Madras High Court
A.K.Mohammed Farook vs M.Syed Jaheer Hussain on 19 January, 2019
Author: P.Velmurugan
Bench: P.Velmurugan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.01.2019
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.(MD).No.179 of 2008
A.K.Mohammed Farook ...Appellant/Complainant
Vs.
M.Syed Jaheer Hussain ...Respondent/Accused
Prayer:- This Criminal Appeal is filed under Section 374(2) of Criminal
Procedure Code, against the judgment made in C.C.No.451 of 2006,
on the file of the learned Judicial Magistrate No.II, Trichy dated
21.01.2008, wherein the learned Judge acquitted the
respondent/accused for an offence under Section 138 of the Negotiable
Instruments Act.
For Appellant : No Appearance
For Respondent : Mr.C.A.Ganapathi
JUDGMENT
This Criminal Appeal has been filed against the Judgment dated 21.02.2008, made in C.C.No.451 of 2006, on the file of the learned Judicial Magistrate-II, Trichy, wherein the learned Magistrate acquitted the respondent/accused.
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2. The case of the complainant is that the appellant/Complainant had filed a complaint against the respondent/accused, under Section 138 of the Negotiable Instrument Act, before the learned Judicial Magistrate-II, Tiruchirappalli. It is stated that both the appellant and respondent are running a partnership firm and subsequently, the partnership firm was dissolved on 22.03.2006. At the time of settling the accounts, in order to give a sum of Rs.1,50,000/-(Rupees One Lakh Fifty Thousand Only) by the respondent, he had issued a cheque in favour of the appellant. The above said cheque was presented before the ICICI Bank, Trichy Condonment Branch on 21.06.2006 and the said cheque was returned due to insufficient fund. Therefore, the appellant issued a statutory notice Ex.A.3 and the said notice was received by the respondent. Even after receipt of the notice, he did not repay the money mentioned in the statutory notice Ex.A.3 and therefore, the appellant had filed a complaint before the learned Magistrate, under Section 138 of the Negotiable Instrument Act.
3. The learned Magistrate after taking the complaint on file and enquiry found that the respondent has not committed any offence under Section 138 of NI Act. Against which the complainant has filed the present appeal.
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4.No representation on the side of the appellant. Though the appeal is pending for more than 10 years, the appellant has not shown any interest to proceed the appeal. However, heard the learned Counsel for the respondent. He would submit that at the time of admitting the respondent into the firm for security purpose, the cheque was issued, but the same was not issued for legally enforceable debt. Onus of the accused in criminal case is not as heavy as that of prosecution and he may be compared with defendant in civil case. He has placed reliance in the judgment in MS.Narayanan Menon @ Mani Vs. State of Kerala and another, reported in 2006(3) CTC 730.
5. Perused the records.
6.The learned counsel for the respondent admitted that execution of the cheque and also the signature found in the cheque. Therefore, once execution of cheque is admitted, it is a legal presumption under Section 139 of Negotiable Instrument Act. The cheque was issued for discharging legally enforceable debt. No doubt the presumption is rebuttable. Though, admitted that the said cheque was issued for only security purpose and the respondent was only a working partner and he has not invested or contributed any money to http://www.judis.nic.in 4 the partnership firm. Therefore, at the time of admitting him in the firm, the respondent had executed the cheque for the security purpose.
7.Once issuance of cheque is being admitted and even for security purpose, the presumption under Sections 118 and 139 of Negotiable Instrument Act and it is for the accused has to rebut the presumption there is no legally enforceable debt and cheque has not been issued for legally enforceable debt. Therefore, the contention raised by the learned counsel for the respondent is not acceptable and the authorities submitted by the respondent is not applicable for present case in the hand. On reading of the entire materials this Court finds that the appellant proved his case beyond reasonable doubt. The respondent also admitted the execution of the cheque. Therefore, it is for the respondent to rebut the presumption in the manner known to law. In this case, admittedly the respondent has not rebutted the legal presumption in the manner known to law. Therefore, this Court finds the respondent guilty under Section 138 of NI Act. The judgment of the Magistrate is set aside and the appeal is allowed. http://www.judis.nic.in 5
8. Therefore, under these circumstances, this Court finds that the learned Magistrate failed to appreciate the evidence and also draw the legal presumption and also the respondent failed to rebut the statutory presumptions. Hence, the respondent/accused is directed to appear before this Court, on the next Special Sitting for question of sentence.
15.12.2018
sji/ksa
As directed by this Court on 15.12.2018,
the respondent / accused is present before this Court and question of sentence was asked, for which he has stated that he has not given the cheque for legally enforceable debt, but has given only for security.
2.Considered his submissions.
3.As this Court has already found the respondent guilty under Section 138 of NI Act, convicts the accused under section 138 of the Negotiable Instrument Act and sentences him to undergo six months Simple Imprisonment and to pay a fine of Rs.1,50,000/- within two http://www.judis.nic.in 6 months from today and the same shall be paid to the complainant by way of compensation, in default to undergo two months Simple Imprisonment.
4.The trial Court is directed to secure the accused and commit him to prison.
19.01.2019 aav Index :Yes/No Internet:Yes/No Note: Issue copy on 19.01.2019 To
1.The Judicial Magistrate No.II, Trichy.
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 7 P.VELMURUGAN, J.
aav Crl.A.(MD).No.179 of 2008 19.01.2019 http://www.judis.nic.in