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2012 DIGILAW 2934 (MAD)

Sri Alumu Chits Pvt v. R. Ponnusamy

2012-07-10

R.MALA

body2012
Judgment :- 1. The appeal arises out of the Judgment of acquittal dated 14.11.2003 made in C.C.No.245 of 2002 on the file of the learned Judicial Magistrate-III, Coimbatore. 2. The appellant as a complainant filed a private complaint under Section 138 of the Negotiable Instruments Act stating that the appellant is a private company conducting chits, under the name and style of M/s.Sri Alumu Chits Pvt. Ltd., registered under the Companies Act. The respondent/accused was one of the subscribers of the Chit. On 05.07.1995, he had taken the chit amount and issued Ex.P1-Cheque for Rs.50,000/-drawn at Union Bank of India, Gandhipuram, Coimbatore. The appellant presented the Cheque for encashment on 07.07.1995 before Lakshmi Vilas Bank, Uplipalayam Branch, and the same was dishonoured and returned with memo under Ex.P2, indicating as 'Insufficient Funds' on 08.07.1995. Hence, Ex.P4-statutory notice dated 15.07.2005 was sent to the respondent/accused by Certificate of Posting on 17.07.1995, which was retuned on 26.07.1995 under Ex.P5. But, the respondent neither repaid the amount nor sent any reply. The respondent, with a malafide intention, after knowing fully well that there was no sufficient funds in his account, issued Ex.P1-cheque and thereby, he committed offence under Section 138 of the Negotiable Instruments Act. 3. The learned Judicial Magistrate-III, after considering the oral and documentary evidence, acquitted the accused stating that the cheque was issued only as a security and the complainant has not filed any document to prove that Ex.P1-Cheque was issued for discharging the legally enforceable debt. Therefore, the ingredients of Section 138 of the Negotiable Instruments Act, has not been made out. Aggrieved against the same, the present appeal has been filed. 4. The learned counsel for the appellant submitted that P.W.1-complainant is a competent person to file a complaint and the said factum has not been considered by the trial Court. Since the issuance of cheque is admitted, the complainant is entitled to invoke the presumption under Sections 118 and 139 of the Negotiable Instruments Act. He further submitted that the trial Court has committed an error in dismissing the complaint and acquitted the accused. Hence, he prayed for allowing this appeal. 5. Resisting the same, the learned counsel for the respondent submitted that the appellant has not filed any document to show that A.V.R.Shanker, Power of Attorney has power to prefer a complaint. He further submitted that the trial Court has committed an error in dismissing the complaint and acquitted the accused. Hence, he prayed for allowing this appeal. 5. Resisting the same, the learned counsel for the respondent submitted that the appellant has not filed any document to show that A.V.R.Shanker, Power of Attorney has power to prefer a complaint. He further submitted that the appellant has not filed any document to show that on the date of issuance of cheque, the respondent is liable to pay Rs.50,000/-. The presumption under Section 139 of the Negotiable Instruments Act is a rebuttable presumption and the respondent herein examined himself as D.W.1 and marked Exs.D1 to D10 and rebutted the presumption under Section 139 of the Negotiable Instruments Act. Hence, the trial Court has considered all the aspects in proper perspective and came to the correct conclusion that the cheque was not issued for legally enforceable debt. Therefore, he prayed for dismissal of this appeal. 6. Considered the rival submissions made on either side and perused the records. 7. The appellant/complainant is a private company under the name and style of M/s.Sri Alumu Chits Pvt. Ltd. and represented by an Authorized Foreman, A.V.R.Alagirisamy @ A.V.R.Sekar. It is pertinent to note that before the trial Court, the accused had raised the plea that the complainant is not a competent person to file the complaint and no authorisation has been filed. The said defence had been accepted by the trial Court, against which, the complainant had filed an appeal in Crl.A.No.945 of 2001 before this Court. This Court has passed order stating that no separate authorisation is necessary to lay a complaint. It is relevant to incorporate the following order. "3.) ..... According to the rules governing the Chit Company, the Foreman is in the managerial capacity to collect the amount from the subscribers and conduct chits also. Therefore, I do not think that any separate authorisation is necessary to lay a compliant as per 1994 Vol. 80 Company Cases Page 53 & 1999 Vol. 95 Company cases 337." But, the said order has not been challenged by the respondent. In such circumstances, arguments advanced by the learned counsel for the respondent does not merit acceptance. Therefore, the appellant is a competent person to file the complaint. 8. 80 Company Cases Page 53 & 1999 Vol. 95 Company cases 337." But, the said order has not been challenged by the respondent. In such circumstances, arguments advanced by the learned counsel for the respondent does not merit acceptance. Therefore, the appellant is a competent person to file the complaint. 8. Now, this Court has to decide whether the trial Court is correct in holding that the accused is not guilt of the offence punishable under Section 138 of the Negotiable Instruments Act?. Except the document Exs.P1 to P5, no other documents have been marked. It is true that the issuance of cheque is admitted. P.W.1, in his cross examination, fairly conceded that on 16.12.1994, the respondent was tendered chit in 8th auction. After deducting 30% of the amount, he received the balance chit amount. He also fairly conceded that they received cash and cheque from the accused. Considering the evidence of P.W.1, no records have been placed before this Court that how much amount he received either by cash or cheque and whether it is encashed or not. 9. It is pertinent to note that the accused was examined as D.W.1. In his evidence, he deposed that he was the subscriber of the Chit amount of Rs.75,000/-. He received the chit amount after deducting 30% of the chit. At that time, the appellant Company obtained two blank cheques, blank pronote and property documents. He further deposed that after receiving the chit amount, he repaid the entire amount and produced the receipt, i.e. Ex.P10. Since the cheque was issued as a security, the appellant manipulated the same and preferred the complaint. He also deposed that his wife is also a subscriber of the chit of Rs.10,000/-and the receipts for paying the subscription amount were also marked as Exs.D1 to D10. Considering the same, the learned Judicial Magistrate came to the correct conclusion and acquitted the accused. 10. This case is a chit transaction case. While taking the chit amount, the accused had given blank cheques, blank pronote and property documents as security to the appellant. Even though the accused repaid that amount, the appellant had not returned the blank cheque and the same was concocted for the purpose of case. 10. This case is a chit transaction case. While taking the chit amount, the accused had given blank cheques, blank pronote and property documents as security to the appellant. Even though the accused repaid that amount, the appellant had not returned the blank cheque and the same was concocted for the purpose of case. Considering the same, the trial Court has considered this aspect and come to the correct conclusion that since the respondent is not having sufficient means to pay the monthly chit amount, how he could issue the cheque for Rs.50,000/-. Therefore, the complaint is a vexatious one. Considering the same, the cheque was issued only as a security when the respondent received the chit amount and the same has been proved by the accused / respondent. Since the presumption under Section 139 of the Negotiable Instruments Act was rebutted by the respondent / accused, the defence raised by him is proved by preponderance of probabilities. Furthermore, the burden shifted upon the complainant was not proved by way of filing the documents that Ex.P1-Cheque was issued for discharging the legally existing liability. Hence, I am of the view that the appellant has not proved that the accused is guilty of the offence punishable under Section 138 of the Negotiable Instruments Act and the trial Court has considered the said aspect in a proper perspective and came to the correct conclusion. Therefore, the Judgment of acquittal is hereby confirmed and the appeal is dismissed. 11. In fine: (i) the appeal is dismissed (ii) the Judgment passed by the learned Judicial Magistrate is hereby confirmed.