SAINDIL v. Location: HIGH

ORDER

1. Heard the learned counsel for revision petitioner and also the learned counsel for respondent.

2. This revision petition filed against the concurrent finding in respect of the offence punishable under Section 138 of Negotiable Instruments Act. It is the case of the complainant/respondent before the Trial Court that the complainant and accused are known to each other since several years. The accused is neighbour of parental house. Out of the said acquaintance, in the month of January-2012, the accused requested the complainant to give loan and also availed the loan amount on different dates in total 5 times. The accused fail to repay the said amount. Ultimately, given the Cheque for Rs.2,00,000/- when the complainant insisted to repay the amount, when the same was presented, the Cheque was dishonored with an endorsement ‘ Funds insufficient and payment stopped by Drawer ’. Legal notice was issued and untenable reply - 3 - NC: 2024:KHC:10678 CRL.RP No. 961 of 2019 was given and accused was not repaid the money, hence cognizance was taken based on the complaint. The accused/petitioner appeared before the Trial Court and denied the charges leveled against him. The complainant has been examined as PW1 and also got marked Ex.P1 to Ex.P9. On the other hand, both husband and wife have been examined as DW1 and DW2 and got marked Ex.D1 to Ex.D4. The Trial Court having considered both oral and documentary evidence available on record, when the Cheque was admitted, the defense was taken that the complainant has visited that shop of the accused. By that time, the same was stolen and no financial transaction was taken place between them. Inspite of both DW1 and DW2 have examined before the Trial Court. The Trial Court comes to the conclusion that when the Cheque was stolen no complaint was given and also not taken any steps. Apart from that the complainant has produced the bank statement for having withdrawn the amount on particular dates as contended in the legal notice. Hence, convicted the revision petitioner. - 4 - NC: 2024:KHC:10678 CRL.RP No. 961 of 2019

3. Being aggrieved by the said judgment of conviction of sentence, criminal appeal Crl.A.No.122/2015 was also filed. The First Appellate Court also having considered the document particularly Ex.P7 i.e., account extract of Syndicate Bank as per Ex.P8. It is also the contention of the complainant that he had received the amount from the chit and amount was in the account and the same was drawn and paid to the petitioner. The First Appellate Court also having considered the material evidence i.e., both oral and documentary evidence discussed the same and also relied upon the document at Ex.D2 and intimation given by the accused to the Manager, Canara Bank on 02.08.2013 wherein it has been mentioned that as the Cheque book containing Cheque leaves bearing No.625351 to 625353, it indicates that the Cheque No. 625351 to 625360 has been noted down and scored off and contended that Cheque book has been missing and requested to lock the Cheque book and mentioned the account number. In order to support his case the accused has examined his wife as DW2. The DW2 - 5 - NC: 2024:KHC:10678 CRL.RP No. 961 of 2019 is working as a teacher at Anganavadi and she is claiming that she is also doing tailoring work in the accused shop and she heard the close relationship of accused and complainant by third parties and the same was discussed in paragraph No.16 and also in paragraph No.17. In paragraph No.16 held that the Trial Court has rightly comes to the conclusion that theory set up by the accused is after thought just to escape from the legal liability in which accused has not succeeded and confirmed the judgment of the Trial Court.

4. Being aggrieved by the said order of conviction and confirmation, the present revision petition is filed. The counsel appearing for the petitioner would vehemently contend that the complainant paid money to the petitioner by pledging gold in Manapuram gold, but during the course of cross-examination she has deposed that she has money since she had taken chit amount from Sriram Chits, the same is inconsistent and also the contention that money was drawn on different dates and taking of - 6 - NC: 2024:KHC:10678 CRL.RP No. 961 of 2019 advantage of drawing of the said money on different dates, the complainant has set up the said ground. Both the Courts have committed an error.

5. Per Contra, the counsel appearing for the respondent would contend that issuance of Cheque is not in dispute. Only contention of the counsel that the Cheque was stolen. In order to substantiate the same, categorically admitted in the cross-examination that when the Cheque was stolen, no complaint was given. All these aspects have been considered by the Trial Court and also by the First Appellate Court and both the Courts have not committed any error and hence question of entertaining the revision petition does not arise and material available on record is very clear that there was a transaction and the Cheque was issued on insistence of demand to repay the amount. Though a different story set up in the evidence and nothing is elicited in the course of cross- examination, the same has been considered by both the Courts. Hence, no grounds are made. - 7 - NC: 2024:KHC:10678 CRL.RP No. 961 of 2019

6. Having heard the revision petitioner’s counsel and also the counsel appearing for the respondent and also having considered the contents of the complaint and also the evidence of PW1, she contends that both of them are neighbors and having acquaintance with each other. During the month of January-2012 the revision petitioner herein, requested to lend money and step by step loan amount was given. Though an amount of Rs.2,09,000/- was given on insistence, the Cheque was issued for Rs.2,00,000/-, but the same was dishonored. No doubt in the cross-examination of PW1, an answer is elicited that complainant is not having any work and also not having any other source. But, in the cross-examination admits that when the accused demanded money, she has pledged the gold with the bank and obtained the amount. On

11.02.2002, gave the money of Rs.50,000/- and on different dates the amount was given. In further continuation of cross-examination, complaint says that he has received the amount from Sriram Chits and the amount has drawn on different dates, the same was given. - 8 - NC: 2024:KHC:10678 CRL.RP No. 961 of 2019 The accused was having the knowledge about the amount in his account. When the suggestion was made that when the Cheque which was kept in the shop and the same was stolen and misused. The said suggestion was denied and but admits that in the reply the same defense was setup. The PW1 also admits that the accused has given instructions to the bank. On the other hand, both accused and his wife have been examined DW1 and DW2. The DW2 who is the wife of the accused speaks about the complainant was coming to the shop of her husband and having intimacy with each other, people were talking about the same. In the cross-examination DW2 admits that her husband’s tailoring shop is only mens’ wear i.e., ‘Kartik Mens Wear’ and she cannot tell the amount given by her husband to the complainant. On the other hand, it is admitted that when the complaint was given by complainant with regard to insisting of withdraw the complaint and threat was made that he is going to kidnap the daughter. In that connection the complaint was given stating that they went to police station and given the - 9 - NC: 2024:KHC:10678 CRL.RP No. 961 of 2019 undertaking. On the other hand, the accused himself examined as DW1 and in his evidence he says that he gave the money to the tune of Rs.20,000/- to Rs.30,000/- to the complainant and he used to give money often and often, the said fact came to the knowledge of his wife and wife made the galata and his wife also assaulted the complainant and case was also registered. In the cross- examination, he categorically admits that he is running the Karthik Mens wear tailoring shop and he categorically admits that he only stitches the men’s cloth. He has not given any complaint when the Cheques were lost and also cannot tell on what date he gave the intimation to the bank. He also admits with regard to the financial condition of the complainant stating that she is the only daughter and he is having irrigated land and they are staying in their own residential house. He has also given the complaint against the complainant. He also admits with regard to the insisting of complainant to withdraw the case for and also assaulting the complainant by his wife. The document is also confronted and marked as Ex.P9. - 10 - NC: 2024:KHC:10678 CRL.RP No. 961 of 2019

7. Having taken note of both oral and documentary evidence, I have already pointed out no dispute with regard to the issuance of Cheque Ex.P1 for an amount of Rs.2,00,000/- and also not in dispute that the Cheque was returned and notice was also given in terms of the Ex.P3 and the same was also served and reply was also given. In order to substantiate his contention that the Ex.P6 pertains to Manapuram finance for having pledged the gold and Ex.P7 is also another document and so also the bank statement of Syndicate Bank which is marked as Ex.P8 which discloses on different dates withdrawing the amount of Rs.50,000/- Rs.55,000/-, Rs.45,000/-, Rs.25,000/- and Rs.34,000/-. These documents discloses for having pledged the gold as well as drawn the money from the Syndicate Bank. It is also specific case of the PW1 in the cross-examination that she has received the amount from Sriram Chits and the said amount was in the account, the same was drawn and given to the accused. It is also not in dispute that complainant and accused are known to each other. No doubt the document is also - 11 - NC: 2024:KHC:10678 CRL.RP No. 961 of 2019 produced before the Court with regard to galata was taken place, both of them have given undertaking as admitted and also though contend that the Cheques were stolen and DW1 categorically admits that he has not given any complaint and when the Cheques are stolen, which is a normal conduct of the person who lost the Cheque and give the complaint. No doubt an answer is elicited with regard to the giving of intimation to the bank. Though contend that the accused himself used to advance the amount in favour of the complainant and nothing is placed on record before the Court. The Trial Court as well as First Appellate Court considered both oral and documentary evidence available on record, when both of them were having acquaintance with each other, when the accused not disputes the issuance of Cheque in terms of the Ex.P1, case of the complaint is probable since the complainant says that availed the loan from the Manapuram finance and he has also drawn the money from Syndicate Bank, the same is supported by the documentary evidence. Hence, I do not find any error committed by the Trial - 12 - NC: 2024:KHC:10678 CRL.RP No. 961 of 2019 Court by appreciating the same in the judgment and the First Appellate Court has also re-assessed the material available on record. Though the counsel for revision petitioner contend in his argument that both the Courts have committed an error in not appreciating the material available on record and the said defense which has been setup has not been substantiated by giving any evidence. The contention of the counsel that two contra evidences were given for having pledge the gold in Manapuram gold and also drawing the money from Syndicate Bank is contrary cannot be accepted, the same is supported by the documentary evidence of Ex.P6, Ex.P7 and also Ex.P8 and also drawing of money on different dates and also the transaction also on different dates has been narrated in the notice itself. When such being the case, the Trial Court and First Appellate Court have rightly drawn presumption under Section 139 of NI Act, the same has not been rebutted by producing any credible evidence. When the evidence of PW1 has not been rebutted by leading credible evidence, this Court cannot find any error - 13 - NC: 2024:KHC:10678 CRL.RP No. 961 of 2019 and also any miscarriage of justice. Hence, no grounds are made out to reverse the finding of Trial Court as well as the First Appellate Court.

8. In view of the discussions made above, I pass the following: ORDER The Criminal Revision Petition is dismissed. Sd/- JUDGE RHS List No.: 1 Sl No.: 54