Madras High Court
K.Perumal vs M.Joseph Selvam on 26 February, 2018
Author: R.Hemalatha
Bench: R.Hemalatha
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 26.02.2018 RESERVED ON : 30.01.2018 DELIVERED ON: 26.02.2018 CORAM THE HONOURABLE MRS.JUSTICE R.HEMALATHA CRL.A(MD)No.616 of 2007 K.Perumal : Appellant Vs. M.Joseph Selvam : Respondent PRAYER: Appeal is filed under Section 378 of the Code of Criminal Procedure praying to set aside the order dated 17.10.2007 in C.C.No.56 of 2004 on the file of the Judicial Magistrate No.II, Dindigul. !For Appellant : Mr.M.Gnanagurunathan ^For Respondents : Mr.A.Hariharan :JUDGMENT
This is an appeal as against the order of acquittal passed by the learned Judicial Magistrate No.II, Dindigul in C.C.No.56 of 2004 dated 17.10.2007.
2.The brief facts of the case of the appellant / complainant are as follows:
2.1.The respondent / accused borrowed a sum of Rs.1,00,000/- from the appellant / complainant on 25.09.2003 and also gave a post dated cheque dated 25.11.2003 (Ex.P1) for the like amount. The cheque was drawn on State Bank of India, Dindigul branch. When it was presented for clearance through UCO bank, Dindigul branch, where the appellant / complainant had an account, it was returned by the State Bank of India, Dindigul branch on 27.11.2003 for the reason ?insufficient funds?, as evidenced by the challan (Ex.P2). A legal notice dated 01.12.2003, a copy of which is marked as Ex.P.3, was issued to the respondent / accused by the appellant / complainant through registered post and by certificate of posting. The notice sent through registered post was returned on 05.12.2003 as evidenced by the returned cover (Ex.P.5). However, the notice sent vide certificate of posting was received by the respondent / accused.
2.2.As payment was not forthcoming, a complaint under Section 138 of the Negotiable Instruments Act was filed by the appellant / complainant before the Judicial Magistrate No.II, Dindigul in C.C.No.56 of 2004. The trial Court after going through the oral and documentary evidence adduced on both sides, concluded that the offence against the respondent / accused was not proved and therefore, acquitted the respondent / accused. Aggrieved against the acquittal order, the appellant / complainant has filed the present appeal.
3.The learned trial Judge was convinced with the contention of the learned counsel for the respondent / accused that the subject cheque bearing No.595339 (Ex.P.1) was issued to him for his account No.22449 as early as in the year 1998 and the account number itself got changed after computerization in 1998 to 01190027449, the Cheque number 595339 could not have been issued on 25.11.2003.
4.The learned counsel appearing for the respondent / accused had also contended that whenever the account number is changed, the cheque books have to be surrendered to the bank and new cheque books have to be obtained. The contention of the learned counsel for the respondent / accused was that the bank had erred in mentioning ?insufficient funds? as the reason for return and instead they ought to have mentioned that the cheque is out dated.
5.The learned counsel for the respondent / accused also argued that the Reserve Bank of India mandated surrender of the old cheque books within three months of the change of the account number and that the preceding and the succeeding cheques which were returned unpaid were paid in 2000 and 2001 respectively and therefore, the cheque returned unpaid was not issued to the appellant / complainant on 25.11.2003.
6.The learned trial Judge, had accepted the contention of the learned counsel for the respondent / accused and in order to strengthen his decision, gone to the extent of stating that the appellant ought to have known that the State Bank of India, Dindigul branch, after computerisation had changed the account number and therefore, could not have accepted the old cheque on 25.11.2003.
7.Technically speaking, when the account number is changed due to any internal reasons of the bank, the bank may not refuse to honour the old series of cheque. It is not a case of closure of account. It is a case where the respondent / accused relies on the fact that there was a change of account number in 1998 and that there were 40 cheques issued to him by the bank after the change of account number and that there was no possibility of the cheque (Ex.P.1) bearing No.595339 being issued to the appellant in 2003.
8.On the contrary, the respondent / accused has also relied on the contention that the preceding and succeeding cheques were issued in 2000 and 2001 respectively and that they were also honoured. This fact goes against the contention that the bank ought to have returned the cheque not for the reason of ?insufficient funds? but for the reason that they are out dated.
The same series of cheques, when presented in 2001, it could have also been presented in 2003. I do not find the reasoning of the learned counsel for the respondent / accused to have any justification.
9.It is true that this statutory presumption under Section 118 & 139 of Negotiable Instruments Act can be rebutted and that the preponderance of probability would be adequate for such an evidence of rebuttal.
10.The learned counsel appearing for the respondent / accused relied on the decision of this Court in R.Vijayaraghavan Vs. Seegampatti Rajagopal reported in (2017) 2 MLJ 243 and contended that even if two reasonable contentions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of the acquittal recorded by the Trial Court. But when the rebuttal is made without any basis and is accepted by the learned Judicial Magistrate No.II, Dindigul, perversity creeps into the findings. The learned counsel appearing for the respondent also relied on the following decisions;
i)Krishna Janardhan Bhat Vs. Dattatraya G.Hegde reported in 2008 (1) CTC 433;
ii)Chinthamani Foods and Feeds (P) Ltd., Vs. D.Chandrasekar reported in (2017) 2 MLJ (Crl) 42;
iii)Thiraviyam Vs. Thangamariyappan reported in (2017) 3 MLJ (Crl.) 325;
iv)Pandurangan Vs. Sivakami reported in (2017) 3 MLJ (Crl.) 572;
v)R.D.Venkatesh Vs. D.M.Ariyappan reported in (2017) 4 MLJ (Crl) 290 and
vi)S.Shanmugavel Vs. N.Indulekha reported in (2017) 4 MLJ (Crl) 593; and contended that once the presumption is rebutted, it is for the complainant to prove that the cheque was issued towards legally enforceable liability. As already observed, the respondent / accused has not rebutted the presumption under Section 139 of the Negotiable Instruments Act and therefore, all the above rulings may not be applicable to the facts of the present case. In such circumstances, the order of acquittal passed by the learned Judicial Magistrate No.II, Dindigul warrants interference by this Court.
11.In the result,
i)the Criminal Appeal is allowed.
ii)the judgment passed by the learned Judicial Magistrate No.II, Dindigul in C.C.No.56 of 2004 dated 17.10.2007, is set aside.
iii)the respondent / accused is directed to appear before this Court on 09.03.2018, to answer the question of sentence to be imposed on him.
To
1.The Judicial Magistrate No.II, Dindigul.
2.The Record Keeper, Criminal Section, Madurai Bench of Madras High Court, Madurai.
.