Madras High Court
V. Sridhar vs / on 15 December, 2017
Author: R. Hemalatha
Bench: R.Hemalatha
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.12.2017
CORAM :
THE HON'BLE MRS.JUSTICE R.HEMALATHA
Crl. A. No. 637 of 2007
V. Sridhar .. Appellant
/Vs/
A.Ganesan .. Respondent
This is a criminal Appeal filed under Section 378 of the Code of Criminal Procedure as against the Order of acquittal dated 26.06.2007 passed in C.C.No.450 of 2006 on the file of the learned Judicial Magistrate-II, Erode.
For Appellant : M/s.N.Manokaran
For Respondent : M/s.R.N.Amarnath
JUDGMENT
The appellant/complainant had filed a private complaint U/s 200 of the Code of Criminal Procedure against the accused A.Ganesan S/o.Angamuthu before the learned Judicial Magistrate-II, Erode for the alleged offences punishable U/s 138 and 142 of Negotiable Instruments Act.
2. The respondent/accused borrowed a sum of Rs.3 lakhs (Rupees Three Lakhs Only) from the appellant/complainant and promised to repay the same with interest at 12% p.a., within one month. He also issued a post dated cheque bearing no.398044 drawn on Canara Bank, Sakthi Nagar Branch, Erode. The said cheque was dated 07.05.2004. The appellant/complainant presented the cheque (Ex.P.1) through his bankers namely U.T.I Bank, Erode for encashment and the same was returned unpaid for the reason insufficient funds as evidenced by the cheque return memo (Ex.P.2). Thereafter the appellant/complainant issued a statutory notice dated 15.05.2004 to the respondent/accused, a copy of which is marked as Ex.P.3. The said notice was returned as ''not claimed'' as evidenced by the returned postal cover (Ex.P.4). The appellant/complainant therefore filed a complaint in C.C.No.450/2006 before the learned Judicial Magistrate-II, Erode.
3. After full contest, the learned Judicial Magistrate-II, Erode dismissed the complaint and acquitted the respondent/accused U/s 255(1) of the Code of Criminal Procedure. Aggrieved by which the appellant/complainant has filed this appeal U/s 378 of the Code of Criminal Procedure, on the following grounds:
1.When the execution of the cheque has not been denied by the respondent/accused, the trial Court went wrong in accepting the case of the respondent/accused especially when the respondent/accused has not rebutted the presumption U/s 118 and 139 of Negotiable Instruments Act.
2.The trial Court has committed an error in disbelieving the case of the appellant/complainant.
4. The point for consideration is whether the Order of acquittal passed by the learned Judicial Magistrate-II, Erode is liable to be setaside?.
5. In the trial Court the appellant/complainant examined himself and marked Ex.P.1 to Ex.P.4. The respondent examined three witnesses and marked Ex.R.1 to Ex.R.4.
6. A similar case was filed before the learned Judicial Magistrate-II, Erode against the same accused by one N. Senthilkumar in C.C.No.467/2004 for an offence punishable U/s 138 of the Negotiable Instruments Act. The said complaint was also dismissed by the learned Judicial Magistrate-II, Erode and aggrieved by the said Judgment the appellant/complainant has filed an appeal in C.A.No.636 of 2007 before this Court. In the instant case as well as in C.C.No.467/2004, the respondent/accused had issued two cheques bearing no.398044 dated 04.04.2004 and 398045 dated 03.04.2004. Both the cheques got presented on 07.05.2004.
7. The basis for the conclusion arrived at by the learned Judicial Magistrate-II, Erode is the contention of the respondent/accused that there was no such liability towards the appellant/complainant and that the cheque (Ex.P.1) was indeed given to one Mr.Muthusamy for consideration of Rs.40,000/-(Rupees Forty Thousand Only) received from him. The learned Judicial Magistrate-II, Erode has further elaborated on the fact that the cheques were bearing printed serial numbers namely 398044 and 398055 and both the cheques also had similar amounts of Rs.3 lakhs written on them. The learned Judicial Magistrate-II, Erode intended to believe the two cheques bearing 398044 and 398045 had dates 04.04.2004 and 03.04.2004 which defies logic and smacks of mischief. She has also questioned the credit worthiness of the appellants/complainants and had found that both of them do not have any capacity to lend such a huge sum of Rs.3 lakhs. The learned trial Judge had also concluded that the presumption in favour of the complainant U/s 139 of Negotiable Instruments Act has been rebutted by the accused satisfactorily.
8. The learned counsel for the respondent/accused relied on the following decisions,
1. R.D. Venkatesh Vs. D.M.Ariyappan reported in 2017 (3) MWN (Crl.)DCC 157 (Mad.).
2. Pandurangan Vs. Sivakami, reported in 2017 (2) MWN (Cr.) DCC 113 (Mad.).
3. S. Arumugam Vs.Srinivasan, reported in 2017(3) MWN (Cr.) DCC 89 (Mad.) and contented,
(a). the appellant/complainant had not proved his case by adducing acceptable oral/documentary evidence that there was a legally enforceable debt,
(b) The passing of consideration has not been proved by the appellant/complainant,
(c) The respondent/accused has not issued the cheque in favour of the appellant/complainant, but issued the cheque in favour of one Muthusamy,
(d). The complainant in C.C.No.450/2006 (present appellant) was a lorry owner having four lorries but all of them are under hire purchase agreement and the appellant/complainant in C.C.No.467/2004(appellant in Cr.A.No.636/2007) though was an income tax assessee did not show the loan amount lent by him in the income tax returns and therefore they had no capacity to lend such a huge sum of Rs.3 lakhs.
9. It is settled law that the standard of proof required on the part of an accused is preponderance of probabilities. As far as the 1st decision is concerned the accused in that case has adduced evidence to rebut the presumption and in the 2nd decision it was found that giving a hand loan of Rs.10 lakhs without interest was found to be unnatural and that the complainant also did not produce any records to show as to how she mobilised the funds. In the 3rd decision cited above it was found that the complainant could not explain the rate of interest and had not also proved his wherewithall to lend a sum of Rs.60,000/-.
10. At this juncture, it is relevant to point out that the very object of the provisions of Sections 138 to 142 of the Negotiable Instruments Act was intented to curb the misuse of the cheques without having sufficient balance. The presumption in favour of the complainant was due to the fact that the cheques were issued mindlessly and indiscriminately. However, many instances of exploitation of the provisions by private money lenders were also brought to light and this resulted in amendments and various rulings on many aspects of the applicability of the provisions of the Act. The learned counsel for the appellant/complainant relied on the decision in P.Pandiyarajan Vs. Parkunan reported in CDJ 2015 MHC 946 and contented that merely because the appellant/complainant has not filed the incometax returns his entire case cannot be thrown out. In the above Judgment, it is pointed out that in the event of any concealment of income, it is for the appropriate department to take action and simply because, the advancement of loan in favour of the repondent/accused did not reflect in the incometax returns it does not mean that no such amount was advanced to the respondent/accused. The learned counsel for the appellant/complainant would contend that the above said citation would squarely apply to the facts of the present case.
11. A careful scrutiny of the entire evidence on record shows that the respondent/accused did not dispute his signature on the cheque Ex.P.1. His only contention is that he issued the cheque to one Mr.Muthusamy and the present complainant in collusion with the said Muthusamy had filed the complaint against him U/s 138 of the Negotiable Instruments Act. It is pertinent to mention that the respondent/accused did not examine the said Muthusamy to prove his contention. However an attempt has been made by him to show that on the date of issuance of the cheques he was present throughout the day in the college in which he is working as a lecturer by examining Tr.Palanisamy (R.W.2) who is his collegue. The attendance particulars had also been marked as Ex.R.2. This contention of the respondent/accused cannot be accepted. Further more the respondent/accused had returned the notice (Ex.P.3) issued by the appellant/complainant. The endorsement on the returned cover Ex.P.4 shows that the respondent/accused had not claimed the cover containing the notice. The appellant/complainant had examined Tr.Nandagopal, the Postman and he has clearly deposed that he gave intimation to the addressee. Therefore it is clear that the respondent/accused had purposely evaded the service of notice on him. Now he contends that he issued the cheque in favour of one Muthusamy and the appellant/complainant had misused the cheque. It is relevant to point out that the respondent/accused did not initiate any action against the said Muthusamy till date. If really the respondent/accused had issued a cheque in favour of Muthusamy and the same was misused by the appellant/complainant, he would not have kept quiet. The conduct of the respondent/accused speaks volumes. A mere statement that the said Muthusamy colluded with the complainant does not carry any credibility in the absence of sufficient proof. In fact the contention of the respondent/accused that the cheque book containing the two leaves were issued to him as early as in the year 1999 and therefore could not have been issued by him in April 2004 was trashed by the trial Court. That the two cheques were bearing serial numbers one after the other, and that the dates were the other way around etc., do not arouse any suspicion to the extent that it assists the respondent/accused to over ride the presumption factor. Further more the respondent/accused had admitted his signature on the cheque Ex.P.1.
12. The trial Court is completely wrong in shifting the burden of proof on the appellant/complainant in the facts and circumstances of the present case. In the instant case, the appellant/complainant is able to establish that the cheque was given to him by the respondent for a legally enforceable debt and the respondent has not rebutted the presumption which is in favour of the complainant and thus has failed to discharge his obligation. In the legal notice also there is a specific mention about the amount due to the appellant/complainant and the respondent/accused had even gone to the extent of evading service of notice on him. The trial Court is therefore wrong in acquitting the accused U/s 255(1) of the Code of Criminal Procedure and warrants interference by this Court.
13. In the result,
(i) Crl.A.No.637 of 2007 is allowed.
(ii) The respondent/accused is directed to appear before this Court on 20.12.2017, since he has to be questioned with regard to the sentence to be imposed on him.
15.12.2017 R. HEMALATHA, J.
ksa
Speaking/Non speaking order
Index : Yes/No
Internet : Yes/No
ksa
To
1. The Judicial Magistrate-II, Erode.
2. The Principal District Judge, Erode.
3. The Public Prosecutor, Madras High Court, Chennai.
Crl. A. No. 637 of 2007
Crl.A.Nos. 636 and 637 of 2007
R.HEMALATHA, J.
The matter is being listed under the caption 'for being mentioned' at the instance of the learned counsel for the respondent.
2. Heard Mr.N.Manokaran, learned counsel appearing for the appellant and Mr.R.N. Amarnath, learned counsel appearing for the respondent through video conference.
3. It is submitted by the learned counsel appearing for the respondent/accused that by order dated 15.12.2017 in Crl.A.Nos.636 & 637 of 2008 was allowed and the respondent was directed to appear before this Court on 20.12.2017, since he has to be questioned with regard to the sentence to be imposed on him.
4. However, it is now represented by the learned counsel appearing for the respondent is dead and the death extract is also filed by the learned counsel appearing for the respondent. Since the accused/respondent is dead, the Criminal Appeals are closed as abated.
14.02.2018 rmi R.HEMALATHA, J.
ksa Crl.A.Nos.636 & 637 of 2007 14.02.2018 Crl.A.Nos. 636 and 637 of 2007 R.HEMALATHA, J.
The matter is being listed under the caption 'for being mentioned' at the instance of the learned counsel for the respondent.
2. Heard Mr.N.Manokaran, learned counsel appearing for the appellant and Mr.R.N. Amarnath, learned counsel appearing for the respondent through video conference.
3. It is submitted by the learned counsel appearing for the respondent/accused that by order dated 15.12.2017 in Crl.A.Nos.636 & 637 of 2008 was allowed and the respondent was directed to appear before this Court on 20.12.2017, since he has to be questioned with regard to the sentence to be imposed on him.
4. However, it is now represented by the learned counsel appearing for the respondent is dead and the death extract is also filed by the learned counsel appearing for the respondent. Since the accused/respondent is dead, the Criminal Appeals are closed as abated.
14.02.2018 rmi R.HEMALATHA, J.
ksa Crl.A.Nos.636 & 637 of 2007 14.02.2018