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2015 DIGILAW 3291 (MAD)

Manokaran v. Syed Ibrahim

2015-10-08

R.MALA

body2015
ORDER : This Criminal Original Petition has been filed under Section 482 of the Criminal Procedure Code, 1973, to challenge the impugned order passed in Crl.R.C.No.45 of 2014, by the learned District and Sessions Judge, Tiruchirappalli against Crl.M.P.No. 5597 of 2014 2014 passed by the learned Judicial Magistrate No.II, Tiruchirappalli, dated 10.09.2014 2. It would be relevant to briefly put forth the facts of the case before dealing with the contentions of the learned counsel appearing for the parties, which are as under:- The respondent, who is an accused in STC.No.1028 of 2010, on the file of the learned Judicial Magistrate No.II, Tiruchirappalli, has filed an application under Section 254 of Cr.P.C., to examine the wife and brother-in-law of the complainant viz., Priya and Kannan respectively and the Branch Manager of ICICI Bank Limited, Trichy. After hearing both sides, the learned Judicial Magistrate No.2, Tiruchirappalli, has partly allowed the application. In respect of examining the witnesses, viz., Priya and Kannan, the application was dismissed stating that the same had been filed in order to cause harassment and delaying the trial and in respect of the examining the witness viz., the Branch Manager, ICICI Bank, the application has been allowed. Against which, the petitioner has preferred a revision and the same has been allowed. Against which, the present Criminal Original Petition has been filed. 3. Mr.V.P.Rajan, the learned counsel appearing for the petitioner/complainant would submit that the revisional Court has not permitting the petitioner to examine the witnesses. Adding further, the learned counsel would submit that no one can compel any person to come and depose in favour of any one and that factum was not considered by the revisional Court. Once a cheque has been issued, the petitioner is entitled to invoke presumption under Section 139 of Negotiable Instruments Act. Even though it is rebuttable presumption, the presumption to be rebutted by the accused, the respondent herein. Once the respondent rebutted the presumption, then only, the burden is shifted to the complainant/petitioner to prove that the cheque has been issued for discharging legally subsisting liability. Continuing his argument, the learned would further submit that already the complainant was examined and at that time only, the accused has filed the application in order to drag on the proceedings. Hence, he prayed for setting aside the same. 4. Continuing his argument, the learned would further submit that already the complainant was examined and at that time only, the accused has filed the application in order to drag on the proceedings. Hence, he prayed for setting aside the same. 4. Resisting the same, Mr.S.Jayavel, the learned counsel appearing for the respondent would submit that the complainant, when he was in the witness box, has denied the parallel civil litigation pending between the accused and the wife of the complainant. Hence, in order to prove the same, he wants to examine the wife of the complainant, enable him to prove the case that there is civil dispute between the petitioner's wife and also the respondent/accused, in the trial Court. Hence, the examination of the petitioner's wife is absolutely necessary. That factum was rightly considered by the revision Court. Hence, he prayed for dismissal of this petition. 5. I have heard learned counsel for the parties at a considerable length and carefully gone through the entire materials on record. 6. The petitioner herein, as a complainant, has filed a complaint for an offence punishable under Section 138 of Negotiable Instruments Act stating that the respondent/accused has borrowed Rs.6,00,000/-, on 3.6.2010 and agreeing to repay the same with interest at the rate of 24% per annum, within three months and for discharging the same, he issued a cheque, on the same day. He has also executed for a promissory note for Rs. 6,00,000/-. Since the respondent has not repaid the amount within the time stipulated by him, the petitioner presented the cheque for encashment, which was returned, as “Account Closed”. After issuing the statutory notice, the petitioner has preferred a complaint for an offence punishable under Section 138 of Negotiable Instruments Act, which was taken on file in S.T.C.No. 1028 of 2010. The respondent/accused appeared. Copies have been furnished. Now, P.W.1 is in the witness box. During the cross-examination, the petitioner has denied that there is a knowledge of parallel litigation between the petitioner's wife and the respondent, the accused herein. 7. According to the respondent, a mortgage suit is pending before the learned I Additional Sub Judge, Trichy, for recovery of money due that has been filed by the wife of the petitioner/complainant against the respondent/accused. He would further submitted that the mortgage debt has already been discharged. The cheque was given, as security for the mortgage. 7. According to the respondent, a mortgage suit is pending before the learned I Additional Sub Judge, Trichy, for recovery of money due that has been filed by the wife of the petitioner/complainant against the respondent/accused. He would further submitted that the mortgage debt has already been discharged. The cheque was given, as security for the mortgage. Hence, to prove the same, the examination of the wife of the petitioner and brother-in-law of the petitioner is necessary. As per the law, once issuance of cheque and signature in the cheque has been admitted, the holder of the cheque is entitled to invoke the presumption under Section 139 of Negotiable Instruments Act. Eventhough it is a rebuttable presumption it is the duty of the respondent/accused to prove that the cheque has not been issued for discharging legally subsisting liability. Once the respondent/accused discharged his burden, then only, the burden is shifted to the complainant, the petitioner herein, to prove that the cheque has been issued only for discharging legally subsisting liability. Here, according to the respondent/accused, the present cheque has been issued for security, while he borrowing money, under the mortgage deed. Admittedly, the mortgage suit is pending. In such circumstances, I am of the considered view that the examination of the wife of the petitioner/complainant and brother-in-law is unnecessary, this petitioner ought to have filed all the certified copies of the court proceedings before the court to show that there was a parallel proceedings before the subordinate court. That factum was not considered by the revision Court. Furthermore, as per the Negotiable Instruments Act, there was a specific immunity has been given to the complaint under Section 139 of Negotiable Instruments Act, whenever a cheque has been given, which was admitted then, the complainant is entitled to invoke the presumption under Section 139 of Negotiable Instruments Act, I.e., the cheque was given for discharging the legally enforceable debt. That factum was not considered by the revision Court, which in my considered opinion, the order passed by the revisional Court suffers from illegality and irregularity, hence, the same is liable to be set aside. 8. That factum was not considered by the revision Court, which in my considered opinion, the order passed by the revisional Court suffers from illegality and irregularity, hence, the same is liable to be set aside. 8. In the result, the Criminal Original Petition is allowed and the order passed by the learned District and Sessions Judge, Tiruchirappalli in Criminal Revision Case No.45 of 2014 is set aside, by restoring and confirming the order made in Crl.M.P.No. 5597 of 2014 2014, by the learned Judicial Magistrate No.II, Tiruchirappalli. Consequently, connected miscellaneous petition is closed.