Madras High Court
M/S.Veera Constructions vs R.Karthick on 9 June, 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.06.2015 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Crl.R.C.(MD)NO.569 of 2013 1.M/s.Veera Constructions, represented by its Managing Director. Srinivasa Nagar west, Edamalaipatti Pudur, Trichy 2.V.Selvarani 3.V.Senthilkumar .. Revision Petitioners Vs. R.Karthick .. Respondents Prayer Criminal Revision Petition filed under Section 397 r/w 401 Cr.P.C., against the judgment dated 26.06.2013 passed by the III Additional District Judge, Trichirapalli in C.A.No.24 of 2012 confirming the judgment dated 29.02.201 made in STC No.1978 of 2007 on the file of the Judicial Magistrate No.III, Tiruchirappalli. !For Petitioner :: Mr.N.Ananthapadmanaban for Mr.N.Mohan ^For Respondent :: Mr.B.Jameelarasu :ORDER
The petitioners are the accused in STC No.1978 of 2007 on the file of the learned Judicial Magistrate No.III, Trichy. The first accused is a Company, the 2nd accused is its Managing Partner and the third accused is a partner of the said Company. The respondent filed the said case by way of private complaint alleging that the petitioners committed offences punishable under Section 138 of the Negotiable Instruments Act. The trial Court by judgment dated 29.02.2012, found the accused guilty under Section 138 of the Negotiable Instruments Act and sentenced the first accused to pay a fine of Rs.1,000/-, in default, to attach the properties of A1 and sentenced the accused 2 and 3 to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for one month. Challenging the said conviction and sentence, the appellants filed appeal in CA No.24 of 2012. By judgment dated 26.06.2013, the III Additional District and Sessions Judge, Trichy, dismissed the appeal thereby confirming the conviction and sentence imposed by the trial Court. As against the same, the petitioners are before this Court with this revision.
2. The case of the respondent is as follows:
The first accused is a construction company. The accused 2 and 3 are the managing partner and partner respectively of the first accused Company. The 2nd accused is well known to the complainant. On 01.08.2004, on behalf of the first accused company, the 2nd accused borrowed a sum of Rs.1,50,000/- and duly executed a promissory note thereby agreeing to repay the said amount with interest on demand, at the rate of 24% per annum. The third accused attested the signature of the 2nd accused in the said promissory note. But subsequently, despite the demand made as promised, the accused did not repay the amount due under the promissory note. However, in discharge of the said legally enforceable debt, on 10.04.2007, the accused 2 and 3 issued a cheque drawn on Bank of India, Trichy branch for Rs.2,45,000/-. The cheque was drawn as against the account maintained in the name of the first accused company and the same was issued by the accused 2 and 3 on behalf of the first accused Company. When the said cheque was presented for collection, it was dis-honoured by the bank as an endorsement ?account closed?. Thereafter, a legal notice required under Section 138 of the Negotiable Instruments Act was issued by the respondent to the petitioners on 01.05.2007 under Ex.P4. Having received the same, the accused sent a reply on 06.06.2007 denying the borrowal, their liability to pay, the issuance of cheque etc. Thereafter the respondent filed the said private complaint.
3. In order to prove his case, on the side of the complainant, the complainant was examined as P.W.1 and as many as six documents were exhibited. Ex.P1 is the promissory note and Ex.P2 is the cheque in question. Ex.P3 is the bank advice memo and Ex.P4 is the legal notice issued and Ex.P6 is the reply notice. When the above incriminating materials were put to the accused, they denied the same as false. On their side, the third accused was examined as D.W.1, wherein, he has stated that he had business transaction with one Mr.Rajaraman from whom he borrowed a sum of Rs.3 lakhs and as a security, he had handed over the cheque in question, which was then blank, but signed by the accused 2 and 3 and also a blank promissory note, but signed by the 2nd accused and the third accused. He has further stated that as early as on 11.05.2005 under Ex.D1, he issued a notice to Mr.Rajaraman to return the cheque in question, the blank promissory note and the documents handed over to him at the time of borrowal, since the amount had been settled. Having received the said notice, Mr.Rajaraman did not send any reply. Thereafter the accused 2 and 3 issued a legal notice on 18.09.2006 to Mr.Rajaraman in respect of the above. The said notice was sent by means of courier. Having received the same, Mr.Rajaraman sent a reply under Ex.D3 on 29.01.2007 itself, wherein he has stated that the documents were not in his custody. To the contrary, he made certain other documents regarding the transaction pertaining to the land. D.W.1 has further stated that the promissory note in question had not been executed in favour of the complainant at all and the complainant was not even known to them. He has further stated that the cheque was issued only to Mr.Rajaraman, which was then blank, but signed, only for the purpose of security. Having considered all the above, the trial Court found the accused guilty and accordingly punished them. The appeal also dismissed. That is how, the petitioners are before this Court with this revision.
4. I have heard the learned counsel for the petitioners and the learned counsel for the respondent and I have also perused the records carefully.
5. The learned counsel for the petitioners would submit that from Exs.D1, D2, D3 and D4, it has been clearly established by the accused that the cheque in question was not at all issued to the complainant and as a matter of fact, it was issued only to Mr.Rajaraman. He would further submit that it was not duly executed, which was given only as a blank cheque. The learned counsel would further submit that so far as the promissory note is concerned, that was also given as a blank promissory note, but signed by A2 and A3 to Mr.Rajaraman. The learned counsel would submit that the exchange of notices between the accused 2 and 3 and Mr.Rajaraman was much prior to the presentation of the cheque in question. He would submit that the cheque in question is now dated as 10.04.2007, which was presented for collection on the same day, whereas the exchange of notices between the accused and Mr.Rajaraman commenced in the year 2005 and ended on 22.02.2007 itself. This, according to the learned counsel, would go to show that the cheque would not have been issued to the complainant at all, as it was projected by him. So far as the promissory note is concerned, the learned counsel would submit that the same yardstick would applicable.
6. Apart from that the learned counsel would submit that as required under the Evidence Act, the promissory note has not been proved by examining the attestor. P.W.1, during cross examination, has admitted that he does not know whether the promissory note was scribed by one Mr.Muthu or his son. The learned counsel would further submit that there is no evidence at all about the execution of the promissory note. The learned counsel would further submit that presumption under section 139 of the Act stands rebutted by the above circumstance. Therefore, according to him, the Courts below were not right in convicting the accused.
7. The learned counsel for the respondent would stoutly oppose this revision. According to him, so far as Ex.D1 is concerned, it is only a copy of the letter and there is no proof that the original was sent to Mr.Rajaraman. He would further submit that in Ex.D1 notice, there is no mention about the cheque in question as well as the promissory note in question. He would further submit that in the reply sent by Mr.Rajaraman, he has not admitted that the cheque in question and the promissory note were issued to him. The learned counsel would further submit that P.W.1's evidence would clearly go to show that the cheque was issued only to the complainant. He would further submit that the execution of the promissory note has also been proved by examining P.W.1. Thus, according to him, the legally enforceable debt, which is required under Section 138 of the Act, has been clearly proved. The learned counsel would further submit that it is only an afterthought of the accused to take such defence that the cheque was not issued and the promissory note was not executed in favour of the complainant. The learned counsel would further submit that the non examination of Mr.Muthu and the contradiction in the evidence of P.W.1 as to who scribed the promissory note is only a small discrepancy and that would not go to the root of the prosecution case. At any rate, according to the learned counsel, the Courts below have appreciated the evidence and have come to the concurrent finding that the accused are guilty. Thus, according to him, no interference is required at the hands of this Court.
8. I have considered the above submissions.
9. In order to hold the accused guilty under Section 138 of the Negotiable Instruments Act, it is mandatory under Section 138 of the Negotiable Instruments Act that the complainant should prove that the cheque in question was issued as against any legally enforceable debt or liability. Here in this case, it is stated that the cheque in question was issued as against a legally enforceable debt. According to the complainant, money was borrowed on 01.08.2004 under a promissory note. P.W.1, during cross examination, has stated that when the money was paid by way of loan to the accused, there were no independent persons available. It was known to him and to his wife alone. Thus, it is within his exclusive knowledge as to what had happened and what transpired at the time, when the money was paid by way of loan to the accused. The burden is, therefore, upon him as required under Section 106 of the Evidence Act. But he has not disclosed as to where and when, the promissory note was executed and by whom it was scribed. During cross examination, P.W.1 has stated that he does not know whether the promissory note was scribed either by one Muthu or by his son. Therefore, it is not possible for the accused to get any expert opinion as to whether the documents was scribed by Muthu or his son. Had it been true that the promissory note was really executed on 01.08.2004 and loan was paid under the said promissory note, certainly, P.W.1 could have been in a position to say, as to how, where, and when it was executed and who scribed the said document. This creates enormous doubt in the case of the complainant.
10. Nextly, in order to prove the original debt, which forms part of the original cause of action and for the entire lis, it is for the complainant to prove the execution of the promissory note. As per the Evidence Act, there is a special mode of proof of a promissory note, which requires that atleast one of the attestors should be examined. Here, in this case, the promissory note shows that the 2nd accused is an attestor. Therefore, one cannot expect the complainant to examine him as a witness, as it is not possible. But at the same time, nothing would have prevented the complainant to examine the scribe of the document to speak about the execution. The scribe may be a witness, not only for the scribing of the document but for the entire transaction. It is not explained to the Court as to why the scribe has not been examined. As a result, the promissory note stands not proved and the payment of money by way of loan itself has not been proved. For this, the learned counsel for the respondent would submit that the accused have admitted their signature in the promissory note. There is a vast difference between proof of execution of the promissory note and the proof of the signature of the executant in the document. Law requires not the proof of signature alone, but the proof of execution of the document. Here in this case, though the signatures have been admitted by the accused, that will not automatically go to prove the execution of the promissory note. Therefore, this argument of the learned counsel for the respondent is only liable to be rejected. The learned counsel for the petitioner would submit that if once the execution of the promissory note is not proved and the payment of loan is not proved, then the entire case of the complainant should collapse. I am in full agreement with the same.
11. Mere issuance of the cheque without there being any legally enforceable debt or liability would not make out any offence under Section 138 of the Act, even though the cheque is dis-honoured for want of sufficient funds. In this case, the complainant has failed to prove that the cheque in question was issued as against any legally enforceable debt.
12. Now, turning to the other argument of the learned counsel for the petitioners, i.e. the transaction between Mr.Rajaraman and the accused, Exs.D1 to D4 would go to show that the exchange of notices and the same commenced in the year 2005 and ended on 22.02.2007. Though Mr.Rajaraman in the reply notice has denied the allegation that the cheque in question and the promissory note were not at all in his custody, that will not improve the case of the complainant. When it is the case of the accused that the complainant has been engineered by Mr.Rajaraman to file the present case, one cannot expect Rajaraman to admit in the reply notice that there were transactions and cheques and promissory notes were given to him. It is also on record that civil dispute is pending between the Rajaraman and the accused. Therefore, it is possible to infer that Mr.Rajaraman would have engineered the complainant to file the present case. In order to draw this inference, the date of the cheque and its presentation assumes much importance. The reply notice was issued on 22.02.2007 and it was only thereafter the cheque has been presented on 10.04.2007 and it also bears the date as 10.04.2007. This also creates some doubt in the case of the prosecution. At any rate, in this case, assuming that the defence taken by the accused, on the face of the transaction between Rajaraman and the accused, may not be true, even then the complainant has to fail in the case, because he has failed to prove the legally enforceable debt on the part of the accused. In view of the same, I am inclined to allow this revision and set aside the conviction and sentence imposed by the trial Court, which was confirmed by the lower appellate Court.
13. In the result, the Criminal Revision Petition is allowed and the conviction and sentence imposed on the petitioners are set aside and the petitioners are acquitted. It is brought to my notice that the accused has deposited a sum of Rs.1,00,000/- before the trial Court as per an interim order of this Court. Since the accused are acquitted, the same shall be refunded to the accused, who deposited the same. Consequently connected Miscellaneous Petition is closed.
09.06.2015 Index :: Yes/No Internet :: Yes/No RR To
1.The III Additional District Judge, Trichirapalli
2.The Judicial Magistrate No.III, Tiruchirappalli.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
S.NAGAMUTHU, J.
RR Crl.R.C.(MD)NO.569 of 2013 and M.P.No.1 of 2015 09.06.2015