Madras High Court
- vs - on 30 June, 2023
Crl.A.No.243 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 19.06.2023
PRONOUNCED ON : 30.06.2023
CORAM :
THE HONOURABLE MR.JUSTICE RMT. TEEKAA RAMAN
CRL.A.No.243 of 2016
Vytla Veeranna Chowdary ... Complainant
-Vs-
Mattaparthi Venkateswara Rao ... Respondent
PRAYER: Criminal Appeal is filed under Section 374 of Criminal
Procedure Code, praying to call for the records in STC No.370 of 2013
dated 09.12.2015 of the learned Judicial Magistrate Court, Yanam and set
aside the order of acquittal.
For Appellant : Mr.S.Ruban Prabu
For Respondent : Mrs.S.S.Jhothivani
JUDGMENT
This appeal is against the order of aquittal. This case arises under private complaint initiated otherwise than on police report. Page 1 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.243 of 2016
2. The unsuccessful complainant is the appellant herein, who filed a complaint under Section 200 of Cr.P.C for the alleged offence under Section 138 of Negotiable Instruments Act, by the accused.
3. The brief facts of the case is that the accused had borrowed a sum of Rs.3,00,000/- from the complainant on 09.09.2011 and has issued the cheque dated 27.02.2013 bearing No.026521 drawn on Indian bank, Yanam for Rs.2,60,000/-. The cheque when presented for collection was returned for want of sufficient funds. Therefore, the complainant has issued a notice on 13.03.2013, calling upon the accused to pay the cheque amount within 15 days. As the accused did not pay the cheque amount as demanded, the present complaint has been filed against him for an offence under Section 138 of the Negotiable Instruments Act. After observing the formalities the case is taken on file.
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4. (a) The case of the complainant both in the complaint as well as in the witness box as PW1 is that the accused approached him to advance a sum of Rs.3,00,000/- to meet his family expenses. He has agreed to repay the amount with interest at the rate of 24% per annum. Therefore, the complainant has advanced a sum of Rs.3,00,000/- as loan on 09.09.2011. The Accused has executed a Promissory Note-Ex.P1, agreeing to repay the principal amount of Rs.3,00,000/- together with interest at the rate of 24% per annum. After repeated demands, the accused has issued Ex.P2 the cheque bearing No.026521 dated 27.02.2013, drawn on Indian Bank, Yanam for Rs.2,60,000/- as part payment of the above debt. The complainant presented the cheque through Andhra Bank, Yanam. It was returned unpaid for want of sufficient funds. The Return Memo of Indian Bank is Ex.P3. It was given to the complainant by his banker Andhra Bank, Yanam on 13.03.2013 along with Ex.P4 another Memo.
(b) Thereafter the complainant has issued Ex.P5 Statutory Notice on Page 3 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.243 of 2016 13.03.2013, demanding the accused to pay the cheque amount with the stipulated period. Having received the notice under Ex.P6, the Acknowledgment Card, the accused without repaying the amount has issued a Reply Notice under Ex.P7. Therefore, the complainant alleges that the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act.
5. The accused has not adduced any oral or documentary evidence. The trial Court has held that the complainant has not proved the financial capacity to lend Rs.3 Lakhs and accordingly, acquitted the accused and hence, the appeal.
6. The learned counsel for the appellant/complainant could contend that the trial Court has not considered the statutory presumption for which the appellant/complainant is entitled to and wrongly cast the burden upon the appellant to prove the case.
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7. Heard the learned counsel for the respondent/accused.
8. After perusing Ex.P1-Promissory note, Ex.P2-Cheque, Ex.P3- Return Memo of Indian Bank, Yanam, Ex.P4-Return Memo of Andhra Bank, Yanam, Ex.P5 and Ex.P6 - Statutory notice and acknowledgement respectively and Ex.P7-Reply notice, I find that the cheque and the signature in the cheque is admitted by the accused.
9. In the reply statement, the accused has categorically stated as follows:
“..... he did not borrowed any amount from your client at any time. One Singavarapu Gangabhavani W/o. Satyanarayana R/o. Pydikondala Street, Yanam, approached your client for money and then your client insisted Singavarapu Gangabhavani to bring one Government Employee as a surety with empty cheque. Then the said Singavarapu Gangabhavani asked my client to stand as a surety to her, as my client knows Gangabhavani. At that instance your client obtained the signature of my client on an empty promissory note and also unfilled cheque. The said Gangabhavani regularly paying the interest to your client each and every month at the rate of Rs.6/- per hundred per month and she has also subsequently taken the some more amounts from your client which nearly Page 5 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.243 of 2016 comes presently an amount of Rs.38,000/-. Since four months, the said Gangabhavani is not paying the interests to your client due to lost of her job in 'RIGMA' company, Yanam. In order to recover the said amount, your client illegally got issued notice through you even though my client did not borrow any amount from your client.”
10.(a) In short, it is the specific stand of the accused that he did not borrow any amount from the complainant. One Singavarapu Gangabhavani, has borrowed the amount from the complainant and as he was a government employee, has stood as guarantor and at that time he had given the unfilled and empty cheque and the same was misused to file the complaint.
(b) Since the accused has admitted the signature and as well as the cheque, the complainant is entitled to presumption under Section 139 of the Negotiable Instruments Act and therefore, the burden is shifted on the accused to prove his probable defence in accordance with law.
11. In this regard, it remains to be stated that it is sufficient if the accused is able to show existence of a probable defence or the existence of Page 6 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.243 of 2016 preponderance of probabilities in his favour. If the accused is able to show that existence of such a probability then the burden will shift on to the complainant again. Therefore, in a case of such nature, the burden of proof is not static. It is like a pendulum. It will shift from the complainant on the accused, if the complainant shows the prima facie case. It will again shift on to the complainant, if the accused is able to show a probable defence or the existence of preponderance of probability either in his favour or against the case of the complainant. In such circumstances, the onus will be on the complainant to prove the offence beyond doubt.
12. In the various decisions of the Hon'ble Supreme Court, time and again it is stated that it is not necessary for the accused to get into witness box to show the existence of preponderance of probability. It was held that the accused is at liberty to show it either through the evidence of other witnesses or even through answers that he brings out through the cross- examination of PW1 i.e. the complainant. Therefore, the accused is provided with privilege of not getting into the witness box to depose in a Page 7 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.243 of 2016 Court of Law, in which he is charged with criminal offence.
13. In the instant case, a specific stand has been taken by the accused that through Ex.P7-Statutory notice dated 18.03.2013 he has not borrowed any amount from the complainant and he stood as a guarantor for one Singavarapu Gangabhavani and at the instance of the complainant, he gave the blank cheque signed by him. In short, he has totally denied any contractual relationship between the parties and besides during the cross examination of PW1 a specific question has been put to the financial capacity to advance such amount i.e. Rs.3 lakhs.
14. At this juncture, it is pertinent to note that the admissions made by PW1 regarding his financial capacity are as under:-
“In order to prove the same, he has cross examined PW1 on his financial capacity to advance such amount to him. During the cross- examination, PW1 has deposed as “I am managing my family with a rent of Rs.2,000/- by leasing out my house. I am holding red Ration Card, which is issued for below poverty line”. It is true that I have constructed my house in the site given by government under LGR Patta. It is true that Page 8 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.243 of 2016 LGR Patta will be issued to the landless poor and red ration card to below poverty line people.”
15. Thus, the trial Court has rightly come to the conclusion that with a meagre amount as the rent by the complainant, it is unimaginable that he could lend Rs.3 Lakhs amount. Admittedly, he is not paying any income tax. It remains to be stated that during the cross examination, he also admitted that prior to the alleged occurrence, he has not lent any money to the accused and he is only an employee at Government Guest House. No valid evidence to show that the accused has got source to pay that amount, especially when the financial capacity of the complainant has been specifically challenged by the accused during the cross examination.
16.(a) Admittedly, the accused is stated to be working as a sweeper in the Government Guest Hose and hence, the trial Court based upon admissions made by the PW1 during the cross examination has rightly come to the conclusion that the complainant/appellant did not have financial capacity to pay Rs.3 lakhs and he is living in a place given by the Page 9 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.243 of 2016 Government in LRG patta and LGR patta in the Union Territory of Pondicherry has been given to the landless poor besides he is holding a red ration card and it would show that he is a person living below the poverty line and hence, has rightly come to the conclusion that based upon the answers elicited in the cross examination of PW1 as extracted supra, the defence has successfully demonstrated that the appellant/complainant does not possess financial capacity to lend Rs.3 Lakhs and even after the cross examination as stated supra, the PW1 has not recalled himself and re- examined to prove any such financial capacity.
(b) Consequently, the trial Court has rightly held that the accused has successfully discharged his onus of proof as scheduled and then it is passed on back to the complainant to prove the preponderance of probability. However, in view of the admissions made by PW1 during the cross examination, the trial Court has rightly come to the conclusion that he has no means to advance Rs.3 Lakhs and such a finding rendered by the trial court does not suffer from any illegality or irregularity, warranting Page 10 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.243 of 2016 interference of this Court at this appellate stage in exercise of powers under Section 378 of Criminal Procedure Code. This Court has also taken note of the scope of the appellate Court under Section 378 of Criminal Procedure Code, as to the appeal against the order of acquittal.
17. Accordingly, the Criminal appeal is devoid of merits and hence, dismissed. The judgment of acquittal passed in S.C.No.370 of 2013 dated 09.12.2015 on the file of the learned Judicial Magistrate Court, Yanam, is confirmed.
30.06.2023 Index: Yes / No Speaking/Non-Speaking order Neutral Citation: Yes/No. ars Page 11 of 12 https://www.mhc.tn.gov.in/judis Crl.A.No.243 of 2016 RMT. TEEKAA RAMAN, J.
ars To
1. The Judicial Magistrate Court, Yanam.
2.The Public Prosecutor, High Court, Madras.
Pre-delivery Judgment made in CRL.A.No.243 of 2016 30.06.2023 Page 12 of 12 https://www.mhc.tn.gov.in/judis