This revision arises against concurrent judgment of Courts below convicting petitioner for offence u/s.138 of the Negotiable Instruments Act and sentencing her to 5 months S.I. and directing her to pay compensation in a sum of Rs.40,00,000/- to respondent/complainant.
2. Respondent moved a prosecution informing that petitioner borrowed a sum of Rs.40,00,000/- from her and undertook to return the same with interest. On demand, petitioner issued a cheque bearing No.466055 dated 20.05.2014 drawn on Canara Bank, Pudur Branch, Amabttur, towards repayment of borrowing, which upon presentation was returned unpaid for the reason 'insufficient funds'. Respondent following the procedure envisaged u/s.138 of the Negotiable Instruments Act, preferred complaint and the same was taken on file in S.T.C.No.90 of 2015 on the file of learned Judicial Magistrate, Fast Track Court, Ambattur.
3. Before trial Court, respondent examined 2 witnesses and marked 6 exhibits. 1 witness was examined on behalf of defence and 4 exhibits were marked. On appreciation of materials before it, trial Court, under judgment dated 28.10.2015, convicted petitioner for offence u/s.138 of the Negotiable Instruments Act and sentenced her to 5 months S.I. and directed her to pay compensation in a sum of Rs.40,00,000/- to respondent/ complainant. Against such finding, petitioner preferred C.A.No.82 of 2015 on the file of learned Principal District Judge, Thiruvallur, which came to be dismissed under judgment dated 20.09.2016.
4. Heard learned senior counsel for petitioner and learned counsel for respondent. Perused the records.
5. The present is a case where statutory notice issued u/s.138 of the Negotiable Instruments Act issued by respondent/complainant admittedly has not been served on petitioner/accused. Learned counsel for petitioner has placed before this Court medical records as also photographs which inform that petitioner suffers advanced stage of 'Motor Neurone Disease' and is bed ridden. The same also inform that during the alleged transaction period she was at Hyderabad. Even if this Court is to ignore such aspect of the matter, this Court finds that it is the case of respondent/complainant that petitioner/accused issued twenty promissory notes in her favour towards dues of Rs.40 lakhs. Respondent/ complainant has not filed the promissory notes as exhibits. Not having whispered of the original promissory notes having been returned to petitioner/accused either in the statutory notice, sworn statement or in the complaint, respondent/complainant has sought to explain away the non-production of promissory notes in her chief-examination by stating that petitioner/accused during April 2014 visited her house, issued the cheque for Rs.40 lakhs and took back the original promissory notes. Initially, respondent/complainant has deposed that petitioner/accused was at her house during last week of April 2014 when she issued the cheque but in her cross, she has stated that the cheque was issued a day prior to the 'Bogi' festival which falls in the second week of January. In the circumstances, Courts below ought to have found that petitioner/accused has discharged the initial burden cast upon her u/s.139 of the Negotiable Instruments Act. Therefore, it becomes the burden of respondent/complainant to prove her claim and towards informing that she was possessed of a large sum of Rs.30 lakhs. Respondent/complainant has been able to produce no more than a sale deed of property of value Rs.14 lakhs wherein she was entitled to a 1/10th share. Respondent/complainant has informed of being in possession of a sum of Rs.50 lakhs as a result of a family partition but has not even produced income-tax returns. Medical records of petitioner/accused have been marked as Exs.D1 and D2. The same has not received proper appreciation at the hands of Courts below. Courts below erred in finding petitioner/accused guilty of offence u/s.138 of the Negotiable Instruments Act.
The Criminal Revision Case shall stand allowed. The judgment of learned Principal District Judge, Thiruvallur, passed in C.A.No.82 of 2015 on 20.09.2016 confirming the judgment of learned Judicial Magistrate, Fast Track Court, Ambattur, passed in S.T.C.No.90 of 2015 on 28.10.2015, shall stand set aside. Petitioner/accused is acquitted of all charges. Bail bonds, if any, executed shall be refunded.
23.02.2017 Index:yes/no Internet:yes/no gm To
1.The Principal District Judge, Thiruvallur.
2.The Judicial Magistrate, Fast Track Court, Ambattur.
C.T.SELVAM, J gm Crl.R.C.No.1698 of 2016 23.02.2017