Madras High Court
Pl.Vairavan vs Al.Selvakumar on 10 March, 2015
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 29.11.2014
Date of decision: 10.03.2015
CORAM:
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
Criminal Appeal Nos.461 and 474 of 2005
Criminal Appeal No.461 of 2005
PL.Vairavan ... Appellant
vs.
AL.Selvakumar ... Respondent
Criminal Appeal No.474 of 2005
Annamayil ... Appellant
vs.
AL.Selvakumar ... Respondent
PRAYER : Criminal Appeal No.461 of 2005 filed under Section 378 of the Cr.P.C., to set aside the judgment dated 23.3.2005 in C.C.No.11077 of 2000 of the learned Second Metropolitan Magistrate, Egmore, Chennai, convict the respondent herein for the offence under section 138 of the Negotiable Instruments Act, award compensation to the appellant.
Criminal Appeal No.474 of 2005 filed under Section 378 of the Cr.P.C., to set aside the judgment dated 23.3.2005 in C.C.No.11075 of 2000 of the learned Second Metropolitan Magistrate, Egmore, Chennai 8 and convict the respondent herein for the offence under section 138 of the Negotiable Instruments Act, award compensation to the appellant.
For Appellant in Mr.AR.L.Sundaresan
both the Appeals: Senior Csunsel
for Mrs.A.L.Ganthimathi
Amicus Curiae in: Mr.K.P.Ananthakrishnan
both the Appeals
JUDGMENT
The complainant in C.C.No.11077 of 2000 on the file of Metropolitan Magistrate No.II, Egmore, Chennai, is the appellant in Crl.A.No.461 of 2005 and the complainant in C.C.No.11075 of 2000 on the file of Metropolitan Magistrate No.II, Egmore, Chennai is the appellant in Crl.A.No.474 of 2005. The appellant in Crl.A.No.461 of 2005 is the husband and the appellant in Crl.A.No.474 of 2005 is the wife and the complaint in C.C.No.11075 of 2000 was filed by the husband as the power agent of the wife, who is the appellant in Crl.A.No.474 of 2005.
2. Though separate trails were conducted by the said learned Metropolitan Magistrate and two independent judgments were passed, having regard to the facts and the evidence adduced by the parties, a common judgment is delivered in these two Appeals.
3. The complaints filed by the complainants were dismissed and aggrieved by the same, the present Appeals are filed. The case of the complainant in C.C.No.11077 of 2000 is as follows:-
On 1.6.2000, the respondent/accused borrowed a sum of Rs.11,50,000/- from the complainant and his wife, the appellant in Crl.A.No.474 of 2005, and towards the discharge of the said amount, the respondent / accused issued two cheque No.750286 dated 29.6.2000 for Rs.4,00,000/- and 750290 dated 31.8.2000, for a sum of Rs.4,00,000/- and both the cheques were drawn on M/s.Bank of Madura Ltd., Egmore, Madras. It is also admitted that another Cheque No.750291 dated 31.8.2000 for a sum of Rs.3,50,000/- was also issued towards the borrowal from the complainant and his wife, on 1.6.2000. It is the common case of the complainants/appellants that the cheques were presented for collection before the Bank of Madura Ltd., Egmore and all the cheques were dishonoured on the ground, payment stopped by the drawer and the complainant received an intimation in that regard from the bankers on 18.9.2000. Thereafter, notice dated 25.9.2000 was sent to the respondent and he received the same on 3.10.2000 and sent a reply dated 10.10.2000 wherein the respondent/accused admitted his liability but claimed settlement of the loan amount, which was false to the knowledge of the accused. The accused also sent a notice dated 6.10.2000 wherein he referred to certain Demand Drafts issued by him towards the discharge of the loan availed by him from the complainants on 1.6.2000 but those Demand Drafts mentioned in the notice dated 6.9.2000 were not given by the accused but in respect of a different transaction with M/s. AMR Exports and M/s. Sylvia Exports and those Demand Drafts were given by Muthu Veerappan and Muthu Ganesan and they received back the cheques and those cheques have nothing to do with the liability payable by the respondent towards the amount borrowed by him from the complainant and his wife on 1.6.2000. As the respondent/accused admitted the liability of receipt of Rs.11,50,000/- from the complainant and his wife and also issued the cheques and those cheques were dishonoured and the accused failed to repay the amount, even after the receipt of notice, the complaint was filed. On behalf of the complainants in both the cases, the complainant in C.C.No.11077 of 2000, PL.Vairavan, was examined as PW.1, one Bank Manager, Thanneermalai, was examined as PW.2 and one Thyagarajan was examined as PW.3. Two Cheques No.750286 and 750290 dated 31.8.2000 for a sum of Rs.4,00,000/- were marked as Exs.P.1 and 2. The Debit Advise given by Bank of Madurai Ltd., Purasawalkam, Chennai, dated 18.9.2000 was marked as Ex.P.3. The copy of the advocate notice issued on behalf of the complainant was marked as Ex.P.4 and the reply dated 10.10.2000 by the accused was marked as Ex.P.5. The notice sent by the accused dated 6.9.2000 was marked as Ex.P.6. The authorisation letter given by ICICI Bank was marked as Ex.P.7. Bank Statement of the accused/respondent was marked as Ex.P.8. An endorsement made in the copy of the cheque bearing No.839876 dated 29.6.2000 for having received two Demand Drafts viz., Nos. 767268 and 088847 dated 14.7.2000 for Rs.1,25,000/- each, was marked as Ex.P.9. An endorsement made on the copy of a sale deed for having received various Demand Drafts was marked as Ex.P.10. On the side of the defence, six witnesses were examined and six documents were marked as Exhibits.
4. The facts of the case in C.C.No.11075 of 2000 is also similar and in that case, the Power of Attorney was marked as Ex.P.1 and Cheque No.750291 dated 31.8.2000 for Rs.3,50,000/- was marked as Ex.P.2. In other respects, the list of witnesses and evidence are same as in the case of C.C.No.11077 of 2000.
5. The learned Judicial Magistrate on a careful appreciation of the oral and documentary evidence held that the respondent rebutted the presumption by producing Exs.D.1 to D.6 and also by examining witnesses DW.1 to DW.6 and the respondent also issued notice Ex.P.6 dated 6.9.2000 even before the cheques were presented by the complainants into the bank and the complainants failed to prove that the various Demand Drafts stated to have been given by the accused were not given by the accused towards the discharge of the loan amount Rs.11,50,000/- those Demand Drafts were given by some other person and therefore, having regard to the probable defence made out by the accused regarding repayment of the amount, the complainants are not entitled to any order and dismissed the complaints and acquitted the respondent/accused. Aggrieved by the same, the present Appeals are filed.
6. Mr.AR.L.Sundaresan, learned Senior Counsel, appearing for the appellants submitted that the learned Judicial Magistrate without properly appreciating the law and presumption to be raised under section 139 of the Negotiable Instruments Act and having regard to the admission of the accused that the cheques were issued by him for security, the Court below ought to have drawn presumption regarding legally enforceable liability and held that the cheques were issued for consideration received by the accused and having regard to Exs.P.9 and P.10 and also having regard to the evidence of PW.3, ought to have held that the respondent/accused failed to rebut the presumption. He further submitted that when the accused admitted the receipt of consideration and also the issuance of cheques towards the discharge of liability and also took a plea that the loan amount was discharged by means of payments evidenced by various Demand Drafts, a duty is cast upon the accused to prove that he discharged the loan through various Demand Drafts and when the accused was not able to prove those payments through various Demand Drafts, Court ought to have convicted the respondent/accused. The learned Senior Counsel further submitted that Ex.P.9 is the acknowledgement by one Muthu Veerappan on behalf of M/s.AMR Nirmala Exports, for having received back the original Cheque No.839876 dated 29.6.2000 for Rs.2,50,000/- while handing over two Demand Drafts, namely, Nos.767268 and 088847 dated 14.7.2000 for a sum of Rs.1,25,000/- each. Therefore, the said two Demand Drafts were given by M/s.AMR Nirmala Exports for the amount payable under the Cheque No.839876 dated 29.6.2000 for a sum of Rs.2,50,000/- and those Demand Drafts were claimed to have been given by the respondent towards the discharge of the loan payable by the respondent/appellant and these aspects were not properly appreciated by the Court below. The learned Senior Counsel further submitted that even according to DW.6, Demand Draft No.344198 dated 14.7.2000 for a sum of Rs.1,00,000/- was purchased by M/s.Kasi Electronics and the Demand Draft was drawn in favour of the appellant/complainant and no evidence was adduced by the accused, in what manner he was related to M/s. Kasi Electronics and DW.6 also did not state that the account of M/s. Kasi Electronics was maintained by the accused and he also admitted that he was not aware of the relationship between M/s.Kasi Electronics and the complainant, Vairavan, and he was not aware of the names of Directors of M/s.Kasi Electronics. Therefore, having regard to the evidence of DW.6, it cannot be stated that the said sum of Rs.1,00,000/- was paid by the accused towards the discharge of the loan to the complainant. He also submitted that Ex.P.10 was written by one Muthu Ganesan, who was examined as DW.5. In Ex.P.10, it has not been stated that the various Demand Drafts mentioned therein were given by the accused or purchased by the accused and therfore, the contention of the accused that he handedover the same through Muthu Ganesan for the payment of the liability of the accused cannot be accepted and therefore, it cannot be held in favour of the accused to the effect that the accused has discharged or rebutted the presumption. He also submitted that merely because the accused sent notice dated 6.9.2000 mentioning various Demand Draft Numbers and claimed discharge of the loan, it cannot be stated that the accused rebutted the presumption and in the absence of any proof filed by the accused that those Demand Drafts were purchased by him in the name of the complainant, it cannot be stated that those Demand Drafts were purchased by the respondent towards discharge of the loan payable by the respondent to the appellant. He submitted that except one or two Demand Drafts that was spoken to by DW.3, the remaining Demand Drafts were not proved to have been purchased by the respondent. Therefore, the lower Court erred in holding that the accused discharged the burden. The learned Senior Counsel submitted that having regard to onus imposed on the respondent under section 139 of the N.I.Act and having admitted the issuance of cheque and received consideration for the amount mentioned in those cheques, the lower Court ought to have convicted the accused. Therefore, the Appeals are liable to be allowed.
7. Mr. K.P.Anantha Krishnnan, learned counsel, who entered appearance for the respondent in both the Appeals, initially started his arguments on behalf of the respondent and later submitted that he was not able to contact the respondent and therefore, he was not in a position to appear for the respondent. Nevertheless, he submitted that he may be permitted to appear for the respondent as amicus curiae and place facts to assist the Court to arrive at a decision.
8. Mr.K.P.Anantha Krishnan, learned counsel, submitted that the issuance of three cheques which was the subject matter of these Appeals were admitted by the accused. Though the complainant claimed that a sum of Rs.11,50,000/- was advanced to the accused on 1.6.2000, the accused stated in Ex.P.6 Notice that he received Rs.12,50,000/- from the complainant and his wife and as a security, issued four cheques viz., Cheque No.750286 dated 31.08.2000 for Rs.4,00,000/-
Cheque No.750289 dated 31.08.2000 for Rs.1,00,000/-
Cheque No.750290 dated 31.08.2000 for Rs.4,00,000/-
Cheque No.750291 dated 31.08.2000 for Rs.3,50,000/-
and all the cheques were drawn on Bank of Madura Limited, Egmore Branch, Chennai and all the cheques were dated 31.8.2000. Out of the four cheques given by the accused for the receipt of loan of Rs.12,50,000/-, the complainant filed these cases in respect of 3 cheques, namely, Cheque No.750286, 750291 and 750289. He submitted that though the burden is on the respondent/accused to rebut the presumption that the cheque amounts were discharged, there is no necessity for the respondent/accused to rebut the presumption beyond reasonable doubt as that of a complainant and it is enough if the respondent is able to establish the preponderance of probabilities or project a case which would appear to be probable, then the burden shifts on to the complainant. He therefore submitted having regard to Ex.P.6, the earliest notice sent by the accused to the complainant, having regard to Ex.P.9 and , and the evidence of DW.1 to DW.6 and Exs.D.1 to D.6, the respondent established beyond reasonable doubt that the loan amount borrowed by the respondent from the complainant was discharged. He also submitted that the trial Court rightly rejected Ex.P.9 as the same was not marked through a competent person. He also submitted that according to PW.1 - complainant, an endorsement was made in Ex.P.9 xerox copy of the cheque bearing No.839876 dated 29.6.2000 for Rs.2,50,000/- drawn by M/s.AMR Nirmala Exports represented by Mr.Muthu Veerappan and as per the endorsement, Demand Draft No.767268 dated 14.7.2000 drawn on M/s. Bank of Madura Ltd., for Rs.1,25,000/- and Demand Draft No.088847 dated 14.7.2000 drawn on M/s.Canara Bank for Rs.1,25,000/- were handedover by one Muthu Veerappan, a staff of of M/s.AMR Nirmala Exports, to the complainant and he got back the original cheque bearing No.839876 dated 29.6.2000 for Rs.2,50,000/-. He submitted that in order to substantiate the endorsement made in Ex.P.9, the competent person, namely, Muthu Veerappan was not examined and his statement was marked through PW.3 who has nothing to do with the transaction. Therefore, Ex.P.9 should not have been considered in favour of the complainant for the purpose that the two Demand Drafts were issued by M/s.AMR Nirmala Exports towards their liability due under cheque No.839876 dated 29.6.2000 for Rs.2,50,000/-. He also submitted that the case of the complainant that these two Demand Drafts bearing No.767268 and 088847 were given by M/s.AMR Nirmala Exports were also falsified by the evidence of DW.1 to DW.4. DW.3 is the Manager of Bank of Madura, which later became ICICI Bank and he has marked Ex.D.3 to the effect that Demand Draft Nos.767268 and two other demand drafts, namely, 767315 and 767329 were purchased by the accused in favour of the complainant. Further, DW.2, Bank Manager of Canara Bank, Chennai, was examined to prove that Demand Draft No.088847 dated 14.7.2000 was purchased in faovur of Vairavan, the complainant, by M/s.Abirame & Co, a proprietary concern, of which, the accused is the proprietor, and marked the Bank Statement of M/s.Abhirame & Co as Ex.D1. He therefore submitted that having regard to Exs.D1 and D3, it was proved by the accused that two Demand Drafts mentioned in Ex.P.9 were purchased by the accused in favour of the complainant and those two Demand Drafts could not have been given by M/s. AMR Nirmala Exports towards their due to the appellant. He also submitted that it is not the case of the complainant that he did not receive 9 Demand Drafts mentioned in Ex.P.10 and also mentioned in Ex.P.6 and it is the specific case of the complainant that he received those 9 Demand Drafts but those 9 Demand Drafts were given by Muthu Ganesan towards the liability payable by him to the complainant and therefore, the accused cannot take credit for those payments. The learned counsel for the respondent submitted that the complainant did not make any attempt to prove his case by examining Muthu Veerappan or Muthu Ganesan. On the other hand, the accused examined Muthu Ganesan as DW.5. He categorically stated that 9 Demand Drafts mentioned in were given by the respondent/accused and he was directed to handover the same to the complainant and he was asked by the accused to get back four cheques from the complainant and when he gave 9 Demand Drafts to the complainant, the complainant received the same and refused to handover the four cheques given by the accused stating that he had some other accounts to be settled by the accused and therefore, he made an endorsement in for having given those 9 Demand Drafts. The learned counsel therefore submitted that the complainant accepted the receipt of 9 Demand Drafts from Muthu Ganesan and according to the complainant, those Demand Drafts were received in respect of other transaction between him and Muthu Gesan and the complainant also claimed that he had documents to substantiate the same. Nevertheless, no document was filed by the complainant to substantiate that he had other dealings with Muthu Ganesan or with the accused in respect of which 9 Demand Drafts were given, more importantly, no suggestion was put to DW.5 when he was examined that those DDs were given by Muthu Ganesan towards the liability payable by him to the complainant. He therefore submitted that having regard to the evidence of DW.1 to DW.5, the accused not only made out the probable case but also rebutted the presumption beyond reasonable doubt and these aspects were properly appreciated by the court duly and the complaints were dismissed. The learned counsel also relied upon the following judgments in support of his contention.
1Krishna Janardhan Bhat versus Dattatraya G. Hegde [(2008) 4 Supreme Court Cases 54] 2 John K. John Versus Tom Varghese and another [(2007) 12 Supreme Court Cases 714] 3 M.S.Narayana Menon versus State of Kerala [(2006) 6 SCC 39] 4 C.Antony Versus K.G.Raghavan Nair (2003) 1 SCC 1
9. According to me, though the burden of proof to rebut the presumption is not so strict on the defence and it is enough if he is able to make out a probable defence, having regard to the judgment rendered in Bharat Barrel and Drum Manufacturing Company v. Amin Chand Payrelal [AIR 1999 SUPREME COURT 1008] and Hiten P.Dalal Versus Bratindranath Banerjee [2001 Supreme Court Cases (Cri) 960, the bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist.
10. Further as held in AIR 1964 Supreme Court 575 AIR 1964 SC 575 in the matter of Dhanvantrai Balwantrai Desai vs. State of Maharashtra, the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. As the judgment reported in AIR 1964 Supreme Court 575 supra is by a Constitution Bench and the judgment rendered in Hiten P.Dalal Versus Bratindranath Banerjee [2001 Supreme Court Cases (Cri) 960 by 3 Hon'ble Judges of the Supreme Court, this Court is bound to follow the law laid down in those judgments in preference to the judgments referred to by the learned counsel for the respondents.
11. Bearing these principles in mind, we will have to see whether the respondents have rebutted the presumption in the manner known to law, having regard to the facts of the case.
12. As rightly submitted by the learned counsel for the appellant, the issuance of cheque is admitted by the respondents and therefore, under Sections 118 and 139 of the Negotiable Instruments Act, presumption shall be drawn in favour of the complainant regarding passing of consideration. Therefore, we will have to see whether the respondents have rebutted the presumption.
13. In the judgment reported in (2006) 6 SCC 39 supra, it has been held that initial burden of proof is on the accused to rebut the presumption by using a probable defence and if the accused discharges the burden, the onus thereafter, shifts on to the complainant to prove his case. It is further held that the burden of proof on the accused is not so heavy and there is no need to disprove the prosecution case in its entirely and the accused can discharge the burden on the basis of preponderance of probability to direct or circumstantial evidence.
14. In the judgment reported in (2008) 4 Supreme Court Cases 54 supra, the same has been reiterated.
15. Under Sections 118 and 139 of the N.I.Act, a presumption can be drawn when the instrument was issued that it was towards consideration. Therefore, when the issuance of cheque is admitted, the presumption can be drawn in favour of the payee that the drawer issued a cheque for valid consideration and thereafter, the drawer has to rebut the presumption by proving that there was no consideration for issuance of cheque and while proving that there was no consideration for the issuance of cheque the drawer has to make out a probable defence and in such circumstances, the probabilities will be taken into consideration. Having regard to the facts of the case, the Court can say that the burden once again shifts on to the payee. However, the position will be different when the drawer admits the liability to the payee, admits issuance of cheques and also pleads that the loan amount has been discharged.
16. According to me, when the drawer takes up the plea that the amount due under the cheques was discharged, he has to prove the same as fact and he cannot rely upon probabilities. He has to plead and prove that the amount was discharged and for that purpose, he cannot rely upon the probabilities as he is not rebutting the presumption regarding consideration but giving evidence towards the discharge.
17. As rightly submitted by the learned Senior Counsel, Mr.AR.L.Sundaresan, that when the issuance of a cheque was admitted by the accused, the Court has to draw presumption towards consideration and it is for the accused to rebut the presumption that the cheque was not given towards the legally enforceable liability. In this case, the issuance of cheques was admitted by the accused and according to the accused, he received Rs.12,50,000/- from the complainant/appellant and as a security for that amount, he issued four cheques, three of which were the subject matter of these Appeals and he discharged the loan of Rs.12,50,000/- through various Demand Drafts. Therefore, as stated supra, when the accused takes up the plea that the cheque was given as a security, it has to be presumed that he owed a sum amount to the complainant and for that, the cheques were issued as security. In that case, in addition to the presumption to be drawn under section 139 of the N.I.Act, it has to be taken for granted that passing of consideration for the cheques has been admitted by the accused. In a case where the accused pleads that he discharged the amount payable under the cheques, then also the burden is heavily on the accused to prove discharge and in that case, it is not sufficient if he makes out a probable defence as held in the other cases as stated above. In this case, the accused pleaded that the cheques were given as a security and he also pleaded that the cheque amounts were discharged and therefore, the burden is heavily on the accused to prove that the cheque amounts were discharged and for that purpose, it is not sufficient if the accused raises a probable defence and he has to prove the factum of discharge by convincing evidence.
18. We will have to see whether the accused has proved that he discharged the loan. As rightly submitted by the learned counsel appearing as amicus curiae, before the appellant presented the cheques for collection, Ex.P.6 Notice was issued by the accused wherein he has specifically stated that he borrowed Rs.12,50,000/- and issued four cheques giving numbers and the amounts and towards the discharge of that loan, he issued nine Demand Drafts by giving numbers, dates and banks on which the Demand Drafts were drawn and also the amount mentioned in those Demand Drafts. The accused examined DW.1 to DW.6 to prove the discharge of Rs.12,50,000/- through the various Demand Drafts mentioned in Ex.P.6 Notice. It is the specific case of the complainant/appellant that the Demand Drafts mentioned in Ex.P.10 were received by him and contended that those Demand Drafts were given by Muthu Ganesan towards money payable by him and he got back the cheques issued by him and also the documents given as security for that loan and therefore, the accused cannot claim credit of those Demand Drafts towards the amount payable by him. To substantiate the stand taken by the complainant/appellant, he has not examined Muthu Ganesan and he examined only PW.3, the Manager employed in ICICI Bank to prove the same. In the complaint, the appellant did not state that the Demand Drafts mentioned in Ex.P.6 Notice were received in the presence of PW.3 and it was only stated and the Demand Drafts were given by Muthu Veerappan and Muthu Ganesan. PW.3 was not employed by the complainant and according to his evidence, he was contacted by Mr.A.R.Ganapathi, who was related to the accused and asked him to intervene in the dispute between the complainant and the accused to effect settlement and the accused came along with Muthu Ganesan and both of them agreed to settle the dues within a month and on 14.7.2000, Muthu Veerappan, asked him to come to the office of the complainant and Muthu Veerppan, staff of M/s. AMR Nirmala Exports, handed over Demand Draft No.088847 dated 14.7.2000 for Rs.1,25,000/-, drawn on Canara Bank and another Demand Draft No.767268 dated 14.7.2000 drawn on Bank of Madurai for same sum and got back Cheque No.839876 dated 29.6.2000 drawn on Federal Bank, for Rs.2,50,000/- issued by M/s.AMR Nirmala Exports. The xerox copy of the Cheque No.839876 and the endorsement made therein was marked as Ex.P.9. He also deposed that on 18.7.2000, Muthu Ganesan called him to come to the office of the complainant and in the office of the complainant, Muthu Ganesan, gave 10 Demand Drafts for a total sum of Rs.12,00,000/- and received the documents given as collateral security and also 10 cheques issued by M/s.Sylvia Exports, in favour of the complainant and made necessary endorsements in Ex.P.10. Exs.P.9 and 10 were marked subject to objection as they were not marked through the person by whom the endorsements were made in Exs.P.9 and 10. It is not the case of the complainant that PW.3 received those Demand Drafts and was present when the endorsements were made in Exs.P.9 and 10. Therefore, in the absence of examining the person who made the endorsement in Exs.P.9 and 10, namely, Muthu Veerappan and Muthu Ganesan, the documents, namely, Exs.P.9 and 10 cannot be considered in favour of the complainant.
19. On the other hand, the accused examined DW.2 to prove that Demand Draft No.088847 dated 14.7.2000 drawn on Canara Bank in favour of the complainant was purchased by M/s. Abirame & Co, the proprietary concern, of which the accused was the proprietor. Similarly, DW.3 was examined to prove that Demand Draft No.767268 dated 14.7.2000 drawn on Bank of Madura for Rs.1,25,000/- in favour of the complainant/appellant was purchased by the accused. The aforesaid two Demand Drafts, namely, Nos. 767268 and 088847 dated 14.7.2000 for Rs.1,25,000/- each, were stated to be given by Muthu Veerappan to the complainant towards the amount payable on behalf of M/s.AMR Nirmala Exports. As stated supra, the said Muthu Veerappan was not examined. On the contrary, through DW.2 and DW.3, the accused proved that those two Demand Drafts mentioned in Ex.P.9 were purchased by the accused in favour of the complainant and therefore, the accused proved the payment of Rs.2,50,000/- through those Demand Drafts towards the discharge. As a matter of fact, the complainant also accepted the receipt of those two Demand Drafts. Therefore, the accused proved that he paid Rs.2,50,000/- through those Demand Drafts. The accused examined DW.5 Muthu Ganesan and he also deposed that he gave the Demand Drafts mentioned in Ex.P.10 to the complainant on behalf of the accused and when he demanded four cheques given by the accused, the complainant informed that there were other transaction between him and the accused and therefore, the cheques were not returned. While examining DW.5, no suggestion was put to DW.5 by the complainant that the endorsement made in Ex.P.10 and the delivery of cheques mentioned therein were not given on behalf of the accused but the loan amount payable by Muthu Ganesan himself. Further, the accused also proved the purchase of some of the Demand Drafts mentioned in Ex.P.10 through DW.3. DW.3 admitted that DD Nos.762315 and 762319 were purchased by the accused. As a matter of fact, PW.2 also admitted that Demand Drafts No.767268, 767315 and 767329 were purchased from the account of the accused. Therefore, out of the nine cheques mentioned in the Notice Ex.P.6, the accused proved the purchase of Demand Draft No.767268, 088847, 767315, 767329 for a total sum of Rs.7,85,000/- (approximately). DW.6 Manager of City Union Bank stated that Demand Draft No.344198 dated 14.7.2000 for a sum of Rs.1,00,000/- was purchased in the name of the complainant by Kasi Electronics. Though he has not deposed that the said amount was purchased by the accused, having regard to the fact that the said Demand Draft was mentioned in Ex.P.6, much before the presentation of the cheques by the complainant, it has to be accepted that the cheque was also purchased by the accused in favour of the complainant. As per the evidence of DW.4, Branch Manager of ICICI Bank, Tanjore, a sum of Rs.3,00,000/- was deposited from the account of the accused for payment to the complainant and that amount has been mentioned as Demand Draft No.259682 for a sum of Rs.3,00,000/-. Therefore, except the payments made through Demand Draft Nos.408964, 408965, 408966 for a sum of Rs.21,524/-, 19,372 and 19,372/- respectively, the accused proved through oral and documentary evidence that he repaid Rs.12.50 lakhs which he borrowed from the complainant. Therefore, having regard to the evidence of DW.1 to DW.6 and Exs.P.9 and 10, in my opinion, the accused has not only rebutted the presumption but also proved that he discharged the entire loan payable to the complainant.
20. When the accused rebutted the presumption or proved discharge, the burden shifts on to the complainant to prove that the accused is liable to pay the amount under these cheques. As stated supra, when the accused pleaded that the cheques were given as security or the loan amount were discharged, the payment of consideration can be presumed in favour of the complainant but when the accused proved discharge of the amount payable under the cheques, it cannot be stated that the presumption is in favour of the complainant and the accused is liable to be punished. Only when the accused failed to prove the discharge, then only the presumption can be drawn in favour of the complainant and the accused can be convicted. Once the accused proved discharge by cogent evidence, the accused cannot be convicted by relying upon the presumption drawn in favour of the complainant. In this case, the accused not only rebutted the presumption but also proved the discharge of loan payable to the complainant through Exs.D.1 to D.6 and DW.1 to DW.6 and also Exs.P.6 and 10. Considering all these aspects, the trial Court rightly acquitted the accused and dismissed the complaints.
21. In the result, I do not find any infirmity in the impugned judgments of the Court below. The Criminal Appeals are dismissed.
10.03.2015 Index : Yes Internet: yes asvm To The Second Metropolitan Magistrate, Egmore, Chennai.
R.S.RAMANATHAN, J (asvm) Judgment in Criminal Appeal Nos.461 and 474 of 2005 10.03.2015