Madras High Court
C.Surendaramoorthy vs K.Venkatachalapathi on 28 December, 2018
Author: R.Suresh Kumar
Bench: R. Suresh Kumar
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 27.03.2018
Pronounced on : 28.12.2018
CORAM
THE HONOURABLE MR.JUSTICE R. SURESH KUMAR
Crl.A.No.490 of 2017
C.Surendaramoorthy ... Appellant / Complainant
Vs
K.Venkatachalapathi ... Respondent / Accused
Criminal Appeal filed under Section 378(4) of the Criminal
Procedure Code against the order and Judgment of acquittal, dated
23.01.2017 on the file of the Principal Sessions Judge, Krishnagiri in
Crl.A.No.22 of 2016 setting aside the sentence and Judgment of
conviction, dated 15.03.2016 on the file of the Judicial Magistrate
No.II, Krishnagiri in S.T.C.No.366 of 2014.
For Appellant : Mr.S.Satish
For Respondent : Mr.N.Elayaraja
JUDGMENT
This Appeal has been preferred against the order and Judgment made by the Principal Sessions Court, Krishnagiri in Crl.A.No.22 of 2016 by Judgment, dated 23.01.2017 by and under which the first appellate Court has reversed and set aside the Judgment and conviction made by the Judicial Magistrate No.II, Krishnagiri in S.T.C.No.366 of 2014, dated 15.03.2016. http://www.judis.nic.in 2
2. The complainant is the appellant herein and the accused is the respondent and they would be called as complainant and accused respectively for the sake of convenience.
3. The case of the complainant is that, the accused approached the complainant requesting for loan for urgent need from the complainant for a sum of Rs.12 lakhs. Accordingly, the complainant gave Rs.12 lakhs by cash to the accused on 05.02.2012 and on the same date, the accused had executed a pro-note (Ex.P.5), whereby he agreed to repay the said loan on demand with interest at the rate of 24% p.a (2% per month).
4. It is the further case of the complainant that, as agreed or assured, since the accused did not come forward to repay the said loan amount to the complainant, in spite of the repeated demand in this regard, the complainant issued a legal notice, dated 09.03.2013 (Ex.P.6) calling upon the accused to repay the loan amount together with the agreed interest within 10 days from the date of receipt of the said notice.
5. On receipt of the said notice by the accused on 12.03.2013 (Acknowledgement card Ex.P.7), he did not immediately come forward to return the amount. However on 15.02.2014, the http://www.judis.nic.in 3 accused had issued a cheque for a sum of Rs.8,50,000/- drawn in Canara Bank, Krishnagiri branch with Cheque No.153392 as a part payment stating that, since the accused was having only that much amount, i.e., Rs.8,50,000/- in his bank account, he had issued the cheque for part payment.
6. Believing the words of the accused, it is the case of the complainant that, he deposited the said cheque on 17.03.2014 at his bank, namely Bank of India, Alapatty Branch. However the said cheque was returned on 21.03.2014 by his Bank with the endorsement that the "Funds Insufficient".
7. Since the cheque was returned for want of sufficient funds, the complainant had chosen to issue statutory notice under Section 138(b) of the Negotiable Instruments Act (In short "NI Act") on 27.03.2014 (Ex.P.3) calling upon the accused to repay the said sum of Rs.8,50,000/- (being the cheque amount) within 15 days from the date of receipt of the notice.
8. Having receipt of the said notice on 29.03.2014 (Acknowledgment (Ex.P.4) by the accused, he did not come forward to pay the cheque amount or has not even chosen to issue any reply notice.
http://www.judis.nic.in 4
9. Therefore the case of the complainant was that, the accused deliberately had issued the cheque knowing well that his account did not have enough money to honour the cheque issued by him and even after the statutory notice was given under Section 138(b) of NI Act, since the accused did not come forward to settle the amount, the presumption is that, the accused has committed the offence punishable under Section138 of the NI Act, accordingly a complaint was filed under Section 138 of the NI Act by the complainant before the trial Court, which was taken on file in S.T.C.No.366 of 2014.
10. Before the trial Court, two witnesses were examined by the side of the complainant, i.e., P.W.1 and P.W.2 and 7 documents, i.e., Ex.P.1 to Ex.P.7 were marked. On the side of the defence, i.e., accused, 7 witnesses were examined, i.e., D.W.1 to D.W.7 and 3 Exhibits were marked, i.e., Ex.D.1 to Ex.D.3.
11. The trial Court, after having completed the trial has given its Judgment and conviction on 15.03.2016 whereunder the trial Court found the accused guilty for the offence punishable under Section 138 of the NI Act and accordingly, convicted and sentenced him to undergo 12 months S.I. http://www.judis.nic.in 5
12. As against the said conviction and Judgment made by the trial court, the accused preferred appeal in Crl.A.No.22 of 2016 before the Principal Sessions Judge, Krishnagiri. The Sessions Court, i.e., the first appellate court, after having heard the appeal, decided the same by its Judgment, dated 23.01.2017 whereby the first appellate Court has set aside the Judgment and conviction made by the trial Court and set the accused free from the guilt of the alleged offence punishable under Section 138 of the NI Act. As against the said Judgment made by the first appellate Court, the present appeal has been filed by the complainant.
13. It is the definite case of the complainant that, the accused borrowed a sum of Rs.12 lakhs by way of cash on 05.02.2012 and on the same date, the accused executed the pro-note, i.e., Ex.P.5, whereby he agreed to repay the same with interest at the rate of 2% per month. Since the said amount was not returned by the accused despite several demands made in this regard, ofcourse orally, the complainant issued a legal notice on 09.03.2013 (Ex.P.6) and the same was received and acknowledged by the accused on 12.03.2013, i.e., Ex.P.7. However he did not immediately come forward to settle the amount, ofcourse belatedly he issued the cheque in question on 15.02.2014 for a part sum, i.e., for Rs.8,50,000/- and the said cheque was presented in his bank account by the complainant on 17.03.2014, http://www.judis.nic.in 6 the same was returned on 21.03.2014 for the reason "Funds Insufficient".
14. It is also the definite case of the complainant that, subsequently the complainant had issued statutory notice under Section 138(b) of the NI Act on 27.03.2014. However the accused neither has come forward to pay back the cheque amount nor had come forward even to issue any reply to the said notice, thereby he has committed the offence punishable under Section 138 of the NI Act. Accordingly the complaint was filed and after trial, the trial Court found him guilty and sentenced him to undergo 12 months Simple Imprisonment.
15. In this context, the complainant, who was examined as P.W.1, in his cross-examination stated that, he was having an agricultural land of 4 3/4 acres, out of which he is getting constant income per year to the extent of Rs.2 to 3 lakhs. That apart, he was also running a milk vending business, by which he was able to earn Rs.20,000/- per month and since he has small family having wife and two children who are only school going, he was able to save considerable amount from the income he earned from the said sources. The complainant's further case, as he deposed before the trial Court was that, he was having account in three Banks including the http://www.judis.nic.in 7 bank where the cheque in question was deposited. On 05.02.2012, he had given the loan of Rs.12 lakhs, by way of cash to the accused, as against which the accused executed the pro-note. He further deposed that, out of the Rs.12 lakhs, Rs.10 lakhs amount, the complainant was able to mobilise from his savings, which he had kept in house and the remaining Rs.2 laksh, he mobilised by pledging his jewel, thereby he was able to mobilise Rs.12 lakhs and the same was paid in cash to the accused.
16. In this context, it is to be noted that, the accused was examined as D.W.1, who has deposed in his chief examination that, he did not receive any money from the complainant. He did not also execute any pro-note in favour of him and the signature found in Ex.P.5, pro-note was not belong to him. Instead, the D.W.1, i.e., the accused has come out with a defence theory stating that, there had been land dispute between the accused and one Veeramani and Kathiravan, who are D.W.2 and D.W.3 and in this regard, in order to get amount of Rs.7 lakhs, which was required at that time to the accused, he approached the said Veeramani through one of his friend Eswaramoorthy, D.W.4 and at whose instance, the property of the accused was given power of attorney to D.W.2 and in order to give security for the amount paid by that D.W.2, three number of cheques were issued including the cheque in question. http://www.judis.nic.in 8
17. In fact the theory projected by the accused side has been supported by D.W.4, Eswaramoothy, who, according to the accused, acted as a middle man-cum-common friend between D.W.1 accused, D.W.2 and D.W.3. In this context, the deposition of D.W.4, Eswaramoorthy both in his chief examination as well as cross- examination are extracted here under :
"K/tp/ ehd; brd;idapy;. Rg;igah efh;.
Kj;jypghf;fk; vd;w Kfthpapy; FoapUe;J tUfpnwd;/ ehd; rutzh buz;l; v fhh; vd;w thliff;F tpLk; gzpbra;J tUfpnwd;/ vdf;F bt';flhrygjp vd;gtiu 5 tUl';fshft[k;.
tPukzp vd;gtiu 6 tUl';fshf bjhpa[k;/
fjputz; vd;gtiu 3 tUl';fshf bjhpa[k;/
tPukzp vd;gth; vdJ ez;gh; K:ykhf vdf;F
mwpKfkhdhh;/ fjputd; vd;gth; tPukzpapd;
mf;fh kfd; vd;w Kiwapy; vdf;F
gHf;fkhdhh;/ bt';flhrygjp vd;gth; mthpd;
brhj;ij mlkhdk; itj;J U:/7.00.000 gzk;
ntz;Lk; vd;dplk; nfl;lhh;/ ehd; tPukzp
vd;gtiu mQqfp mtUf;F fld; bfhLf;fyhkh vd;W nfl;nld;/ ehd; tPukzpaplk; Vw;fdnt Ie;J yl;rk; fld; th';fpapUe;njd;/ tPukzp ,lj;ij ghh;j;J kjpg;g[ nghl;L fld;
bfhLg;gjhf brhy;yp vd;dplk; xU epge;jid tpjpj;jhh;/ ehd; tPukzpaplk; gzk; fld; th';fp vd;dhy; 2 2 1-2 tUl';fshf bfhLf;f Koatpy;iy/ vdnt me;j bt';flhrygjpapd;
,lj;ij tPukzpapd; bgaUf;F mlkhdkhf
itf;Fk;go bt';flhryk; tPukzpf;F gth;
http://www.judis.nic.in
gj;jpuk; vGjpf;bfhLj;jhy; 12.00.000 gzk;
9
jUtjhft[k;. mjpy; VG yl;rj;ij
bt';flhryj;jpw;F bfhLj;Jtpl;L ehd;
tPukzpf;F bfhLf;f ntz;oa Ie;J yl;rj;ij
fHpj;JtpLtjhft[k; tPukzp brhd;dhh;/ mjd;W
bt';flhryKk; xj;Jf; bfhz;lhh;/ vdnt ehd;
vd;Dila 812647. 812649 vd;w rpl;o a{dpad;
t';fp u';fuh$g[uk; fhnrhiy ,uz;il btw;W
fhnrhiyahf bt';flhryj;jplk;
bfhLj;Jtpl;nld;/ bt';flhryk; mthpd; 3
fhnrhiyfis tPukzpf;F brf;a{hpl;oahf btw;W fhnrhiyahf bfhLj;jhh;/ me;j fhnrhiyfspd;
vz;fs; 153391. 153392. 153393 MFk;/
bt';flhrygjp tPukzpf;F vGjpf;bfhLj;jjpy;
ehd; rhl;rp ifbahg;gk; nghl;Ls;nsd;/ mjd;
mog;gilapy; tPukzp fjputd; vd;gtUf;F
gpwg;gpj;J bfhLj;j fpua xg;ge;j Mtzj;jpy;
ehd; rhl;rpahf ifbahg;gk; nghl;Ls;nsd;/
25/7/12 me;j njjpapy; bfhLj;njd;/ mnj
njjpapy; jhd; ehd; vdJ ,U fhnrhiyfis
bt';flhryj;jpw;Fk;. bt';flhryk; mthpd; 3
fhnrhiyfis tPukzpaplk; bfhLj;j njjp
MFk;/
F/tp/ ,e;j tHf;fpy; vdf;F rhl;rp brhy;y
miH;ghiz te;jjh vd;why; ehd; btspa{hpy;
,Ue;jjhy; bgwtpy;iy/ me;j jftiy
bt';flhryk; bfhLj;jhh;/ bt';flhryk;
nfl;Lf;bfhz;ljpd; nghpy; ehd; rhl;rp brhy;y
te;njdh vd;why; rk;kd; te;Js;sjhf
brhd;djhy; te;njd;/ me;j gth; gj;jpukhdJ
gjpt[ bra;ag;gl;l Mtzk; vd;why; rhpjhd;/
me;j gth; gj;jpukhdJ fld; th';Ftjw;fhf
gpwg;gpf;fg;gl;L mJ brf;a{hpofhf
bfhLf;fg;gl;lJ MFk;/ me;j gth; gj;jpuj;jpy;
http://www.judis.nic.in
10
Rkhh; gj;J yl;rk; vd;W Fwpg;gpog;gl;oUe;jjhf
vdf;F "hgfk;/ me;j gj;J yl;rj;jp
rpy;yiuia ahh; ahUf;F bfhLf;f ntz;Lk;
vd;W ,Ue;jJ vd;why; tPukzp
bt';flhrykpUe;J gzk; th';fhjjhy;
bt';flhrygjpapd; g{h;j;jp bra;ahj
fhnrhiyia th';f ntz;oa mtrpak; ,y;iy
vd;why; rhpay;y/ bt';flhrygjp tPukzpf;F
bfhLj;jjhf ehd; brhy;Yk; fhnrhiyfis
ehd; Fwpj;J itj;Js;nsdh vd;why; vdf;F
"hgfk; cs;sJ/ me;j fhnrhiy bfhLf;fg;gl;l njjp 25/7/12 MFk;/ fhnrhiy vz; 153391.
153392. 153393 MFk;/ me;j fhnrhiyfis ve;j fpis vd;why; mJ gw;wp vdf;F "hgfk;
,y;iy/ bt';flhrygjpapd; t';fp fzf;F vz;
bjhpahJ vd;why; jw;nghJ "hgfk; ,y;iy/ vd;dplk; bt';flhrygjp fld; nfl;ljhft[k;. ehd; tPukzpf;F rpghhpR brhd;djhft[k;.
fhnrhiy bfhLj;jjhft[k; ehd; brhy;YtJ bgha; vd;why; rhpay;y/ 153392 fhnrhiyia bt';flhrygjp. tPukzpf;F bfhLj;jjhf ehd;
brhy;tJ bgha; vd;why; rhpay;y/ 153392
fhnrhiyahdJ bt';flhrygjp
Rnue;jpuK:h;j;jpw;F bfhLf;f ntz;oa flDf;fhf bfhLf;fg;gl;l fhnrhiy vd;why; rhpay;y/ ehd; bt';flhrygjpapd; beU';fpa ez;gh; vd;why; rhpjhd;/ mth; vd;Dila fhh;fis thliff;F vLg;gjhy; vdJ thof;ifahsh; Mthh;/ mth;
nfl;Lf;bfhz;ljpd; nghpy; ,e;j tHf;F
fhnrhiyiaa[k;. bt';flhrygjp tPukzpf;F
bfhLj;jJ nghy; ehd; bjhlh;g[ gLj;jp bgha;
rhl;rp brhy;Yfpnwd; vd;why; rhpay;y/
bt';flhrygjp. Rnue;jpuK:h;j;jpf;F bfhLf;f
http://www.judis.nic.in
11
ntz;oa gzj;ij nkhro bra;tjw;fhf ehd;
cle;ijahf cs;nsd; vd;why; rhpay;y/"
18. The D.W.3 one Kathiravan in his cross-examination has deposed in the following terms :
"vrh2 vdJ khkh. vjphp vdf;F bjhpa[k;/ vjphp fpua xg;ge;jk; xd;iw gpwg;gpj;J bfhLj;jnghJ vdf;Fj; bjhpa[k;/ bt';flhrygjp kw;Wk; vrh1 ,UtUk; vdf;F fpua xg;ge;jk; gpwg;gpj;J bfhLj;jdh;/ me;j fpua xg;ge;jgj;jpuk; gpwg;gpj;J bfhLj;jgpwF 6.7 khj';fs; fHpj;J vdf;F fpuak; bra;J bfhLf;fg;gl;lJ/ mt;thW vdf;F fpuakhd gpwF epyj;ij vdf;F tpl kWf;fpwhh;fs; vd;W fhty; epiyaj;jpy; g[fhh;
vJt[k; bfhLf;fg;gltpy;iy/ ehd;
bt';flhrygjp vd;gh; kPJ mthpd; mz;zhh;
epyj;jpd; tHpahf bry;yf;TlhJ vd;W
jLj;jjhy; jhd; g[fhh; bfhLj;njd;/ me;j
g[fhhpd; mog;gilapy; nghyPrhh; tprhhpj;jjhh;fs;/ me;j g[fhhpd; mog;gilapy; Kot[ vJt[k; vLf;fg;gl;ljhf vdf;F bjhpatpy;iy/ g[fhhpd; Kotpy; vjphpaplk; 12.00.000 gzk; th';fpf; bfhz;L eh';fs; tpl;LbfhLf;fg;gl;lJ vd;W igry; bra;ag;gl;lJ vd;W vjphp brhd;dhy;
jtwhFk;/ nknyfz;lthW Kot[ vLj;J ehd;
fhty; epiyaj;jpy; ifbaGj;J nghl;nld;
vd;why; mJ jtwhFk;/ thjpia vdf;F
ehise;J khj';fshf vdf;F bjhpa[k;/ vdJ
khkh K:yk; mth; vdf;F gHf;fk;/
bt';flhrygjp. <!;tuK:h;j;jpaplk; vrh2k; fld;
th';fpajhf vjphp brhd;dhy; <!;tuK:h;j;jp
th';fpa[s;shh;/ Mdhy; vjphp th';fpajhf vdf;F bjhpatpy;iy/"
http://www.judis.nic.in 12
19. Whereas the D.W.2 one Veeramani, in whose name even power was executed by the accused, has stated the following in his cross-examination :
"vdf;F brd;idia nrh;e;j <!;tuK:h;j;jp vd;gth; K:yk; vjphpia bjhpa[k;/ vd;dplk;
<!;tuK:hj
; ;jp vd;gth; ifkhw;W fld;
th';fpa[s;shh;/ bt';flhrygjp ifkhw;Wfld;
th';fptpl;L jpUg;gp bfhLj;Jtpl;lhh;/
cj;njrkhf U:/60000 tiu bt';flhryk; fld;
th';fpapUf;fyhk;/ mt;thW fld; th';Fk;nghJ
vjphp ve;jtpj Mtz';fSk; vdf;F
vGjpf;bfhLf;ftpy;iy/ nkw;brhd;d fld; jtpu ntW vd;d Kiwapy; vjphp vd;dplk; bjhlh;g[ bfhz;oUe;jhh; vd;why; vjphpapd; epyj;ij tpw;Wf; bfhLf;f brhy;yp <!;tuK:h;j;jp K:yk;
vd;id mQqfp vjphp vdf;F gfu mjpfhu gj;jpuk; bfhLj;jhh;/ me;j gfu mjpfhu gj;jpuk; gpwg;gpj;J bfhLj;j njjpapnyna fjputd;
vd;gtUf;F ehd; fpua xg;ge;j gj;jpuj;ij
gpwg;gpj;J bfhLj;njd;/ me;j fjputd; vdf;F
khkh kfd; Mthh;/ ehd; me;j gfu mjpfhu
gj;jpuj;ij gad;gLj;jp fjputd; vd;gtUf;F
bt';flhrygjpapd; brhj;ij fpuakhf
bfhLj;njd;/"
20. So according to the accused, the defence theory was that, the accused was in need of money and therefore, he, through D.W.4, Eswaramoorthy approached the D.W.2, Veeramani, who already claimed to have paid a sum of Rs.5 lakhs as loan to D.W.4, Eswaramoorthy and when the Eswaramoorthy, D.W.4 approached http://www.judis.nic.in 13 D.W.2, Veeramani requesting Rs.7 lakhs for the accused D.W.1, D.W.2 wanted some landed security and therefore power was executed by the accused for his land towards D.W.2, who in turn had sold the property by using the power to and in favour of D.W.3, who is none other than the nephew of D.W.2.
21. According to the defence theory, which has been fully supported by D.W.4 that, the arrangement was that, in lieu of the land for which power was executed by the accused, apart from the payment of Rs.7 lakhs to the accused, the D.W.2 Veeramani wanted to set off Rs.5 lakhs loan payable by D.W.4, Eswaramoorthy. Therefore the total amount of Rs.12 lakhs was thus transacted.
22. It is the further theory of the defence that, during the said transaction of getting money as against the power executed by the accused as security, the D.W.1 accused claimed to have issued three cheque leaves and empty pro-note. The three cheque numbers were 153391, 153392 and 153393. Those cheques according to D.W.4 were issued on 25.07.2012. Among the three cheque leaves, the number of cheque in question, i.e., 153392 is also included.
23. Therefore the said cheque had been misused by the complainant as the D.W.2 and the complainant were friends and http://www.judis.nic.in 14 relatives. Therefore according to the defence theory, there had been no money transaction between the complainant and the accused, as the accused never sought for any monetary help from the complainant and there was no occasion to get any money from the complainant.
24. The further theory projected by the defence side before the trial Court was that, since it was claimed by the complainant that the entire money, i.e., Rs.12 lakhs were paid by way of cash, the complainant should have explained as to how and from which source, he was able to mobilise the money. In this regard, even though it was claimed by the complainant that, he was having agricultural landed property in his village, out of which he would be earning Rs.2 to 3 lakhs per year and also he was having milk vending business, out of which he was able to earn Rs.20,000/- per month, there had been no proof to that effect filed before the Court and therefore according to the defence side, nothing had been proved in this regard. Therefore the accused side raised the point before the trial Court that, the complainant since was not able to establish that, he was having the means to mobilise such huge amount and to pay by way of cash, the claim of the complainant that, he had paid the money which is an enforceable debt, cannot be accepted.
http://www.judis.nic.in 15
25. With these facts, both the trial Court as well as the appellate Court have decided the issue. The trial Court in fact has taken into account all these aspects projected by both the complainant side as well as the accused side.
26. The trial Court has found contradiction between the deposition of D.W.1 and D.W.4. In this context, it has given the following finding :
"vrh1. ,uz;L fhnrhiyfis vrh3lk;
bfhLj;jjhft[k;. mjpy; xU fhnrhiyia
gad;gLj;jpjhd; ,e;j tHf;F jhf;fy;
bra;ag;gl;Ls;sJ vd;W vrh1 brhy;ypa[s;s
epiyapy;. vrh4 ,t;tHf;F fhnrhiyiaa[k;
kw;WkpU fhnrhiyfSkhf bkhj;jk; 3
fhnrhiyfis vrh1. vrh2lk; bfhLj;jjhf
mspj;Js;s rhl;rpak; Kuz;gl;l tpjj;jpy;
cs;sJ vd;W ,e;ePjpkd;wk; jPh;khdpf;fpwJ/"
27. The trial Court also found fault with the accused for not having responded when the legal notice was issued even prior to the alleged issuance of the cheque by way of notice, dated 09.03.2013. i.e., Ex.P.6 and in this regard, the finding of the trial Court reads thus:
"krhM5y; fz;l bjhifia ntz;o
KiwaPl;lhsh; jug;gpy; krhM6 mDg;gg
; l;Ls;sJ/
me;j mwptpg;ig krhM7d; K:yk; vjphp jug;gpy; bgw;Wf; bfhs;sg;gl;lJ/ ,JFwpj;J. vrh1d; FWf;F tprhuiz rhl;rpaj;jpy;. "vd;dplk; http://www.judis.nic.in 16 fhl;lg;gLk; jpU/b$auhkd; mth;fs; mDg;gpa 09/03/2013k; njjpapl;l mwptpg;gpd; mYtyf efy; vd;why; rhpjhd;/ me;j mwptpg;ig vd; rhh;gpy; vdJ kfd; nfhgpehj; bgw;Wf;bfhz;Ls;shh; vd;why; rhpjhd;/ mjw;fhd m";ry; xg;g[jy;
ml;il vd;dplk; fhl;lg;gLtJ jhd;/ me;j
m";ry; xg;g[jy; ml;ilapd; mry; krhM7
MFk;/ krhM6 mwptpg;gpw;Fk; ehd; gjpYiu
mDg;gpnddh vd;why; ,y;iy" vd;W
brhy;ypa[s;shh;/ ,t;thW krhM3.6 Mfpa ,U
mwptpg;g[fSf;Fnk vjphp jug;gpy; gjpywptpg;g[fs;
vija[k; mDg;gp krhM3. 6y; fz;l r';fjpfs;
Vd; kWf;fg;gltpy;iy vd;gjw;F vt;tpj fhuzj;ija[k; vjphp jug;gpy; brhy;yg;gltpy;iy/"
In this regard, it has also given further finding which reads thus :
vjphp KiwaPl;lhshplk; fld; vija[k;
bgwtpy;iy vd;Wk;. krhM5 vjphpahy;
KiwaPl;lhsUf;F vGjpf; bfhLf;fg;gltpy;iy
vd;Wk; brhy;yg;gl;Ls;s epiyapy;. vjphpf;F
KiwaPl;lhsh; jug;gpy; mDg;gg;gl;l krhM3.6
MfpaitfSf;F Vd; gjpy; vija[k; mDg;gp
kWg;g[ vija[k; vjphp jug;gpy; KiwaPl;lhsUf;F
bjhptpf;ftpy;iy vd;gjw;Fk;. vjphp jug;gpy;
vt;tpj tpsf;fKk;. fhuzKk; brhy;yhjjhy;
vjphp jug;g[ nkw;brhd;d thjj;jpy; vt;tpj
tYt[kpy;iy vd;W ,e;ej
P pkd;wk; jPh;khdpf;fpwJ/"
28. In so far as the defence taken by the accused side that, the complainant did not have source to mobilise the funds to the extent of Rs.12 lakhs to pay it by way of cash, the trial Court has http://www.judis.nic.ingiven the findings which reads as follows : 17
"KiwaPl;lhsUf;F gzk; fldhf
bfhLf;Fkstpw;F trjp ,y;iy vd;W vjphp
jug;gpy; xU thjk; vLf;fg;gl;Ls;sJ/
,JFwpj;J. KiwaPl;lhsiu vjphp jug;gpy;
FWf;F tprhuiz bra;a[kn
; ghJ. "ehd;
tptrhaKk;. ghy; khLfis itj;J mjd;K:yk;
ghy; tpahghuk; bra;J tUfpnwd;/ vd;dplk; 4 3- 4 Vf;fh; epyk; cs;sJ/ vdf;F. me;j epyk;
K:ykhf 2 ypUe;J 3 yl;rk; tiu tUkhdk;
tUk;/ ghy; khL K:yk; ghy; tpw;Fk; bjhHpypy;
khjk; 20 Mapuk; tiu tUkhdk; tUk;/////
vd;dplk; 12 yl;rk; U:ghia vjphp gzk;
bfhLg;gjw;F Kd;g[ 1 khjk; Kd;djhf
bfhLj;jhh;/ me;j 12 yl;rk; gzkhdJ
t';fpapYk; vdJ ifapUg;g[ gzkhFk;/ vdJ
tPl;oy; ehd; 10 yl;rk; itj;jpUe;njd;/ t';fpapy;
vdJ eiffis mlkhdk; itj;J 2 yl;rk;
bgw;nwd;/ me;j 10 yl;rk; vg;go te;j gzk;
vd;why;. ehd; tUkhdj;jpd; K:yk; nrh;j;jjhFk;"
vd;W brhy;ypa[s;shh;/ vdnt. thjpf;F nkw;go gztUkhd trjp cs;sJ vd;W ,e;ePjpkd;wk;
jPh;khdpf;fpwJ/"
29. The trial Court also has proceeded with, on the footing that the signature of the accused in Ex.P.1, Cheque was not denied by him, as he had claimed that Ex.P.1 was given to D.W.3 by way of empty cheque and in this regard, the evidence of D.W.3 was taken into account and based on which, the learned Judge of the trial Court has given the following findings :
http://www.judis.nic.in "krhM1y; cs;s ifbahg;gkhdJ vjphp jug;gpy;18
kWf;fg;gltpy;iy/ Mdhy;. krhM1 MdJ
vjphpahy; vrh3 vd;gtUf;F btw;Wf;
fhnrhiyahf bfhLf;fg;gl;lJ vd;W vjphp
jug;gpy; mtuJ rhl;rpaj;jpy; brhy;yg;gl;Ls;sJ/
vrh3. btw;Wf;fhnrhiyahf bfhLf;fg;gl;l
krhM1I KiwaPl;lhshplk; bfhLj;J.
KiwaPl;lhsh; mjid epug;gp vrh3f;fhf
,e;ePjpkd;wj;jpy; ,e;j tHf;if jhf;fy;
bra;Js;sjhf vjphp jug;gpy; thjplg;gl;lJ/ vjphp jug;gpy; vrh3 ,t;tHf;fpy; rhl;rpahf tprhhpf;fg;gl;Ls;shh;/ vrh3d; Kjy; tprhuiz rhl;rpaj;jpy;. "vjphp fpiua xg;ge;jk; xd;iw gpwg;gpj;J bfhLj;jnghJ vdf;F bjhpa[k;/ bt';flhrygjp kw;Wk; vrh1 ,UtUk; vdf;F fpiua xg;ge;jk; gpwg;gpj;Jf; bfhLj;jdh;/ me;j fpiua xg;ge;j gj;jpuk; gpwg;gpj;J bfhLj;j gpwF 6.7 khj';fs; fHpj;J vdf;F fpiuak;
bra;J bfhLf;fg;gl;lJ/ mt;thW vdf;F
fpiuak; Md gpwF epyj;ij vdf;F tpl
kWf;fpwhh;fs; vd;W fhty; epiyaj;jpy; VJk;
g[fhh; bfhLf;ftpy;iy/ ehd; bt';flhrygjp
vd;gthpd; kPJ mtuJ mz;zhh; epyj;jpy; kPJ
bry;yf;TlhJ vd;W jLj;jjhy; jhd; g[fhh;
bfhLj;njd;/ me;j g[fhhpd; mog;gilapy;
nghyPrhh; vd;id tprhhpj;jhh;fs;/ me;j g[fhhpd; mog;gilapy; Kot[ vJt[k; vLf;fg;gl;ljhf vdf;F bjhpatpy;iy/ g[fhhpd; Kotpy; vjphpaplk; 12 yl;rk; gzk; th';fpf; bfhz;L eh';fs;
tpl;Lf; bfhLf;fg;gl;lJ vd;W igry;
bra;ag;gl;lJ vd;w vjphp brhd;dhy; jtwhFk;/
nknyfz;lthW. KobtLj;J ehd; fhty;
epiyaj;jpy; ifbaGj;J nghl;nld; vd;why;
jtwhFk;/ thjp vdf;F 4.5 khj';fshf bjhpa[k;/ http://www.judis.nic.in 19 vdJ khkh K:yk; vdf;F gHf;fk;.
bt';flhrygjp. <!;tuK:h;j;jpaplk; vrh2k; fld; th';fpajhf vjphp brhd;dhy; <!;tuK:h;j;jp th';fpa[s;shh;/ Mdhy;. vjphp th';fpajhf vdf;F bjhpatpy;iy vd;W brhy;ypa[s;shh;/"
30. Based on these findings, the trial Court has come to the conclusion that, the accused was found guilty, therefore the Court has convicted him.
31. However the appellate Court, while re-appreciating the evidence and also having gone through the findings given by trial Court has mainly proceeded on the footing that, whether the complainant was able to prove that, he was having the source to make the payment of Rs.12 lakhs by way of cash.
32. In this context, the following findings have been given by the first appellate Court, which reads thus :
"g[fhu;jhuh; mDg;gpa ,U tHf;F
mwptpg;g[fSf;Fk; vjpup gjpy; mwptpg;g[
mDg;gtpy;iy mjw;F tpsf;fKk; vjpup jug;gpy;
Twg;gltpy;iy/ Mdhy; vjpup jug;gpy;
g[fhu;jhuUf;F nghjpa gzk; trjp ,y;iy
vd;W Twg;gl;l nghjpYk; ntW eguplk;
bfhLj;j fhnrhiyia itj;J g[fhu;jhuuhy;
,e;j tHf;F jhf;fy; bra;ag;gl;ljhf Twg;gl;l nghjpYk; g[fhu;jhuUf;F nghjpa tUkhdk;
http://www.judis.nic.in
20
cs;sJ vd;gJ Mtz';fs; K:yk;
epU:gpf;fg;gltpy;iy/ g[fhu;jhuUf;F 4-3-4 Vf;fu;
epyk; cs;sJ vd;W Twg;gl;l nghjpYk; mjd;
ru;nt vz; Mtz';fs; nfhug;gl;L ePjpkd;wj;jpy; jhf;fy; bra;atpy;iy vjpup jug;gpy; ntW egu; tPukzpaplk; bfhLf;fg;gl;l fhnrhiyahdJ g[fhu;jhuiu gad;gLj;jp tHf;F jhf;fy;
bra;ag;gl;Ls;sJ vd;gJ Fwpj;J Kw;wpYkhf epU:gpf;fg;glhtpl;lhYk; g[fhu;jhuUf;F nghjpa gz trjp ,Ue;jJ vd;gJ epU:gpf;fg;gl;lhy;
kl;Lnk mtuhy; me;j bjhifia vjpupf;F
bfhLf;fg;gl;lJ vd;gJ epU:gpf;fg;gl;lhy;
kl;Lnk vjpupapd; Tw;W bgha;ahdJ vd;W fUj tha;g;g[s;sJ/"
33. The first appellate Court has given its further findings for disbelieving the case of the complainant and the relevant findings to that effect reads thus :
"gjpy; mwptpg;g[ mDg;ghj xnu fhuzj;jpw;fhf vjpupf;F g[fhu;jhuh; U:/12 yl;rk; fldhf bfhLj;jhu; vd;W Kot[ bra;J tpl KoahJ/ 12 yl;rj;jpw;F mwptpg;g[ mDg;gpajw;F 9 khj';fs;
fHpj;J fhnrhiy U:/8-1-2 yl;rj;jpw;F vjpup
bfhLj;jhu; vd;W TWtJk; ek;gj; jFe;jjhf
,y;iy/ cz;ikapnyna vjpup gzj;ij
bfhLg;gjhf ,Ue;jpUe;jhy; KG bjhiff;fhd
fhnrhiy bfhLj;jpUg;ghu; tl;oa[k;
bfhLf;fg;gltpy;iy mry; bjhif KGtJk;
fhnrhiy bfhLf;f;gltpy;iy/ 10 ehl;fSf;Fs;
gzj;ij jpUk;g juhtpl;lhy; tHf;F
bjhlUntd; vd;W mwptpg;g[ mDg;gpa nghJk;
http://www.judis.nic.in
21
cldoahf mDg;ghky; 9 khj';fs; fHpj;J
fhnrhiy bfhLj;jjhf g[fhu;jhuuhy; rhl;rpak;
mspf;fg;gl;oUf;Fk; fhuzj;jpdhy; Fiwthd
bjhiff;F fhnrhiy bfhLf;fg;gl;oUg;gJk; 9
khj';fs; fHpj;Jk; fhnrhiy bfhLf;fg;gl;ljhf Twg;gl;oUg;gJk; vjpupapd; Tw;W nghd;W ele;jpUf;f tha;g;g[ cs;sJ vd;gijj; jhd;
g[yg;gLj;Jtjhf cs;sJ/"
34. The first appellate Court also have gone into the fact that, in order to establish that the complainant was having the landed property, out of which he was able to get the revenue, the complainant even though produced the bank passbook of the complainant before the first appellate Court, it was factually found by the first appellate Court that, for the period from 06.07.2011 to 04.08.2011, the account was having the maximum balance of Rs.1,64,000/- only and after 2011, the account did not have any amount. However it was claimed by the complainant that, he had taken the money from the Bank. In this context, the findings of the first appellate Court reads thus :
"4-1-2 Vf;fu; epyk; md;W mtUf;F
,Ue;jpUe;jhy; mtuhy; mjw;fhd Mtz';fs;
jhf;fy; bra;ag;gl;oUf;Fk; my;yJ mjd; ru;nt vz; Fwpj;J Twg;gl;oUf;Fk; epyj;jpd; jd;ik gw;wp Twg;gl;oUf;Fk; vd;d tUkhdk; vd;gJ Fwpj;J Twg;gl;oUf;Fk; mt;thW ve;j tptuKk;
http://www.judis.nic.in Twg;glhky; nky;KiwaPl;oy; rpy Mtz';fis
22
jhf;fy; bra;J Mtz';fs; Vw;Wf;bfhs;s
ntz;Lbkd;W jhf;fy; bra;ag;gl;l MtzkhdJ 2014y; mtu; bgaUf;F rpy brhj;Jf;fs;
fpilj;jpUf;fpwJ vd;gijj;jhd;
g[yg;gLj;Jtjhf cs;sJ/ 2014f;F Kd;g[ 2012y;
mtUf;F brhe;jkhd brhj;J ,Ue;jJ
vd;gij g[yg;gLj;Jtjhf ,y;iy/ mjd;
fhuzkhf jhd; fPHik ePjpkd;wj;jpy; Mtzk;
vJt[k; g[fhu;jhuuhy; jhf;fy; bra;ag;gltpy;iy/
mJ nghd;W 1994y; cs;s g[fhu;jhuupd; t';fp
gh!; g[j;jfk; jhf;fy; bra;ag;l;L mjpy;
2000j;Jld; mJ Kof;fg;gl;oUf;fpwJ
vd;gija[k; ve;j fhyj;jpYk; U:/10000f;F nky;
nkw;go t';fp fzf;fpy; gzk; ,y;iy
vd;gija[k; g[yg;gLj;Jtjhf cs;sJ/
mJ nghd;W 2015-2016 Rkhu; 20 gt[d; j';f
eiffis mlF itj;jjhf fhzg;gLfpwnj
jtpu 2012y; mlF itj;jjhf Mtzk; vJt[k;
jhf;fy; bra;ag;gltpy;iy/ mJnghd;W 3/1/2014
njjpapl;L ghuj t';fp fpUc&;zfpup fpisapy;
t';fp fzf;Fg; gl;oay; jhf;fy;
bra;ag;gl;Ls;sJ/ 6/7/2011ypUe;J 4/8/2011 tiu
me;j fzf;F jhf;fy; bra;ag;gl;Ls;sJ/ nkw;go fzf;F tptu gl;oaypd;go mjpfgl;rkhf U:/1.64.000 jhd; mtUila fzf;fpy;
,Ue;jpUf;fpwJ/ 2011f;F gpd;g[ mtUila fzf;fpy; ve;j gzKk; ,y;iy vd;gij nkw;go Mtz';fs; g[yg;gLj;Jtjhf cs;sJ/ vdnt g[fhu;jhuu; Kjy; tprhuizapd;nghJ t';fp fzf;fpypUe;J vLj;jjhf TwpanghjpYk; t';fp fzf;F ,Ue;jjhf TwpanghjpYk;
nky;KiwaPl;oy; jhf;fy; bra;ag;l;l t';fp fzf;F tptu';fs; 2011y;. 1.64.000f;F mjpfkhf http://www.judis.nic.in 23 ve;j fhyj;jpYk; mthplk; gzk; ,y;iy vd;gija[k; bgUe;bjhif vJt[k; itg;gPL bra;ag;gltpy;iy vd;gija[k; g[yg;gLj;Jtjhf ,Uf;fpd;w fhuzj;jpdhy; nkw;go Mtz';fs; fPHik ePjpkd;wj;jpy; jhf;fy; bra;ag;gltpy;iy/ g[fhu;jhuUf;F cz;ikapnyna trjp ,Ue;jpUe;jhy; mtuhy; 3 t';fp fzf;Ffs;
itj;jpUf;Fk;nghJ gzj;ij mjpy; itg;gPL bra;g;gl;oUf;Fk;/ g[fhu;jhuUf;F ve;j trjpa[k; ,y;yhj fhuzj;jpdhy; jhd; mtu; jd; ifapy; U:/10.00.000 nrkpj;J itj;jpUe;jjhf mij vLj;Jf; bfhLj;jjhf Twg;gl;Ls;sJ/ thjpf;F brhj;Jf;fnsh tUkhd';fnsh ,y;yhj epiyapy; t';fpapYk; ve;j gzKk; ,y;yhj epiyapy; 5/2/2012 md;W g[fhu;jhuUf;F U:/12.00.000 fld; bfhLg;gjw;F ve;j trjpa[k; ,y;iy vd;gJ thjp jug;g[ rhl;rpaj;jpypUe;Jk; vjpup jug;g[ rhl;rpaj;jpypUe;Jk; bjspthfpwJ/"
35. By giving all these findings, the first appellate Court has come to the conclusion that, the complainant has not proved his means for making the payment to the accused and thereby there is no enforceable debt between the complainant and the accused and on that score, the Court had come to the conclusion that, the complainant had not proved that the cheque in question had been issued by the accused for the purpose of clearing the enforceable debt towards the complainant and thereby decided to set aside the Judgment and conviction made by the trial Court.
http://www.judis.nic.in 24
36. After having analysed the evidence adduced before the trial Court, it is to be pointed out that, the case of the complainant that, a sum of Rs.12 lakhs was paid as the loan to the accused. It is also the case of the complainant that, the loan carried interest payable by the accused at the rate of 2% per month, i.e., 24% per year. It is also the case of the complainant that, since the accused did not pay back the money, despite several request, the complainant had chosen to issue a notice on 09.03.2013 in Ex.P.6. Only pursuant to the said notice, the accused had given the cheque in question on 15.02.2014.
37. In this regard, it is to be noted that, in the notice, dated 09.03.2013, the complainant called upon the accused to pay back the money within a period of 10 days, otherwise appropriate legal action both under civil law as well as criminal law would be initiated against the accused.
38. However in spite of the notice having been received by the accused on 12.03.2013, the accused did not come forward either to pay the amount or had issued any guarantee or cheque immediately. Nearly after one year, i.e., on 15.02.2014, it is claimed by the complainant that, the accused had given the cheque in question.
http://www.judis.nic.in 25
39. Even though the amount claimed to have been borrowed by the accused was a huge sum of Rs.12 lakhs and the same was given for interest at the rate of 24% p.a., no prudent man could have been silent for years together without taking any steps to recover the money.
40. Moreover even though the cheque was given on 15.02.2014, the same was deposited at the complainant's bank only on 17.03.2014, i.e., after one month. From the side of the complainant, no plausible explanation had been given, as to why no action was initiated against the accused for one year period, even after the 09.03.2013 notice, i.e., Ex.P.6 was received by the accused. Also there has been no explanation as to why the complainant kept the cheque in question ideally without depositing the same for one month.
41. That apart, as has been rightly pointed out by the first appellate Court, even though the bank statement had been produced by the complainant, the maximum amount during the relevant period, i.e., from 06.07.2011 and 04.08.2011 at the account of the complainant was only Rs.1,64,000/-. It is also the finding of the appellate Court that, after 2011, there was no money in the account of the complainant. It is also the finding of the first appellate Court that, during the year 2015 and 2016 there are endorsements in the http://www.judis.nic.in 26 accounts, stating that 20 sovereigns of gold jewels had been pledged, where as no such endorsement available to show that the complainant pledged the jewels in the year 2012.
42. In this context, it can be easily presumed that, even though it was claimed by the complainant that, he mobilised the fund of Rs.12 lakhs by way of savings and also by way of the loan obtained by pledging the jewels from the bank, absolutely there is no proof to show that, such a mobilisation had been undertaken by the complainant, to arrive at a conclusion that, at relevant point of time, he was having the cash of Rs.12 lakhs to give it to the accused.
43. That apart, at least, the D.W.4 has clearly deposed that, only through him, on behalf of the accused, the D.W.2 was approached to make a request for a sum of Rs.7 lakhs for his needs as a loan. Even prior to that, he borrowed a sum of Rs.5 lakhs from D.W.2 and therefore an arrangement seems to have been made under which the accused had executed a power in favour of D.W.2, who in turn executed the sale in favour of D.W.3, who is none other than his nephew and the further arrangement between the parties of D.W.2 and the accused as well as D.W.4 was that, Rs.7 lakhs would be given to D.W.2 by the accused and Rs.5 lakhs already advanced to D.W.4 would be adjusted, all together Rs.12 lakhs was made in the credit of http://www.judis.nic.in 27 the accused by D.W.2 and in lieu of that, the land of the accused by using the power was settled in favour of the D.W.3, who is none other than the nephew of D.W.2
44. In order to substantiate these defence theory, the D.W.4's evidence was very cogent and believable, which has already been extracted herein above. Even though some discrepancies were there in the evidence of D.W.1 and D.W.3, however it can also be noted that D.W.3 also has specifically stated that, only from D.W.2, the D.W.4 obtained loan and the accused did not receive any loan.
45. Like that, D.W.2 also in cross-examination had stated that he never met the complainant. He also denied the suggestion made on the side of the defence that, the two empty cheques and one power document was given by the accused to the D.W.2.
46. Though these deposition of D.W.2 and D.W.3 to some extent, contra to the evidence of D.W.4, the cogency and believability established by the evidence of D.W.4, in the opinion of this Court, can be taken into account.
47. Further, as has been exhaustively described by the first appellate Court, the complainant has not at all proved, even to the http://www.judis.nic.in 28 extent of the decree of preponderance of probability, that he had enough means to mobilise the funds to pay the amount to the extent of Rs.12 lakhs.
48. It is further to be noted that, even according to the complainant, out of the 12 lakhs Rupees, the cheque was issued only for Rs.8.5 lakhs. Therefore the remaining principal was Rs.3.5 lakhs and the agreed interest since was 2% per month, i.e., 24% p.a and the interest payable by the accused, according to the complainant has to be from 05.02.2012, the date of alleged payment of loan till 15.02.2014, i.e., the date of alleged issuance of cheque itself would come about Rs.5,76,000/-. Therefore the remaining principal of Rs.3,50,000/- and the interest of Rs.5,76,000/- put together would make a grand total of Rs.9,26,000/- still due to be payable by the accused even at the time of issuance of the alleged cheque in question. However, no attempt was made by the complainant to recover the said amount of Rs.9,26,000/-, which was a due according to the complainant, by filing any Civil Suit in this regard.
49. No notice has been given subsequent to the 138 proceedings initiated by the complainant stating that, apart from the said amount of Rs.8,50,000/- covering under the cheque in question, the remaining balance principal as well as the interest comes about http://www.judis.nic.in 29 Rs.9,26,000/- should be paid by the accused and for the said amount, certainly action could have been initiated.
50. But the fact remains that, no attempt was made by the complainant to recover the said money, that is the remaining principal and the interest, which is not a small amount as it comes about Rs.9,26,000/-.
51. It is further to be noted that, in this context, even though the complainant received back the original pro-note, i.e, Ex.P.5 on the ground that the original pro-note was necessary to file a Civil Suit against the accused for recovery of the amount, admittedly the complainant did not make any attempt to initiate any civil proceedings for the recovery of the money from the accused.
52. All these aspects would go to show that, even though to some extent, there are some evidences against the accused and also based on the admission of the signature of the cheque in question, there is initial statutory presumption in favour of the complainant in this case, the same has been successfully rebutted by the accused side by bringing a believable defence theory as has been discussed above. http://www.judis.nic.in 30
53. Law is well settled in this regard that, in case of acquittal made by the lower Court and even though there are possibility of two views, i.e., one in favour of the complainant and another one in favour of the accused, the Court must very slow in interfering with the acquittal given by the Court below and the decision shall be taken by the higher forum only in favour of the accused and not in favour of the complainant. This legal proposition has been given in number of decisions.
54. In this context, I had an occasion to consider the principle as underlined above in a similar Negotiable Instruments case, in the matter of N.Lakshmi v. P.Damodarasamy, reported in 2018 (3) MWN (Cr.) DCC 117 (Mad), wherein after following the decision in M.S.Narayana Menon @ Mani v. State of Kerala reported in (2006) 6 SCC 39, I have held as follows :
"33.Since the proceedings under Section 138 of the Negotiable Instruments Act, is punitive in nature and once the Court has come to the conclusion that the accused is guilty, such conclusion has to be supported by clear evidence. In this regard, the Law laid down by the Hon'ble Apex Court in M.S. Narayana Menon @ Mani v. State of Kerala and another reported in 2006 6 SCC 39, can be taken as a precedent. The Hon'ble Apex Court in the said http://www.judis.nic.in Judgment cited supra has stated that the 31 presumption under Sections 118 and 139 shall be with the standard of proof of preponderance of probability only. The relevant portions of the said Judgment are extracted hereunder:
27. In view of the aforementioned backdrop of events, the questions of law which had been raised before us will have to be considered. Before we advert to the said questions, we may notice the provisions of Sections 118(a) and 139 of the Act which read as under:
“118. Presumptions as to negotiable instruments.—Until the contrary is proved, the following presumptions shall be made—
(a) of consideration.—that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
139. Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.” Presumptions both under Sections 118(a) and 139 of the Act are rebuttable in nature.
.....
30.Applying the said definitions of “proved” or http://www.judis.nic.in “disproved” to the principle behind Section 32 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. 31. A Division Bench of this Court in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [(1999) 3 SCC 35] albeit in a civil case laid down the law in the following terms: (SCC pp. 50-51, para 12) “12. Upon consideration of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the http://www.judis.nic.in same was illegal, the onus would shift to the 33 plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-
existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non- existence of the consideration, the plaint 28 would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt.” This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence.
32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also http://www.judis.nic.in by reference to the circumstances upon which 34 he relies.
34.If the above said principles of the Apex Court in both Judgments cited above, are applied to the present case, the statutory presumption found in favour of the complainant merely on the basis of the issuance of cheques and acceptance of signature by the accused, has been acceptably rebutted with a decree of proof of preponderance of probability, by the accused.
35.There is no consistent case on the side of the complainant nor there had been cogent evidence from the complainant side, especially, from PW1, the complainant. The stand inconsistently taken by PW1, the complainant, before the trial Court on three occasions namely, at the time of issuance of notice under Section 138(b) of the Negotiable Instruments Act, at the time of making complaint and also, at the time of making deposition both in the chief examination as well as in the cross examination, would go to show that, the initial presumption gained by the complainant under Sections 139 and 118 of the Negotiable Instruments Act, has not been consistently protected and kept unassailed by the complainant because of her own inconsistent stand. However, the accused has been definite in his stand and therefore, the stand of the accused has brought an acceptable rebuttal http://www.judis.nic.in within the meaning of decree of proof of 35 preponderance of probability and therefore, such rebuttal has shattered the statutory presumption of the complainant. Moreover, in the said case of M.S.Narayana Menon's case cited supra, the Hon'ble Apex Court has underlined the principle at Paragraph 54 which reads thus:
“54.In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-
settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below.”
36.Therefore, when the Appellate Court sits upon an appeal against acquittal, where if two views are possible, to the Appellate Court against the Judgment of acquittal, the Appellate Court should not interfere with the findings of the Court below. If this golden principle as enunciated in the Judgment cited supra, is applied in this case, this Court has no hesitation to hold that, there is absolutely no scope for interference in the Judgment of the Lower Appellate Court, where after analyzing the material evidence in detail, the learned Judge has given Judgment by setting aside the trial http://www.judis.nic.in Court Judgment and such finding of the Lower 36 Appellate Court as impugned herein is neither perverse nor unacceptable."
55. If the aforesaid principle is applied to the present facts of the case, this Court except to accept the view taken by the first appellate Court in favour of the accused, cannot take a view in favour of the complainant, merely because the accused admitted the signature in the cheque in question. Since the defence theory was given as to how the cheque were given by the accused, which was supported clearly and cogently by D.W.4, the mere acceptance of the signature cannot constitute the offence punishable under Section 138 of the NI Act. Therefore this Court is of the view that, the approach of the trial Court in not appreciating these aspects is erroneous. However it has been considered in detail by the first appellate Court in proper perspective and it has given reasoning to reach such a conclusion in favour of the accused. Therefore the said finding given by the first appellate Court neither be considered as perverse nor arbitrary, hence, this Court do not think that, there are grounds to interfere with the Judgment of the first appellate Court. Hence, this Court has no hesitation to hold that, the Judgment of the first appellate Court, which is appealed herein, is to be sustained and this appeal deserves to be dismissed.
http://www.judis.nic.in In the result, this Criminal Appeal is dismissed, confirming 37 the Judgment, dated 23.01.2017 made by the Principal Sessions Court, Krishnagiri in Crl.A.No.22 of 2016.
28.12.2018
Index : Yes
Speaking Order
tsvn
To
1. The Principal Sessions Judge,
Krishnagiri.
2. The Judicial Magistrate No.II,
Krishnagiri.
3. The Public Prosecutor
High Court of Madras, Chennai.
R.SURESH KUMAR, J.
http://www.judis.nic.in
38
tsvn
Judgment
in
Crl.A.No.490 of 2017
28-12-2018
http://www.judis.nic.in