BALARAMAN Vs. BALASUBRAMANIAM

JUDGEMENT

(1.) The petitioner/accused in a case filed by the respondent under Sec. 138 of Negotiable Instruments Act (hereinafter referred to as "NI Act") in C.C.No.551 of 2017 was acquitted by the Trial Court by judgment dtd. 23/10/2018. The respondent/complainant filed an appeal in C.A.No.63 of 2019. The learned Sessions Judge by judgment dtd. 27/8/2019 in a haste without hearing the petitioner, set aside the judgment of the Trial Court and convicted the petitioner. Aggrieved against the same, the petitioner preferred a revision in Crl.R.C.No.389 of 2021 and this Court by order dtd. 13/7/2021 finding that the Lower Appellate Court had reversed the judgment of the Trial Court but failed to give opportunity and hear the petitioner to defend the case, set aside the judgment dtd. 27/8/2019 and remanded the case back to the Lower Appellate Court. Thereafter, C.A.No.63 of 2019 was heard afresh and the learned Sessions Judge by judgment dtd. 11/8/2021 reversed the acquittal of the Trial Court and sentenced the petitioner to undergo one year simple imprisonment and directed the petitioner to pay the cheque amount of Rs.14,35,000.00 as compensation to the respondent. Against which, the present revision is filed.

(2.) The complaint filed by the respondent is that the petitioner is in the stock market business and known to the respondent for several years. The petitioner used to borrow money from the respondent for his emergency expenses and repay them in short intervals. In the same manner, the petitioner borrowed a sum of Rs.14,35,000.00 from the complainant on 29/1/2015, though assured to repay the amount within three months but failed to pay. After several requests and repeated demands, the petitioner issued a cheque bearing No.173960 dtd. 28/10/2016 for Rs.14,35,000.00 of Union Bank, Coimbatore. The cheque was presented on 2/11/2016 by the respondent in his name at Karur Vysya Bank, Somanur, but the cheque not honored and returned on 4/11/2016 for the reason "funds insufficient." Thereafter, statutory notice issued on 9/11/2016 and the petitioner received the notice on 15/11/2016 but he neither paid the cheque amount nor sent any reply. Thereafter, complaint filed. In this case, the complainant examined himself as PW1 and marked Ex.P1 to Ex.P8. The respondent examined himself as DW1 and marked Ex.D1 to Ex.D8.

(3.) The learned counsel for the petitioner/accused submitted that the Trial Court considered the evidence in its totality and found that the petitioner had probabilized his defence and there was no loan taken by the petitioner from the accused, it was the respondent who invested in share trading business and the petitioner, as a share broker, was advising him and giving suggestions. In the share trading business, the respondent lost some money and believing that this loss was sustained only due to wrong advice of the petitioner, the respondent misused the cheque which was given by the petitioner for an earlier transaction taking a loan of Rs.45,000.00, a sum of Rs.14,35,000.00 filled up and projected as though the petitioner received the same as loan. To disprove the same, the petitioner examined himself as DW1 and marked eight documents. The petitioner in his evidence as DW1 admitted that the petitioner and the respondent known to each other from the year 2006 and the respondent employed in the firm of one Moorthy who was having a share trading account with the petitioner and thereafter, the respondent shown interest in the share trading and invested in the share trading business and later suffered some loss. To prove the same, he marked the statement of accounts/Ex.D6 for the period 1/1/2015 to 24/1/2018, Ex.D7 and Ex.D8 are the Statement of Accounts of Net worth Stock Broking Limited to show that the respondent was doing stock investment through the petitioner. Ex.D1 to Ex.D4 are the copies of the cheques issued for the stock broking business. The respondent in his evidence denied any business in stock broking with the petitioner or Net worth Stock Broking Limited, which got exposed when the petitioner examined himself as DW1 and marked documents. The respondent could not deny the evidence of the petitioner. Further, the petitioner questioned the wherewithal of the respondent to give a loan of such huge amount. The respondent unable to give details about when, where and how this amount paid to the petitioner and further not able to produce any contemporary documents to show that he had such huge amount with him. On the other hand, the respondent produced Ex.P5 to Ex.P8/income tax returns for the period 2015 to 2017, from which, it is seen that no such amount of Rs.14,35,000.00 shown as credit in the name of the petitioner. Considering all these aspects, the Trial Court rightly dismissed the complaint and acquitted the petitioner. But the Lower Appellate Court merely gone on surmises and conjunctures reversed a well reasoned judgment of acquittal and the judgment of the Lower Appellate Court is bereft of any consideration of facts. The Lower Appellate Court on perusal of case records EX.P1 to Ex.P8 and Ex.D1 to Ex.D8 gave a finding that it is a definite case of the complainant that the petitioner borrowed a sum of Rs.14,35,000.00 from the respondent on 29/1/2015 and issued a cheque/Ex.P1, further referred to cross examination of DW1 wherein the petitioner admitted that he borrowed a sum of Rs.45,000.00 and issued a cheque but to substantiate the same, he had not sent any reply to the statutory notice and further referring to Sec. 20 of NI Act, justified that the cheque can be filled up and presented by the payee. Further Ex.P5 to Ex.P8 are the income tax returns of the complainant, from which it is seen that he is doing Textile business and thereby confirming he has got wherewithal to pay the amount of Rs.14,35,000.00, further finding statutory presumption under Ss. 118 and 139 of NI Act proved, reversed the judgment of acquittal and convicting the petitioner is not proper.