TMI Blog2018 (10) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... by the revision petitioner - The deposition of the accused in that proceeding is a self serving statement of the accused in the civil proceedings between him and one Peyathevar, that cannot be a piece of evidence to be put against the complainant, 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. The revision petitioner in the cross examination has admitted the signature in the cheque and the receipt of the statutory notice. He has also admitted that he has not lodged any complaint against the Peyathevar or Latcaham/complainant regarding this subject cheque - In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned 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 revision petitioner guilty, convicted and sentenced him to undergo 3 months simple imprisonment and to pay a fine of ₹ 3,000/-, in default, to undergo simple imprisonment for one month. (iv)Aggrieved by the same, the revision petitioner/accused has preferred an appeal before the learned Principal District and Sessions Judge, Theni, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint 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 discharged his burden and disproving the enforceable debt, but accepting the signature found in the cheque, the lower appellate Court has dismissed the appeal confirming the trial Court judgment. Aggrieved by that, the present Criminal Revision Case is filed. 3.The learned counsel appearing for the revision petitioner would submit th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the proof of existing transaction between him and the complainant. 6.To buttress his submission the learned counsel would rely upon the judgment of the Hon'ble supreme Court reported in (2014) 2 SCC 236 (John K.Abraham Vs.Simon C.Abraham and another) wherein it has been held as follows: 10. Keeping the said st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner maintained the account in the Indian Overseas Bank and the same was closed in the month of February 2011. If really the cheque was issued to one Peyathevar as security of loan availed by his friend Nallathambi, the revision petitioner should have at least examined Nallathambi and produced the docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Courts below. In this case, minor discrepancies in the evidence of P.W.1 regarding the writings on the cheque or non-examining the wife of the complainant, who alleged to have been presented at the time of lending the loan to the revision petitioner, will not be sufficient to throw away the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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