Madras High Court
S.Saravanaprakash vs S.Somasundaram on 19 October, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.1124 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.10.2022
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Criminal Appeal No.1124 of 2022
S.Saravanaprakash ... Appellant
Vs.
S.Somasundaram ... Respondent
Prayer : Criminal Appeal filed under Section 378 of Criminal Procedure
Code, praying to set aside the judgment of acquittal of accused made in
C.C.No.256 of 2014, by Judicial Magistrate Fast Track Court, Tirupur, dated
24.03.2022 and allow the above appeal.
For Petitioner : Mr.M.V.Venkataseshan
For Respondents : Mr.Meiyappan Mohan
ORDER
The present Criminal Appeal has been filed to set aside the judgment passed by the learned Judicial Magistrate, Fast Track Court, Tiruppur in 1/12 https://www.mhc.tn.gov.in/judis Crl.A.No.1124 of 2022 C.C.No.256 of 2014, dated 24.03.2022.
2. The appellant is the complainant and the respondent is the accused.
3. Brief facts of the case involved in the present case is as follows:-
The respondent/accused has borrowed Rs.15,00,000/- from the appellant/complainant on 14.12.2012 and on the same day, the respondent/accused executed the promissory note in favour of the appellant/complainant and he has agreed to repay the borrowed amount together with interest @ 24% per annum. After borrowal, the respondent/accused failed to pay the interest. While so, the appellant/complainant demanded the respondent/accused to repay the borrowed amount together with interest and therefore, the respondent/accused, after receiving the promissory note, has issued three cheques bearing Nos.489028, 489029 & 488205 dated 15,04.2013, 25.04.2013 and 20.04.2013 respectively for Rs.5,00,000/- each and thereafter, when the appellant/complainant presented the cheque bearing No.480928, for collection through his bank on 25.04.2013, the same was returned to his banker with an endorsement that “payment stopped by 2/12 https://www.mhc.tn.gov.in/judis Crl.A.No.1124 of 2022 drawer”. Thereafter the respondent/accused asked the appellant/complainant to present the cheque for collection and when the appellant/complainant presented the rest of the cheques bearing Nos.489029 & 488205, through his bank on 29.04.2013, the same were also returned to his banker with an endorsement that “payment stopped by drawer”. Therefore, the appellant/complainant sent a legal notice to the respondent/accused on 09.05.2013 and the same was acknowledged in the residential address of the respondent/accused on 10.05.2013. On receipt of the said legal notice, the respondent/accused did not come forward to pay the cheque amount, however the respondent/accused sent a reply notice dated 20.05.2013 stating false and frivolous allegations. Therefore, the appellant/complainant filed a private complaint under Section 200 Cr.P.C., before the Judicial Magistrate, Fast Track Court, Tiruppur for the offences under Section 138 of Negotiable Instruments Act, 1988 Act (for short “the NI Act”) and the said complaint was taken on file by the learned Judicial Magistrate, Tiruppur in C.C.No.256 of 2014.
4. On the side of the appellant/complainant during the trial two 3/12 https://www.mhc.tn.gov.in/judis Crl.A.No.1124 of 2022 witnesses were examined as PW-1 & PW-2 and ten documents were marked as Exs.P1 to Exs.P10 and on the side of the respondent/accused, two witnesses were examined as DW-1 & DW-2 and twenty seven documents were marked as Exs.D1 to Exs.D27.
5. The trial Court after trail, dismissed the complaint and acquitted the respondent/accused for the offence under Section 138 and 142 of the NI Act. Aggrieved over the said dismissal of the complaint, the present Appeal has been filed by the appellant/complainant.
6. The learned counsel appearing for the appellant would submit that the trial Court has failed to note a vital point that respondent/accused has not denied the signature in the cheques and failed to note the reply notice sent by the respondent/accused, in which there was no averment stated by the accused that the disputed cheques were lost, which is wholly contrary to facts. Further, the learned counsel appearing for the appellant would submit that the respondent/accused has made a paper publication dated 13.11.2012, in which the respondent/accused has only mentioned about the lost cheque 4/12 https://www.mhc.tn.gov.in/judis Crl.A.No.1124 of 2022 numbers, but intentionally he did not mention the date of issuance of the cheque. In this regard also, the trial Court has failed to consider that this fact was not at all stated by the respondent/accused in his reply notice dated 20.05.2013. The learned counsel further would submit that the trial Court ought to have considered that mere raising the plea of incapacity for lending will not rebut the presumption, especially when the appellant/complainant has proved his financial capacity. Further, the learned counsel would submit that oral and documentary evidence, clearly show that once the signature is admitted by the respondent/accused, there is a statutory presumption under Section 139 of the NI Act would attract and that the cheque was issued for discharging legally subsisting liability and that the initial burden was proved by the appellant/complainant, but however, the Judicial Magistrate has not applied his mind and failed to appreciate that the respondent/accused has not rebutted the presumption in the manner known to law. Therefore, the learned counsel would submit that the trial Court failed to appreciate the evidence and draw the statutory presumption and dismissed the complaint by stating that appellant/complainant has not proved his case and the reasons assigned in the judgment is contrary to law and unsustainable both 5/12 https://www.mhc.tn.gov.in/judis Crl.A.No.1124 of 2022 on law and on facts and hence, the appeal is liable to be allowed.
7. The learned counsel appearing for the respondent submitted that there was no transaction between the appellant/complainant and the respondent/accused and the respondent never borrowed any money from the appellant and never executed any cheque in favour of the appellant/complainant and he lost his cheques on 08.08.2012 itself and he sent a letter to the bank for stopping the payment and he also made a paper publication regarding lost of cheques which would clearly show that these two documents were prior to the alleged transaction said to have taken place. Therefore, the trial Court rightly appreciated the evidence and found that the respondent/accused has rebutted the presumption and the appellant/complainant has not proved his case and therefore, there is no merit in the appeal and the same is liable to be dismissed.
8. Heard the learned counsel appearing for the parties and perused the materials placed on record.
9. The specific case of the appellant/complainant is that on 14.12.2012, 6/12 https://www.mhc.tn.gov.in/judis Crl.A.No.1124 of 2022 the respondent borrowed a sum of Rs.15,00,000/- on execution of promissory note and he has agreed to pay interest at the rate of 24% per annum and after which, the respondent/accused has not paid either principal or interest. Therefore, when the appellant/accused demanded the said amount on 15.04.2013, the respondent/accused gave three cheques in favour of the appellant/complainant for the said amount and got back the promissory note and the same were presented on 25.04.2013 and 29.04.2013 for collection and they were returned with an endorsement that “payment stopped by drawer”. Thereafter, the appellant/complainant issued a legal notice, but however, the respondent/accused stoutly denied the allegation against him. Therefore, the appellant/complainant filed a private complaint under Section 200 Cr.P.C., before the Judicial Magistrate, Fast Track Court, Tiruppur for the offences under Section 138 of Negotiable Instruments Act, 1988 Act (for short “the NI Act”) and the same was taken on file in C.C.No.256 of 2014, by the learned Judicial Magistrate, Tiruppur. The learned Judicial Magistrate dismissed the complaint and acquitted the respondent/accused for the offence under Section 138 and 142 of the NI Act. 7/12 https://www.mhc.tn.gov.in/judis Crl.A.No.1124 of 2022
10. It is settled proposition of law under Section 139 of the NI Act that once the issuance of cheque and the signature in the cheque has been admitted, the complainant is entitled to invoke presumption under Sections 118 and 139 of Negotiable Instruments Act that the cheque has been issued for discharging a legally subsisting liability. It is true that the presumption under Section 139 of NI Act is rebuttable presumption and the respondent/accused has to rebut the presumption by preponderance of probabilities. If once the presumption is rebutted, then only the onus will be shifted to the complainant. In this case, the presumption under Section 139 of NI Act has been rebutted by the respondent/accused in the manner known to law by preponderance of probabilities.
11. Since the first Appellate Court is a fact finding Court and that this Court has to re-appreciate the evidence and give an individual finding and on appreciation of evidence, the appellant/complainant stated that on 14.12.2012 he lent money to the respondent/accused for a sum of Rs.15,00,000/- for interest @ 24% per annum on execution of promissory note and he also stated that the respondent/accused neither repaid the 8/12 https://www.mhc.tn.gov.in/judis Crl.A.No.1124 of 2022 principal nor the interest. Further, when the appellant/complainant demanded the amount, the respondent/accused gave three cheques for the said principal amount and got back the promissory note. Nowhere, the appellant/complainant stated about the non-payment of interest and only for the principal amount alone, he was issued with three cheques and he has not given any explanation for the interest amount as to whether he has received the interest or he waived the interest or he has received separate cheque for the interest amount or the cheque obtained included interest amount. In this case, non mentioning about the payment on interest that too when the money lent for interest, which is clearly created a doubt that did he lend the money to respondent/accused or not.
12. Further, the respondent/accused produced two documents, viz., he sent a letter to the Bank for stop payment of the cheque on 08.08.2012, by stating that he lost five cheques. He even mentioned the cheque numbers also in the said letter. Yet another document would show that he issued a paper publication for loss of cheques, that is dated 13.11.2012. Both the documents admittedly are prior to the alleged transaction said to have taken 9/12 https://www.mhc.tn.gov.in/judis Crl.A.No.1124 of 2022 steps, even though the respondent/accused has admitted the signature in the cheques.
13. Once execution is admitted and marked the cheque, the initial burden of proof is proved by the appellant/complainant and then the onus of the proof would be shifted to the respondent/accused and it is for the respondent/accused to rebut the presumption in the manner known to law which means by preponderance of probability. But however, in the present case, the appellant/complainant has not stated anything about the payment of the interest and the respondent/accused produced the documents which would show that even prior to the alleged transaction, he gave the paper publication as well as a letter to the bank that he lost the cheques and therefore, the respondent/accused need not rebut the presumption either by direct evidence or come to the witness box to let in evidence and therefore, this Court finds that the respondent/accused has rebutted the statutory presumption by preponderance of probability.
14. Under these circumstances, this Court is of the view that the appellant/complainant has not established his case beyond reasonable doubt, 10/12 https://www.mhc.tn.gov.in/judis Crl.A.No.1124 of 2022 whereas the respondent has rebutted the presumption by preponderance of probability and therefore, there is no merit in the appeal and the same is dismissed accordingly.
19.10.2022 Index :Yes/No Internet:Yes/No pbn To learned Judicial Magistrate, Fast Track Court, Tiruppur 11/12 https://www.mhc.tn.gov.in/judis Crl.A.No.1124 of 2022 P.VELMURUGAN,J.
Pbn Criminal Appeal No.1124 of 2022 19.10.2022 12/12 https://www.mhc.tn.gov.in/judis