(Prayer: Criminal Revision Case is filed under Section 397 read with 401 of Cr.P.C., to set aide the judgment passed by the District and Sessions Judge of the Nilgris, at Udhagamandalam, in C.A.No.17 of 2011 dated 23.09.2015, confirming the judgment passed by the Judicial Magistrate/Fast Track Court, Coonoor, in C.C.No.91 of 2011, dated 16.09.2011 and acquit the petitioner/accused and allow the above Crl.R.C as the charges against her are disproved.)
1. This Criminal Revision Petition is filed by the accused who suffered conviction and sentence by the trial Court and same been confirmed by the Lower Appellate Court in the private complaint filed for offence under Section 138 of N.I.Act.
2. The short facts of the case is that, to discharge the debt, the petitioner/accused gave a cheque for Rs.1,50,000/- dated 31.01.2007 in favour of the complainant. When the cheque was presented for collection, same was returned with memo dated 12.02.2007 stating insufficiency of fund. The complainant has caused statutory notice dated 15.02.2007, which was received by the petitioner/accused on 17.02.2007 and 20.02.2007. However, no reply or payment of cheque amount made by the accused, hence, the private complaint.
3. To prove the complaint, the complainant examined as P.W.1 (Shantha) and marked six exhibits. To rebut the presumption and to disprove the case of the complainant, the accused examined one Madasamy as D.W.1 and he was examined as D.W.2. Three documents were marked on the side of the accused.
4. In the course of trial, the accused has filed two memos, wherein, he has given an undertaking that he will repay the cheque amount. These two memos were marked as Ex.C.1 and Ex.C.2.
5. The trial Court, after considering the case of the complainant and the accused held that, the issuance of cheque not denied by the accused. The defence taken by the accused that the cheque was issued by him when the complainant handed over the possession of the Tea estate and the bank account was opened subsequently under Ex.D.1 to Ex.D.3, was disbelieved by the trial Court. Taking note of the fact that the drawing of the cheque by the accused not in dispute. When the statutory notice was caused to the accused, there is no explanation or defence denying the enforceable debt or passing of consideration. Disbelieved Ex.D.1 to Ex.D.3 for want of proof and admissibility, the accused was sentenced to undergo three months S.I and fine of Rs.3,000/-, in default, one month S.I.
6. Aggrieved by the finding of the trial Court, the appeal was preferred before the Learned District Sessions Judge, Ooty, in C.A.No.17 of 2011.
7. The Lower Appellate Court, after re-appreciating the evidence, confirmed the trial Court judgment. The Lower Appellate Court had also taken note of the Court documents Ex.C.1 and Ex.C.2, where the accused has admitted his liability and promised to pay the amount within the time prescribed. Particularly, while confirming the judgment of the trial Court, the Lower Appellate Court has also taken note of the fact that the accused admits that the cheque was received by the complainant, when she handed over the possession of Tea estate to him. Therefore, the liability to pay the debt presumed under Section 139 of N.I and conviction was confirmed.
8. Aggrieved by the concurrent finding of the Courts below, the present revision is filed.
9. The Learned Counsel appearing for the petitioner would forcibly argue that the complainant conspicuously silent about the date of borrowing and the consideration for which the subject cheque was issued. While so, the fundamental fact that the cheque was issued for enforceable debt not been proved by the complainant. The Courts below erred in presuming that, the subject cheque was issued for enforceable debt. Further, the Learned Counsel also submitted that, the evidence of D.W.1 and Ex.D.1 to Ex.D.3, not properly appreciated by the Courts below.
10. Per contra, the Learned Counsel for the respondents submitted that the Courts below have rightly appreciated the evidence. The admission of the accused that the cheque was issued by him and that cheque was issued when he took possession of the Tea estate from the complaint per se prove that, the cheque was issued for consideration to discharge the enforceable debt. Further, the admission of the accused by filing memo, pending trial, that he will pay the cheque amount also proves beyond doubt that the accused has admitted his liability to pay the cheque amount but to protract the proceedings had contested the matter.
11. This Court, on considering the rival submissions and fact that there is no dispute regarding issuance of cheque and also the accused candidly admits that there was quid pro quo for issuing the cheque, it goes to show that there was an enforceable debt. The presumption gets fortified by the memo filed by the accused, pending trial. Hence, this Court finds there is no error in the finding of the Court below.
12. Accordingly, the conviction under Section 138 of N.I Act is confirmed. Regardin
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g sentence is concerned, the Learned Counsel for the petitioner would submit that the accused is presently above 65 years old and if some time is granted, in spite of sentencing him for imprisonment for a term of three months, sentence may be modified. Considering the said submission, this Court, while holding the conviction, modifies the sentence as compensation of Rs.2,00,000/-, within a period of 60 days, from today, in default, shall undergo S.I for period of three months. 13. With the above modification, this Criminal Revision Petition is partly allowed.