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2006 DIGILAW 463 (MAD)

Sadasivam v. S. Chitralekha

2006-02-22

S.SARDAR ZACKRIA HUSSAIN

body2006
Judgment :- (Criminal Appeal filed under Section 378(4) of Criminal Procedure Code against the judgment of acquittal dated 21.11.1995 passed in C.C.No.281 of 1995 on the file of the Judicial Magistrate No.II Court, Erode.) This appeal against the acquittal of the respondent/accused is filed by the complainant. The complainant filed private complaint before the Judicial Magistrate No.II, Erode, which is taken on file in C.C.No.281 of 1995 under Section 138 of Negotiable Instruments Act. 2. The facts, as per the private complaint, are that the accused borrowed sum of Rs.50,000/- by way of hand-loan from the complainant on 24.8.1994 and issued the post dated cheque of the date 24.9.1994 as per Ex.P-1. The cheque, when it was presented for collection, was returned twice as "funds insufficient" and lastly as "refer to drawer" on 29.3.1995. The complainant caused statutory notice Ex.P-6 dated 4.4.1995, which was replied by the accused under Ex.P-8 dated 7.4.1995 denying the claim of the complainant about the hand-loan and issuance of the cheque for the said loan by the accused and stating that the said cheque was issued only by way of security towards the dealings, the husband of the accused had with the complainant and specifically it is denied in the reply notice that there was liability of Rs.50,000/- by the husband of the accused and for that purpose, the cheque Ex.P-1 was issued which made the complainant to file the said case. 3. In order to establish the guilt of the accused, the complainant examined himself as P.W.1 and Exs.P-1 to P-14 and as against such evidence let in on the side of the prosecution, the accused though not examined any oral evidence, marked Exs.D-1 to D4. 4. The Trial Court while refusing to accept the case of the complainant and recording finding that the accused had discharged the burden that the cheque Ex.P-1 was issued by the accused for the hand-loan of Rs.50,000/- and further accepting the case of the accused that the cheque was issued only by way of security towards the dealings, the husband of the accused had with the complainant, acquitted the accused as no case is made out under Section 138 of Negotiable Instruments Act. The order is under challenge in this appeal by the complainant. 5. Heard the learned counsel for the appellant and the learned counsel for the respondent. 6. The order is under challenge in this appeal by the complainant. 5. Heard the learned counsel for the appellant and the learned counsel for the respondent. 6. Learned counsel for the appellant submitted that since in the reply notice Ex.P-8 dated 7.4.1995 the accused admitted that she issued Ex.P-1 in favour of the complainant, it is to be presumed under Section 138 of the Negotiable Instruments Act that for the debt towards the hand-loan of Rs.50,000/- received from the complainant, the accused issued the said cheque. It is further submitted that the transaction, the husband of the accused had with the complainant, is different to the hand-loan of Rs.50,000/- availed by the accused for issuing the cheque Ex.P-1 and inasmuch as the cheque when presented for collection was returned twice as "funds insufficient" and lastly as "refer to drawer", the offence under Section 138 of Negotiable Instruments Act is clearly attracted and as such, the finding of the trial Court is being erroneous and perverse, the same is to be set aside. 7. The learned counsel for the respondent/accused by referring to Exs.D-1 to D-4 and more particularly, the reply notice Ex.P-8 dated 7.4.1995, contended that inasmuch as it was made clear under Ex.P-8 that towards the amount of Rs.3,70,000/- payable to the complainant by the husband of the accused, sum of Rs.3,20,000/- was paid by way of demand draft and out of the balance of Rs.50,000/-, Rs.43,000/- was sent as detailed in Exs.D-3 and D-4 and there was further balance of amount payable to the complainant is only Rs.7,000/- and though she requested to return the post-dated cheque, the complainant with ulterior motive presented the same to the bank and therefore, it is further submitted that only towards sum of Rs.50,000/- towards the dealings, the husband of the accused had with the complainant, the cheque Ex.P-1 was issued by the accused by way of security and at the time of the issuance of cheque, no debt or liability incurred by the accused and payable to the complainant and therefore, no presumption can be drawn under Section 139 of the Negotiable Instruments Act that merely because Ex.P-1 cheque was issued by the accused, the accused received the amount noted in the cheque. 8. 8. It is the definite case of the accused that she did not borrow any amount much-less hand-loan of Rs.50,000/- from the complainant and further it is her case that because of her husband had dealings with the complainant, she issued cheque Ex.P-1 for Rs.50,000/- by way of security though there was no debt or liability by her to the complainant. 9. According to the complainant, only towards the hand-loan of Rs.50,000/- borrowed by the accused on 24.8.1994, Ex.P-1 post dated cheque of the date 24.9.1994 was issued by the accused and the said debt is different from the transaction, the husband of the accused had with the complainant as per Exs.D-1 to D-4 and Ex.P-8. 10. It is admitted by the complainant, P.W.1, in his evidence that the husband of the accused had to pay Rs.7,000/- after paying sum of Rs.3,63,000/- towards the transaction he had with him. In the notice Ex.D-1 dated 1.7.1994 by the husband of the accused, it is stated that demand draft for Rs.3,20,000/- was sent and the balance payable is Rs.50,000/-, which was acknowledged as per Ex.D-2 on the same date. As per Ex.D-3 dated 18.10.1994 sent to the complainant by the Personal Assistant of the husband of the accused, it is stated that out of Rs.50,000/-, two demand drafts for Rs.23,000/- as detailed therein were sent and further informed in the said letter that the complainant can retain the cheque given by the husband of the accused and after paying the balance amount they will get back the cheque and specifically requested not to send the cheque in bank for collection. As per Ex.D-4 dated 16.3.1995 by the Personal Assistant of the husband of the accused, it is stated that out of the balance amount of Rs.27,000/-, they sent two demand drafts for Rs.20,000/- and the balance amount of Rs.7,000/- will be paid in due course. As per Ex.P-8 dated 7.4.1995, the lawyer notice sent by the accused and Ex.P-9 dated 10.4.1995, the lawyer notice sent by the husband of the accused, it is stated that the accused did not borrow any loan by way of hand-loan much-less Rs.50,000/- on 24.8.1994 and the post dated cheque Ex.P-1 was issued only by way of security towards the dealings, the husband of the accused had with the complainant. 11. 11. Though as per letter Ex.D-1 dated 1.7.1994, the husband of the accused made it clear that only Rs.50,000/- was payable by him and further made clear as per letter Ex.D-3 dated 18.10.1994 that out of the sum of Rs.50,000/-, they are paying Rs.23,000/- by way of two demand drafts to the complainant and requested not to put the cheque in the bank for collection and to retain the cheque issued to the complainant and after paying the balance amount they will get back the cheque, it is not correct to say that the accused by receiving Rs.50,000/- as hand-loan from the complainant issued Ex.P-1 post dated cheque of the date 24.9.1994, especially when Rs.50,000/- was payable by the husband of the accused as stated in the letter Ex.D-1 dated 1.7.1994. 12. As per the evidence of P.W.1, the husband of the accused was introduced to him by one Ramakrishnan, in the year 1993. Therefore, the statement made in the notice, Ex.P-6 dated 4.4.1995 and rejoinder Ex.P-10 dated 2.5.1995 by the complainant that the accused and the complainant are family friends and so he gave Rs.50,000/- as hand-loan to the accused for which purpose she issued Ex.P-1 post dated cheque is unacceptable. 13. The complainant is not in the habit of maintaining accounts with regard to the amount lent by him, viz., Rs.3,70,000/- to the husband of the accused as well the alleged hand-loan of Rs.50,000/- paid by him to the accused on 24.8.1994 by obtaining post dated cheque Ex.P-1 and he is also not an income tax assessee. 14. The learned Judicial Magistrate No.II, Erode, considering all these aspects, had rightly recorded finding that no amount was borrowed much-less Rs.50,000/- by way of hand-loan by the accused from the complainant and also not issued the post dated chque Es.P-1 for the said purpose and Ex.P-1 cheque was issued only by way of security towards the dealings, the husband of the accused had with the complainant as borne out from Exs.D-1 to D-4 and therefore rightly recorded finding that no presumption can be drawn under Section 139 of the Negotiable Instruments Act that towards debt or liability, Ex.P-1 cheque was issued by the accused and as such, it cannot be said that the accused has committed offence within the meaning of Section 138 of the Negotiable Instruments Act. Inasmuch as such finding being not perverse or erroneous, the judgment of the acquittal of the accused does not call for any interference or require reconsideration. 15. In the result, the Criminal Appeal fails and is dismissed. The judgment of acquittal dated 21.11.1995 passed in C.C.No.281 of 1995 on the file of the Judicial Magistrate No.II Court, Erode is confirmed.