Madras High Court
K.Kaligounder vs / on 11 February, 2019
Author: G.Jayachandran
Bench: G.Jayachandran
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 11.02.2019
CORAM::
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Criminal Appeal No.880 of 2012
K.Kaligounder,
S/o. Karuppa Gounder,
Periya Thottam,
Sankarapalayam Post,
Anthiyur, Bhavani Taluk,
Erode District. ... Appellant/Respondent/Complainant
/versus/
M.Selvaraj,
S/o.Muthusamy,
No.51-A, Poyyankuttaiyur,
Anthiyur, Bhavani Taluk,
Erode District. ... Respondent/Appellant/Accused
Prayer: Criminal Appeal is filed under Section 378 of the code of
Criminal Procedure, to set aside the order of acquittal dated
11.01.2012 made in C.A.No.84 of 2011 on the file of Additional District
and Sessions Court, (Fast Track Court No.IV, Erode) reversing the
Judgment dated 16.06.2011 made in STC No.4577 of 2009 on the file
of the Judicial Magistrate, Bhavani.
For Appellant : Mr.M.Guruprasad
For Respondent : Mr.E.C.Ramesh
http://www.judis.nic.in
JUDGMENT
2 This Criminal Appeal is directed against the Judgment rendered by the Additional District and Sessions Court, (Fast Track Court No.IV, Erode) in C.A.No.84 of 2011 reversing the findings of the trial Court made in STC No.4577 of 2009, dated 16.06.2011.
2. The facts involved in this case is that the appellant/complainant presented a complaint before the Magistrate alleging that the respondent has borrowed Rs.2,00,000/- from the appellant, to meet out his urgent financial commitments and in order to discharge the same, he gave post dated cheque drawn at Canara Bank, Anthiyur Branch, Bhavani. When the said cheque was presented by the Appellant, the same was returned by recording “insufficient funds”. Notice sent to the respondent was received by him on 06.09.2007 and he also gave a reply to the notice denying the liability. Thereafter, the complaint was filed by the appellant initiating the criminal proceedings as contemplated under Section 138 of Negotiable Instrument Act.
3. Before the trial court, the complainant has examined himself as PW.1 and marked 6 Exhibits. On the side of the defendant, 2 Exhibits were marked.
http://www.judis.nic.in 3
4. The trial Court held that the complainant has proved that the subject cheque was issued by the accused to discharge the legally enforceable debt and have failed to honour the cheque. Therefore, the accused was found guilty for offence under Section 138 r/w 142 of Negotiable Instrument Act. Accordingly, the trial Court had sentenced the respondent/accused to undergo simple imprisonment for 1 year and to pay the cheque amount of Rs.2,00,000/- as compensation.
5. Aggrieved by that, the accused has preferred the Criminal Appeal No.84 of 2011 before the Additional District and Sessions Judge, Bhavani. On re-appreciation of evidence, the lower Appellate Court has took exception to the conduct of the complainant, issuing two statutory notice on two different dates through two different Advocates mentioning two different dates of borrowing. Further, the defence taken by the accused that the complainant is a stranger to him and there is no privity of contract between him to issue cheque was also accepted by the lower Appellate Court. Considering the defence taken by the accused that sons-in-law of the complainant were partners in the Financial Company run by the accused and in the course of their business, cheques signed by the http://www.judis.nic.in accused were stolen and used. Amount is fill it up and presented 4 without any legally enforceable liability. Considering the content of the reply given by the accused and the suggestions put during the cross examination of the prosecution witnesses, the lower Appellate Court being satisfied that the presumption against the accused has been reverted reversed the trial Court judgment and acquitted the accused. The present appeal is directed against the findings of the lower Appellate Court acquitting the accused.
6. The Learned Counsel appearing for the appellant/complainant would submit that when there is a legal presumption against the accused to discharge the burden, the cheque issued by him is to be presumed to have given towards legally enforceable debt. Without iota of evidence, just a bald denial and vague suggestion put to the prosecution witnesses has been given undue importance and significance by the lower Appellate Court to reverse the well considered Judgment of trial Court. Except denying the privity of contract with an invented theory of loss of signed cheques, the accused has not put forth any other material to rebut the presumption.
http://www.judis.nic.in
7. Further, the learned counsel for the appellant would also 5 submits that in 1st notice dated 10.06.2007, the date of borrowing was wrongly mentioned as 06.07.2007 which was immediately rectified through the subsequent notice issued on the very next day, through notice dated 01.09.2007. Though, there was no explicit reference in the subsequent notice that it is caused to rectify the error crept in the earlier notice, all other facts canvassed in the 1st notice has been repeated and reiterated in the subsequent notice. So, it should be inferred that the subsequent notice is also a rectification notice. While the trial Court has rightly accepted the explanation, the Appellate Court has emphasized that the omission of the word rectification renders the case of the complainant void.
8. The learned Counsel appearing for the respondent/accused would submit that the respondent is financial affluent and there was no necessity for him to borrow money from the complainant. Nowhere in the complaint or during the trial, the complainant has placed before the Court proof about his source of income. It has been specifically elicited during the cross examination that the complainant had no wherewithal to advance loan of Rs.2,00,000/. Further, it has also been elicited that two sons-in-law of the complainant were partners in the Financial Company run by the http://www.judis.nic.in respondent. During the said transaction, the signed cheque of the 6 respondent has been misused to be filled up in the name of the complainant. When two notices were issued for the same cheque containing two different theory, the very factum of borrowing money on a particular day gets falsified.
9. Coupled with the facts that except stating that the accused borrowed Rs.2,00,000/- on a particular day and gave a post dated cheque, there is no other corroborative material to show that the appellant really gave any money to the respondent. Hence, the judgment of the Lower Appellate Court has to be confirmed.
10. Heard the rival submissions made by the respective counsel.
11. Section 139 of Negotiable Instrument Act says unless the contrary is proved, the holder of the cheque is to be presumed that it was given to him to discharge a debt or other liability. To that extent the presumption is always against the drawer of the cheque. In this case, the respondent has not denied the execution of cheque. The only contention regarding the cheque is that it was stolen and misused by the complainant. For the first time, during the cross examination, http://www.judis.nic.in such a theory has been placed before the Court by the accused. If 7 really a person of affluence had lost the signed cheque, he would have naturally placed it on record either by intimating the banker to stop the payment against the lost cheque or by lodging a criminal complaint. The accused has taken neither of the above two actions. Atleast, he should have placed some other material to show that the sons-in-law of the complainant and he had some financial transactions, which has caused an opportunity for the complainant to stealthy remove his signed cheque. Except some bald and vague suggestions to the complainant, no piece of material to substantiate such suggestion been produced by the accused.
12. As pointed out by the learned Counsel appearing for the appellant at one breath the accused claims that the complainant is a stranger to him. At the same time, he also admits that the sons-in- law of the complainant had financial transaction between him and they were partners. Much stress is made by the learned Counsel appearing for the respondent that the complainant should have come out with some prima facie material to show his financial capacity to advance Rs.2,00,000/-. In the absence of material, to show the financial capacity, a presumption against the accused should not be drawn. For that purpose, it is necessary to refer the deposition of the http://www.judis.nic.in complainant. It is not as if the complainant is man of no means. In 8 the cross examination, he has disclosed about his financial strength and assets. If the statements made by the complainant during the cross examination was not correct, the accused should have confronted him with the facts and documents, which he has not done.
13. Similarly, regarding the error in the date of advancing the money which has been crept in the notice dated 31.08.2007 and 01.09.2007, during the cross examination, the witnesses have reconciled the error. Therefore, having failed to discharge the burden which cast upon him under Section 139 of Negotiable Instrument Act, mere bald denial and vague suggestion during the cross examination will not entitle the accused from the presumption under Section 139 of Negotiable Instrument Act.
14. For the said reason, the Judgment of the Appellate Court is liable to be set aside and accordingly, the Judgment of the 1st Appellate Court is set aside. The trial Court Judgment is restored. Insofar as, the period of sentence is concerned, this court is of the opinion that having been acquitted though erroneously, the long period of pendency of the 1st Appeal and the 2nd appeal, it would be suffice to confirm the conviction passed by the trial Court but to http://www.judis.nic.in modify the sentence to the effect that the respondent herein shall pay 9 a fine of Rs.2,00,000/- being the cheque amount, which shall be treated as a compensation under Section 357 of Cr.P.C.
15. In the light of the above discussions, the Criminal Appeal is Allowed. No costs.
11.02.2019
vrn/bsm
Index : Yes/No
Speaking Order/Non-Speaking Order
To
1. The Additional District and Sessions Judge, (Fast Track Court No.IV), Erode.
2. The Judicial Magistrate, Erode.
3. The Section Officer, V.R. Section, Madras High Court, Chennai.
http://www.judis.nic.in 10 DR.G.JAYACHANDRAN.,J bsm/vrn Criminal Appeal No.880 of 2012 11.02.2019 http://www.judis.nic.in