed by the learned Judicial Magistrate No.II, Udumalpet, in C.C.Nos.38, 36, 35, 34, 37 and 39 of 2017 dtd. 9/12/2021.

(2.) In Crl.A.No.627 of 2022, the appellant is the complainant and the 1st respondent is an Educational Institution and the 2nd respondent is the Administrative Director of the said Institution. On 19/2/2010, the 2nd respondent had approached the appellant seeking loan for the purpose of his Institution and since the 2nd respondent is his relative and doing business, the appellant lent a sum of Rs.28,37,500.00 for which, the 2nd respondent had issued promissory note to the appellant and thereafter, the 2nd respondent was paying the interest regularly. Thereafter, when the appellant had asked to return the loan amount, the 2nd respondent visited the house of the appellant on 4/2/2013 and towards the repayment of the loan amount of Rs.28,37,500.00, he issued 3 cheques dtd. 4/2/2013 bearing Nos.289275, 289276 and 289278 each for Rs.10.00 lakhs, Rs.10.00 lakhs and Rs.8,37,500.00 drawn on Indian Overseas Bank, Tirumalayampalam Branch, Coimbatore, in favour of the appellant and subsequently, taken back the promissory notes executed by him at the time of availing loan. Subsequently, the appellant deposited the said 3 cheques with his banker viz., Central Bank of India, Udumalaipet Branch for collection. But the same were returned with memo as "funds insufficient" on 8/2/2013. Hence, the appellant issued statutory notice to the respondents 1 and 2 and the same were received by them on 5/4/2013. However, they did not repay the amount within the statutory period and not even sent any reply to the statutory notice. Hence, the appellant filed private complaint under Sec. 200 Cr.P.C. for the offence under Sec. 138 of the Negotiable Instruments Act and the said complaint was taken cognizance in C.C.No.244 of 2013 by the Judicial Magistrate No.I, Udumalaipet and subsequently, transferred to Judicial Magisterial No.II, Udumalaipet, and re-numbered as C.C.Nos.39 of 2017. Before the trial Court, in order to substantiate the averments in the complaint, the complainant was examined as P.W.1 and on his behalf, 3 other witnesses were examined as P.W.2 to P.W.4 and 51 documents were marked as Ex.P.1 to Ex.P.51. On the side of the respondent, 4 witnesses were examined as DW.1 to DW.4 and 3 documents were marked as Exs.D1 to D.3.

(3.) In Crl.A.Nos. 621 to 625 of 2022, the appellant is the complainant and the respondent is the accused. The specific case of the appellant is that after availing loan of Rs.28,37,500.00 from the appellant on 19/2/2010, the respondent/2 nd respondent in Crl.A.No.627 of 2022 again approached the appellant herein on 16/6/2010, 13/10/2010, 16/2/2011, 15/6/2011, 14/12/2011 and availed loan of Rs.25.00 lakhs, Rs.25.00 lakhs, Rs.25.00 lakhs, Rs.20.00 lakhs and Rs.35.00 lakhs respectively for his business development by executing promissory notes and agreed to pay interest at the rate of Rs.1.00 for Rs.100.00 and also paid interest by cash regularly. Thereafter, in lieu of repayment of the said amounts, the respondent met the appellant on 22/12/2012 and handed over 5 cheques dtd. 22/12/2012 bearing Nos.021363, 021364, 021365, 021366, 021367 for Rs.25.00 lakhs, Rs.25.00 lakhs, Rs.25.00 lakhs, Rs.20.00 lakhs and Rs.35.00 lakhs respectively, drawn on Indian Overseas Bank, Tirumalayampalayam Branch, Coimbatore, and requested the appellant to present the same on 20/3/2013 and he also got back the promissory notes executed by him at the time of availing the loan. Accordingly, the cheques were presented by the appellant with his Banker namely Tamilnadu Mercantile bank, Udumalaipet Branch, for collection on 20/3/2013. But the same were returned on the same day viz., 20/3/2013 with the memo as "insufficient funds". Hence, the appellant issued statutory notices on 5/4/2013 through registered post and the same were received by the respondent on 8/4/2013. However, the respondent did not repay the amount within the statutory period and also not sent any reply to the statutory notices. Hence, the appellant filed 5 private complaints under Sec. 200 Cr.P.C. for the offence under Sec. 138 of the Negotiable Instruments Act and the same were taken on file by the Judicial Magistrate No.I, Udumalaipet in C.C.Nos.149 of 2013, 151 of 2013, 179 of 2013, 150 of 2013 and 180 of 2013 and subsequently, transferred to the Judicial Magistrate No.II, Udumalipet and re-numbered as C.C.Nos.34 of 2017, 36 of 2017, 37 of 2017, 35 of 2017 and 38 of 2017. Before the trial Court, in order to substantiate the averments in the complaint, in each case, the complainant was examined as P.W.1 and on his behalf, 3 other witnesses were examined as P.W.2 to P.W.4. Except in C.C.No.34 of 2017, in other cases viz., C.C.Nos.36 of 2017, 37 of 2017, 35 of 2017 and 38 of 2017, totally, 51 documents were marked as Ex.P.1 to Ex.P.51 and in C.C.No.34 of 2017, 56 documents were marked as Ex.P.1 to Ex.P.56. On the side of the respondent, 4 witnesses were examined as DW.1 to DW.4 and 3 documents were marked as Exs.D1 to D.3.