Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3390 (MAD)

S. Sivasubramanian v. K. Naladiyar

2018-09-28

N.SATHISH KUMAR

body2018
JUDGMENT N. SATHISH KUMAR, J. 1. This Criminal Appeal has been filed against the judgment dated 25.03.2008 in C.A.No.22 of 2007 passed by the I Additional Sessions Judge, Tirunelveli, reversing the judgment dated 25.01.2007 in C.C.No.317 of 2005 on the file of the learned Judicial Magistrate No.IV, Tirunelveli. 2. By the judgment in C.C.No.317 of 2005, the lower Court has convicted and sentenced the accused to undergo simple imprisonment for two years and to pay a fine of Rs. 10,000/-, in default, to undergo simple imprisonment for one month for the offence under Section 138 of the Negotiable Instruments Act(hereinafter referred to as 'the Act'). As against the said conviction, the accused has filed an appeal in C.A.No.22 of 2007 before the I Additional Sessions Judge, Tirunelveli and the lower appellate Court has acquitted the accused. 3. The brief facts leading to this case are as follows:- (i)On 21.02.2005, the accused borrowed a sum of Rs. 90,000/- from the appellant/complainant and issued a cheque bearing No.905542, dated 21.07.2005, which is marked as Ex.P.1. When the above cheque was presented on 26.07.2005, the same was dishonored, which is marked as Ex.P.2. Immediately, the complainant issued a statutory notice on 29.07.2005, which is marked as Ex.P.4, which was received by the accused (Ex.P.5). (ii)The case of the accused before the trial Court was that there were no creditor and debtor relationship between the complainant and the accused. The accused is running a Cinema Theatre, wherein, the complainant had screened the Cinema and there was no money transactions between them and the complainant had stolen six blank cheques signed by the accused bearing Nos.905540 to 905546 and also threatened him. (iii)Before the Trial Court, on the side of the appellant, only one witness (P.W.1) was examined and 5 documents (Exs.P1 to P5) were marked. On the side of the respondent, as many as 4 witnesses (D.W.1 to D.W.4) were examined and 5 documents (Exs.D1 to D.5) were marked. On questioning the accused under Section 313 of Cr.P.C., he denied the charges as false. (iv)On perusal of the entire evidence let in by both the parties, the trial Court convicted the accused as stated supra on the ground that since the signature in the cheque has been admitted, the presumption was raised against the accused. On questioning the accused under Section 313 of Cr.P.C., he denied the charges as false. (iv)On perusal of the entire evidence let in by both the parties, the trial Court convicted the accused as stated supra 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.22 of 2007 before the I Additional Sessions Judge, Tirunelveli. The First Appellate Court, by judgment dated 25.03.2008, acquitted the accused on appreciation of the entire evidence. Aggrieved over the said judgment of the First Appellate Court, the present Criminal Appeal came to be filed before this Court by the appellant/defacto complainant. 4. Heard the learned counsel appearing for the appellant and the respondent and perused the materials, which are available on record. 5. The main contention of the learned counsel appearing for the appellant is that the trial Court has found the accused guilty under Section 138 of the Act, whereas, the first Appellate Court, without appreciating the entire evidence, reversed the same and thereby acquitted the respondent/accused. Admittedly, the cheque was issued in the account maintained by the accused. The said cheque was dishonored and a statutory notice was also issued. Therefore, the presumption gets attracted, whereas the first Appellate Court without appreciating the legal position, has disbelieved the complainant. 6. The learned counsel appearing for the respondent/accused would contend that the first Appellate Court on considering the entire evidence held that Ex.P.1 was not issued by the accused towards any liability and acquitted the accused. 7. The case of the respondent/complainant is that the accused borrowed a sum of Rs. 90,000/- and issued a cheque Ex.P.1 dated 21.07.2005. Thereafter, when the said cheque was presented on 26.07.2005, the same was dishonored and a statutory notice was also issued on 29.07.2005, which was also received by the accused. It is the main case of the accused that apart from Ex.P.1, six signed cheques kept in the Cinema Theatre had been stolen, out of which, one cheque has been used by the complainant for illegal gain. The first Appellate Court analyzing the entire evidence found that the issuance of cheque and the borrowal of the amount had not been established. 8. The first Appellate Court analyzing the entire evidence found that the issuance of cheque and the borrowal of the amount had not been established. 8. It is the case of the accused that immediately after missing of the cheques, he has issued a telegram and gave a complaint. To substantiate his version, he has examined D.Ws.2 to 4. The evidence of D.W.2 and D.W.4 also clearly indicates that on 02.03.2005, there was a telegram with regard to the missing of the cheques and the accused also stopped payment to the bank concerned. It is the specific case of the complainant that on 21.02.2005 he advanced Rs. 90,000/- and when the said amount was demanded, a cheque was issued on 21.07.2005. It is to be noted that when a person advanced Rs. 90,000/- without any document, it is highly improbable. There was no reason as to why the complainant did not insist for any document on the date of alleged advance of Rs. 90,000/- Therefore, his contention that when he demanded return of money only on 21.07.2005 at that time, the accused issued a cheque Ex.P.1 is also highly improbable. The evidence clearly established the fact that prior to issuance of the alleged cheque, telegram was issued by the accused with regard to the missing of the cheque. Therefore, the contention of the complainant is that the cheque was issued only on 21.07.2005 for the loan amount said to have been given on 21.02.2005 is improbable. Ex.D.3 to Ex.D.5 are the notices issued by the complainant. It is seen that Ex.D.3 dated 23.04.2005 legal notice issued by the complainant stating that on 02.03.2005, the accused borrowed a sum of Rs. 30,000/- and issued post dated cheque for the said amount. It is to be noted that the said cheque bearing No.905545, was issued for the amount borrowed on 02.03.2005, whereas the present cheque (Ex.P.1) said to have been issued on 21.07.2005, and the cheque number is 905542, dated 21.07.2005, later on, the cheque said to have been issued on 02.03.2005. Similarly the other notice issued by the complainant dated 28.04.2005, marked as Ex.D.4, as if the complainant has bought a sum of Rs. 50,000/- on 05.01.2005, the accused issued a cheque dated 10.03.2005. similarly, another cheque said to have been given for the another amount of Rs. 50,000/- said to have been advanced on 05.01.2005. Similarly the other notice issued by the complainant dated 28.04.2005, marked as Ex.D.4, as if the complainant has bought a sum of Rs. 50,000/- on 05.01.2005, the accused issued a cheque dated 10.03.2005. similarly, another cheque said to have been given for the another amount of Rs. 50,000/- said to have been advanced on 05.01.2005. According to the complainant six cheques have been issued much prior to Ex.P.1. If Ex.P.1 was issued on 21.07.2005, the number of cheque must be later than the other cheques referred to in Ex.D.3 to Ex.D.5 legal notices. Therefore, the alleged issuance of cheque and passing of consideration is highly doubtful in this case and the legal notice itself issued after the stop payment and communication with regard to the alleged missing of cheque. 9. Considering these facts the first Appellate Court found that the issuance of cheque has not been established. It is well settled that when the accused is able to bring some probability to dislodge the legal presumption under Sections 118 and 139 of Negotiable Instruments Act, the burden shifts on the complainant not only to prove the entire transaction, but also passing of consideration. But the appellant has not discharged his burden. The very legal notice sent by the appellant and marked on the side of the accused, show the improbabilities in the appellant case. According to the appellant, respondent not paid the amount even after borrowal at the first instance. When that being the position repeatedly advancing the amount and getting a postdated cheque is also highly improbable. Hence, this Court does not find any infirmity or illegality in the order passed by the trial Court. 10. In the result, this Criminal Appeal is dismissed and the judgment dated 06.03.2008 made in C.A.No.17 of 2005 passed by the Additional District and Sessions Judge (Fast Tract Court) Virudhunagar, is confirmed.