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2007 DIGILAW 1134 (MAD)

Radha Krishnan v. Padmakumari

2007-03-29

P.MURGESEN

body2007
Judgment :- 1. This Appeal has been filed by the complainant against the Judgment dated 09.07.2004 made in C.C.537 of 2003 by the learned Judicial Magistrate No.II, Kuzhithurai. 2. The complainants case is briefly as follows: The accused borrowed a sum of Rs.2,00,000/- from the complainant on 20.01.2003 and gave a post-dated cheque bearing No.391904 of SBT Balaramapuram dated 20.04.2003 to the complainant. When the cheque was presented for encashment through the South Indian Bank Ltd., Parasala Brnch on 21.04.2003, it was returned dis-honoured on 28.04.2003 with a memo stating that funds insufficient. Hence, the complainant sent a notice dated 01.05.2003 through his counsel by registered post to the accused calling upon him to pay the cheque amount within 15 days from the date of receipt of the notice. Though the accused received the notice, he has not sent any reply nor paid any amount. Hence, the accused has committed offence punishable under Section 138 of N.I.Act. 2. Before the trial Court, on the side of the complainant, P.Ws. 1 and 2 were examined and marked Exs.P.1 to P.8. On the side of the accused, D.Ws 1 to 4 were examined and marked Exs.D.1 to D.6. 3. On consideration of materials available on record, the learned Magistrate No.II, Kuzhithurai acquitted the accused. 4. Challenging the said judgment, the complainant has preferred the present appeal. 5. The Point for consideration is: Whether the complainant has proved his case satisfactorily? 6. The Point: The accused borrowed a sum of Rs.2,00,000/-from the complainant and on the same day, in repayment of the same, he issued a post-dated cheque dated 20.04.2003 bearing No.391904 drawn at State Bank of Travancore. When the complainant presented the cheque on 20.04.2003, it was returned with a memo and letter Exs.P.2 and P.3 stating that funds insufficient. So, the complainant sent a notice dated 29.04.2003 to the accused by registered post. Ex.P.5 is the acknowledgment card. Ex.P.6 is the copy of the current account opening form given by the accused. Ex.P.7 is the copy of the Cheque Book Register maintained in the State Bank of Travancore. Ex.P.8 is the copy of Statement of Account of the accused maintained in the State Bank of Travancore, Balaramapuram. 7. The fact of return of cheque was spoken by the witnesses P.W 2. P.W.2 was the Manager of the State Bank of Travancore, Bavanamapuram. Ex.P.7 is the copy of the Cheque Book Register maintained in the State Bank of Travancore. Ex.P.8 is the copy of Statement of Account of the accused maintained in the State Bank of Travancore, Balaramapuram. 7. The fact of return of cheque was spoken by the witnesses P.W 2. P.W.2 was the Manager of the State Bank of Travancore, Bavanamapuram. He said that the accused was having account in their bank. The cheque was drawn in their bank by the accused and it came to their bank for encashment on 24.04.2004 and at that time the accused was having Rs.1268/-only in her account and hence, the cheque was returned. 8. Learned trial Magistrate rejected the case of the complainant and acquitted the accused. In (2001) 9 Supreme Court Cases 632 (Kalyan and others Vs State of U.P.) the Supreme Court held as under: "The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, the principle of presumption of innocence of the accused persons is also equally well settled. Normally, the view of the trial Court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial Court is supposed to have watched the demeanour and conduct of the witnesses and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial Court. " 9. Learned counsel for the appellant submitted that if the finding of the trial Court is against the evidence available on record or without any evidence to support such finding, it has to be construed as perverse finding and the findings of the trial Magistrate is against the evidence available on record and hence, it has to be construed as perverse finding. 10. Further, the learned counsel also relied on the decision reported in (2001) 8 Supreme Court Cases 458 (K.N.Beena VS Muniyappan and another) and argued that the presumptions drawn under Sections 118 (a) and 139 could be rebutted by the accused by proving the contrary. 11. 10. Further, the learned counsel also relied on the decision reported in (2001) 8 Supreme Court Cases 458 (K.N.Beena VS Muniyappan and another) and argued that the presumptions drawn under Sections 118 (a) and 139 could be rebutted by the accused by proving the contrary. 11. In the said case, the Honble Supreme Court has pointed out about the presumptions under Sections 139 and 118(a) of N.I.Act and observed that under Section 118, unless the contrary is proved, it is to be presumed that the negotiable instrument including a cheque had been made or drawn for consideration. In the case on hand, the complainant had spoken about his case and the return of cheque. 12. It is the specific case of the accused that the cheque was handed over to one Sibu, who is a relative of the respondent herein and the cheque was misused by the complainant. The witnesses examined on the side of the accused spoke about the quarrel between the respondent and Sibu. In the reply notice, it is admitted by the respondent that the cheque was handed over to Sambasivam, while the other witnesses spoke that it was handed over to Sibu. The witnesses have not stated about the number of cheques given to Sibu. The trial Court has not analysed the evidence of D.Ws.1 to 3 and also Exs.D.1 reply notice issued by the accused. So, I am of the view that the trial Court has not analysed the evidence in proper angle and hence, the finding has to be presumed as perverse. 13. Further learned Judge found that while in the complaint filed before Sub Court, Neyyarrangkarai by the Victor James Albert it was stated that the cheque bearing No.391905 was issued to him on 10.7.2002, the cheque bearing No.391904 was issued by the accused subsequently to the complainant, and he expressed doubt about the case of the complainant. But , it is not shown that the cheques were issued with ulterior motive. In the evidence the accused explained how the cheques were came to be issued in such a manner. Further, though the accused claimed that the complainant is stranger to her, her evidence would show that all of them were relatives. So, the doubt raised by the trial Court is not based on the evidence available before the trial Court, which has to be construed as perverse. Further, though the accused claimed that the complainant is stranger to her, her evidence would show that all of them were relatives. So, the doubt raised by the trial Court is not based on the evidence available before the trial Court, which has to be construed as perverse. So, the judgment of the trial Court is liable to be set aside. 14. In the result, the appeal is allowed. The Judgment dated 09.07.2004 made in C.C.537 of 2003 by the learned Judicial Magistrate No.II, Kuzhithurai is set aside. The matter is remanded to the trial Court for fresh disposal according to law, without being influenced by any of the observations made in this appeal.