(Prayer: Criminal Revision Case filed under Sections 397 and 401 of Cr.P.C., to set aside the judgment dated 13.04.2023 made in C.A. No. 178 of 2021 on the file of the 18th Additional District and Sessions Court, Chennai, confirming the judgment dated 07.10.2021 made in CC.No.3732 of 2013 on the file of the Court of the Metropolitan Magistrate-cum-Fast Ttrack Judge No.1, Egmore at Allikulam, Chennai and acquit the petitioner.)

1. The Criminal Revision is filed challenging the judgment dated 13.04.2023 made in C.A. No. 178 of 2021 on the file of the 18th Additional District and Sessions Court, Chennai, confirming the judgment dated 07.10.2021 made in CC.No.3732 of 2013 on the file of the Court of the Metropolitan Magistrate-cum-Fast Track Judge No.1, Egmore at Allikulam, Chennai.

2. The trial Court had convicted the petitioner under Section 138 of the Negotiable Instruments Act [in short, 'the NI Act'] and sentenced him to undergo simple imprisonment for six months and to pay the cheque amount of Rs.18,75,000/- with 9% interest of Rs.13,50,000/- (totally Rs.32,25,000/-) as compensation to the respondent within eight weeks from 07.10.2021, in default to undergo simple imprisonment for six weeks.

3. (i) The case of the respondent is that the petitioner had availed loan through him from a consortium of persons; that the respondent had arranged the loan for the petitioner; that in repayment of a portion of the outstanding amount, the petitioner had issued three cheques, each for Rs.6,25,000/-, in total Rs.18,75,000/- bearing cheque Nos.079751 dt. 26.12.2012, 067847 dt. 26.12.2012 and 067848 dt. 24.01.2013, drawn at HDFC Bank Velachery Branch; that when the said cheques were presented for collection in the complainant's bank, it was returned with the endorsement 'funds insufficient'; that a lawyer's notice dated 18.03.2013 was issued to the petitioner, which was received on 20.03.2013; and that inspite of the statutory notice, the petitioner did not make the payment and hence, the complaint.

                     (ii) The respondent had examined himself as PW1 and marked Ex.P1 to Ex.P12. The petitioner marked the copy of the plaint in the suit in C.S.No.760 of 2016, filed by the respondent as Ex.D1

                     (iii) Ex.P1 series, contains 28 promissory notes issued in favour of various persons to show that the consortium has lent money to the petitioner. Ex.P2 is the letter of the petitioner to the respondent, in which the petitioner had admitted borrowal of a sum of Rs.50 Lakhs, initially, and a further sum of Rs.50 Lakhs and also about executing a mortgage deed in favour of the respondent. In the said letter there is also a reference to the 28 promissory notes executed by the petitioner in favour of the financiers for a sum of Rs.50 Lakhs. Ex.P3 is the copy of the mortgage deed executed by the petitioner in favour of the respondent. Ex.P4 to Ex.P6 are the cheques in question. Ex.P7 to Ex.P9 are the intimation letters from the bank. Ex.P10 is the lawyer's notice. Ex.P11 is the acknowledgement card evidencing the receipt of the lawyer's notice. Ex.P12 is the reply notice of the petitioner.

                     (iv) It is the defence of the petitioner that all the pro-notes were issued in favour of 28 persons and therefore, there is no liability to pay the respondent and since the cheques are not towards the discharge of any liability, the offence under Section 138 of the NI Act, would not be made out.

                     (v) The trial Court, however, rejected the said defence of the petitioner and had observed that the petitioner in his letter marked as Ex.P2 had acknowledged the receipt of Rs.50 Lakhs from the consortium through the respondent and had agreed to repay the said sum to the respondent and had issued three cheques for Rs.6,25,000/- each, which is the subject matter of this complaint, and another three cheques which is subject matter of complaint in C.C.No.3730 of 2013 and a cheque for Rs.14 Lakhs, which is the subject matter of the complaint in C.C.No.3731 of 2013 [For which two other revisions have been filed as Crl.RC.Nos.1727 and 1729 of 2024, which are taken up jointly with this revision and disposed of by separate orders]; that therefore, the respondent had established that the cheques were issued towards a liability; that the said cheques were signed by the petitioner; that when presented they were dishonoured; and that the payments were not made inspite of statutory notice. Since the petitioner did not rebut the statutory presumption, the trial Court found the petitioner guilty. The appellate Court confirmed the finding of guilt.

4. (i) Mr.S.Thangavel, the learned for the petitioner would submit that the respondent in his cross-examination had admitted that he had not lent any money to the petitioner; that he had not given the details of the consortium of persons who had lent money in the complaint; and that therefore, the complaint suffers from suppression of facts.

                     (ii) The learned counsel would further submit that the answers in the cross-examination of the respondent would suggest that the petitioner had rebutted the statutory presumption, and the burden had shifted to the respondent to prove the liability, which has not been discharged by him. He would therefore, pray for acquittal.

5. (i) Mr.N.Kishore Kumar, the learned counsel for the respondent per contra submitted that all the points raised by the petitioner were considered by the Courts below; that in a well-reasoned judgment, the trial Court had rejected the contention of the petitioner that the cheques were not issued in discharge of any liability; and that the documents submitted by the respondent, viz., including the letter [Ex.P2] would show that the petitioner had acknowledged the receipt of loan of Rs.50 Lakhs initially, from the respondent, thereafter another sum of Rs.50 Lakhs, from consortium of persons through the respondent, and had agreed to repay the respondent the said sums.

                     (ii) The learned counsel would therefore submit that the fact that the promissory notes were not issued in favour of the respondent would make no difference as the respondent had established that the cheques were issued for a liability. He would therefore, pray that the concurrent findings of fact may not be interfered with and that the revision may be dismissed.

6. The signature in the cheques is not in dispute. The fact of handing over the cheques to the respondent by the petitioner is also not in dispute. All the foundational facts to establish the offence of Section 138 of the Negotiable Instruments Act, has been proved by the respondent. The only defence of the petitioner is that the cheques were not issued towards any liability to the respondent and the money was only due to 28 persons who formed a consortium and the promissory notes as could be seen from Ex.P1 series were also executed in their favour.

7. The above defence cannot be countenanced. Even in the complaint, the respondent had only stated that the petitioner had availed loan through the respondent, from the consortium of persons. The respondent had not suppressed any facts. In fact, it was the respondent who had marked the promissory notes executed by the petitioner in favour of 28 persons for a total sum of Rs.50 Lakhs. In Ex.P2, the petitioner had not only acknowledged the receipt of loan of Rs.50 Lakhs initially, directly from the respondent and about executing a mortgage deed in respect of his property, but also the fact that he had borrowed a further loan of Rs.50 Lakhs through the respondent from the consortium of 28 persons. In fact, the petitioner had requested the respondent to keep the original title deeds in his custody to secure the additional loan of Rs.50 Lakhs. He would further state that his total borrowing is Rs.1 Crore and he would adhere to the repayment schedule.

8. It is only in discharge of this liability that the petitioner had issued the cheques in question. It is not the case of the petitioner that he had repaid the loan to the 28 persons forming the consortium.

9. Therefore, this Court is of the view that the petitioner cannot take advantage of the admissions said to have been made by the respondent in the cross-examination that there was no payment made by the respondent towards further loan of Rs.50 Lakhs. The cheques were certainly issued towards liability and therefore, this Court finds no reason to interfere with the concurrent findings rendered by the Courts below.

10. Accordingly, the Criminal Revision is dismissed and the impugned judgments of the Courts below are confirmed.