TaxTMI 
TaxTMI 
2018 (9) TMI 996
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....t issued a legal notice dated 28.11.2006 through RPAD and the same was received by the respondent on 04.12.2006. On receipt of the said notice, the respondent sent a reply notice dated 11.12.2006 stating that he never borrowed any amount from the appellant. Hence, the appellant sent a rejoinder on 14.12.2006. As the respondent failed to repay the loan amount, the appellant/complainant filed a complaint before the learned Judicial Magistrate No.IV, Coimbatore under Section 138 of the Negotiable Instruments Act, 1881. The Court below after taking cognizance of the offence, taken the complaint on file. (ii)In order to prove the case of the appellant, he examined himself as P.W.1 and marked the documents as Exs.P.1 to P.9. (iii)When the above incriminating materials were put to the respondent/accused under Section 313 Cr.P.C., the respondent denied the same as false. However, in order to prove his case, he did not examine any witness and he has not marked any document on his side. (iv)The learned trial Judge, after considering the entire records and the submissions made by the learned counsel on either side, by judgment dated 21.09.2007 in C.C.No.6 of 2007 dismissed the complaint....
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....Section 138 of the Negotiable Instruments Act, 1881. The learned Magistrate failed to consider those aspects and simply dismissed the complaint and acquitted the accused. Hence, the judgment passed by the learned Magistrate is unsustainable either in law or on facts and same is liable to be set aside and the respondent has to be convicted and directed to pay the compensation equal to twice the cheque amount. 6.The learned counsel for the respondent submitted that the respondent never borrowed any amount from the appellant at any point of time and he never issued any cheque, much less than Rs. 6,00,000/- mentioned in the alleged cheque Ex.P.1. The said cheque was rank forgery and was created by the appellant. 7.The learned counsel for the respondent further submitted that the respondent along with his wife and his father-in-law were running partnership firm in the name of 'Swadhi Steels and Hardwares' in Periyanaickenpalayam for the past 3 years. Prior to the occurrence, the appellant, who is an electrical licenced contractor, used to go to respondent's shop to purchase the electrical goods on behalf of his customers and by that way, he known the appellant. Hence, the ....
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....ellant, he issued Ex.P.1., cheque bearing No.768492 dated 23.11.2006, drawn on ICICI Bank, Pricol Complex, Periyanaickenpalayam, Coimbatore in favour of the appellant on 23.11.2006 for Rs. 6,00,000/-. Thereafter, the appellant presented the said cheque on the same day through his bank namely, Canara Bank, Gudalor Branch, Coimbatore and the said cheque was returned as dishonoured due to the reason "Funds insufficient" vide Ex.P.2, return memo dated 24.11.2006, and Ex.P.3, debit advice dated 25.11.2006. Hence, the appellant issued Ex.P.4, legal notice dated 28.11.2006 to the respondent. The respondent on receiving the said notice, issued Ex.P.7, reply notice dated 11.12.2006 denying the allegations made in Ex.P.4. Therefore, he made a complaint before the learned Judicial Magistrate No.IV, Coimbatore. In order to prove his case, the appellant himself examined as P.W.1 and marked 8 exhibits. 12.The cheque bearing No.768492 dated 23.11.2006, drawn on ICICI Bank, Pricol Complex, Periyanaickenpalayam, Coimbatore is marked as Ex.P.1. The Bank issued Return Memo stating that the cheque is returned as dishonoured with an endorsement "Funds insufficient" is marked as Ex.P.2. The debit advic....
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....e gave a sum of Rs. 6,00,000/- to the respondent for business purpose and the respondent promised to repay the said sum within one month. He further stated that the respondent requested him one month prior to 01.03.2006 i.e, hand loan. But, he paid the said sum of Rs. 6,00,000/- to the respondent by way of cash i.e. Rs. 3,00,000/- from his savings and Rs. 3,00,000/- from the sale proceeds of his vehicle and he is not having any amount from the Bank on that day i.e. 01.03.2006. But, for the said borrowed amount, the respondent issued a post dated cheque on 01.03.2006 by filling the date as 23.11.2006. 18.The appellant in his complaint, has not stated any specific date but simply stated that during 2006, the respondent, for his business developments, borrowed a sum of Rs. 6,00,000/- and promised to repay the same shortly. 19.In the proof affidavit also, he has simply stated that the respondent as a friend of him, during the year 2006, for his business developments borrowed Rs. 6,00,000/- and promised to repay the same shortly. But, he has not specifically stated that on 01.03.2006, the respondent borrowed money and issued a post dated cheque dated 23.11.2006 bearing No.768492 dated....