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2018 DIGILAW 2699 (MAD)

Anandhakrishnan v. Pon Natarajan S/o. Ponnusamy

2018-08-31

R.PONGIAPPAN

body2018
JUDGMENT : This appeal is directed against the order of acquittal dated 04.05.2009 in C.C.No.19 of 2008 on the file of the learned Chief Judicial Magistrate, Erode. 2. The case of the appellant/complainant in brief, is as follows: 2.1. The appellant/complainant is a civil engineer residing in Kunnathur. The respondent/accused is the resident of Avanpoondurai and doing the petrol bunk business in the name and style of Pon Natarajan Agency . Prior to the occurrence, both the appellant and the respondent are known to each other. 2.2. On 28.04.2002, the respondent availed a loan of Rs.2 lakhs from the appellant for his urgent needs. In order to repay the said loan, the respondent issued a cheque in favour of the appellant drawn on State Bank of India, Erode Branch, bearing Serial No.293101 dated 28.05.2002 for a sum of Rs.2 lakhs under Ex.P.1. 2.3. On 30.05.2002, the appellant presented the said cheque in Bank of Baroda, Uthukuli Branch, for encashment. But the said cheque has been returned as unpaid for the reason of insufficient funds . For that, memo has been issued by the State Bank of India under Ex.P.2. Further, the same was intimated to the appellant through the debit advise under Ex.P.3. 2.4. On 13.06.2002, the appellant issued a statutory notice [Ex.P.4], in which, he demanded the respondent to pay the cheque amount within 15 days. The respondent received the said notice on 14.06.2002 under Ex.P.5. On receipt of the said notice, the respondent issued a reply notice to the respondent on 28.06.2002 under Ex.P.6. Thereafter, the appellant filed a complaint before the learned Judicial Magistrate, Perundurai, for initiating action against the respondent for the offence under Section 138 of the Negotiable Instruments Act, 1881. Subsequently, the same has been transferred to the learned Chief Judicial Magistrate, on administrative grounds. 2.5. After taking cognizance in the trial Court, the accused himself examined as P.W.1, besides 6 documents were marked as Ex.P.1 to Ex.P.6. 2.6. When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., for which, he denied the same. After closing the complainant's side evidence, the respondent himself examined as R.W.1 and one Kuthabiran was examined as R.W.2 on the side of the respondent. Further, 5 documents were exhibited on their side as R.1 to R.5. 2.7. 2.6. When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., for which, he denied the same. After closing the complainant's side evidence, the respondent himself examined as R.W.1 and one Kuthabiran was examined as R.W.2 on the side of the respondent. Further, 5 documents were exhibited on their side as R.1 to R.5. 2.7. Ex.R.1 is the photograph of the lorry bearing Registration No.TN-33-F-7188, Ex.R.2 is the counterfoil of the cheque book, Ex.R.3 is the copy of the bank statement, Ex.R.4 is the receipt issued by one Manivannan dated 15.01.2000 in favour of the respondent, and Ex.R.5 is the copy of the First Information Report dated 01.09.2004 pertaining to Crime No.305 of 2004 registered in Uthukuli Police Station, Erode District. 2.8. In an evidence given by the respondent [R.W.1], he has stated that prior to the institution of the case, the appellant is not known to him, there is no loan transaction or any other transaction had happened with the appellant. Further, he has stated after signing in the cheque the same has been given to one S. Manivannan, who is erstwhile business partner in the lorry business. He has further stated for running the said business loan was availed from Sakthi Finance, some time later due to the loss of the said business, both were decided to close the business. At that time for settling the dues, the respondent gave an Ambassador Car bearing Registration No. MTK 3699 to his partner along with the blank cheque for a sum of Rs.60,000/-. He has stated that the particulars of the cheque issued in favour of the said Manivannan has been entered into the counterfoil of the cheque book. Finally, he gave Rs.45,000/- to Manivannan in the presence of R.W.2 [Kuthabiran] and after receiving the said amount, the said Manivannan had issued receipt under Ex.R.4. Subsequently, for collecting the remaining amount of Rs.15,000/- due from the respondent, the said Manivannan handed over the blank cheque to the appellant, who is the brother-in-law of one practising advocate in Erode and filed this false case. 2.9. R.W.2 [Kuthabiran] gave evidence in support of the evidence given by the R.W.1. He specifically stated that the cheque under dispute was issued to one Manivannan, who in turn handed over to Anandakrishnan [P.W.1] and filed this case against the respondent. 2.10. 2.9. R.W.2 [Kuthabiran] gave evidence in support of the evidence given by the R.W.1. He specifically stated that the cheque under dispute was issued to one Manivannan, who in turn handed over to Anandakrishnan [P.W.1] and filed this case against the respondent. 2.10. After considering all the materials, the Court below acquitted the respondent/accused from the charges on the ground that the appellant/complainant has not proved the existing liability of the respondent. Further held that the complainant is not having any source for giving Rs.2 lakhs as a loan to the respondent. Moreover, the trial Court believing the documents exhibited on the side of the respondent held that the cheque pertaining to this case has not been issued by the respondent in order to discharge the loan alleged to be availed from the complainant. Now, challenging the above said order of acquittal, the present appeal has been filed. 3. When the appeal is taken up for consideration, I have heard the arguments of Mr. N. Manokaran, learned counsel appearing for the appellant, Mr. Naveen Kumar Murthi, learned counsel appearing for the respondent and also perused the records carefully. 4. The learned counsel appearing for the appellant would contend that, in the trial Court the signature of the respondent found in the cheque has been admitted. So, automatically Sections 118(a) and 138 of the Negotiable Instruments Act came into play. Further, the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. Even though the said presumption is rebuttable presumption, in this case the accused did not place his probable defence to disprove the case of the appellant. The trial court without considering the said aspect acquitted the accused for the offence under Section 138 of the Negotiable Instruments Act, which is erroneous one. 5. In order to substantiate the said argument, the learned counsel appearing for the appellant relied on the judgment of our Honourable Apex Court in B.M. Basavaraj Vs. Srinivas S. Datta reported in CDJ 2016 SC 1007, in which, it has held as follows:- “11. In the aforesaid circumstances, it was not even necessary for the appellant to produce any document to the effect that it had fulfilled the obligation under the agreement which was entered into between the parties. Srinivas S. Datta reported in CDJ 2016 SC 1007, in which, it has held as follows:- “11. In the aforesaid circumstances, it was not even necessary for the appellant to produce any document to the effect that it had fulfilled the obligation under the agreement which was entered into between the parties. The case was founded on the dishonour of the two cheques and not on the basis of the said agreement. Further, it was not a civil suit which was filed on the basis of the said agreement or any demand was raised for money on the ground that the agreement had been fulfilled. The case is that the payment was not released. It is here where the High Court has fell in legal error.” 6. Further, in the celebrated judgment of our Honourable Apex Court in Rangappa Vs. Sri Mohan reported in [2010] 11 SCC 441 wherein, it has observed as follows : “18. Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act. With respect to the facts of the present case, it must be clarified that contrary to the trial court's finding, Section 138 of the Act can indeed be attracted when a cheque is dishonoured on account of stop payment instructions sent by the accused to his bank in respect of a post-dated cheque, irrespective of insufficiency of funds in the account. 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities . Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.” 7. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.” 7. So, applying the principles laid down by our Honourable Apex Court with the case in our hand, it is necessary for the respondent to create a suspicious circumstances on the mind of this court about the cheque that has not been issued in discharging the legally enforceable debt. 8. In this occasion, the learned counsel appearing for the respondent would submit that the cheque is now under dispute is having the serial no.293101. According to the case of the appellant, the above cheque has been issued to the appellant on 28.05.2002 but previous to the said date as early as on 12.10.1999 itself, the respondent issued the said cheque in favour of one S. Manivannan. In order to prove the said fact the copy of the counterfoil pertaining to the disputed cheque along with other counterfoil has been marked in this case as Ex.R.2. Now, the entries made in the counterfoil established the fact that the cheque under dispute was issued in the year of 1999. Since the counterfoil of the entire cheque book shows that the said book has been used upto the year of 2001. So, the said circumstances create a doubt whether the cheque has been issued in the year of 2002. 9. The next circumstances, which was indicated on the side of the accused is that, no document is produced on the side of the complainant in support to the debt availed by the accused. It is true in the trial Court the relationship of the complainant with the accused as alleged by the complainant is disputed on the side of the respondent. Even in the reply notice sent to the complainant in the earliest stage, it was mentioned as the complainant is a stranger to him. On the other hand, in order to prove the friendship, and to show the business relationship, no document was produced on the side of the complainant. Furthermore, the amount of Rs.2 lakhs is not a meager amount. So, we cannot expect even a common prudent man giving the loan of Rs.2 lakhs to a stranger without getting any document. On the other hand, in order to prove the friendship, and to show the business relationship, no document was produced on the side of the complainant. Furthermore, the amount of Rs.2 lakhs is not a meager amount. So, we cannot expect even a common prudent man giving the loan of Rs.2 lakhs to a stranger without getting any document. In this regard, the judgment of our Honourable Apex Court in John K. Abraham Vs. Simon C. Abraham & Another reported in [2014] 2 SCC 236, in which, it has held as follows:- “9. It has to be stated that in order to draw the presumption under Section 118 read along with Section 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant.” 10. So, applying the said principle with the case in our hand, on the side of the complainant nothing was produced except the cheque under dispute for showing the debt of the accused. 11. Further, in the case of Ramdas Vs. Krishnanand reported in [2014] 12 SCC 625, wherein our Honourable Apex Court has held as follows:- “8. .....We find from the record that admittedly, the appellant-accused deals with sale and purchase of landed properties and the respondent complainant works as a lorry driver under him with a salary of Rs. 2500 pm and Rs. 20 per day towards miscellaneous expenses (bhatta). Admittedly, the cheque in question was for Rs. 5,00,000 and all the way the stand of the complainant was that he had given a hand loan of Rs. 1,75,000 to the appellant-accused. We find no material on record in support of the claim of the complainant giving hand loan to the appellant-accused. There was also no calculation of account or stipulation of any interest on the alleged loan amount to show as to how the amount of Rs. 5,00,000 was figured, in return of a hand loan of Rs. 1,75,000, if at all taken by the appellant from the complainant. There was also no calculation of account or stipulation of any interest on the alleged loan amount to show as to how the amount of Rs. 5,00,000 was figured, in return of a hand loan of Rs. 1,75,000, if at all taken by the appellant from the complainant. It is also not on record whether there was sufficient balance amount or not in the bank account of the accused when the cheque was dishonoured by the bank.........” 12. In the said judgment, our Honourable Apex Court after observing the above said reasons acquitted the accused from the charges. In this case also, the principle laid down by our Honourable Apex Court is squarely applicable to the facts of this case. In fact, on the side of the complainant as already stated no document was produced to show the complainant is a competent person and he is having the source to advance Rs.2 lakhs as a loan. So, this reason also creates a doubt on the case of the complainant. So, culling out the entire evidence and documents produced by the accused that create a doubt whether the cheque under dispute was issued by the respondent in order to discharge the liability or not. 13. In the above circumstances, during the time of cross-examination, P.W.1 has admitted that he has lodged 7 cases in Perundurai Magistrate Court against the various persons. Further, he has stated in his evidence that he is not an income tax assessee and he is not having any accounts to show his source for advancing huge amount as a loan to various persons. So, this reason also creates a doubt over the case of the complainant. Hence, I am of the opinion that the reasons mentioned in the judgment rendered by the trial Court is convincing one. 14. Generally, in an appeal against acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him and the fundamental principle of criminal justice delivery system is that every person, accused of committing an offence shall be presumed to be innocent, unless his guilt is proved by a competent Court of law. Secondly, if the accused has secured an order of acquittal, the presumption of his innocence is reaffirmed and strengthened by the trial Court. Secondly, if the accused has secured an order of acquittal, the presumption of his innocence is reaffirmed and strengthened by the trial Court. Even if two reasonable conclusions are possible on the basis of evidence on record, the appellate Court should not disturb the finding of the acquittal recorded by the trial Court. In the above said circumstances, I find no reason to interfere with the impugned order of acquittal passed by the trial Court. Hence, the appeal fails and the same is deserves to be dismissed. 15. In the result, the Criminal Appeal fails and accordingly, the same is dismissed and the impugned order of acquittal passed by the learned Chief Judicial Magistrate, Erode, in C.C. No. 19 of 2008, dated 04.05.2009 is hereby confirmed.