Madras High Court
J.K.Jawarappa vs Rajan on 3 August, 2012
Author: R. Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.08.2012 CORAM THE HON'BLE MS.JUSTICE R. MALA Crl.A.No.175 of 2006 J.K.Jawarappa .. Appellant Vs. Rajan .. Respondent Prayer.:- Appeal is filed under Section 378 of Cr.P.C. against the Judgment dated 11.11.2005 made in C.C.No.545 of 2003 on the file of the learned Judicial Magistrate, Udhagamandalam. For Appellant : Mr.N.Manoharan For Respondent : Mr.V.Raja Mohan - - - - - J U D G M E N T
This appeal arises out of the Judgment of acquittal dated 11.11.2005 made in C.C.No.545 of 2003 on the file of the learned Judicial Magistrate, Udhagamandalam.
2. The appellant as a complainant filed a private complaint under Section 138 of the Negotiable Instruments Act stating that the respondent / accused borrowed a sum of Rs.4,00,000/- and for repaying the same, he issued Ex.P1-cheque bearing No.106828 drawn at Canara Bank, Edakadu Village at Nilgris. The said cheque was presented for encashment on 18.06.2003 in the State Bank of Travancore, Nilgris Branch and the same was returned with Ex.P2-Return Memo dated 18.06.2003 indicating as Account Closed. In this regard, the appellant issued Ex.P3-statutory notice under Section 138 of the Negotiable Instruments Act on 30.06.2003. The said notice was received by the accused on 07.07.2003 under Ex.P4-acknowledgment card and sent Ex.P5-reply on 16.07.2003. Therefore, the accused issued cheque after knowing fully well that there is no sufficient funds to honour the cheque since his account closed, thereby, committed offence under Section 138 of the Negotiable Instruments Act.
3. The learned Magistrate, after following the procedure, framed necessary charges. Since he pleaded not guilty, the learned Magistrate, examined the complainant as P.W.1 and marked the documents as Exs.P1 to P5. Further, the incriminating evidence was also placed before the accused and the same was denied by him in toto. On the side of the accused, D.W.1-Palanisamy was examined and Exs.D1 to D13 were marked.
4. After considering the oral and documentary evidence, the learned Magistrate dismissed the complaint and acquitted the accused stating that the appellant has not proved that he lent Rs.4,00,000/- to the respondent and the cheque was issued for discharging the legally enforceable debt. Further, it was held that the ingredients of offence under Section 138 of the Negotiable Instruments Act was not proved against the accused. Aggrieved against the same, the present appeal has been preferred.
4. Challenging the Judgment of acquittal, the learned counsel for the appellant submitted that the disputed cheque was allegedly said to be issued to one Chengaliappan, who is the friend of the appellant and same had been misused by the appellant, which was proved by the respondent on filing Ex.D13-letter given by Chengaliappan. Since Chengaliappan was not examined before the Court to prove that Ex.D13-letter was given by him to the respondent, the disputed cheque was issued by the accused to the appellant for discharging the legally enforceable debt. He further submitted that when the cheque was presented for encashment, the same was returned indicating as "Account closed" resulting in making out of ingredients of offence under Section 138 of the Negotiable Instruments Act. Hence, he prayed for conviction and setting aside the Judgment of acquittal.
5. Resisting the same, the learned counsel for the respondent submitted that the respondent and his family members deposited to the tune of Rs.5,00,000/- with the appellant, who is the Managing Director of Annadhani Finance and to prove the same, the respondent filed the documents, i.e. Exs.D1 to D8. He further submitted that since the appellant had not repaid that amount to the depositors, a complaint had been preferred against him and on that basis, the appellant was arrested and the same had been published in the News Papers, which were marked as Exs.D10 and D11. He further submitted that the appellant herein has no sufficient funds to lend money to the respondent and the respondent herein had not given any cheque to the appellant. He further submitted that the disputed cheque was issued to one Chengaliappan and he is friend of the appellant. To prove Ex.D13, the Attestor of the document had examined before this Court. Hence, the trial Court is correct in holding that the appellant has not proved the ingredients of Section 138 of the Negotiable Instruments Act against the accused. Therefore, he prayed for dismissal of this appeal.
6. Considered the rival submissions made on either sides. Perused the material on record.
7. The date of disputed cheque is 19.05.2003. In the complaint, the appellant / complainant never stated that when did he lend money, but whereas, he stated that the respondent issued a cheque for Rs.4,00,000/- on 19.05.2003.
8. At this juncture, it is appropriate to consider the oral evidence of P.W.1. P.W.1, in his evidence, deposed that he lent money to the respondent on 08.01.2001. But, the date of cheque is 19.05.2003, i.e. after three years. In his Chief examination, he fairly conceded that the respondent herein and his relatives had deposited the amount with the appellant's chit funds to the tune of Rs.5,00,000/-. But, he stated that he did not know that his company had cheated the respondent's amount. On perusal of Ex.D10, the matter with regard to the cheating by the appellant's Finance Company had been published in Dinamalar Edition, Coimbatore, on 28th October 2001, wherein, it was specifically stated that the appellant was arrested and he was remanded to judicial custody. In such circumstances, it is painful to accept that he lent money on 08.01.2001 to the respondent. But, he has not filed any scrap of paper to show that on 08.01.2001, he lent Rs.4,00,000/-. Except the disputed cheque, no other documents had been filed.
9. Exs.D1 to D8 show that the respondent and his family members deposited money with the appellant's finance company and the same was not repaid by the appellant to the respondent. Therefore, it is painful to accept the version of the appellant that he lent money of Rs.4,00,000/- on 08.01.2001. Further, it is unbelievable that he issued a cheque dated 19.05.2003, i.e. Ex.P1, for discharging the time barred debt. Except Ex.P1-cheque, no supporting evidence is produced before this Court.
10. Per contra, the respondent herein examined R.W.1-Palanisamy through him Ex.D13 had been marked. Ex.D13-letter was given by Chengaliappan, wherein, it was stated that he has received interest and principle to the tune of Rs.11,000/- on 12.02.2003. Since the cheque given on 08.11.1999 bearing No.106828 was not traceable, he is ready to hand over the same as soon as he traced out the cheque. Further, it was stated that it is receipt acknowledging the receipt of Rs.11,000/-. Considering Ex.D13, it is clear that the disputed cheque, Ex.P1, had been issued by the respondent to Chengaliappan, for discharging the existing liability and the same has been proved by the respondent by way examining D.W.1-Palanisamy, one of the attestors in Ex.D13.
11. While D.W.1 was in witness box, a suggestion posed to him that Ex.D13 had been concocted and created for the purpose of this case, was denied by him. Except the above suggestion, no other cross had been made. In such circumstances, there is no reason for discarding the document of Ex.D13. But, P.W.1, in his cross examination, fairly conceded that there is no transaction between himself and Chengaliappan. He used to go to Chengaliappan Shop. He denied a suggestion that since the accused demanded money from his Finance Company, he obtained cheque from Chengaliappan and foisted a false case against the accused. So, it is appropriate to incorporate the evidence of P.W.1, which reads as follows:
"v/nf/br';fspg;gd; vd;gthplk; ve;jtpjkhd tut[ bryt[ ,y;iy/ br';fspg;gd; filf;F nghf tu gHf;fk; cz;L/ vjphp v';fs; epWtdj;jpy; ,Ue;j nfl;ljhy; jhd; br';fspg;ggd; ,lk; ,Ue;j fhnrhiy th';fp bgha; tHf;F nghl;Ls;;nsd; vd;why; rhpay;y/"
Considering the evidence of P.W.1, it is clear that Chengaliappan is known to the appellant. But, P.W.1 had not examined Chengaliappan to prove that he had not received Ex.P1-Cheque from Chengaliappan. So, I am of the view that since Ex.P1 was issued to Chengaliappan, the same was not issued to the appellant for discharging the legally existing liability. Furthermore, since the appellant who is the Managing Director of Annadhani Finance, was not able to return money to the depositors, a case had been registered against the appellant and subsequently, he was arrested and remanded to judicial custody. Therefore, the learned Magistrate held that when the appellant was not able to return the deposited amount to the depositors, how could he lent Rs.4,00,000/- to the respondent on 08.01.2001. So, the learned Magistrate has considered all the aspects in a proper prospective and came to the correct conclusion that the appellant has not proved that the cheque was issued for discharging the existing liability. Therefore, the Judgment of trial Court does not warrant any interference and the same is hereby confirmed. Accordingly, the appeal is dismissed.
In fine:
a) the appeal is dismissed.
b) the Judgment of acquittal passed by the trial Court under Section 138 of the Negotiable Instruments Act is hereby confirmed.
ogy To
1. Learned Judicial Magistrate, Udhagamandalam