TMI Blog2022 (11) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest, the Money Lending Act have no application. The standard of proof to rebut the presumption under Section 118 and Section 139 of the Negotiable Instruments Act, 1881 though not as high as required for the prosecution to prove and even preponderance of probability is sufficient for rebuttal. The accused cannot take inconsistent stand to claim that he has probabilise his defence. Inconsistent plea as a rebuttal evidence will improbabilise the rebuttal - In the instant case, the petitioner/accused had informed the bank that the subject cheque got lost he has intimated the police that the subject cheque was taken away by force by the complainant/respondent. But in the course of the trial, he has suggested to the witness that this cheque was given in respect of the liability of one Govindarajan. However, the issuance of the cheque and money transaction with the respondent/complainant has not been denied. The foundational fact of the drawing cheque and the privity has been proved by the complainant. No material placed by the accused to discharge the burden. This Court finds no error in the finding of the trial Court - this criminal Revision Case is dismissed. - Crl.R.C.No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rshottam Prabhakar Kawane reported in (2010) Crl.L.J. 1217 (3)G.B.Finance Rep.by Power of Attorney Agent Thiru.Kotteeswaran v. V.Hothi and another reported in (2012) 2 MLJ (Crl.) 621; (4)Vijay v. Laxman and another reported in (2013) 3 SCC 86; (5)John K.Abraham v. Simon C. and another reported in (2014) 2 SCC 236; (6)K.Subramani v. K.Damodara Naidu reported in (2014) 4 MLJ (Crl.) 608 (SC); and (7)Pandurangan v. Sivakami reported in (2017) 3 MLJ (Crl.) 572. 5. Per contra, the learned counsel appearing for the respondent submitted that the petitioner having borrowed the money on 24.07.2007 issued the subject cheque Ex.P1 on 15.06.2009, which was returned when presented for collection. Therefore, the complaint under Section 138 of the Negotiable Instruments Act, was initiated after causing statutory notice. To prove the complaint, 11 exhibits were marked. The petitioner herein in response to the statutory notice issued a reply through his lawyer which is marked as Ex.P7. In the said reply, the petitioner contended that the cheque was forcibly taken by the complainant with the help of goondas. Therefore, criminal complaint 14.12.2009 has been lodged a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end, the respondent/complainant gave a sum of Rs.25,00,000/- on 24.07.2007. To discharge the said loan, the petitioner/accused issued a cheque bearing No.184699 dated 15.06.2009 for a sum of Rs.25,00,000/- drawn on UTI Bank. The cheque was presented on 20.10.2009 for collection. It was returned with a memo stating payment stopped by the drawer . Intimating about the return of the cheque, the complainant had caused notice dated 26.10.2009. The petitioner has replied through his Lawyer on 04.11.2009 denying the issuance of cheque for discharging the debt. Claiming that the cheque was forcibly taken with the help of goondas and for which the complaint at Thirumangalam Police for the offence under Sections 406, 294(b) and 506(ii) of IPC r/w 4 of Tamil Nadu Exorbitant of Interest Act, 2003 has been lodged and also bank has been instructed to stop payment. To this above reply, the respondent/ complainant had issued a re-joinder through the lawyer on 10.12.2009 stating that the money was advanced to him in connection with the sale transaction of a land with the petitioner and his partner A.K.Govindarajan. 8. In the above factual background, the complaint was taken up for trial and end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant that the petitioner/accused to avoid his liability to pay back the loan amount had instructed the bank not to honour as if the cheque was lost and at the same time, had approached the police in suppression of the true fact, reported as if the cheque was snatched from him under threat. The police complaint has been referred as mistake of fact which indicates the cheque in dispute not been obtained under threat or force to invalidate its enforcement. 11. Regarding the plea that the respondent/complainant has no source of income to lend Rs.25,00,000/- and the transaction alleged to have been in cash, which is contrary to the RBI guidelines, so the case under Section 138 of the Negotiable Instruments Act, 1881. The short answer could be such plea is not maintainable and it is also unsustainable, since any violation in the Income Tax Act or RBI guidelines is a distinct offence, which if necessary open to the concerned authorities, to take action. The person, who has borrowed the money and issued cheque is not entitled to take a defence that payment of cash over and above the restrictions imposed by RBI cannot be enforced. It is not an criminal act to transact in cash directly o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands of the accused persons, held that the power of the Court to award compensation to victims under Section 357 of Cr.P.C., is not ancillary to other sentences but is in additional thereto. While holding so, the Hon'ble Supreme Court has observed that before fixing the quantum of compensation, the accused/petitioner must be heard even though the statute is silent it. The said observation made in respect of IPC offences vis-a-vis Section 357 of Cr.P.C is not applicable to the offence under Section 138 of the Negotiable Instruments Act, 1881, which is a Composite Act dealing punishment and compensation. Under this Act, the offenders may be imprisoned to the extent of two years and imposed compensation twice the amount of the cheque. While the Act enables the Court to sentence imprisonment to the extent of two years or with fine, which may extent twice the cheque amount or with both, this Court finds that the sentence of one year and compensation to the extent of the cheque amount is reasonable and warrants no interference. 15. In Vijay v. Laxman and another reported in [(2013) 3 SCC 86], the Hon'ble Supreme Court while dealing with Sections 118 and 139 of the Negotiable I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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