B A I L S L I P The Petitioner and Accused viz., S.K.Raman, Son of Late Kulla Gowder was released on bail in and by order of this Hon'ble Court dated 2.7.2003 made in Crl.MP.No.5675 of 2003 in Crl.RC.No.934 of 2003. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:28.09.2010 CORAM THE HON'BLE MR.JUSTICE T.SUDANTHIRAM CRL.R.C.No.934 of 2003 S.K.Raman .. Petitioner/Accused Vs. J.Dhonan .. Respondent/Complainant Prayer:- Criminal Revision Case filed under Section 397 r/w. 401 of Cr.P.C., against the order of conviction passed in Crl.A.No.35 of 2002, dated 11.04.2003 on the file of the learned Sessions Judge of the Nilgiris at Udhagamandalam confirming the judgment and order of conviction passed in S.T.C.No.1982 of 2001, dated 29.08.2002 on the file of the learned Judicial Magistrate, Udhagamandalam and prays for setting aside the same. For Petitioner : Mr.V.Purushothaman For Respondent : No Appearance - - - - - ORDER The revision petitioner herein is the accused in S.T.C.No.1982 of 2001 on the file of the learned Judicial Magistrate, Udhagamandalam and the respondent herein is the complainant. The revision petitioner was convicted under Section 138 of the Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for one year and he was also directed to pay a sum of Rs.5,00,000/- as compensation. The said conviction and sentence were also confirmed by the learned Sessions Judge of the Nilgiris District at Udhagamandalam in Crl.A.No.35 of 2002. Aggrieved by the said conviction and sentence, the petitioner has preferred this Criminal Revision. https://hcservices.ecourts.gov.in/hcservices/ 2. Though notice was ordered to the respondent/complainant, the same could not be served on him. The Village Administrative Officer of Ooty Town at Nilgiris District reported that the complainant is not residing in the given address. The learned Judicial Magistrate, Udhagamandalam, has also given a report stating that the whereabouts of the complainant is not known. 3. The learned counsel for the petitioner was heard and the records were perused. 4. The case of the complainant is that the accused had borrowed a sum of Rs.6,10,000/- on 31.12.1999 and in order to repay the same, he issued three cheques viz., one cheque for Rs.1,00,000/- and one cheque for Rs.10,000/- and another cheque for Rs.5,00,000/- drawn on Syndicate Bank at Ooty Branch. All the three cehques, which were marked as Exs.P.1 to P.3, were presented on 21.06.2000 but those cheques were returned on the same day as unpaid for the reason that 'Account Closed'. Therefore, P.W.1 had issued a legal notice-Ex.P.7 to the accused and the accused, on receiving the same, had sent a reply-Ex.P.9. As the cheque amount was not paid, the complainant had filed this complaint. 5. The complainant examined himself as P.W.1 and the Bank Manager was examined as P.W.2. When the accused was questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances, he had denied his complicity and examined two witnesses. D.W.1 is an Income Tax Officer and the accused examined himself as D.W.2. 6. According to the accused/D.W.2, he never borrowed any amount from P.W.1 and the complainant/P.W.1 was working as a Bank Manager and he was his friend and only in order to make arrangement for loan to the tune of Rs.20 to 30 lakhs from the Bank, P.W.1 obtained blank cheques from the accused with assurance that he would arrange for loans. The counterfoils of the cheques issued were marked as Ex.D.1 and the cheque requisition slip was marked as Ex.D.2. According to the accused, cheque leaves were given to the Bank during the year 1993. The accused also admitted only his signature in the cheques. The accused had further stated that he was not in station on 29, 30 and 31st December 1999 and he was in Nedungula, which is 15 kilometers far away from Kothagiri, to attend a condolence and he entered all those particulars in his Personal Diary-Ex.D.7. The accused had also stated that P.W.1 and the accused jointly obtained a loan for a sum of Rs.1,00,000/- and an Execution Petition also was filed in the Civil Court against both by one Kappini Raj. https://hcservices.ecourts.gov.in/hcservices/ 7. The Trial Court, on analyzing the oral and documentary evidence, did not accept the evidence of D.W.2 and convicted the accused. The Appellate Court, simply on the basis of the presumption available under Section 139 of the Negotiable Instruments Act, observed that the accused had failed to rebut the presumption and confirmed the conviction. 8. According to P.W.1, who is the complainant, he gave a sum of Rs.6,10,000/- as a loan to the accused on 31.12.1999 and towards which, he issued three cheques on the same day bearing date on 31.12.1999. The accused had specifically denied getting loan from the complainant and he had stated that he had issued only blank cheques to the complainant in the year 1993 since the complainant, who was working in the Bank promised him for arranging loan. In Ex.P.7, the legal notice sent by the complainant, he had stated that the cheques were issued at Kothagiri on 31.12.1999 but while he was cross-examined, he had stated that the accused gave those cheques at Uthagai. Further, the accused while examined himself as D.W.2, who was a resident of Kothagiri, he had stated that he was not in station on 29, 30 and 31st December 1999. The accused had also marked his Personal Diary as Ex.D.7. It appears that Ex.D.7 had been kept as a personal diary by the accused and entries have been made regularly regarding his activities. It is not possible to place total reliance on Ex.D.7, but at the same time, it is to be seen that the evidence of P.W.1 is not consistent regarding the fact that the cheques were issued by the accused whether at Kothogiri or at Othagai. It is also undenied fact that the account of the accused in the Bank had been closed in the year 1996 but the cheques were issued in the year 1999. P.W.1 also had been working in the same Bank till the year 1996. P.W.1 would not have accepted the cheques given by the accused relating to the account which had already been closed. This makes it probable that the accused had given the blank cheques much earlier. All these aspects raises considerable doubt regarding the evidence of P.W.1 that the loan was given by him on 31.12.1999. It also appears that in the evidence of D.W.2/accused that both the accused and P.W.1 have obtained a loan from another person and the loan is still unpaid. Both the accused and the complainant/P.W.1 are known to each other and they were residing at nearby place. 9. Though a presumption is to be drawn under Section 139 of the Negotiable Instruments Act regarding the existing liability on the part of the accused, who had issued the cheques, such presumption is only a rebuttable presumption. While the accused is rebutting such presumption on the basis of the evidence, which is probable, then the burden is again shifted on the complainant to prove his case beyond reasonable doubt. The accused examined himself as D.W.2 and given his evidence, which https://hcservices.ecourts.gov.in/hcservices/ remains unshattered in the cross-examination. The evidence of defence witnesses also should be considered equally to the evidence of prosecution witnesses. The accused had strengthened his case by marking the defence exhibits through which he had established that the cheques could not have been issued to the complainant in the year 1999. But the same was issued much prior to the closure of the account. The accused with supporting evidence on probabilities had rebutted the presumption which arises under Section 139 of the Negotiable Instruments Act. It appears that the complainant has not come before the Court with a true version. The complainant had failed to establish his case. 10. In the result, the conviction and sentence imposed on the accused and the direction to the accused to pay compensation by the learned Judicial Magistrate, Udhagamandalam, in S.T.C.No.1982 of 2001 are set aside and this Criminal Revision Case is allowed. jrl Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Sessions Judge of the Nilgiris at Udhagamandalam. 2. The Judicial Magistrate, Udhagamandalam. 3. The Superintendent, Central Prison, Coimbatore. 4. The Public Prosecutor, High Court, Madras. 5. The Section Officer, Crl Section, High Court, Madras. BVN(CO) SR/14.10.2010 CRL.R.C.No.934 of 2003 https://hcservices.ecourts.gov.in/hcservices/