(Prayer: Criminal Revision Petition filed under Section 397 r/w 401 of Cr.P.C. to set aside the judgment dated 01.12.2015 passed by the learned Principal Sessions Judge, Krishnagiri made in CA.No.22 of 2015 confirming the order dated 19.03.2015 passed by the learned Judicial Magistrate, Fast Track Court, Hosur made in STC.No.137 of 2014.)
1. This Criminal Revision is directed against the Judgment passed by the learned Principal Sessions Judge, Krishnagiri made in C.A.No.22 of 2015 dated 01.12.2015 confirming the order passed by the learned Judicial Magistrate, Fast Track Court, Hosur made in STC.No.137 of 2014 dated 19.03.2015, convicting the accused to undergo simple imprisonment for six months and directing him to pay a compensation of Rs.34,00,000/- to the complainant.
2. The brief facts of the case which are leading to the present revision are as follows :-
The revision petitioner borrowed a sum of Rs.34,00,000/- for his business purposes in different dates, to discharge the above said loan the revision petitioner/accused issued three cheques bearing Nos.603681, 603682 and 603684 on various dates towards security, when the same were presented for collection on 21.04.2014 before the ING Vysya Bank, Hosur Branch, they were returned with an endorsement "funds insufficient" in the account. The complainant immediately issued statutory notice to the revision petitioner on 05.05.2014, the same was received by the accused on 08.05.2014, after receiving the notice the accused has not chosen to reply the notice nor refund the amount. Hence, the complainant preferred the present complaint before the trial Court under Section 200 Cr.PC. The trial Court after considering the entire facts and circumstances of the case and the documents produced on either side comes to a conclusion and found guilty under Section 138 Negotiable Instruments and convicted the accused to undergo simple imprisonment for six months and to pay a compensation of Rs.34,00,000/- to the respondent/complainant. Aggrieved against the said order, the accused preferred criminal appeal before the Principal Session Judge, Krishnagiri in C.A.No.22 of 2015, the learned first appellate Court after considering the evidences of both sides and on perusing the records, finally dismissed the appeal on 10.12.2015 and confirmed the sentence passed by the trial Court. Aggrieved against the aforesaid order, the revision petitioner/accused preferred the present revision before this Court.
3. The learned counsel for the petitioner would mainly contend that the Courts below failed to take note of the evidence that on the alleged borrowal, a general power of attorney in respect of the property belonging to the brother in law of the petitioner was executed in favour of the respondent, subsequently, the respondent without the knowledge of both the petitioner and his brother in law executed a sale deed in favour of his wife, on this ground alone the trial Court ought to have dismissed the complaint filed by the complainant. The Courts below failed to appreciate the evidences of PW1, DW1 and DW4 in a proper perspective. In view of the above, the order of the Court below have to be set aside and the criminal revision has to be allowed.
4. Heard the learned counsel for the petitioner and perused the available records. Though notice was duly served on the respondent, there is no representation on behalf of the respondent either in person or through the learned counsel on record. The name of the respondent is also printed in the cause list.
5. It is admitted by the revision petitioner that the cheque was issued by him and admitted the signature found in the present cheque. PW1 in his evidence specifically stated as follows :-
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7. In view of the above admission made by DW1 and on reading of the evidence it clearly shows that the revision petitioner had issued cheques to the complainant. Even though, the respondent/complainant issued statutory notice, the accused received the notice and not replied to the said notice nor repaid the said amount. Hence, the Section 118 of the Negotiable Instruments Act is attracted against the revision petitioner.
8. It is useful to refer Section 118 of the Negotiable Instruments Act, which is extracted hereunder :-
118. Presumptions as to negotiable instruments - Until the contrary is proved, the following presumptions shall be made: -
(a) of consideration. - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date. - that every negotiable instrument bearing a date was made or drawn on such date ;
(c) as to time of acceptance. - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer. - that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsements. -that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamp. - that a lost promissory note, bill of exchange or cheque was duly stamped ;
(g) that holder is a holder in due course. - that the holder of a negotiable instrument is a holder in due course:
provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
9. It is admitted that the respondent/complainant had issued statutory legal notice to the revision petitioner/accused. The accused after receiving the said notice issued by the complainant, neither replied to the said notice nor repaid the amount. The trail Court after considering the entire facts and circumstances of the case, correctly comes to the conclusion that the cheque was issued by the revision petitioner and correctly convicted the revision petitioner/accused under Section 138 of the Negotiable Instruments Act. The first appellate Court also confirmed the order of the trial Court and dismissed the appeal filed by the accused. This Court, finds there is no illegality or infirmity in the order passed by the Courts below and the same does not warrant any interference by this Court.
10. In the result, the criminal revision petition stands dismissed. Consequently, connected miscellaneous petitions are closed.