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2012 DIGILAW 2973 (MAD)

Gunasekaran v. M. P. Thangavel

2012-07-12

R.MALA

body2012
JUDGMENT 1. The criminal appeal arises out of the judgment of acquittal dated 10.09.2004, made in C.C.No.808 of 2002, on the file of the Judicial Magistrate's Court, Thiruchengode. 2. The appellant as a complainant preferred a private complaint under Section 138 of Negotiable Instruments Act, stating that the respondent/accused borrowed a sum of Rs.5,00,000/- for his business purpose on 23.04.2002 and issued Ex.P1 cheque of Chithode Farmer's Service Co-operative Society Ltd., bearing No.11754, dated 23.04.2002 for Rs.5,00,000/-. When the above cheque has been presented for encashment before the Indian Overseas Bank on 20.06.2002, it was returned as 'insufficient funds' on 25.06.2002. Challan and counter foil of Indian Overseas Bank was marked as Ex.P2 and the return memo was marked as Ex.P3. Debit Advice from Chithode Lakshmi Vilas Bank was marked as Ex.P4. On 29.06.2002, the complainant issued a statutory notice to the respondent under Ex.P5 and return cover was marked as Ex.P6. The respondent herein knowing fully well that there was no sufficient funds in his account, issued a cheque and thereby committed offence under Section 138 of Negotiable Instruments Act. 3. The learned Magistrate after considering oral and documentary evidence acquitted the accused/respondent stating that the cheque was not issued by the respondent for discharging legally enforceable debt and that has been issued for the purpose of executing sale deed with the complainant. As per Ex.D1/sale agreement, on 24.04.1998, the respondent received advance of Rs.90,000/- from the complainant and that has been repaid and Ex.D1 sale agreement has been revoked on 15.02.1999 as per Ex.D2/revocation deed. At the time, the complainant has executed an indemnity bond stating that the cheque given by the respondent has been misplaced and he would not be misused the same. Thereby the trial Court came to the conclusion that the said cheque has been misused by the appellant/complainant for this purpose and hence, the trial Court dismissed the complaint, against which, the present appeal has been preferred by the appellant/complainant. 4. Learned counsel for the appellant/complainant submitted that since issuance of cheque is admitted by the respondent, the complainant is entitled to invoke presumption under Sections 118 and 139 of Negotiable Instruments Act. But the trial Court has not considered the above aspect. Hence, he prayed for setting aside the order of acquittal. 5. 4. Learned counsel for the appellant/complainant submitted that since issuance of cheque is admitted by the respondent, the complainant is entitled to invoke presumption under Sections 118 and 139 of Negotiable Instruments Act. But the trial Court has not considered the above aspect. Hence, he prayed for setting aside the order of acquittal. 5. Even though notice was served to the respondent, the respondent is neither entered his appearance in person nor through his counsel. 6. Considered the submissions made by the learned counsel for the appellant and perused the materials available on record. 7. The appellant as a complainant preferred a private complaint stating that he lent money to the respondent/accused on 23.04.2002 for Rs.5,00,000/- and on the date itself, the complainant received a cheque for Rs.5,00,000/-, which was evidenced by Ex.P1. When the cheque was deposited into the Bank for encashment on 20.06.2002, it was returned as 'insufficient funds' on 25.06.2002 and the same was intimated to the complainant on 27.06.2002. Ex.P2 Challan and counter foil of Indian Overseas Bank shows that Rs.800/- has been deposited, which is not relevant to this case. Ex.P3 is a return memo, which shows that 'insufficient funds' in the account of the respondent. Ex.P4 is the debit advice of Chithode Lakshmi Vilas Bank, which is dated 25.06.2002. Ex.P5 is the statutory notice issued by the complainant to the respondent on 29.06.2002. Ex.P6 is the cover which returned to the sender as 'not claimed'. 8. Admittedly, Ex.P1 cheque has been returned as 'insufficient funds'. Therefore, the appellant had issued statutory notice to the respondent within the stipulated time. Since the notice was not claimed by the respondent, as per the dictum of the Apex Court, the notice is presumed to be valid notice under Section 138(b) of Negotiable Instruments Act. 9. Now this Court has to be decided whether the trial Court is correct in holding that Ex.P1/cheque was not issued for discharging enforceable debt on 23.04.2002. It is appropriate to consider Ex.D1/sale agreement filed by the respondent, which was entered into between the appellant and the respondent on 24.04.1998. The respondent herein has received Rs.90,000/- out of total sale consideration of Rs.1,00,000/-and the sale deed will be executed, after paying balance amount of Rs.10,000/- within three years. It is appropriate to consider Ex.D1/sale agreement filed by the respondent, which was entered into between the appellant and the respondent on 24.04.1998. The respondent herein has received Rs.90,000/- out of total sale consideration of Rs.1,00,000/-and the sale deed will be executed, after paying balance amount of Rs.10,000/- within three years. As per Ex.D2, the sale agreement dated 24.04.1998 was revoked on 15.02.1999, in which, it was mentioned that the respondent herein had returned the advance amount to the complainant. The above facts would prove that the respondent herein received Rs.90,000/- from the appellant and for the reason, he had entered a sale agreement Ex.D1 and as per Ex.D2, Rs.90,000/-has been repaid by the respondent and the sale agreement was cancelled. A cheque has been issued by the respondent as a security on the date of execution of Ex.D1, since the amount of Rs.90,000/- was repaid, Ex.D2 was executed. On perusal of Ex.D3/Indemnity bond, it shows that signature of the appellant/complainant alone was marked and he also admitted his signature. 10. At this juncture, it is appropriate to consider the evidence of P.W.1/complainant. In his evidence, he gone to the extent of saying that he did not remember that he went to Bhavani Sub-Registrar's Office and entered a sale agreement. Even though he stated that he is having documents for lending money to the accused/respondent, he did not file any scrap of paper to show that on 23.04.2002, he lent Rs.5,00,000/- to the respondent. He stated that he is an Income tax Assessee and the amount has been shown in his income tax returns. But he did not file any income tax return statement to show that he lent Rs.5,00,000/- to the respondent on 23.04.2002. Furthermore, in his cross-examination, when the documents Exs.D1 and D2 were shown to him, he accepted them. He denied that he had written the indemnity bond dated 15.02.1999, but he accepted the signature in that indemnity bond dated 15.02.1999. He denied a suggestion posed to him that after receipt of Rs.90,000/- from the respondent since he is unable to return the cheque, which was given as security, he executed indemnity bond. 11. One more adding circumstance is that if really appellant herein had lent Rs.5,00,000/- on 23.04.2002 as loan, it is unbelievable that he obtained a cheque dated 23.04.2002 for Rs.5,00,000/- from the respondent. 11. One more adding circumstance is that if really appellant herein had lent Rs.5,00,000/- on 23.04.2002 as loan, it is unbelievable that he obtained a cheque dated 23.04.2002 for Rs.5,00,000/- from the respondent. It is not the case of complainant that the respondent had issued post dated cheque for the amount he borrowed. P.W.1 in his pleadings, he stated as follows: ".. .. The accused has borrowed Rs.5,00,000/- from the complainant for his business and family expenses as a hand loan. To discharge the above said loan the accused has given a cheque of Chithode Farmers Service Co-operative Society Ltd., Chithode Branch bearing No.11754 dated 23.04.2002 for Rs.5,00,000/- (Rupees Five lakhs only). The above-said cheque was signed by the accused and issued to the complainant. .. .. " P.W.1 in his deposition before the Court, he stated as follows: " .. .. 23/4/2002 TAMIL” So the pleadings and the deposition of P.W.1 itself, would falsify the case of the complainant. Furthermore, the respondent herein rebutted the presumption under Section 139 of Negotiable Instruments Act, by admitting issuance of blank cheque while entering Ex.D1 after receipt of Rs.90,000/- on behalf of one Pandithurai as security and that has been probabilised by marking of Exs.D1 to D3. Therefore, the burden is shifted to the appellant to prove that the respondent had issued Ex.P1 cheque for discharging his legally subsisting liability. Even though he deposed that he is having documents to show that he lent a sum of Rs.5,00,000/- to the respondent, he did not file any scrap of papers to prove the same. In such circumstances, I am of the view, the trial Court considered all the aspects in proper perspective and came to the correct conclusion. The appellant herein has miserably failed to prove that Ex.P1/cheque was issued by the respondent for discharging his legally enforceable debt. Hence, the ingredients of Section 138 of Negotiable Instruments Act has not been proved by the appellant beyond reasonable doubt. So the judgment of acquittal passed by the trial Court does not warrant any interference and hence, it is confirmed. 12.In fine, (i) Criminal Appeal is dismissed. (ii) The judgment of acquittal passed by the trial Court is hereby confirmed.