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2014 DIGILAW 2727 (MAD)

S. Murugaiah v. Paul Rathinasamy

2014-08-19

P.R.SHIVAKUMAR

body2014
Judgment : 1. The petitioner in the Criminal Revision Case was prosecuted before the learned Judicial Magistrate, Sankarankovil, in S.T.C.No.2406 of 2007 instituted on the complaint of the respondent herein for an offence punishable under Section 138 of the Negotiable Instruments Act. According to the respondent/ complainant, the revision petitioner issued two cheques bearing Cheque Nos.0506051 and 0506052 for Rs.25,000/- each, drawn on 10.01.2007 and 10.02.2007 respectively, for the discharge of a debt owed by the revision petitioner towards the respondent. It was contended therein that when the cheques were presented for collection, they were returned as there was no sufficient funds for the payment of the amount covered by the cheques and no arrangements had been made by the petitioner herein with his banker for honouring the cheques upto the amounts for which the cheques had been issued; that the said dishonour of the cheuqes was intimated to the petitioner by a statutory notice and that the petitioner herein failed to make arrangements for the payment of the amount covered by the cheques within the time allowed by the statute. The complaint was resisted by the revision petitioner contending that those cheques were issued as security for repayment of the loan besides execution of promissory notes; that even after the discharge of the debts, the cheques were not returned by the respondent and that those cheques were used for the purpose of prosecuting the petitioner for the alleged offence under Section 138 of the Negotiable Instruments Act. 2. The learned Judicial Magistrate, Sankarankovil, who took it on file as S.T.C. No.2406 of 2007, conducted a trial in which the respondent figured as the sole witness on the side of the complainant, whereas one Ramaraj figured as the sole witness on the side of the petitioner herein (accused). Thirteen documents were marked on the side of the complainant, whereas no document was marked on the side of the accused (revision petitioner). The learned Judicial Magistrate, on appreciation of evidence adduced on both sides, came to the conclusion that the complaint allegations stood proved, held the revision petitioner to be guilty of the offence under Section 138 of the Negotiable Instruments Act, convicted him for the said offence and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- with a default sentence of simple imprisonment for one month. 3. 3. The said judgment of the learned Judicial Magistrate, Sankarankovil, dated 24.03.2008 was challenged before the learned Additional Sessions Judge, FTC -2, Tirunelveli, in Criminal Appeal No.79 of 2008. The learned Appellate Judge also, on a re-appreciation of evidence, concurred with the findings of the learned Judicial Magistrate and dismissed the appeal confirming the conviction recorded by the trial Court and also the sentence imposed by the trial Court. The legality of the said judgment of the learned Appellate Judge, dated 24.04.2009, is questioned before this Court in the present revision. 4. Arguments advanced by Mr. H. Arumugam, learned counsel for the petitioner and by Mr. S. Palanivelayutham, learned counsel for the respondent are heard. The copies of the judgments of the Courts below and the materials available on record are also perused. 5. The present revision has been filed by the accused against the judgment of the appellate Court confirming the conviction for an offence under Section 138 of the Negotiable Instruments Act and also the punishment imposed by the trial Court. It is not in dispute that the dishonoured cheques dated 10.01.2007 and 10.02.2007 bearing Cheque Nos.0506051 and 0506052 respectively, drawn for a sum of Rs.25,000/- each, were the cheques issued by the revision petitioner in favour of the respondent herein. It is also not in dispute that the cheques were drawn on an account maintained by the revision petitioner with his banker. It is also not in dispute that the cheques were returned unpaid stating insufficiency of funds to be the reason for the dishonour. The returned cheques have been produced as Exs.P1 and P2. The dishonour slips have also produced as documents on the side of the complainant. The respondent/complainant sent a notice dated 26.02.2007 through his lawyer to the revision petitioner informing the revision petitioner of the dishonour of the cheques and calling upon him to make arrangements for the payment of the cheque amounts. A copy of the notice and the acknowledgement card, in proof of the service of the notice, have been produced as Exs.P12 and P13. 6. The respondent (complainant), as P.W.1, gave clear evidence that he had lent money to the revision petitioner and when he demanded several times for the repayment of the same, the cheques were issued and on presentation of the cheques for payment, they were returned for the reasons stated in the dishonour slips. 6. The respondent (complainant), as P.W.1, gave clear evidence that he had lent money to the revision petitioner and when he demanded several times for the repayment of the same, the cheques were issued and on presentation of the cheques for payment, they were returned for the reasons stated in the dishonour slips. The revision petitioner made an attempt to contend that the cheques were issued not in discharge of the debt or other liability, but only as a security for repayment of a loan secured by other documents. When the drawer of the cheque takes a stand that the cheque was issued as a security for the repayment of the loan, that itself will give rise to an inference that there was a liability/legally enforceable debt. When a cheque is given as security for the repayment of the loan, the same will imply that in case the loan is not repaid within the agreed time, the holder of the cheque can present the cheque for collection. 7. In this case, in addition to the facts giving rise to such an inference, there is a clear plea and evidence that the cheques were issued in discharge of the debt incurred earlier and they were issued when the revision petitioner was pressed for payment and that the cheques were issued post-dating the same to 10.01.2007 and 10.02.2007. Therefore, the contention of the revision petitioner that the cheques issued were intended only as a security has been rightly rejected by the learned trial Magistrate. In addition, when a cheque is proved to have been issued by the drawer of the cheque, as per Section 139 of the Negotiable Instruments Act, the holder of the cheque shall be presumed to have received it for the discharge of the debt or other liability, as the case may be. In such an event, the burden shall be on the drawer of the cheque to show that the cheque was not issued for the discharge of the debt or other liability. 8. In this case, the existence of the debt itself has been admitted. However, an attempt was made by the revision petitioner to show that such a debt regarding which the cheques had been issued was discharged even before the presentation of the cheques for encashment. 8. In this case, the existence of the debt itself has been admitted. However, an attempt was made by the revision petitioner to show that such a debt regarding which the cheques had been issued was discharged even before the presentation of the cheques for encashment. But unfortunately, the revision petitioner has failed in his attempt to discharge the burden of proving his contention that the debt regarding which the cheques had been issued was discharged even before the presentation of the cheques for encashment. If at all the revision petitioner had discharged the debt and the respondent citing one or the other reason, failed or omitted to return the cheques, the revision petitioner could have issued a notice informing the respondent that the debt regarding which the cheques were issued had been discharged and hence, the cheques should not be presented for encashment and on the other hand, the cheques should be returned to the revision petitioner. The revision petitioner did not do so. All these aspects weighed with the trial Magistrate and also the learned Appellate Judge to arrive at a conclusion that the revision petitioner was guilty of the offence for which he was prosecuted, namely the offence under Section 138 of the Negotiable Instruments Act. Even regarding the sentence, this Court does not find any justification for interference with the concurring findings of the Courts below. 9. For all the reasons stated above, this Court comes to the conclusion that there is no merit in the revision petition and the same deserves to be dismissed. Accordingly, the revision petition is dismissed.