Madras High Court
V.Ponkasamuthu vs M.Aathimuthu on 23 January, 2009
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/01/2009 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM Crl.A.No.586 of 1999 V.Ponkasamuthu . . . Appellant/ Complainant Vs. M.Aathimuthu . . . Respondent/ Accused Criminal appeal is filed under Section 378 of Cr.P.C. against the judgment dated 26.02.1999 passed in C.C.No.143 of 1996 by the Judicial Magistrate No.II, Tuticorin. !For appellant ...Mr.S.Meenakshi Sundaram ^For respondent ...Mr.R.S.Ramanathan :JUDGMENT
The judgment dated 26.02.1999 passed in Calendar Case No.143 of 1996 by the Judicial Magistrate Court No.II, Tuticorin is now under challenge.
2.The appellant herein as complainant has filed the complaint in question under Section 138 read with 142 of the Negotiable Instruments Act, 1881, wherein the present respondent has been shown as sole accused.
3.It is stated in the complaint that the accused has received a sum of Rs.1,40,000/- on 27.05.1993 and in order to discharge the same, he has given the cheque in question on 27.07.1993 in favour of the complainant and the same has been presented in the Catholic Syrian Bank Ltd., and the said Bank has returned the cheque in question stating funds insufficient. The complainant has issued a legal notice dated 13.12.1993 and the same has been received by the accused on 21.12.1993. On 30.12.1993 the accused has sent a reply notice. Since the accused has not discharged his liability, he committed offence under Section 138 read with 142 of the Negotiable Instruments Act, 1881.
4.The complaint in question has been taken on file in Calendar Case No.143 of 1996 on the file of the trial Court. On the side of the complainant, PW1 has been examined and Exs.P1 to P5 have been marked.
5.When the accused has been questioned under Section 313(1)(a) of the Code of Criminal Procedure, as respects the incriminating circumstances appearing in evidence against him, he denied his complicity in the crime. On the side of the accused, DW1 has been examined and Exs.D1 to D5 have been marked.
6.The trial Court, after perpending both the oral and documentary evidence, has found the accused not guilty under Sections 138 read with 142 of the Negotiable Instruments Act, 1881 and acquitted the accused under Section 255(1) of the Code of Criminal Procedure. Against the order of acquittal, the present criminal appeal has been filed at the instance of the complainant as appellant.
7.The nubble of the complaint is that the accused has received a sum of Rs.1,40,000/- from the complainant on 27.05.1993 and in order to discharge the debt incurred by him, he has given the cheque in question on 27.07.1993 for a sum of Rs.1,40,000/- in favour of the complainant and the same has been presented in the concerned Bank and the concerned Bank has returned the cheque in question stating funds insufficient and subsequently a legal notice has been issued to the accused and even after receipt of the same, the accused has failed to discharge his liability. Under the said circumstances, the accused has committed offence under Sections 138 read with 142 of the Negotiable Instruments Act, 1881.
8.On the side of the accused, it has been contended that he has not received the amount in question from the complainant on 27.05.1993 and the cheque in question has also not been issued by him in favour of the complainant in connection with a legally enforceable debt or other liability.
9.Before contemplating the rival submissions made by either counsel, it would be more useful to look into the provision of Section 138 of the Negotiable Instruments Act, 1881 and the same reads as follows;
"Dishonour of cheque for insufficiency, etc., of funds in the accounts.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a)the cheque has been presented to the bank within a period of six months from the date of on which it is drawn or within the period of its validity, whichever is earlier.
(b)the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and
(c)the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.- For the purpose of this section, "debt or other liability"
means a legally enforceable debt or other liability."
10.From the close reading of the provision of the said Section, it is clear that the cheque in question must be given in connection with a legally enforceable debt or other liability and for invoking the provision of the said Section, a legally enforceable debt or other liability is essential.
11.With these legal backdrops, the Court has to analyse the rival submissions made by either counsel.
12.The learned counsel appearing for the appellant/complainant has contended with great vehemence that the respondent/accused has received a sum of Rs.1,40,000/- from the complainant on 27.05.1993 and in order to discharge the debt incurred by him, he has given the cheque in question on 27.07.1993 for a sum of Rs.1,40,000/- and the same has been presented in the concerned Bank and the concerned bank has returned the cheque in question stating funds insufficient and subsequently all legal formalities have been observed, but the respondent/accused has failed to discharge his liability and therefore, he has committed offence under Sections 138 read with 142 of the Negotiable Instruments Act, 1881. The cheque in question has been marked as Ex.P1 and the memo given by the concerned Bank has been marked as Ex.P2 and a copy of legal notice has been marked as Ex.P3 and the reply notice given by the respondent/accused has been marked as Ex.P5. The trial Court without considering the contentions urged on the side of the appellant/accused has erroneously relied upon Ex.D1 and therefore, the order passed by the trial Court is totally erroneous and the same is liable to be set aside.
13.In order to repudiate the argument advanced by the learned counsel appearing for the appellant/complainant, the learned counsel appearing for the respondent/accused has also equally contended that on 27.05.1993 the respondent/accused has not received anything from the appellant/complainant and he has not given the cheque in question on 27.07.1993 and the appellant/complainant and one Raja Gopal Asari have run a finance company under the name and style of 'Siva Murugan Finance', wherein the respondent/accused has obtained Rs.1,52,000/- by way of debt and subsequently he has taken a chit on 02.11.1992 for a sum of Rs.2,00,000/-. The appellant/complainant and the said Raja Gopal Asari has deducted the debt amount of Rs.1,52,000/- and given the remaining amount to the respondent/accused and at the time of incurring the debt, he has put his signatures on blank stamp papers and undated cheques, and he has also given a xerox copy of sale deed which stands in his name and further he has also discharged the entire amount on 10.02.1993 and after some time, they approached the respondent/accused and forced him to write amounts on the blank cheques and accordingly he has filled up three cheques by putting Rs.80,000/-, Rs.60,000/- and Rs.1,40,000/- and one of the cheques has been utilished in the present case so as to initiate legal proceedings against the respondent/accused and therefore, the cheque in question has not been given in connection with a legally enforceable debt or other liability and the trial Court, after evaluating all the evidence available on record, has rightly acquitted the respondent/accused and therefore, the order of acquittal passed by the trial Court is perfectly correct and the same needs no interference.
14.On the basis of the rival submissions made by either counsel, the Court has to analyse as to whether Ex.P1, the cheque in question, has been given by the respondent/accused in favour of the appellant/ complainant in connection with a legally enforceable debt or other liability.
15.The specific contention of the appellant/complainant is that on 27.05.1993 the respondent/accused has received the said sum of Rs.1,40,000/- from him and the cheque in question has been issued on 27.07.1993 for the said sum of Rs.1,40,000/-. On the date of alleged receipt of Rs.1,40,000/- i.e., on 27.05.1993, the respondent/ accused has not executed any document. If really on 27.05.1993 the respondent/accused has received the said sum of Rs.1,40,000/- from the appellant/ complainant, definitely, some documents would have emerged in respect of the contention urged on the side of the appellant/complainant. But, no such document has come into existence. On that score alone, the Court can easily come to a conclusion that the cheque in question has not been issued in connection with a legally enforceable debt or other liability.
16.At this juncture, it would be more useful to look into Ex.D1. Ex.D1 is a copy of notice issued by the respondent/accused to the appellant/ complainant and also to one Raja Gopal Asari, wherein it has been clearly stated that both of them have run a finance company under the name and style of 'Siva Murugan Finance' and they advanced a sum of Rs.1,52,000/- to the respondent/accused and on 02.11.1992 the respondent/accused has taken a chit for a sum of Rs.2,00,000/- and in which the said amount of Rs.1,52,000/- has been deducted by them and at the time of incurring the debt, the respondent/accused has put his signatures on blank stamp papers and undated cheques and he has also given a xerox copy of sale deed which stands in his name and on 10.02.1993 he settled the entire amount due to the said finance company and after some time, the appellant/ complainant and the said Raja Gopal Asari with their henchmen have approached the respondent/accused and forced him to write amounts on the blank cheques issued by him and accordingly he has put Rs.80,000/-, Rs.60,000/- and Rs.1,40,000/- on the blank cheques. The said notice has been received by the appellant/complainant on 25.09.1993. But, to utter dismay, he has not issued any reply notice. Therefore, it is quite clear that the cheque in question has been issued on the basis of the circumstances mentioned in Ex.D1 and the same has not been issued in connection with a legally enforceable debt or other liability.
17.The learned counsel appearing for the appellant/complainant has drawn the attention of the Court to the decision reported in 1998 (2) Law Weekly Criminal 640 (V.Sampath Vs. Praveen Chandra V.Shah and another) wherein this Court has held that it is also relevant to note that Section 139 of the Negotiable Instruments Act, 1881 would provide that it shall be presumed unless the contrary is proved, that the complainant received the cheques from the accused for the discharge of any debt or other liability.
18.It is an avowed principle of law that as per Section 139 of the said Act, there shall be a presumption to the effect that the holder of a cheque received the cheque of the nature for the discharge, in whole or in part or any debt or other liability unless contrary is proved. If contrary is proved, the legal presumption available under Section 139 of the said Act, cannot be invoked in favour of holder of a cheque.
19.In the instant case, it has already been pointed out that without getting a document, the appellant/complainant would not have given Rs.1,40,000/- to the respondent/accused and further the respondent/accused has given Ex.D1 stating the real circumstances under which he has given the cheque in question and other cheques.
20.The specific case of the respondent/accused is that the appellant/complainant and one Raja Gopal Asari have run the finance company mentioned supra. But the appellant/complainant has refused the same in his evidence. In order to falsify his evidence on the side of the respondent/accused, Ex.D5 has been filed, wherein it has been clearly stated that the appellant/complainant and others have run the said finance company. Therefore, it is quite clear that in the instance case, on the side of the respondent/ accused, the requisite contrary has been clearly proved. Since the requisite contrary has been clearly proved on the side of the respondent/accused, the Court can unflinchingly come to a conclusion that the presumption available under Section 139 of the Negotiable Instruments Act, 1881 cannot be invoked in favour of the appellant/complainant. Therefore, the argument advanced by the learned counsel appearing for the appellant/complainant as well as the authority accited by him, are not suitable to the present case.
21.The learned counsel appearing for the respondent/accused has befittingly drawn the attention of the Court to the decision reported in AIR 2008 Supreme Court 278 (John K.John Vs. Tom Varghese & another) wherein the Honourable Apex has held as follows;
"The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the Court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent even was not in a position to discharge his burden to pay instalments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken."
22.The facts available in the present case are identical to the facts of the decision reported to earlier. It has already been pointed out that without getting a requisite document, the appellant/ complainant would not have paid the huge amount of Rs.1,40,000/- and that itself has paved the way for coming to a conclusion that the cheque in question viz., Ex.P1 has not been given in connection with a legally enforceable debt or other liability. It has also already been pointed out that for invoking the provision of Section 138 of Negotiable Instruments Act, 1881, a legally enforceable debt or other liability is a sine qua non. Therefore, it is quite clear that the argument advanced by the learned counsel appearing for the respondent/accused as well as the authority accited by him are suitable to the facts and circumstances of the present case.
23.The trial Court, after poring all the evidence available on record, has rightly come to the conclusion that the respondent/accused has not committed offence under Sections 138 read with 142 of the Negotiable Instruments Act, 1881. In view of the foregoing enunciation of both the factual and legal aspects, this Court has not found even a flimsy ground to make interference with the well merited judgment passed by the Court below and therefore, the present criminal appeal deserves dismissal.
24.In fine, this criminal appeal deserves dismissal and accordingly is dismissed. The judgment dated 26.02.1999 passed in Calendar Case No.143 of 1996 by the Judicial Magistrate Court No.II, Tuticorin is confirmed.
gcg To:
1.The Judicial Magistrate No.II, Tuticorin.