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2018 DIGILAW 3387 (MAD)

M. Karuppiah v. V. Chellapandi

2018-09-28

N.SATHISH KUMAR

body2018
JUDGMENT N. SATHISH KUMAR, J. 1. This Criminal Appeal is directed against the judgment of acquittal passed by the First Appellate Court in C.A.No.17 of 2005, dated 06.03.2008, reversing the order dated 13.04.2005 passed in C.C.No.4 of 2005 on the file of the Judicial Magistrate-I, Virudhunagar convicting the respondent/accused in this appeal for the offence under Section 138 of Negotiable Instruments Act, 1881 and sentencing him to undergo six months simple imprisonment and to pay a fine of Rs. 1000/- in default to undergo three months simple imprisonment. 2. The brief facts leading to this case are as follows:- (i) On 04.02.2003 the accused borrowed a sum of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand Only) from the appellant/defacto complainant and executed a pro-note and also issued a cheque dated 01.10.2003 under Ex.P.2 in favour of the defacto complainant. When the above cheque was presented for encashment under Ex.P.3 through complainant's bankers on 29.10.2003, the same was returned for the reason stating that 'insufficient of funds' on 05.11.2003 under Ex.P4 memo. Immediately, the complainant issued a statutory notice on 06.11.2003 under Ex.P.6, which was received by the accused under Ex.P.8 and the same was replied by the accused under Ex.P.9. Thereafter, the defacto complainant made a private complaint through his power of attorney, namely Boominathan before the Judicial Magistrate-I, Virudhunagar, under Sections 138 and 142 of Negotiable Instruments Act r/w Section 200 Cr.P.C. (ii) The case of the accused before the trial Court is that there were no creditor and debtor relationships between the complainant and the accused. The complainant is the father-in-law of one Vellaisamy. The said Vellaisamy was working with the accused in Government Rajaji Hospital, Madurai. From the year 1986, there were several money transactions between the said Vellaisamy and the accused. Since the said Vellaisamy created a problem, the accused had issued two blank cheques in favour of him. Even after the repayment of money, since the said Vellaisamy demanded and threatened him for more interest, the accused lodged a complaint against the said Vellaisamy in the police station. Thereafter, a complaint was set up by the said Vellaisamy by taking an advantage of the blank cheques issued in favour of him. (iii) Before the Trial Court, on the side of the appellant herein, P.W.1 to P.W.3 were examined and Exs.P1 to P11 were marked. Thereafter, a complaint was set up by the said Vellaisamy by taking an advantage of the blank cheques issued in favour of him. (iii) Before the Trial Court, on the side of the appellant herein, P.W.1 to P.W.3 were examined and Exs.P1 to P11 were marked. On the side of the respondent herein, D.W.1 to D.W.3 were examined and Exs.D1 to D.5 were marked. On questioning under Section 313 of Cr.P.C., the accused denied charges. (iv) On perusal of the entire evidence let in by both the parties, the trial Court as stated-convicted the accused on the ground that since the signature in the cheque has been admitted, the presumption was raised against the accused. Aggrieved by the same, the accused filed an appeal in C.A.No.17 of 2005 before the Additional District and Sessions Judge, Virudhunagar. The First Appellate Court by judgment dated 06.03.2008, acquitted the accused on appreciation of the entire evidence. Aggrieved over the acquittal judgment of the First Appellate Court, the present Criminal Appeal came to be filed before this Court by the appellant/defacto complainant. 3. Heard the learned counsel appearing for the appellant and the respondent and perused the materials, which are available on record. 4. The main contention of the learned counsel appearing for the appellant is that the signature in the cheque is not disputed by the respondent/accused. Once the issuance of the cheque has been admitted, the presumption has to be drawn against the accused as per Sections 118 and 139 of Negotiable Instruments Act, 1881. The First Appellate Court without considering these aspects had reversed the finding given by the trial Court. It is the further contention of the learned counsel for the appellant that the accused has also not examined the said Vellaisamy to establish that there were money transactions between himself and the said Vellaisamy. 5. He submitted that the documents filed by the complainant before the Lower Court clearly establish the fact that there were money transactions between the accused and the complainant and the statutory presumption available under Section 139 of Negotiable Instruments Act has not been dislodged by the accused. Hence, he prays for reversal of the judgment passed by the First Appellate Court. 6. Hence, he prays for reversal of the judgment passed by the First Appellate Court. 6. The learned counsel appearing for the respondent would submit that the First Appellate Court has appreciated the entire evidence on record and found that the accused has discharged his burden whereas the complainant has failed to establish his case. Hence, he prays for dismissal of this appeal. 7. On perusal of the entire materials, it is well settled that when a cheque is drawn on account maintained by the drawer, in the name of the payee and the cheque is dishonored in any of the reasons under Section 138 of Negotiable Instruments Act, the statutory presumption available under Sections 118 and 139 of Negotiable Instruments Act will get attracted. Before the said presumption got attracted, the initial burden always lies on the payee to establish the execution of the cheque. 8. It is also well settled that the statutory presumption is not static. It cannot be dislodged. To dislodge such legal presumption need not always by the direct evidence alone. Even circumstantial evidence or even admission in the evidence is suffice to discharge the statutory presumption. The accused by way of preponderance of possibility of the case dislodges the legal presumption then burden lies against the complaint, it is the complainant to establish passing for consideration. It is the specific case of the complainant that he advanced a sum of Rs. 1,50,000/- on 04.02.2003 and also obtained a promissory note towards the above loan. However, it is to be noted that the said promissory note has not seen the light of the day. 9. Be that as it may, it is the specific contention of the accused that there were no creditor and debtor relationships between himself and the complainant. The complainant is none other than the father-in-law of the one Vellaisamy who is working with the accused in the Government Rajaji Hospital, Madurai and there were some financial dealings with him, which culminated to dispute and landed up in police complaint. On the side of the accused, he himself examined as D.W.1. D.W.3 is the Head Constable working in the concerned police station, where the complaint has been lodged. On the side of the accused, he himself examined as D.W.1. D.W.3 is the Head Constable working in the concerned police station, where the complaint has been lodged. From the analyze of the evidence of D.W.3, it is clearly established that even on 16.08.2003, a complaint has been lodged against the said Vellaisamy by the accused alleging threat and demand of interest by him. 10. In the complaint, there was a specific averment about the present cheque number. It is the case of the accused that he issued two blank cheques to the said Vellaisamy. In the above said complaint, he has specifically mentioned about the blank cheques bearing particular numbers. The above fact was enquired by the police and an undertaking was also given by the said Vellaisamy which has been clearly spoken by D.W.3. 11. It is to be noted that the cheque has been presented for encashment on 29.10.2003 and since the same was returned as insufficient of funds, the statutory notice was issued subsequently, which was suitably replied by the accused. The evidence adduced by the accused clearly probabalises the fact that the subject matter of the cheque was originally issued in blank to the said Vellaisamy, who is none other than the father-in-law of the present complainant. Above facts probabalise the detenue thoery. Therefore, the burden entirely lies on the complainant to prove passing of consideration. 12. Admittedly, there is no material whatsoever placed by the complainant to prove passing of consideration. His evidence also clearly indicates that he is only an agricultural coolie. That being the position, advancing such huge amount of Rs. 1,50,000/- in one stroke is also highly improbable. To countenance this, his further contention is that the accused executed the pro-note on that date. The said pro-note has not seen the light of the day. 13. From the above materials, I am of the considered view that the accused has clearly proved his case and the burden of establishing the case by the complaint has not been dislodged. Therefore, I do not find any error or infirmity in the order passed by the First Appellate Court. 14. In the result, this Criminal Appeal is dismissed by confirming the judgment dated 06.03.2008 made in C.A.No.17 of 2005 rendered by the Additional District and Sessions Judge (Fast Tract Court) Virudhunagar.