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2004 DIGILAW 1711 (MAD)

K. Badrinarayanan v. S. S. Ravikumaran

2004-12-15

R.BANUMATHI

body2004
Judgment :- Appellant is the Complainant in C.C.No.881 of 1993 on the file of Judicial Magistrate Court, Ambattur. By the Judgment dated 05.01.1998, learned Judicial Magistrate, Ambattur has acquitted the Respondent / Accused of the offence punishable under Sec.138 Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I.Act”). Aggrieved over the order of Acquittal, the Appellant / Complainant has preferred this Appeal. 2. Case of the Complainant is that the Accused has borrowed a sum of Rs.1,00,000/- from the Complainant on 31.08.1992 for doing his business and Raw Silk and Handloom and promising to repay the said amount along with interest at the rate of 18% per annum. The Complainant was demanding for early repayment of the Cheque amount. Towards discharge of the Cheque amount, the Accused had issued Ex.P.1 – Cheque No.M.411558 drawn on Kancheepuram Central Co-operative Bank Ltd., at Kancheepuram for Rs.1,00,000/-. Ex.P.1-Cheque was presented for collection in Indian Bank, Korattur Branch – Banker of the Complainant on 15.07.1993. Ex.P.1-Cheque is returned on 21.07.1993 with endorsement “Insufficient Funds”. Thereafter, the Complainant issued Ex.P.4-Legal Notice to the Respondent / Accused on 30.07.1993. The Respondent / Accused received the Notice on 02.08.1993; but has not repaid the amount even after the receipt of the Notice. Hence, the Complainant has filed the Complaint against the Accused under Sec.138 N.I.Act. 3. In the Trial Court, the Complainant has examined himself as P.W.1, Banker of the Accused – Manager, Kancheepuram Central Co-operative Bank, Kancheepuram Branch was examined as P.W.2, Banker of the Complainant – Manager, Indian Bank, Korattur Branch was examined as P.W.3. Exs.P.1 to P.9 were marked. The Respondent / Accused was questioned under Sec.313 Crl.P.C against the incriminating evidence. Denying all of them, the Accused had stated that he had already issued stop payment even in the month of May 1993 and that no amount is payable by him. 4. In consideration of the evidence adduced by the Appellant / Complainant and the submissions of both sides, learned Trial Magistrate has pointed out that the Accused had already stopped the payment in May 1993. Pointing out that Ex.P.2-Bank Memo was returned for two reasons viz., (i) Payment stopped by the Drawer; (ii)Insufficiency of Funds; learned Trial Magistrate found that the same has not been correctly set forth in the Complaint or in the evidence of P.W.1. Pointing out that Ex.P.2-Bank Memo was returned for two reasons viz., (i) Payment stopped by the Drawer; (ii)Insufficiency of Funds; learned Trial Magistrate found that the same has not been correctly set forth in the Complaint or in the evidence of P.W.1. Finding that the Complainant has not set forth the correct details and his evidence suffers from serious infirmity of suppression of material facts, learned Trial Magistrate, giving benefit of doubt to the Respondent / Accused, has acquitted him. 5. Assailing the findings and the reasonings of Acquittal, learned counsel for the Appellant / Complainant has submitted that the Trial Court erred in giving benefit of doubt to the Respondent / Accused. The approach adopted by the Trial Court is attacked contending that the Trial Magistrate has based the finding merely pointing out the suggestions made by the defence for Acquittal. Learned counsel for the Appellant further contending that the materials placed for establishing insufficiency of funds was not properly appreciated by the learned Trial Magistrate, prays for reversal of the order of Acquittal. 6. The matter was posted for hearing on 14.12.2004. There was no representation onbehalf of the Respondent / Accused. Hence, the matter was adjourned to today (15.12.2004). Even today, there is no representation for the Respondent / Accused. However, the contentions urged onbehalf of the Respondent / Accused before the Trial Court have been taken into consideration to appreciate the contentious points urged by the Appellant / Complainant. 7. In consideration of the points urged by the Appellant / Complainant, two points arise for determination in this Appeal:- (i) Whether the Trial Magistrate was right in acquitting the Respondent / Accused on the ground that the Complainant has not placed the correct particulars before the Court ? (ii) Whether the Order of Acquittal suffers from any infirmity warranting interference? 8. Certain dates are relevant to be noted:- Advancement of Loan ..... 31.08.1992 Cheque dated ..... 30.01.1993 Cheque presented on ..... 15.07.1993 Stop payment directive given by the Accused on ..... 03.05.1993 Cheque Dishonoured for two } reasons viz., Stop payment } and Insufficiency of funds } ..... 21.07.1993 When the Respondent / Accused had issued the Stop Payment directive on 03.05.1993 itself, it is quite unbelievable that he would have further instructed the Appellant / Complainant to present the Cheque in the month of July 1993. 03.05.1993 Cheque Dishonoured for two } reasons viz., Stop payment } and Insufficiency of funds } ..... 21.07.1993 When the Respondent / Accused had issued the Stop Payment directive on 03.05.1993 itself, it is quite unbelievable that he would have further instructed the Appellant / Complainant to present the Cheque in the month of July 1993. The Appellant / Complainant has not set forth the correct facts and particulars which led to the presentation of the Cheque in July 1993. 9. The Respondent / Accused is doing business in Raw Silk. Rs.1,00,000/- was advanced to the Respondent / Accused in connection with his business on 31.08.1992. When the Complainant was insisting for repayment of the money, the Accused is said to have issued Ex.P.1-Cheque dated 30.01.1993. That Cheque was presented for collection on 15.07.1993. In this connection, it is also relevant to point out the contention of the Accused that the money transaction is between the Accused and the Uncle of the Complainant. When such defence has been put forth by the Respondent / Accused, nothing prevented the Appellant / Complainant from examining his Uncle and explaining the same. To attract the penal provision of Sec.138 N.I.Act, the Complainant is to prove the subsisting legally enforceable debt or liability. Excepting Ex.P.1-Cheque and evidence of P.W.1, no other evidence is adduced to prove the subsisting liability. When the Respondent / Accused has issued the directive to stop payment on 03.05.1993, serious doubts arise regarding the subsisting liability in the month of July 1993. 10. To establish the insufficiency of funds, onbehalf of the Complainant, Bank Manager of the Kancheepuram Central Co-operative Bank, Kancheepuram Branch was examined as P.W.2. P.W.2 has stated that the Respondent / Accused is having bank account in their Bank in Account No.3588. Statement of Accounts is marked through him as Ex.P.6. From the evidence of P.W.2 and from Ex.P.6, it comes to be known that when the Cheque was issued by the Accused i.e. on 30.01.1993, the Bank balance was Rs.21,335/- (Vide Ex.P.6). On the date of Stop Payment i.e. on 03.05.1999, the balance was Rs.359.80. Statement of Accounts is marked through him as Ex.P.6. From the evidence of P.W.2 and from Ex.P.6, it comes to be known that when the Cheque was issued by the Accused i.e. on 30.01.1993, the Bank balance was Rs.21,335/- (Vide Ex.P.6). On the date of Stop Payment i.e. on 03.05.1999, the balance was Rs.359.80. Learned counsel for the Appellant / Complainant has contended that the Accused was not having the bank balance either on the date of giving the Cheque or on the date of stop payment direction or on the date of dishonour of the Cheque and the learned Trial Magistrate ought to have taken note of the same and found the Accused guilty under Sec.138 N.I.Act. 11. It may be that the Respondent / Accused was having no sufficient funds in his account, but he had issued directive for stop payment even on 03.05.1993. The Cheque was returned under Ex.P.2-Memo for two reasons viz., (i) Insufficiency of funds; (ii)Directive to stop payment. But, the entire Complaint and the evidence of the Complainant proceeds on the footing that the Cheque was returned only on the ground of insufficiency of funds. Absolutely there is no mention about the stop payment. When the Complainant was confronted about the same, he has not properly explained the reason for omitting the ground for return of the Cheque viz., stop payment issued by the Accused. Learned Trial Magistrate was right in giving the benefit of doubt to the Respondent / Accused on the ground that the Complainant has not placed the correct facts and particulars before the Court. That finding does not suffer from any serious or substantial error warranting interference. 12. This is an Appeal against the Order of Acquittal. In an Appeal against the Order of Acquittal, unless the findings of the Trial Court are palpably erroneous, demonstrably unsustainable, the High Court would be slow to interfere. The finding of the Trial Magistrate that the Complainant has not proved the subsisting liability payable does not suffer from any infirmity warranting interference. This Appeal is bound to fail. 13. C.A.No.292 of 1998 :- For the reasons stated above, this Appeal is dismissed.