MOHANRAJ Vs. C JEYASINGH

JUDGEMENT

(1.) This criminal revision case has been filed seeking to set aside the concurrent judgment of conviction made by both the Courts below.

(2.) The petitioner is an accused and respondent is complainant. The respondent filed a private complaint under Section 200 of Cr.P.C. against the petitioner for the offence under Section 138 of Negotiable Instruments Act, stating that the petitioner borrowed a sum of Rs.3.40 lakhs o n 12.01.2010 and agreed to repay the same within a month with interest at 12% p.a. Accordingly, when the respondent/complainant demanded repayment of amount, the petitioner issued a cheque bearing No.210839 dated 16.05.2010 drawn at HDFC Bank in favour of the respondent/complainant. The respondent/complainant presented the cheque for collection and the same was returned as "Account Closed". Therefore, the respondent caused legal notice on 28.05.2010 and the same was received by the petitioner on 29.05.2010, but, the petitioner neither repaid the amount nor issued any reply for the said notice. The complaint was taken on file by the learned Judicial Magistrate II, Pollachi, in S.T.C.No.1057 of 2010. The learned Magistrate, after trial, found the petitioner/accused guilty for the offence under Section 138 of NI Act and hence by judgment dated 14.06.2012, convicted and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.3,000/-, in default, to undergo simple imprisonment for a further period of one month. Aggrieved against the same, the petitioner has preferred an appeal before the learned Principal Sessions Judge, Coimbatore. The learned Principal Sessions Judge, has taken the same on file in C.A.No.191 of 2012 and made over the same to the learned I Additional District and Sessions Judge, Coimbatore. The leaned I Additional District and Sessions Judge, after hearing the counsel on either side, by judgment dated 17.10.2012, dismissed the appeal and confirmed the conviction and sentence made by the trial Court, against which, present revision has been filed.

(3.) The learned counsel for the petitioner would submit that there was no liability on the part of the petitioner towards the respondent and the cheque was not issued towards discharge of any legally enforcible debt. The respondent misused the blank cheque issued towards security for the previous loan, which was fully settled by the respondent. But the respondent instead of returning the cheque, which was issued towards security, has misused the same for filing false case against the petitioner. The above defence was established through cross examination of respondent/complainant. The learned trial Judge has failed to consider the above facts and the lower appellate Court has also not appreciated the evidence rightly and convicted the petitioner. Further he would submit that, pending trial, the respondent came for compromise and only on that basis, the petitioner approached the trial Court not to proceed the case further, since the matter was likely to be settled, petitioner did not examine any witness. However, the respondent, who came for compromise, suddenly withdrew the same and hence the petitioner was put to great hardship. The trial Court failed to consider the fact that the revision petitioner has established his defence though cross examination of the respondent and the respondent has not proved that there is legal liability on the part of the petitioner and the entire cross examination proved the defence and also the respondent has no sufficient means to lend such a huge sum of money. There is no existing liability on the part of the petitioner and the cheques were not issued towards discharge of any legally enforcible debt and the petitioner has rebutted the presumption favouring the respondent/complainant under Section 118 and 139 of NI Act. Both the Courts below had failed to consider the above facts and convicted the petitioner, which warrants interference.