TaxTMI 
TaxTMI 
2025 (6) TMI 749
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....e his loan amount in part issued the cheque dated 14.03.2013 for Rs.30,00,000/-. When the cheque was presented for collection it was dishonoured on the reason 'payment stopped by the drawer'. When it was informed, the Accused requested time and to present the cheque during June 2013. Accordingly, the cheque was presented for encashment on 10.06.2013 but it was once again dishonoured for the reason 'payment stopped by the drawer'. Therefore, on 05.07.2013, the Complainant issued a statutory notice for which a reply dated 25.07.2013. In the reply, the Accused had admitted the execution of the Memorandum of Understanding as well as the debt owed to the Complainant. In such circumstances, the Complainant-Respondent has filed the instant complaint in C.C. No. 14 of 2014 under Section 138 of The Negotiable Instruments Act through his power of attorney agent. 4. Originally, the complaint was filed before the learned Judicial Magistrate-III, Coimbatore. The sworn statement of the Power of Attorney Agent of the Complainant and the documents filed by him were perused by the learned Judicial Magistrate-III, Coimbatore and having satisfied that the offence under Section 138 ....
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....ue No.109686. Ex.D-8 is the stop payment letter dated 0403.2013 for cheque No.109684. 7. After completion of evidence and after hearing the arguments of the learned Counsel for the Complainant and the learned Counsel for the Accused, on appreciation of evidence, the learned Judicial Magistrate, Fast Track Court-I, (Magisterial Level) Coimbatore dismissed the complaint and acquitted the Accused as per judgment dated 24.09.2018 passed in C.C.No.14 of 2014. 8. Aggrieved, the Complainant had preferred Criminal Appeal No.507 of 2018 before the Appellate Court questioning the correctness of the order of acquittal. The Criminal Appeal was made over by the learned Principal Sessions Judge, Coimbatore to the Court of the learned I Additional District and Sessions Judge, Coimbatore. After hearing the arguments of both the Appellant/Complainant and the Respondent/Accused, the learned I Additional District and Sessions Judge, Coimbatore on re-appreciation of evidence had convicted the Accused for the offence under Section 138 of Negotiable Instruments Act, 1881. 9. Questioning the correctness of the Judgment dated 27.04.2019 passed in Criminal Appeal No. 507 of 2018, the Accused had p....
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..... State (Delhi Administration) in Criminal Appeal No.50 of 2013 ii) Anss Rajashekar v. Augustus Jeba Ananth in Criminal Appeal Nos. 95-96 of 2019 14. By pointing out the above decisions, it is contended by the learned counsel that as against an order of acquittal recorded by the Trial Court, a Criminal Appeal alone has to be preferred before this Court and the Appeal filed before the Appellate Court itself is not maintainable. 15. Even though notice was issued to the Respondent/Complainant and a counsel also entered appearance, when the Revision Case is taken up for hearing, there was no representation for the Respondent. Point for consideration: Whether the judgment of conviction recorded by the learned I Additional District and Sessions Judge in Criminal Appeal No. 507 of 2018 dated 27.04.2019 is to be set aside as perverse warranting interference by this Court? 16. Heard the learned Counsel for the Revision Petitioner. Perused the materials placed on record. 17. Perused the judgment of the learned Judicial Magistrate, Fast Track Court-I, Magisterial level in Coimbatore in C.C. No. 14 of 2014 dated 24.09.2018. Perused the judgment of the lea....
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....l the partners. Whereas the attempt of the Complainant to present the cheque for Rs.30,00,000/- or to collect a sum of Rs.30 lakhs is untenable. Therefore, the Accused had issued a notice calling upon his Bank not to honor the cheque Nos.109684, 109685 and 109686. 21. On perusal of the judgment of the learned Judicial Magistrate Fast Track Court-I Coimbatore it is found that the learned Judicial Magistrate had discussed the evidence available through P.W-1 and P.W-2, D.W-1 and D.W2. The learned Judicial Magistrate, Fast Track Court had observed that the signature in the cheque is not disputed and a presumption shall be drawn against the Accused that it is he who has issued the cheque. The initial presumption available under Section 139 of the Negotiable Instrument Act is therefore in favour of the Complainant. After the Complainant evidence was closed, the Accused had entered into witness box and examined himself as D.W-2. The claim of the Accused is that he did not borrow Rs.30,00,000/- and he had not issued cheque in question for discharging any debtor liability as alleged by the Complainant. The Brother in law of the Accused was a partner in EID along with two other persons n....
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....nt lent Rs.70,00,000/- whereas the Accused is not at all a partner at the time when the amount was paid. However, the Accused received the amount of Rs.20,44,000/- for his brother in law and it is acknowledged by the Accused under Ex.D-2. The execution of Memorandum of Understanding is not disputed by none of the partners. As per Ex.D-2, the Accused is liable to pay the amount of Rs.20,44,000/- out of which Roy P.Thomas agreed to pay the sum of Rs.10,00,000/-. In order to discharge the remaining amount, Accused issued the cheque bearing No.109686 to EID and this is not disputed by the Accused. However, the cheque in question was not at all issued to the EID and it is not at all mentioned in Ex.D-2. It raise a serious doubt as to how the possession of cheque in question had gone to the Complainant. The cheque in question is not issued by the Accused and therefore, he gave a letter to his bank to stop payment. The Accused gave stop payment letter for cheque bearing No.109686 and cheques bearing Nos.109684 and 109685. 24. The Complainant failed to explain the rate of interest and failed to bifurcate the principal and interest payable by the Accused. It is the settled principle of l....
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....92;் ரு. 70,00,000/- கடனாக கொடுத்தார் என்பதை காட்டக்கூடிய ஆவணத்தை முறையீட்டாளர் தாக்கல் செய்ய வேண்டிய அவசியம் இல்லை. எதிரியால் ஒப்புக்கொள்ளப்பட்ட சங்கதியை முறையீட்டாளர் நிருபிக்க வேண்டிய கட்டாயம் இல்லை. அவ....
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....#3021; ம.சா.ஆ.1, 2 ன் சாட்சிகளின் வாக்குமூலத்திலும் குறிப்பிட்டு சொல்ல வேண்டிய அவசியம் இல்லை. அதே போல் கடன் தொகைக்கு வட்டி எவ்வளவு என்பது குறித்து முறையீட்டிலும், ம.சா.ஆ4 சட்ட அறிவிப்பிலும் கூறப்படாததால் ம.ச....
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....2969;்களை போதுமானதாக அமையாது மாற்று முறையாவண சட்டத்தில் கொடுக்கப்பட்ட statutory presumption முறையீட்டாளருக்கு இருக்கக்கூடிய சாதகமாக வலுவான அனுமானங்கள் ஆகும். அவற்றை மறுதலிப்பது என்பது சாத்தியக்கூறுகளின் மேம்பட்....
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....not help the Complainant in this case. As per the averments in the Complaint, it is a partnership firm which had availed the loan. Each of the partners agreed to settle the loan of the partnership firm. If that be so, the liability is to be shared equally or according to the income derived by each of the partners. Their share is to be settled towards loan in equal proportion. In such circumstances, the Complainant seeking to recover the money of Rs.30,00,000/- from P.P. Saseendran or his brother in law Anil Kumar through the cheque issued by Anil Kumar for Rs.10,00,000/- and odd which had been misused as Rs.30,00,000/- by the Complainant is found unacceptable. 27. The learned I Additional District and Sessions Judge in the judgment impugned in this Criminal Revision, observed that when the cheque had been issued by the Accused and the signature of the cheque is not disputed by the Accused then the presumption is to be drawn against him for the amount arrived in the Memorandum of Understanding. Instead, the Complainant had filled up the cheque for Rs.30,00,000/- and presented it. Such an observation cannot be countenanced especially when there are inconsistency in the evidence of....
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....sed. The Complainant had not discharged the burden to disprove the rebuttal evidence of the Accused. Therefore, the conviction recorded by the learned I Additional District and Sessions Judge, Coimbatore reversing the judgment of acquittal is perverse. 31. As per the amended Section 378 of Cr.P.C. the Appeal against judgment of acquittal is not maintainable before the Court of Sessions. Such appeal ought to have been filed before this Court and with the leave of this Court, the appeal ought to have been filed. Therefore, the entertaining of Appeal by the learned Sessions Judge, itself is not maintainable. On this ground also, the judgment of the learned I Additional District and Sessions Judge in reversing the judgment of acquittal by the learned I Additional District and Sessions Judge, Coimbatore is liable to be set aside. Therefore, this revision has to be treated as Appeal and this Court shall consider the judgment of acquittal and confirm the same, as the Complainant has not proved the liability of one of the partners for paying the entire dues. 32. The loan was Rs.70,00,000/- which is proportionately 25% for the partner P.P. Saseendran and 25% for the other partner Roy ....
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....nt to avoid the witness box gives a presumption to the Court that the Complainant has something to hide from the Court. When he had realized that examination of P.W-1, Power of Attorney Agent Joseph cannot help him in securing a conviction against the Accused, he had taken the risk of entering the witness box as P.W-2. When the original Complainant was examined as P.W-2, he had admitted in cross examination that the brother in law of the Accused, Saseendran alone is the partner of EID and Accused is not the partner of EID. Also he had admitted that Allen Xavier is a partner of EID along with Saseendran. One Roy Thomas is also a partner along with Saseendran and Allen Xavier. He had admitted that he had not mentioned the date on which the amount of Rs.70,00,000/- was lent to the partnership firm in his legal notice and in the complaint. Also he had admitted that he had not produced any document to prove that he had lent Rs.70,00,000/- to the partnership firm before this Court. Also he had admitted in his cross examination that the quantum to repaid by each of the partners were not mentioned in the legal notice. Thus, it is not known as to how the amount of Rs.30,00,000/- was fixed o....
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....ant to invoke Section 138 of the Negotiable Instruments Act to record conviction against the Accused. Even though, the cheque was not filled up and signed by the Accused, how the Accused owes Rs.30,00,000/- has to be explained by the Complainant both in his statutory notice as well as in the complaint. The complaint is bereft of such details. For the liability of the partnership firm for Rs.70,00,000/- which they owe to the Complainant, the Complainant seeking Rs.30,00,000/- from one the Accused, who is the brother in law of erstwhile Partner Saseendran. As per the claim of one of the partners, Memorandum of Understanding reached between the partners Saseendran, Allen Xavier and Roy Thomas. Saseendran and Roy Thomas owe 25% of the assets and liabilities of the firm. Allen Xavier owes 50 % of the assets and liabilities of the partnership firm and Allen Xavier was the long time School friend of the Complainant right from his school days. For the liability of the partnership firm for Rs.70,00,000/- fixing the quantum of Rs.30,00,000/- on the head and shoulders of Accused is not proper without any acceptable reasons or without any cogent reasons to be placed before the Court of law. Ju....
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....ram Branch, Coimbatore 641002 (Bank account of Mr.Roy Thomas) for Rs.19,68,353/- c) Cheque No.109686 drawn on HSBC Bank, Coimbatore Branch, Coimbatore Branch, Coimbatore (Bank Account of Mr.Anil Kumar) for Rs.10,444,62/- 9) EID has subscribed to a chit for a value of approximately for Rs.20,00,000/- and it was decided to take the prize money of this chit in the month of December 2010. 10) Mr. Sunny Thomas has given a loan of Rs.70,00,000/- to EID which to be repaid along with the Interest. All the partners including Mr.Anil agrees that they are responsible to repay this loan along with interest before 25.12.2010. 11) All the monies received by EID under Clause No.7, 8 and 9 shall be used to settled the loan with interest of Mr.Sunny Thomas and the Bank loan with interest (to the extent possible) 12) Once all the obligations of this agreement is completed then EID will be closed or run as per the decisions of the parties to this agreement. 13) This agreement embodies the entire understanding of the parties as to its subject matter and shall not be amended except in writing executed by both parties. 14) All disputes, ques....
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....d after the firm is able to finalise the accounts while producing profit and loss, Balance sheet etc. Till date no such steps have been taken by the firm, therefore directed the Chartered Accountant to return the cheque bearing No.109686. Instead Kochappan Thomas had proceeded with the complaint and issued statutory notice as though Accused owed Rs.30,00,000/- . Since he had suppressed the Memorandum of Understanding regarding the dispute between the partners in EID partnership firm, the Court has to necessarily draw adverse inference against the Complainant. Merely the Accused had signed the cheque and issued it, it will not help the Complainant to raise a presumption against the Accused. As per the notice issued by the Accused under Ex.D-3, Ex.D-4 and Ex.D-5 it indicates that there is no liability. The Accused had discharged the burden of proving the rebuttal evidence under Section 139 of the Negotiable Instruments Act. Therefore, the learned Judicial Magistrate had recorded acquittal against he Accused. The learned III Additional District and Sessions Judge had failed to appreciate the evidence, in the light of the document under Ex.D-1 to Ex.D-8 and merely on the basis of the p....