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TMI Blog2018 (10) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... e cheque was presented for collection, the same was returned with an endorsement 'no such account'. The statutory notice was issued to the respondent, but he had not replied for the same. Hence, the complaint has been filed before the Judicial Magistrate, Uthamapalayam, under Section 138 of Negotiable Instruments Act. (ii)The learned Judicial Magistrate (Fast Track Court), Magistrate Level, Uthamapalayam has taken the complaint on file and after following the procedure, has examined the witnesses. The respondent herein has examined himself as P.W.1 and six exhibits were marked, on his side. On behalf of the revision petitioner, he and one Sundar were examined and five exhibits were marked. (iii)The trial Court has found the revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court however found that the plea of defence is only an after thought. The theory introduced by the appellant/accused that the cheque was given to Peyathevar as security of the loan availed by his friend Nallathambi is only an after though, it was not disclosed at the earliest point of time. He has neither lodged any criminal complaint in this regard nor replied to the statutory notice, putting forth his explanation. The closure of account prior to the date of the cheque will not enhance the case of the accused. The pleading in the suit filed by Peyathevar against the accused will not prove the fact that the subject cheque was issued to Peyathevar, in the absence of examining the Peyathevar or Nallathambi in this regard. Having not dischar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque were returned by him later. 4.Having admitted that the date, figure and amount was written by him, the Courts below ought to have held that the blank cheque signed by the revision petitioner has been misused by the complainant. Later retraction of the witness regarding the writings in the cheque, only enhanced the falsity of the complaint, which has been miserably fails to convince the Courts below. 5.The learned counsel for the revision petitioner would also submit that when issuance of cheque is disputed, the statutory presumption cannot be drawn against the accused. The burden is on the complainant to prove that the subject cheque was issued for a legally enforceable debt and for the said purpose, he should have produced th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.Chandrasekar). For the said reasons, the complaint has to be dismissed by reversing the judgments of the Courts below. 8.Heard the learned counsel for the revision petitioner. Though, notice was served to the respondent/complainant and received by him, there is no representation on his behalf. 9.The signature found in the cheque not disputed by the revision petitioner/accused. His contention is that cheque was given to one Peyathevar long back that too in the year 2004, who has misused the cheque and presented it in the year 2012 through Nagaraja, the complainant herein. To prove the said contention, he has examined D.W.2 and the statement of account is marked as Ex.D.5. 10.This evidence would only go to show that the revision petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who is not a party to that proceeding and who had no opportunity to cross examine the deponent. Therefore it has no evidential value for any consideration, in the absence of confronting the same with the maker of the statement. 13.The revision petitioner had not placed acceptable evidence before the trial Court in support of his contention. The evidence of the complainant prove the cheque is issued for a specific account and the factum of its dishonour necessarily draw the presumption under Section 118 and 139 of Negotiable Instruments Act. In the revision petition, while exercising the power under Section 397 and 401 Cr.P.C., the High Court can interfere with the order passed below, if any gross illegality or perversity in the findings of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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