[07/07, 12:23] sekarreporter1: [07/07, 12:21] sekarreporter1: அரசு சொல்லும் இடங்களில் முதலில் அடக்கம் செய்யுங்கள்
பின்னர் மணிமண்டபம் கட்டிய பின் உடலை எடுத்து மீண்டும் அடக்கம் செய்து கொள்ளுங்கள்
நீதிபதி
[07/07, 12:21] sekarreporter1: அமைதியான முறையில் முதலில் இறுதி சடங்குகளை முடிங்கள். நீதிபதி
விஜயகாந்த் உடலை அடக்கம் செய்ய எப்படி அனுமதி வழங்கப்பட்டது? அரசுக்கு நீதிபதி கேள்வி.
[07/07, 12:21] sekarreporter1: நீதிபதி கோபம் :
மனுதாரர் தரப்பில் பாரபட்சம் காட்டப்படுவதாக குற்றம் சாட்டினார்.
அரசு முடிவில் நீதிமன்றம் தலையிட்டு உத்தரவிட முடியாது. யாருக்கும் ஆதரவாக உத்தரவிட முடியாது.
[07/07, 12:21] sekarreporter1: விஜயகாந்த் விவகாரத்தில் தமிழக அரசின் தலைமை செயலாளர் அனுமதி வழங்கினார்.
ஆனால், உங்கள் வழக்கில் மாநகராட்சி அனுமதி மறுத்துள்ளது.
நீதிபதி
[07/07, 12:21] sekarreporter1: அரசாங்கம் அனுமதி அளித்தால் கட்சி அலுவலகத்தில் உடலை அடக்கம் செய்து கொள்ளலாம்.
மாநகராட்சி அதிகாரிகள் இடத்தை ஆய்வு செய்த பின்னர் தான் அனுமதி மறுக்கப்பட்டது. சட்டத்தை மீறி உத்தரவு பிறப்பிக்க முடியாது.
நீதிபதி
[07/07, 12:25] sekarreporter1: [07/07, 12:24] sekarreporter1: நீதிபதி கோபம் :
மனுதாரர் தரப்பில் பாரபட்சம் காட்டப்படுவதாக குற்றம் சாட்டினார்.
அரசு முடிவில் நீதிமன்றம் தலையிட்டு உத்தரவிட முடியாது. யாருக்கும் ஆதரவாக உத்தரவிட முடியாது.
[07/07, 12:24] sekarreporter1: முன்னாள் பிரதமர் ராஜீவ் காந்தி கொல்லப்பட்ட பின் அவரது உடல் டெல்லிக்கு எடுத்து செல்லப்பட்டது.
அதுபோல அடக்கம் செய்யலாம்.
IN THE COURT OF METROPOLITAN MAGISTRATE/ FAST TRACK
COURT AT MAGISTERIAL LEVEL – IV, GEORGE TOWN, CHENNAI – 01
PRESENT: Tmt.A.K.N.CHANDRA PRABA, B.Sc., M.L.,
METROPOLITAN MAGISTRATE/ FAST TRACK COURT NO – IV
Wednesday, this the 26th Day of June, 2024 C.C. No.1106 of 2017
CNR.No.TNCH0B-001165-2017
JUDGMENT UNDER SECTION 355 of Cr.P.C
A Serial Number of the Case C.C.No.1106 of 2017
B Date of Offence 12.04.2017 (Date of expiry of 15 days time
after receipt of statutory legal notice)
C Name of the Complainant & Address M.Gagan Bothra, S/o.S.Mukanchand Bothra, 43/44, Veerappan Street, Sowcarpet, Chennai600079.
D Name of the Accused and address 1) JSK Film Corporation, Rep by ProprietorJ.Satish Kumar, 47, Giriappa Road, T-Nagar, Chennai-17.
2) Mr.J.Satish Kumar, No.9/3, VaithiyaramanStreet, T.Nagar, Chennai-17.
E Offence Complained of Dishonor of Cheque –U/s.138 of the Negotiable Instruments Act.
F Plea of the Accused and his
Examination in Brief Not guilty.
G Final Order In the result,
The accused A1 and A2 are found guilty for the offence u/s.138 of N.I.Act and the accused A1 and A2 are convicted for the said offence u/s.255 (2) of Cr.P.C.
On considering reply of accused and fact and circumstance of the case, this court has imposed sentence of simple
imprisonment for Six months to the accused and imposed compensation for the amount of Rs.45,00,000/- (cheque amount) with 3% per annum for the said amount from the date of dishonor of case cheque to till date to the
accused u/s.357 of Cr.P.C and directed the accused to pay the said compensation amount to the complainant within one month for an offence u/s.138 of N.I.Act and in default of payment of said compensation then the accused shall undergo one month simple imprisonment.
H Judgment Reserved on 05.06.2024
I Judgment Pronounced on 26.06.2024
PART-B – A brief statement of reasons for the decision
(As mandated u/s.355(1) of the code of criminal procedure,1973)
This case, having been taken on file originally by the VII Metropolitan Magistrate court, Chennai, later on transferred to this court. It has come up for final hearing before me on 05.06.2024 in the presence of Mr.M.Gagan Bothra, learned Counsel for the complainant and of Mr.L.Infant Dinesh, learned Counsel for the accused, upon hearing arguments of both sides and on considering the materials on record, having stood over for consideration till this day and today this court delivers the following:
JUDGMENT
- The complainant has filed the above complaint U/s.200 of Code of Criminal Procedure (Cr.P.C) for an offence u/s.138 of the Negotiable Instruments Act 1881 (N.I.Act) to impose punishment to the accused and for compensation to the complainant u/s.357 of Cr.P.C.
1) Gist of Complaint filed by complainant:-
The complainant has stated in his complaint as the 1st accused is the proprietorship firm and 2nd accused is the proprietor of 1st accused firm. The 1st accused has borrowed money for his business by 2nd accused from the complainant by executing necessary documents. The complainant has made repeated request to return his money but the accused have not repaid the same. So, the 2nd accused has signed for 1st accused firm cheque and 2nd accused has issued cheque bearing cheque No. 000512 dated 22.03.2017 which was drawn from Andhra bank, T.Nagar branch, chennai for a sum of Rs. 45,00,000/- to discharge the accused said part debt and liability. The complainant has presented the said cheque in his banker IDBI Bank, Parrys branch, Chennai and the same was returned as “ funds insufficient” and on 23.03.2017, return memo was given to complainant by his said banker. On 27.03.2017, the complainant has issued notice to the accused to call upon the accused to repay the said cheque amount to the complainant within 15 days as per u/s 138 of N.I. Act. The said notice was served to the 2st accused on 29.03.2017 through Registered post and the notice to the 1st accused was returned as “ Intimation delivered unclaimed” and the accused have not repaid the said cheque amount to the complainant as per the said notice. So, the complainant has filed this complaint against the accused before this Court.
2) Pre Cognizance Stage:-
As per the guidelines of our Hon’ble Supreme Court in Indian Bank Association case and Meters and Instruments Private Ltd., case, the complainant has appeared and filed proof affidavit before the Court and the same was accepted and Ex.P1 to Ex.P4 were marked in the Pre Cognizance stage of this case. The proof affidavit of complainant is same as the fact mentioned in complaint in this case. The complainant has represented that no further witness on his side and the complainant side evidence was closed by this Court.
3) Post Cognizance Stage:
On perusal of entire records and the complainant’s side evidence, there is prima facie case made out against the accused u/s 138 of NI Act. This Court has taken cognizance of the said offence against the accused and issued summon along with copy of the complaint to the accused.
4) Copies and Substance of accusation:
On appearance of accused, this Court has furnished the copies to the accused and explained about the substance of accusation for an offence u/s 138 of NI Act to the accused u/s 251 of Cr.P.C and the accused has pleaded not guilty and tried the case. Based on the above proceedings, this Court has directed to produce the complainant side witnesses.
5) Substance of complainant side evidence:-
The complainant side has examined PW1 by proof affidavit was taken as in lieu of complainant side evidence and Ex.P1 to Ex.P5 were marked as per u/s 145(1) of NI Act by this Court. The PW1 has deposed as the replica of the complaint which was filled by the complainant in this case. So, the complainant was examined as PW1 and Ex.P1 to Ex.P5 were marked in his evidence.
6) Recall complainant witnesses by accused :-
The accused has filed u/s 145(2) of NI Act petition for recall the complainant’s witnesses for cross and allowed by this Court. Hence, the complainant/PW1 was appeared and cross examined by the defense side. 7) The incriminating evidence explained to accused:-
On appearance of accused, this Court has explained about the incriminating evidence u/s 313 of Cr.P.C to the accused A1 and A2 and denied as false evidence and this Court has ordered to produce the witness on the defence side.
8) Substance of defence side evidence:-
DW1 is the friend of accused and deposed as the 2nd accused and DW1 are college mates and known to DW1 for the past 25 years and also residing in the same area. In the year 2016, 2nd accused and DW1 went to the complainant and his father namely Muken Bothra and his brother namely Sandeep Bohtra for borrowing money of Rs. 15,00,000/- with interest and DW1 had not known about the interest rate for the same. The said complainant’s father has asked signed blank cheque leaf, signed stamp affixed and two green papers, signed two white papers, two signed stamp affixed white papers, signed stamp papers for lending money to 2nd accused. The 2nd accused has given the cheque leaf and the complainant had all other said paper with him and asked the 2nd accused to sign in the said papers. Then the complainant has asked the 2nd accused to go and sent the said amount to the account of accused in which the accused has given the details to the complainant. DW1 went to the 2nd accused to bank and saw the cash of Rs. 15,00,000/- was received by the accused. The amount was transferred to the accused in the month of December, 2016 and the complainant and his father and brother were demanded the interest for the same. So, the complainant has returned a sum of Rs. 12,00,000/- to the complainant as principal but they have taken as interest and demanded huge amount from the accused. The complainant’s father has stated to DW1 as the accused has earned highly in cinema and if the accused have not returned the demanded huge amount, then the complainant will spoil the reputation of complainant in cinema. So, DW1 has asked the complainant to give Rs. 15,00,000/- by the accused to return back the said signed paper and case cheque from them. As per the said terms, in the month of January, 2017, the accused has transferred a sum of Rs. 3,30, 000/- from the his account through Indian Overseas Bank to the complainant by way of RTGS. Then, DW1 and accused asked the said signed papers of accused to complainant’s father but the complainant’s father has not returned back to the accused. The accused along with DW1 went to them and repaid a sum of Rs. 11,70,000/- to the complainant and his father and brother and asked the said signed papers. The complainant and his father and brother have written in paper as the accused has returned the said amount and no balance between them and gave to the accused. The complainant’s father has teared off the said papers as useless in front of me. After that the accused has informed DW1 as the complainant has presented the case cheque in the bank for higher amount and threatening the accused. So, the 2nd accused has lodged complaint for the said incident against the complainant in the police station and a case was registered against them.
DW2 is the Inspector of Police, CCB and deposed as the court has issued summon for appearance to depose about details in Cr. No. 213/2017 and DW2 has appeared along with said case diary. DW2 has deposed as on 10.08.2017, the Investigation Officer of the said case has seized certain documents and mentioned in separate sheet but not mentioned about the details contained papers in carbon copy document and the said Investigation Officer signature was not found in the said document. The case cheque was seized in the said case and the case property was ordered to return to the said case accused/complainant but the same was returned or not mentioned in the said documents. There is no details in the said case diary about the said cheque was returned to the complainant or not because there is no Form 95 available in this case. There is no details about returning of the said cheque to the complainant and his family members. DW2 has produced the xerox copy of the said seized documents carbon copy before this court and marked as Ex. X1 with objection of the said case Investigation Officer signature was not found in the said documents by the defence side.
DW3 is the Deputy manager of the accused bank and deposed as the cheque bearing No. 823683 was deposited in his bank and the 2nd accused has given the instruction as stop payment but the reason for the same was not mentioned in the records after seeing the software of his bank records with court permission before this Court.
DW4 is the accused and examined himself by filling the petition u/s 315 of Cr.P.C and allowed by this Court and Ex.D1 to Ex.D3 were marked in his evidence. The accused/ DW1 has deposed as from the year 2013, the accused has known the complainant’s father and complainant and his brother. The accused has borrowed money from the complainant’s father and sometimes, the complainant’s father had transferred money to accused from complainant, complainant’s father and complainant’s brother account and returned the same by the accused also. Subsequently, sometimes they had returned the paper of accused or teared off the papers of accused. The accused has borrowed a sum of Rs. 15,00,000/- from the complainant by producing signed pronote, stamp paper, green and white paper and signed blank cheque to the complainant and his family members. At that time, DW4/ 2nd accused along with DW1 who is the employee as well as friend of 2nd accused also went to the complainant house and produced the said documents to them.
DW4 has further deposed as DW1 has recorded the incident of producing the said documents and signed by the DW4. The said video recording was copied by the 2nd accused in his computer and produced the snap shot of the said copy in the pen drive before this court and marked as Ex.D1(17 series) with objection of there is no certificate and hash value and it may tampered in the video and introducing new document in this case by the defence side. The complainant and his father and brother has given the settlement receipt dated 18.07.2017 to the complainant was produced before this court and marked as Ex.D2. The accused has asked the complainant and his family members full name below the signature in Ex.D2.
DW4 has further deposed as DW4 has repaid the said borrowed money to the complainant and his family members through bank account and they have demanded a sum of Rs. 15,00,000/- to the accused even the accused has repaid a sum of Rs. 12,00,000/- and they have taken the said amount as interest. Then, the complainant has filed this case cheque for higher amount and filed this false case. The 2nd accused/DW4 has produced the bank statement for the period from December 2016 of him before this court and marked as Ex.D3.
DW4 has further deposed as the accused has tried to communicate the complainant and his father and brother but they demanded a sum of Rs. 4 crores from the accused. At that time, accused has ready to release three films and threatened by complainant’s father to stop the same. The complainant and his family members have filled the signed blank papers of accused as the accused will bind over the orders of Arbitrator and submitted before the Arbitrator Mrs. Vedavalli and proceeded legal action against the accused. So, the accused has approached the Commissioner of Police and lodged complaint for the said incident against the complainant and his father and brother.
DW4 has further deposed as the complainant has come to know about the said complaint against them and on 18.07.2017, they have called the accused and came to compromise as the accused has to pay a sum of Rs. 11,70,000/- from the accused. The accused has given the said amount of Rs. 11,70,000/- to complainant and settled the issue and also received the Ex.D2. The complainant have not returned back the accused papers as they have informed to accused as it was placed by them in some other place and teared off the cheque infront of the accused.
DW4 has further deposed as the complainant and his father and brother have arrested by the police for the complaint of other four along with complainant. On that day of complainant’s arrest also, the accused has asked them to return the said signed documents but they have not returned the same. If they have returned the same, the accused will withdrawn his complaint which was given to the police officials.
CW1 who is the Scientific Officer in Forensic Department has deposed as the court has ordered to compare the signature in the Ex.D2 of complainant and his father and brother and CW1 has scrutinized as per the expert and produced the zoom view of the said signature along with the certified copy of the opinion and photograph of zoom view of signature (34 counts) before this court and marked as Ex.C1 and Ex.C2. CW1 has given the opinion for the signature of complainant’s father as “S has been executed in a slow drawn movement with careful formation and hesitation” , for the signature of complainant as “pictorial appearance not similar and like must be compared to like” and for the signature of complainant’s brother as “scribbled” and opined as CW1 could not offer her opinion for the court sent signature and returned the same.
9) In order to prove the case, the complainant side examined PW1 and Ex.P1 to Ex.P5 (with objection) were marked and defence side, DW1 to DW4 were examined and Ex.X1 (with objection) was marked by DW2 and Ex.D1 to Ex.D3 (with objection Ex.D1 and Ex.D2) were marked by DW4. CW1 was examined and Ex.C1 was marked by Court witness.
10) Heard both sides. The complainant and accused counsels have submitted their oral arguments and both have filed written arguments and relied judgments on their side in this case.
11) Points for determination:-
1) Whether the complainant has established the presumption infavour of complainant as per u/s 118 and 139 of NI Act beyond all reasonable doubts even the original case cheque was not produced in this case?
2) If the complainant has established his case then the accused has rebuttedthe said presumption infavour of the complainant as preponderance of probabilities or not?
3) If the accused has failed to rebut or rebutted the established case of complainant then what are the reliefs the parties are entitled and if the accused is not rebutted then what are the quantum of punishment can be imposed to the accused ?
12) Decision: Point No:1:-
The complainant has to prove the case as per section 138 of N.I.Act and
the complainant has produced Ex.P1 to Ex.P5 to prove the compliance of ingredients as mentioned in section 138 of N.I.Act. The complainant has not produced the original case cheque at the time of trial before this court because it was seized by the police in CCB case registered against him. Our Hon’ble High Court in Crl.R.C.No. 1166/2022 has directed this court to receive the photocopy of case cheque and other related documents mentioned in CMP.No.10596 of 2019 as secondary evidence and permit the accused to let evidence to prove that the original cheque and other related documents has been returned by the father of the complainant on 18.07.2017. So, as per the said order, Ex.P1 to Ex.P7 documents are admissible in evidence. There is no appeal preferred by any parties and it is come to a finality. So, the complainant has proved the offence u/s 138 of N.I.Act by the Ex.P1 to Ex.P5 and the ingredients for an offence u/s 138 of N.I.Act was attracted against the accused. The accused has not repaid the money as stipulated in the statutory legal notice to accused and also the accused has admitted the signature in the case cheque and the presumption u/s 118 of N.I. Act and 139 of N. I. Act are attracted infavour of the complainant. This court has looked into object of the N.I. Act and the presumption u/s 118 and 139 of N.I.Act and well settled principles in the presumption and rebuttal of presumption by our Honb’le Supreme Court in
Krishna vs.
Dattatraya 2008(4) Mh.L.J.354
Held: The object of this amendment Act is to regulate the growing business, trade, commerce and Industrial activities and to promote greater vigilance in financial matters and to safeguard the faith of creditors in drawer of cheque.
Sripati Singh
Vs
State of Jharkhand(Division Bench)
Held: where a cheque is issued as security for a time specific loan, then on default of repayment of loan the security cheque issued would mature, if then the security cheque is dishonored, “the consequences contemplated under Section 138 and other provisions of N.I. Act would flow.”
And also in the case of Sunil Todi, Justice D.Y. Chandrachud observed that a security cheque issued for advancement of a loan would be mature for presentation upon the default of repayment of loan. Upon dishonour of such a security cheque, the same would lie under the ambit of Section 138.
Hence this Court has decided that the complainant has proved his case as the accused has admitted his signature in the case cheque and the presumption u/s 118 and 139 of N.I.Act are attracted infavour of the complainant in this case. Hence, this Court has decided the point No.1 is infavour of the complainant.
13) Point No. 2:-
The accused has to rebut the presumption infavour of the complainant as per Our Hon’ble Supreme Court, the well settled law that mere denial by the accused would not rebut the statutory presumptions u/s 138 and u/s 118 of NI Act which arises in favour of the complainant under NI act and presumption will still arise in favour of complainant. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.”
As per the dictum of our Hon’ble Supreme Court in,
Hiten P. Dalal vs.
Bratindranath Banerjee (2001) 6 SCC 16.
Rangappa vs.
Sri Mohan (2010) 11 SCC 441 ( three-judge bench) Held: “ the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence.”
The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon’ble Apex Court in Dilip Kumar v. Ramesh Aggarwal and in,
Basalingappa vs.
Mudibasappa (2019) 5 SCC 418
Held: “We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarize the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support
his defence.”
The presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability. In this case, the defence raised by the Ld. counsel for the accused to rebut the presumption is that the cheque in question was not issued for payment of arrears of rather was issued towards advance payment of CC No. 12/2021 Dilip Kumar v. Ramesh Aggarwal Page no. 12 of 20 rent of the previously tenanted property along with an additional property, however despite the fact that the accused never shifted to the property the complainant misuse the cheque to file the false case.”
“The primary onus on the accused was to rebut the presumptions raised under Section 118(a) and section 139 of NI Act. The standard of proof required by the accused to discharge his burden is of preponderance of probabilities and he has failed to discharge his burden of punching holes in the version of the complainant. The Hon’ble Supreme Court in the case of M.S. Narayana Menon @ Mani v. State of Kerala (2006) 6 SCC 39 has observed as under, “32. A Division Bench of this Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal [(1999) 3 SCC 35] albeit in a civil case laid down the law in the following terms:
“Upon consideration of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non- existence of the consideration can be either direct or by bringing on record Dilip Kumar v. Ramesh Aggarwal the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt”
14) This Court has applied the said settled principles in this case and based on the above discussion, the accused has raised probable defence as the case cheque was given as security at the time of borrowing money from the complainant and his father and brother, the said debt was repaid by the accused and on 18.07.2017, the case cheque was teared off by the complainant’s father by giving receipt for the said debt of accused. DW1 who is the employee and friend of the accused has supported the accused as DW1 has seen the complainant’s father has teared off the case cheque infront of DW1 and accused.
15) Now, this court has looked into the evidence of DW1 and DW4 about the admissibility and authenticity of Ex.D1 and Ex.D2. The video recording of Ex.D1 was recorded by DW1 as per the evidence of DW4 but DW1 has not whispered about the same at the time of his evidence and also he denied about the employee of the accused. This court has viewed the pen-drive video recordings but there is no sound at all and photographs from the said video recordings of the accused are shown that the accused has put his signature in the said documents and there is no force for the said execution. The accused has himself given the said documents and two blue colour and four pink colour cheque is revealed that the said execution may be for the higher money as prudent man looks into the said recordings. The accused has given the said documents to whom could not be assessed by this Court and there is no voice and even the fan or any other sound during the said video recordings. It creates doubt about there is chance for edit the sound and may possibilities to tamper the same.
- Moreover, the accused has not produced the certificate which is mandated as per Section 65B of Indian Evidence Act. As per Our Hon’ble Supreme Court dictum that the said certificate can be produced at any point of time by the parties before the pronouncement of Judgment. But the accused has not taken any steps for the same. Hence, this court decided that there is possibilities to tamper the said electronic record, Ex.D1 and it is inadmissible in evidence as per law. Apart from the said certificate also, the electronic record is not supported the defence case as the admitted fact of the accused has put signature in the said documents and nearly 6 cheque handed over to the complainant are revealed that there are chance for the borrowing money may be in higher value. Hence, this court has decided that the said electronic record is inadmissible in evidence as per law. So, the accused has not rebutted the presumption of his debt as per the Ex. D1 and the said electronic record is infavour of the complainant.
16) Now, this Court has looked into the admissibility and authenticity of settlement receipt by the accused to complainant, Ex.D1 as the evidence of CW1, the opinion could not be given by the expert, CW1 and the same revealed by the Ex.X1 and Ex,X2. But the CW1 has deposed as scribbled and could not offer her opinion and DW4 has deposed that the Ex.D2 was given by the complainant’s father on 18.07.2017 and torn the case cheque. The evidence of DW2 and DW3 have revealed that the case cheque was seized and presented for honour in his bank. As per section 106 of Indian Evidence Act, the accused alone has to prove the authenticity of the same but the accused has not done so either oral or documentary evidence before this court. The said document must be in receipt format but it was not so as per law. Hence, this court has decided that the said document, Ex.D2 is inadmissible in evidence as prudent man looks the same.
17) The accused has produced his bank statement, Ex.D3 but the accused not produced the repayment details of bank statement before this court to prove the payment made by the accused. The accused has not rebutted the complainant case as per the evidence of complainant or through his side evidence or even through the facts and circumstances of the case. So, the ingredients of an offence is made out against the accused and the same was admitted by the accused also.
18) As per the above discussion, this court decided that the accused has not raised the probable defence about the security cheque, settlement receipt given by complainant’s father on 18.07.2017 and torn the case cheque and the repayment of the debt and liability of accused towards the complainant. Hence, this Court has decided that the accused has not rebutted the presumption infavour of the complainant as preponderance of probabilities. So, this court has decided that the point No.2 is answered infavour of the complainant.
19) Point No. 3:-
As per above discussion, this court has decided that the accused has admitted his signature in case cheque and also debt against the accused but the accused has denied as the cheque is issued as security and repaid the amount to complainant and receipt given by the complainant’s father. The accused has not rebutted the presumption infavour of complainant u/s 118 and 139 of N.I. Act and the 1st and 2nd accused have failed to rebut the presumption infavour of complainant. Hence, this court has decided the point No. 3 is answered infavour of the complainant and against the accused.
20. In the result, the accused A1 and A2 are found guilty for the offence u/s.138 of N.I.Act and the accused A1 and A2 are convicted for the said offence u/s.255 (2) of Cr.P.C.
This court has questioned about the sentence to the accused and the accused replied as, ” எதுவும் இல்லல”
On considering reply of accused and fact and circumstance of the case, this court has imposed sentence of simple imprisonment for Six months to the accused and imposed compensation for the amount of Rs.45,00,000/- (cheque amount) with 3% per annum for the said amount from the date of dishonor of case cheque to till date to the accused u/s.357 of Cr.P.C and directed the accused to pay the said compensation amount to the complainant within one month for an offence u/s.138 of N.I.Act and in default of payment of said compensation then the accused shall undergo one month simple imprisonment.
If any bail bond executed by the accused shall cancelled after the appeal period u/s.437A of Cr.P.C. If any deposit made by the accused in this case shall be adjust to the compensation amount in this case.
Typed by the steno-typist in the computer directly to my dictation, after making corrections, pronounced by me in the open court on this the 26th day of June 2024.
/Sd/A.K.N.Chandra Praba.,
Metropolitan Magistrate,
Fast Track Court at Magisterial Level – No.IV, George Town, Chennai-1.
Annexure
Complainant side witness
PW-1 : Mr.M.Gagan Bothra (Complainant)
Complainant side Documents
Exhibits
Ex.P1 22.03.2017 Cheque No.000512 (Xerox Copy)
Ex.P2 23.03.2017 Return Memo (Xerox Copy)
Ex.P3 27.03.2017 Statutory Legal Notice (Xerox Copy)
Ex.P4 29.03.2017 Track Report Delivered (Xerox Copy)
Ex.P5 02.12.2016 Loan Agreement (Xerox Copy)
Defence Side Witnesses:
DW-1 : Namachivayam
DW-2 : K.Rajeshkanna
DW-3 : Harishankar
DW-4 : Mr.J.Satish Kumar (Accused) Defence Side Documents:
Exhibits
Ex.D1 Pen-drive and Paper’s Photo (Original)
Ex.D2 18.07.2017 Settlement Lender (Xerox Copy)
Ex.D3 December 2016 Statement of Account (Original)
Exhibits
Ex.X1 Seizure Mahajar (Xerox Copy)
Court Witness :
Department)
Court Documents : CW1 : Mrs.R.Subha (Scientific Officer and Document Expert, Forensic Sciences
Exhibits
Ex.C1 17.08.2023 Forensic Examination Report No: T.No.6326/2023 in
Doc.No.114/2023. (Xerox Copy)
Ex.C2 16.05.2023 34 Numbers (Xerox Copy)
/Sd/A.K.N.Chandra Praba., Metropolitan Magistrate,
Fast Track Court at Magisterial, Level – No.IV, George Town, Chennai-1.
