Madras High Court
Rajendran vs N. Radhakrishnan on 17 July, 2012
Author: S.Palanivelu
Bench: S.Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.07.2012 CORAM: THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Appeal No.235 of 2005 Rajendran : Appellant/Complainant Vs. N. Radhakrishnan : Respondent/Accused PRAYER: Criminal Appeal filed under Section 378 of the Code of Criminal Procedure, to set aside the judgment acquitting the accused made in C.C.No.337 of 2004 dated 17.11.2004 on the file of the learned Judicial Magistrate, Alandur. For Appellant : Mr.M.Babu Muthu Meeran For Respondent : Mr.R.C.Paul Kanagaraj for M/s.G.Karthikeyan. JUDGMENT
The allegations contained in the complaint filed under Section 138 of Negotiable Instruments Act are as follows -
1[a] In the month of December 2003, the accused approached the complainant and borrowed a sum of Rs.4 lakhs for his family expenses and undertook to repay the said sum with interest. To discharge his liability, he issued a cheque bearing No.947929 dated 25.5.2004 for Rs.2 lakhs drawn on Syndicate Bank, Nanganallur Branch as part of payment.
1[b] As per the advise of the accused, the complainant deposited the cheque in his bank viz., Indian Overseas Bank, Meenambakkam Branch, Chennai on 25.5.2004 for collection. But the same was returned dishounoured with an endorsement "funds insufficient" by means of a memo dated 27.5.2004 and the same was intimated to the complainant by his bank on 29.5.2004. Hence, the complainant sent a lawyer's notice on 1.6.2004 to the accused and the same was received by him on 5.6.2004. The accused sent reply to the notice on 7.6.2004. Since the accused did not come forward to discharge the liability, the complainant filed the private complaint under Section 138 of N.I. Act before the court below.
2. After the complainant's evidence was over, the court below questioned the accused under Section 313 Cr.P.C. as regards incriminating materials available against him in complainant's evidence. He denied complicity to the offences. He has stated that the cheque was obtained by the complainant by threatening through the police and that he borrowed a sum of Rs.4,00,000/- but he has to only repay Rs.1,20,000/-. He did not examine any witnesses. During the cross examination of PW1, he marked Exs.D1 to D4, the letter given by him addressed to the Inspector of Police, Palavanthangal Police Station, the notice sent by him to the complainant dt.13.03.2004, the postal acknowledgment card and the reply given by complainant on 16.04.2004.
3. After analyzing evidence on record, the learned Judicial Magistrate has acquitted the accused by observing that Ex.D1 was obtained by complainant in the police station and hence the presumption under Section 139 of Negotiable Instruments Act has been rebuted by him.
4. In the above said circumstances, the following points for consideration have arisen -
(1)Whether there is legally enforceable debt existing between the parties?
(3)Whether it is established that the cheque was obtained in the police station from the accused under pressure?
(5)Whether the accused has rebuted the presumption under Section 139 of the Negotiable Instruments Act?
Point Nos.1 to 3 :-
5. The learned counsel Mr.Babu Muthu Meeran appearing for the appellant would contend that in as much as the respondent/accused has not proved the circumstances which he has set up in his defence by means of which it is seen that he has failed to rebut the statutory presumption, that there is no suppression of material facts in the complaint as alleged by the respondent side, that the court below has failed to see that the negotiable instrument was delivered to the complainant for adequate consideration and that valid grounds are available to set aside the order of acquittal by this Court.
6. Mr.R.C.Paul Kanagaraj, learned counsel appearing for the respondent would argue on the converse that Ex.D1 to D4 would portray the real state of affairs which transpire between the parties and a careful scrutiny of the defence side exhibits coupled with the facts adduced by PW1 in his cross examination would vividly show that the cheque was extracted from the respondent in Palavanthangal Police Station which is evident from the contents of Ex.A1, that when the money transaction is of civil nature, there is no necessity for approaching the police for delivery of cheque, that there is no need for the respondent to give undertaking in Ex.D1 to the Inspector of Police, that he would arrange for payment towards the cheque, that the respondent has successfully rebutted the statutory presumption that the cheque is not supported by consideration, that there are no valid ground for interfering with the order of acquittal passed by the trial court.
7. The entire case of the respondent revolves around Ex.D1 dated 18.03.2004 written by the respondent addressed to the Inspector of Police, Palavanthangal Police Station. This document is a xerox copy. It is admitted by PW1 in his cross examination. Even though he admits the existence of Ex.D1, he denies the contents that it is not correct to state that he received the cheques after signing Ex.D1. In Ex.D1, the respondent has stated that he has to pay Rs.3,60,000/- to the complainant for which on 18.03.2004, he issued two cheques, one for Rs.1,60,000/- dt.25.07.2004 and another cheque for Rs.2,00,000/- dt.25.05.2004 and he would arrange for negotiating these cheques and by means of which both himself and the complainant settled the matter. Below the said contents, the complainant has written that he has received the two cheques and put his signature on the same day. When he is admitting Ex.D1, he could not deny the sentence written by him that he received the cheques.
8. On 13.03.2004, the respondent issued a lawyer's notice, Ex.D2 to the complainant stating inter alia that the cheques were obtained by force in the local police station. Para 5 of the notice reads thus :
5. He further states that on the same day you came with the Rowdi elements and local political crips and used your wreath of illegal vengeance made my client forced to give the cheques for Rs.3,60,000/- in your favour, by means of Local Panchayat and submitted to the aforesaid Police Station and closed the petition.
9. In this notice, he has stated that he borrowed a sum of Rs.4,00,000/- and after repayment of Rs.2,80,000/-, he has to pay Rs.1,20,000/- alone which was received by the complainant under acknowledgment under Ex.D3. He issued reply notice dated 16.04.2004 through his Advocate denying the allegations contained in Ex.D2.
10. It is pertinent to note that Ex.D2 notice issued by respondent precedes Ex.P4 notice issued by the complainant. Ex.P4 is dated 01.06.2004 by means of which he has informed the respondent as per the allegations in the complaint and called upon him to pay Rs.2,00,000/- towards the cheque dt.25.05.2004. For this notice, the respondent has sent a reply under Ex.P6 on 07.06.2004 through lawyer reiterating the allegations contained in Ex.D2 notice. It is also to be noted herein that in the cross examination, PW1 has admitted that for the total loan of Rs.4,00,000/-, the respondent has repaid Rs.40,000/- and for the balance of Rs.3,60,000/-, he issued two cheques.
11. The learned counsel appearing for the respondent would submit that even though there were exchange of notices between the parties much prior to issue of Ex.P6 notice by the complainant, he has not mentioned the facts in the complaint and hence he is guilty of suppression of material facts in the complaint. For this proposition, he placed reliance upon a decision of the Apex Court in AIR 1961 SC 1316 [Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay] in which it is held that if the relevant evidence is withheld, the court may draw a presumption to the effect that if the same was produced, it might have gone unfavorable to the petitioner and such a presumption was itself held to be sufficient to rebut the presumption arising under Section 118. The complainant was very much conscious about Ex.D2 notice and Ex.D1 and he also sent a reply under Ex.D4. Touching the circumstances under which the cheques were issued, in the considered view of this court, non-furnishing of particulars as regards Exs.D1, D2 and D4 would probabilise the defence.
12. The learned counsel for the appellant placed reliance upon a decision of the Supreme Court reported in 2010(2) MWN (Cr.) DCC 5 (SC) [Rangappa v. Sri Mohan] in which earlier decisions of the Supreme Court have been referred to and operative portions have been extracted. They are as follows :
"12. The respondent-claimant has also referred to the decision reported as Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm & Ors., 2008 (8) SCALE 680, wherein it was observed:
"Under Section 118(a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. ..."
This decision then proceeded to cite an extract from the earlier decision in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35 (Para. 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 rebutable. 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 improbably or doubtful or the same was illegal, the onus would shift to the 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 plaintiff 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. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist." (emphasis supplied) Interestingly, the very same extract has also been approvingly cited in Krishna Janardhan Bhat v. Dattatraya G. Hegde [2008 (1) CTC 433 (SC) : 2008 (4) SCC 54]."
13. It is the view expressed by the Supreme Court that the presumption under Section 139 of the Negotiable Instruments Act has to be rebuted by the accused by showing preponderance of probabilities in his defence which could create doubt about the existence of the legally enforceable debt. In 2011 (13) SCC 148 [Anil Sachar v. Shree Nath Spinners (P) Ltd.] , the Apex Court has held that when the signature is admitted in the cheque, it has to be presumed that it was given for proper consideration and it is the bounden duty of the accused to rebut the same.
14. In 2004 (2) SCC 235 [Goa Plast (P) Ltd. v. Chico Ursula D'Souzaa] earlier decision of the Supreme Court in 2001 (8) SCC 458 = 2002 SCC (Cri) 14 [K.N.Beena v. Muniyappan] has been referred to and operative portion of the judgment has been extracted which is as follows -
21. The learned counsel also relied on paragraph 7 of the judgment of this Court in the case of K.N.Beena v. Muniyappan which reads as under :(SCC pp.459-60, para 7) "7. In this case admittedly the 1st respondent has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denials/averments in his reply dated 21.05.1993 were sufficient to shift the burden of proof on to the appellant complainant to prove that the cheque was issued for a debtor or liability. This is an entirely erroneous approach. The 1st respondent had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The 1st respondent not having led any evidence could not be said to have discharged the burden cast on him. The 1st respondent not having discharged the burden of proving that the cheque was not issued for a debt or liability, the conviction as awarded by the Magistrate was correct. The High Court erroneously set aside that conviction."
15. Armed with the above said authorities, the learned counsel for the appellant would submit that the respondent has failed to rebut the presumption by examining himself and other witnesses.
16. The learned counsel for the respondent would place reliance upon a decision of the Supreme court reported in 2008 Crl.L.J. 434 [John K. John. v. Tom Varghese and Anr.] in which it is observed that the Court can take notice of conduct of parties and that finding of fact by High Court that respondent did not issue cheques in discharge of any debt and discharged burden of proof cast on him under Section 139, being not perverse cannot be interfered with. In 2007 (1) MWN Cri. DCC 68 (SC) [S.Kamala v. M.J.Vidyadharan & Anr.], it is held that when findings of the acquittal by the trial court is found probable, it cannot be thrown out without any reasonings of trial court and the High Court giving reasoning as to why finding of the trial court was not probable, it is not correct in interfering with the order of acquittal. It is argued by the learned counsel for the respondent that the trial court has furnished findings for acquittal and there is no ground made out in this appeal to differ from those findings. It is well nigh settled that if two views are possible in a criminal case, the court has to adopt the view which is favourable to the accused and Appellate court should not interfere with the findings of acquittal recorded by the court below.
17. Adverting to the facts of the case in hand, the cheque Ex.A1 is dated 25.05.2004. Ex.D1 is dated 18.03.2004. Admittedly, the intervention of police is there for D1 to come to existence. The complainant has not mentioned about Exs.D1 to D4 in his complaint, i.e. to say what transpired between the parties with regard to the debt. The prompt action of the respondent in sending the Ex.D2 notice on 13.03.2004 would further probabilize the defence version. As per the view of the Hon'ble Supreme court in AIR 1961 SC 1316 in Kundan Lal Rallaram's case cited supra, the relevant evidence is with held by the complainant and Section 114 of Evidence Act enables the court to draw a presumption to the effect that if he produced, it would be unfavorable to the complainant and that this presumption raised to the court can, in certain circumstances rebut the presumption of law raised under Section 118 of the Negotiable Instruments Act.
18. In the present case also, a presumption is drawn by this court on the non-production of Exs.D1, D2 and D4 by the complainant and this Court is also of the view that if they were produced, it would come to light that the cheques were obtained in the police station and this presumption is enough to rebut the presumption under Section 118 of the Negotiable Instruments Act. It is also to be mentioned herein that even though the respondent has not examined himself and other witnesses, he has produced Exs.D1, D2 and D4 which are admitted documents by means of which it is seen that the cheques were obtained through intervention of police. Hence, no reliance could be placed upon by this Court on the genuineness of the case of the complainant. In these circumstances, this court is of the firm opinion that Ex.A1 is not supported by consideration and there is no legally enforceable debt existing between the parties and the respondent has rebutted statutory presumption cast upon him. I answer point No.1 in the negative and point Nos.2 and 3 in the affirmative.
19. In the light of the observations recorded under the foregoing points, this court concludes that there is no legally enforceable debt and the statutory presumption has been properly rebutted by the respondent. Hence, this court does not find any finding which are perverse in the judgment of the court below which are on the basis of proper appreciation of merits of the case. The judgment of acquittal needs no interference which deserves to be confirmed and it is accordingly confirmed. The appeal has to fail.
20. In the result, the Criminal Appeal is dismissed.
17.07.2012 Internet : Yes Index : Yes rgr To The Judicial Magistrate, Alandur. S.PALANIVELU, J. rgr Judgment in Criminal Appeal No.235 of 2005 17.07.2012