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2018 DIGILAW 3446 (MAD)

NIX Enterprises v. Rayappan

2018-10-03

N.SATHISH KUMAR

body2018
JUDGMENT 1. Aggrieved over the order of acquittal passed by the learned Judicial Magistrate No. IV, Tirunelveli in S.T.C. No. 6907 of 2006 dated 29.05.2008, the present appeal has been filed. 2. The brief facts, leading to filing of this Criminal Appeal, is as follows: (i) According to the appellant the accused/respondent borrowed a sum of Rs. 20,000/- on 28.12.2005 from the complainant and issued a cheque - Ex.P.1 in the name of the proprietary concern. When the above cheque was presented for collection the same was dishonoured for "stop payment." The complainant has issued a legal notice - Ex.P.4, which was received and replied. (ii) It is the main defence of the accused that he has only a due of a sum of Rs. 2,000/- towards purchase of paints and in respect of the same he has issued a cheque only for Rs. 2,000/-. The complainant has filed the complaint after making material alteration in the cheque. (iii) The trial Court, after considering the entire evidence acquitted the accused. 3. The learned counsel appearing for the appellant would submit that admittedly the issuance of cheque is not disputed. The only contention of the respondent is that the cheque has been materially altered and the cheque issued in the name of proprietary concern is not enforceable. Such a defence has no legs to stand and hence submitted that the trial Court has not properly appreciated the legal position and acquitted the accused. 4. Whereas the learned counsel for the respondent would contend that there were dealings with proprietary concern regarding purchase of paints. There was a due of Rs. 2,000/- whereas the cheque has been materially altered to Rs. 20,000/- and if P.W.1 has advanced a money, there was no necessity for issuance of cheque in the name of proprietary concern. Hence, submitted that "stop payment" was made only in view of the fact that the cheque has been materially altered to make unlawful enrichment. Hence, the judgment of the trial Court does not require any interference. 5. In the light of the above submissions, now, it has to be analysed whether the judgment of the trial Court acquitting the accused is on proper appreciation of evidence on law? 6. The private complaint has been filed on the ground that the accused borrowed a sum of Rs. 5. In the light of the above submissions, now, it has to be analysed whether the judgment of the trial Court acquitting the accused is on proper appreciation of evidence on law? 6. The private complaint has been filed on the ground that the accused borrowed a sum of Rs. 20,000/- from PW-1 on 28.12.2005 and issued a cheque - Ex.P.1 in the name of the proprietary concern. When the above cheque was presented for collection the same was dishonoured for the reason "stop payment." 7. It is not in dispute that the cheque was drawn in the account maintained by the accused. The accused has not denied issuance of cheque. The first contention of the accused is that the above cheque was issued towards liability pending for purchase of paints and not in respect of the money borrowed. The other contention of the accused is that the cheque has been materially altered from Rs. 2,000/- to Rs. 20,000/- and therefore, it is unenforceable. The presentation of the cheque and its dishonour and issuance of statutory notice and the mandatory period is not disputed. 8. The first contention of the accused that the cheque issued in the name of proprietary concern cannot be enforced is not acceptable for the simple reason that admittedly both accused and complainant were known to each other and they have business transactions, as per the admission of the accused. Therefore, merely because the cheque was issued in favour of the proprietary concern it cannot be stated as unenforceable. It is a juristic person. Only the person who is doing such business and owned such proprietary concern has a right to enforce such cheque. 9. The other contention of the learned counsel for the respondent that he has issued the cheque only for Rs. 2,000/- whereas the cheque has been materially altered for Rs. 20,000/- is also without any basis. On a perusal of Ex.P.1- cheque, this Court finds that the cheque has been issued only for Rs. 20,000/- and not for Rs. 2,000/- as alleged by the respondent herein. Rs. 20,000/- has been clearly mentioned not only in words but also in figures and there is no semblance of any alteration much less material alteration. When a party takes the plea of material alteration, he has to establish the same by evidence. 20,000/- and not for Rs. 2,000/- as alleged by the respondent herein. Rs. 20,000/- has been clearly mentioned not only in words but also in figures and there is no semblance of any alteration much less material alteration. When a party takes the plea of material alteration, he has to establish the same by evidence. Mere submission or pleadings will not discharge the burden of proof of such allegation. On a bare perusal of Ex.P.1 this Court did not find any material alteration as contended by the accused. 10. Having admitted the issuance of the cheque and the cheque has dishonoured and notice has been sent as per Section 138 of the Negotiable Instruments Act, then comes the statutory presumption in favour of the holder under Section 139 of the Negotiable Instruments Act. The statutory presumption not only extend to the date and time but also to consideration. The statutory presumption includes legally enforceable debts. These are all well settled. To rebut or discharge such statutory presumption it is for the accused to bring out some materials in the form of probabilities. Without any such probability one cannot contend that the legal presumption would not get attracted. On a perusal of the entire evidence, except the allegations of material alteration and the cheque is not issued towards debt, no probabilities got in favour of the accused. In view of the above, this Court is of the view that the judgment of the trial Court acquitting is not on proper appreciation of evidence. 11. Accordingly, this Criminal Appeal is allowed and the accused is convicted under Section 138 of the Negotiable Instruments Act and sentenced to pay a compensation of Rs. 40,000/- to the complainant. The amount shall be deposited before the trial Court on or before 31.10.2018. On such deposit, the trial Court shall issue notice to the complainant and disburse the amount. On failure to pay such amount, the accused shall undergo simple imprisonment for a period of three months and the Trial Court is directed to take steps to incarcerate the respondent/accused in prison, so as to serve out the period of sentence.