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2012 DIGILAW 751 (MAD)

P. Lakshmana Pillai v. A. Elangovan

2012-02-10

P.R.SHIVAKUMAR

body2012
ORDER : 1. The accused in S.T.C. No. 787/2004 on the file of the learned Judicial Magistrate No. II, Nagercoil, has come forward with the present revision case against the judgment of the Appellate Judge, namely the Sessions Judge, Kanyakumari Division at Nagercoil dated 10.8.2011 pronounced in C.A. No. 68/2007, by which, the judgment of conviction of the Trial Court pronounced in S.T.C. No. 787/ 2004 and the sentence imposed therein, were confirmed by the Appellate Court. The revision petitioner was prosecuted by the first respondent herein for an alleged offence punishable u/s 138 of the Negotiable Instruments Act, 1881 based on the allegation that for value received, the revision petitioner had issued a cheque dated 22.12.2003 drawn on UCO Bank, Nagercoil branch bearing cheque No. 909736 for a sum of Rs. 6,18,930/- in favour of the first respondent/complainant, which was returned by the Bank without payment when presented for encashment and that even after issuance of the statutory notice calling upon the revision petitioner/accused to arrange for the payment of the cheque amount, the revision petitioner/accused failed to do so within the time allowed by the statute, thereby driving the first respondent/complainant to prefer a private complaint u/s 200, Cr.P.C. for prosecuting the revision petitioner and punishing him for an offence u/s 138 of the Negotiable Instruments Act, 1881. The revision petitioner/accused took a plea before the Trial Court admitting the issuance of the cheque, but at the same time contending that the cheque was not issued for the discharge of any legally recoverable debt or enforceable liability. According to the contention of the revision petitioner/accused, the cheque was issued as a security for the amounts lent by the first respondent/complainant to various persons through the revision petitioner/accused and even after the recovery of those debts from the borrowers, the first respondent/ complainant, chose to prosecute the petitioner based on the dishonour of the abovesaid cheque to wreak vengeance on him for his refusal to give evidence in his favour in a Departmental proceedings initiated against him. 2. On service of process, the revision petitioner/accused appeared and denied having committed the offence alleged. Accordingly, a summary trial was conducted by the Trial Court, in which the first respondent herein/complainant was examined as the sole witness on the side of the complainant. Six documents were produced in proof of the averments made in the complaint. 2. On service of process, the revision petitioner/accused appeared and denied having committed the offence alleged. Accordingly, a summary trial was conducted by the Trial Court, in which the first respondent herein/complainant was examined as the sole witness on the side of the complainant. Six documents were produced in proof of the averments made in the complaint. After the completion of evidence on the side of the complainant and also after examining the accused u/s 313(1)(b), Cr.P.C. the revision petitioner/accused himself led evidence as DW-1, besides examining three other witnesses as DWs. 2 to 4. Three documents were marked as Exs.D1 to D3 on his side. 3. The learned Judicial Magistrate No. 11, Nagercoil, after considering the evidence in the light of the arguments advanced on both sides, found that the charge of commission of an offence u/s 138 of the Negotiable Instruments Act, 1881 stood proved beyond reasonable doubt and that the revision petitioner/ accused failed even to prove his defence on preponderance, which would be sufficient to rebut the presumption contemplated u/s 139 of the Negotiable instruments Act, 1881 and recast the burden of proof on the first respondent herein/complainant. Ultimately, the learned Judicial Magistrate No. 11, Nagercoil found the petitioner herein/accused guilty of the offence u/s 138 of the Negotiable Instruments Act, 1881, convicted him for the said offence and imposed a sentence of one year simple imprisonment and a fine of Rs. 5,000/- with a default sentence of two months simple imprisonment by his judgment dated 22.3.2007. The said judgment was challenged before the Appellate Court, namely Sessions Court, Kanyakumari Division at Nagercoil. The learned Sessions Judge, after hearing the appeal and upon considering the materials, concurred with the findings of the Trial Court and dismissed the criminal appeal, namely C.A. No. 68/2007 on the file of the Sessions Court, Kanyakumari Division at Nagercoil, both in respect of conviction as well as sentence, by judgment dated 10.8.2011. The said judgment of the learned Sessions Judge confirming the conviction made and the sentence imposed by the Trial Court, is challenged by questioning the correctness, legality and propriety of the same in the present revision case. 4. The said judgment of the learned Sessions Judge confirming the conviction made and the sentence imposed by the Trial Court, is challenged by questioning the correctness, legality and propriety of the same in the present revision case. 4. Learned Counsel for the revision petitioner/accused would submit that both the Courts below failed to consider the fact that the petitioner was able to adduce sufficient evidence to rebut the presumption contemplated u/s 139 of the Negotiable Instruments Act, 1881 and to recast the burden of proof on the complainant and on an erroneous appreciation of facts and improper interpretation of law, have arrived at a wrong conclusion that the revision petitioner/accused was guilty of the offence u/s 138 of the Negotiable Instruments Act, 1881. Learned Counsel would strongly rely on four cheques bearing different dates allegedly issued to the first respondent/complainant for different amounts and contend that those cheques had been issued as security for due collection of the amounts lent to others through the revision petitioner/accused and they were duly cancelled by the first respondent/complainant himself on collection of the amounts, relating to which those cheques were issued and that despite such a strong evidence having been adduced, the Courts below have chosen to reject the same as not proved on untenable grounds. 5. Per contra, learned Counsel for the first respondent/complainant would contend that there is a clear and unambiguous admission made by the revision petitioner/accused that the amount mentioned in the cheque concerned in the case, namely Rs. 6,18,930/- was paid by the first respondent/complainant to the revision petitioner/accused not in cash, but by way of cheques and that for the said amount alone the cheque was issued. The learned Counsel for the first respondent/ complainant would also contend that the issuance of the cheque by the revision petitioner/accused is not denied and on the other hand, has been admitted by the revision petitioner/accused, that when both the admissions are taken together one can arrive at a conclusion that the cheque was issued for a legally enforceable debt or other liability and that the failure on the part of the revision petitioner/accused to make arrangement for the payment of the cheques, even after the dishonour was intimated and he was called upon to make such payment by issuance of statutory notice, would clearly establish the commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. 6. 6. The abovesaid submissions made on both sides have been taken into consideration by this Court. Upon such consideration, this Court comes to the conclusion that there is no merit in the revision and the revision deserves to be dismissed for the reasons appearing hereunder. 7. It is not in dispute that the dishonoured cheque marked as Ex. P1 was the one issued in respect of an account maintained by the revision petitioner/accused with his Banker. It is also not in dispute that the cheque, when presented for collection was returned without payment and the dishonour of the cheque was promptly intimated to the revision petitioner/accused by issuing a notice under Ex. P4. It is also not in dispute that the revision petitioner/accused, even after the receipt of the said notice, did not comply with the demand made therein within the time allowed by the statute and on the other hand, chose to issue a reply under Ex. P6 disputing his liability to pay the amount. It is also not in dispute that the cheque bears the signature of the revision petitioner/accused and the cheque was issued by the revision petitioner/accused mentioning the date and amount. It is also not in dispute that the cheque was issued in favour of the first respondent/complainant. When such is the case, the only point that arises for consideration is whether the cheque was issued for the discharge of legally enforceable debt or other liability of the revision petitioner/accused? 8. The contention of the petitioner is that the cheque was not issued for the discharge of any legally enforceable debt, the revision petitioner was owed to the first respondent/ complainant; that no amount was due from the revision petitioner/ accused to the first respondent/complainant; that the cheque in question was issued to be a security for the collection of the amounts lent by the first respondent/ complainant through the revision petitioner/accused to various persons; that even those amounts had been recovered and that having grudge against the revision petitioner/accused over his refusal to give evidence in favour of the first respondent/complainant in a departmental proceedings initiated against him, the cheque was retained and the case was instituted on a private complaint. 9. 9. First of all, the abovesaid contention of the revision petitioner/accused contains an in built admission that there was a promise on his part to be a surety for the borrowers, who borrowed money from the first respondent/complainant through the revision petitioner/ accused and, therefore, it cannot be said that the said cheque was not issued for a legally enforceable debt or other liability even as per the stand taken by the revision petitioner/ accused. Secondly, excepting the interested testimony of DW-1 (the accused himself), there is no other evidence to show that amounts were lent by the first respondent to third parties on the recommendation of the revision petitioner/accused and cheques were obtained from the revision petitioner/accused to be an additional security for the repayment of those debts by the third parties. Even assuming the said contention to be true, there is no proof to show that such third parties had discharged those debts to contend that the liability of the revision petitioner/accused also has come to an end, thereby pointing out the position that the debt no longer subsisted and there was no legally recoverable debt or enforceable liability. The cancelled cheques produced by the revision petitioner/accused as Ex. D1 series were not properly proved to have been cancelled by the first respondent/complainant. Two parallel lines were drawn crossing the cheques inscribing the word cancelled in between those parallel lines using red ink for doing so. There is no evidence to prove that such an endorsement showing cancellation of the cheque was made by the first respondent/ complainant. Even assuming that those cheques were cancelled by the first respondent/ complainant that will not further the defence case of the revision petitioner/accused and on the other hand, it will strengthen the case of the first respondent/complainant. The very fact that the first respondent/complainant would have chosen to cancel and return the cheques, as and when the debts are discharged, will go to show that because the debt in discharge of which the cheque (Ex. P1) was issued, was not discharged, the same was not cancelled and returned. 10. Furthermore, there is a clear admission by the accused, who deposed as DW-1, that the amount mentioned in the cheque, namely Rs. 6,18,930/- was paid by the first respondent/complainant by way of cheque. P1) was issued, was not discharged, the same was not cancelled and returned. 10. Furthermore, there is a clear admission by the accused, who deposed as DW-1, that the amount mentioned in the cheque, namely Rs. 6,18,930/- was paid by the first respondent/complainant by way of cheque. When such is the clear and candid admission made by the revision petitioner/accused, the burden of proving discharge of the debt shall be on the revision petitioner/accused, which the revision petitioner/accused has not discharged by adducing sufficient evidence, at least to the extent of probablising his case of defence. The Courts below have not committed any error in arriving at the conclusion that the complainant's case that the revision petitioner/accused committed the offence u/s 138 of the Negotiable Instruments Act, 1881 stood proved beyond reasonable doubt and that the revision petitioner/accused was guilty of the said offence for which he was prosecuted. This Court finds no defect or infirmity in the concurrent findings of the Courts below, either in respect of conviction or in respect of sentence. No case for interference by this Court in exercise of its revisional power has been made out. There is no merit in the revision and the revision deserves dismissal. In the result, the criminal revision case is dismissed. As the revision petitioner/accused is on bail, the bail bond executed by him shall stand cancelled forthwith. The learned Sessions Judge, Kanyakumari Division at Nagercoil is hereby directed to secure the presence of the accused to undergo the sentence imposed in S.T.C. No. 787 of 2004 on the file of the learned Judicial Magistrate No. 11, Nagercoil and confirmed in C.A. No. 68 of 2007. The period of sentence already undergone, if any, shall be set off.