9911796707
TMI Blog2020 (1) TMI 1693X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant and accused, respectively. 3. The complainant is a chit company and it is alleged that the accused was a subscriber. It is the case of the complainant that the accused had borrowed loans on several dates for about eight years and a total sum of Rs.21,09,000/- was due, towards which, he gave a cheque (Ex-P14) dated 03.02.2003 for a sum of Rs.19,00,000/-; the complainant presented the cheque on 04.02.2003 and it was returned unpaid with the endorsement "Account Closed" vide bank's return memo (Ex-P15) dated 05.02.2003; therefore, the complainant issued a statutory demand notice (Ex-P17) dated 20.02.2003, for which, the accused issued a reply notice (Ex-P19) dated 27.02.2003 repudiating the debt; since the accused did not comply w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantial amounts were repaid by him to the complainant. The accused was subjected to cross-examination by the complainant. 7. After considering the entire evidence, the appellate Court, by judgment and order dated 20.06.2012 in C.A.No.186 of 2010, acquitted the accused, challenging which, the complainant has preferred the present appeal against acquittal. 8. Heard Mr.R.Venkatesh, learned counsel for the complainant and Mr.Venkatraman, learned counsel for the accused. 9. The learned counsel for the complainant submitted that the accused had not adduced any evidence in the trial Court and had also not given any satisfactory explanation when he was examined under Section 313 Cr.P.C. by the trial Court, whereas, he has used the appellate for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also bound to give due consideration to the other circumstances of the criminal. It is for this reason that the court while hearing a convict on sentence is required to give a party an opportunity of producing evidence or materials relating to the various factors having some bearing on the question of sentence. The court, while determining the quantum of sentence, acts in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction. Therefore, there is bifurcation of trial as an accused has a right of pre-conviction hearing under Section 234 and secondly, right of pre-sentence hearing under Section 235 of the Code. For pre-convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pleading about the debt is different from proof of the debt. Section 139 of the NI Act, only exempts the complainant from proving the debt and not pleading. 16. It is the case of the accused that he had joined various chits run by the complainant and at that time, the complainant had collected blank cheques and promissory notes which have been misused in this case. In fact, the accused has accepted his signature in the cheque (Ex-P14), but, has taken a stand that he had issued a blank one. As held by the Supreme Court in Bir Singh Vs. Mukesh Kumar3, in view of Section 20 of the NI Act, it is not illegal for the complainant to fill up the cheque. However, the appellate Court has gone deeply into the records of the complainant and has retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been claimed as 3 %. When we compare the rate of interest at random with that of the rate of interest mentioned in the pronotes it appears that inflated rate of interest has been claimed and on that basis the statement of accounts has been prepared. As I said earlier, the respondent is not entitled to claim inflated interest from the one which is agreed. For that purpose the appellant would argue that as per Tamil Nadu Prohibition of Charging Exorbidant Rate of Interest Act, 2003. A person cannot claim interest, above which has been prescribed under the government order G.o.No.406 cooperation 05.07.1997. In respect of unsecured loan the maximum interest will be 12 %. Rate of interest calculated at the rate of 3 % per month per Rs.100/- wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her5, wherein, in paragraph no.36, it is held as follows: "36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two view are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial Court is either perverse or wholly unsustainable in law." 19. In such perspective of matter, this Court does not find any infirmity in the acquittal of the accused by the S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
