Madras High Court
Sri Murugan Financiers vs P.V. Perumal on 13 July, 2004
Equivalent citations: 2005(1)ALD(CRI)33, III(2005)BC565, 2005CRILJ269
Author: R. Banumathi
Bench: R. Banumathi
JUDGMENT R. Banumathi, J.
1. Complainant in C.C. No. 262 of 1993 on the file of Judicial Magistrate Court, Arani is the appellant. By the judgment (dated 15-10-1996), the Judicial Magistrate, Arani has convicted the respondent/accused under Section 138 N.1. Act and sentencing him to undergo rigorous imprisonment for three years and also imposing fine of Rs. 5000/-. Aggrieved over the Conviction, the accused has preferred appeal before the District Court, Thiruvannamalai in C.A. No. 54 of 1996. By the judgment (dated 22-8-1997) the Additional Sessions Judge has reversed the verdict of Conviction and acquitted the respondent/accused. As against the Order of acquittal, the Complainant has preferred this Appeal.
2. Facts which led to the present Appeal could briefly be stated thus :
Case of complainant is that the accused is bound to pay Rs. 4,65,000/- to the complainant, for which the accused had issued a Cheque bearing No. CQ 132675 dated 155-1993 drawn on the Karur Vysya Bank Limited, Arani. The accused requested the complainant to present the cheque after four months. Accordingly, the complainant presented the cheque for collection through his banker Lakshmi Vilas Bank Limited on 1111-1993. The cheque was returned with endorsement "Insufficiency of Funds". The complainant had issued statutory Notice (dated 16-11-1993) informing about the return of the Cheque and calling upon the accused to pay the amount of the dishonoured Cheque. The accused received the said notice and sent reply on 26-11 -1993 containing false allegations. Alleging that the accused had committed the offence under Section 138 N.I. Act, the complainant has filed the complaint.
3. Resisting the complainant's case, the defence is that the accused issued the cheque only as a guarantee and that the Penal provision of Section 138 N.I. Act is not attracted. Upon consideration of the evidence, learned Trial Magistrate rejected the defence version that Ex. P-1 cheque was issued only as a guarantee. Pointing out that the accused had executed as many as nine promissory notes between 15-5-1993 and 24-51993 learned Trial Magistrate found that an amount of Rs. 4,65,000/- is payable by the accused for which, he has issued Ex. P. 1 cheque, which was dishonoured. Finding that the penal provision of Section 138, N.I. Act is attracted, learned Trial Magistrate convicted the accused under Section 138 N.I. Act.
4. Learned Additional Sessions Judge, Thiruvannamalai reversed the findings of the Trial Court on the ground that no document is produced by the complainant/financier to prove that the accused was bound to pay Rs. 3,50,000/- prior to 15-5-1993 and that a total amount of Rs. 4,65,000/- is payable for which Ex. P. 1 cheque was issued. Rejecting the complainant's plea that the Accused had executed nine promissory notes, learned Additional Sessions Judge held that Ex. P. 1 cheque was taken by the Complainant/financier only as a guarantee. After referring to the provisions of Section 138 N.I. Act and the nature of presumption to be raised under Section 138 N.I. Act, the lower appellate Court found that in the absence of any proof of Debt or legally enforceable liability, no criminal intention could be attributed to the accused and on those findings allowed the Appeal in C.A. No. 54 of 1996, setting aside the Conviction of the Respondent/Accused.
5. Aggrieved over the order of acquittal by the lower appellate Court, the complainant/Sri Murugan Financier has preferred this appeal. Learned counsel for the appellant contended that the lower appellate Court erred in finding that the cheque was issued only as a guarantee, which stand was not taken by the accused while he issued the reply notice (Ex. P. 5 dated 26-11-1993) and the lower appellate Court erred in accepting the same. Finding of the lower appellate Court is further assailed by the learned counsel for the appellant contending that the learned Additional Sessions Judge has attached much importance to the production of the documents in proof of the previous debt due from the accused and erred in not raising the presumption under Section 139, N.I. Act.
6. Supporting the findings of the lower appellate Court, learned counsel for the respondent submitted that the appreciation of evidence by the lower Appellate Court does not suffer from any infirmity warranting reversal of the Order of acquittal. Learned counsel has also pointed out that a Civil Suit in O.S. No. 175 of 1995 on the file of Sub- Court, Arani filed by one of the partners of Sri Murugan Financier for the recovery of the amount on promissory notes was transferred to District Court, Thiruvannamalai and re-numbered as O.S. No. 66 of 2004. The said Civil Suit is said to have been decreed on 30-6-2004.
7. Whether the order of acquittal by the Lower Appellate Court is manifestly erroneous warranting interference is the only point that arises for consideration in this Appeal.
8. Case of the complainant/financier is that prior to 15-5-1993, the accused was bound to pay Rs. 3,50,000/- to the Complainant. On 15-5-1993, the accused is said to have borrowed a further sum of Rs, 50,000/- from the complainant. Calculating the earlier amount due, interest and the amount payable, the accused is said to have issued Ex. P-l-cheque in question for a sum of Rs. 4,65,000/-. Case of the accused is that he had borrowed only Rs. 50,000/- on 15-5-1993 and for proper return of the said loan, the Cheque in question was issued by him. The accused also has denied execution of the promissory notes as alleged by the complainant. Inasmuch as huge amount of Rs. 4,65,000/- is involved case of the complainant is that an amount of Rs. 3,50,000/- was due from the accused prior to 15-5-1993. If that be so, the complainant being a finance company ought to have produced accounts in support of their claim. The Penal Provision under Section 138 N.I. Act could be attracted only when the complainant proves that the cheque in question was issued "..........for discharge in whole or in part of any debt or other liability.........." As rightly found by the lower Appellate Court, the debt or legally enforceable liability is not satisfactorily proved by the complainant/financier. When no definite evidence is forthcoming, learned Additional Sessions Judge was right in holding that the Penal Provision of Section 138 N.I. Act is not attracted.
9. Case of the accused is that on 15-51993, he has borrowed only a sum of Rs. 50,000/- from the complainant company and Ex. P.1 cheque was issued only as a Guarantee for prompt repayment of the amount. The accused is said to have executed at least nine promissory notes for various amount between 15-5-1993 and 24- 5-1993. When that being so, there was no reason for issuance of the Cheque in question at the same time. This also probabilises that the cheque in question would have been issued only as a guarantee for the amount payable by the accused.
10. From the submissions by the respondent, it is clear that for the amount payable by the accused, one of the partners of the complainant/financier has already filed O.S. No. 175 of 1995 on the file of Sub-Court, Arani; transferred to District Court, Thiruvannamalai renumbered as O.S. No. 66 of 2004. The above suit is said to have been decreed on 30-6-2004. If that be so, any amount payable by the accused could be realised through appropriate forum. When no amount is payable by the Accused, nothing survives for consideration in this Appeal.
11. In an appeal against order of acquittal, the High Court would be very slow to interfere in the order. Unless the appreciation of evidence and the findings suffer from patent erroneous approach and the findings are perverse, the High Court would not reverse an Order of Acquittal. The reasonings and findings of the Additional Sessions Judge, Thiruvannamalai for acquitting the accused cannot be said to be suffering from serious infirmity warranting interference in this appeal against the Order of acquittal. This appeal has no merits and is bound to fail.
12. C.A. No. 791 of 1997 : For the reasons stated above, this Appeal is dismissed.