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2018 DIGILAW 3736 (MAD)

EUGENE JOTHINATHAN v. JOTHI

2018-10-11

N.SATHISH KUMAR

body2018
JUDGMENT N.Sathish Kumar, J. Aggrieved over the order of acquittal, made in C.A.No.130 of 2007, dated 15.5.2008, passed by the learned Additional Sessions Judge, Fast Track No.I, Tuticorin, the present appeal has been filed. 2. The parties are referred to as per their rank in the trial Court. 3. The brief facts leading to the filing of this appeal, are as follows: The complainant has advanced a sum of Rs. 2,50,000/- as loan on 24.08.2002 to the respondent and the respondent agreed to repay the same within a month. Thereafter, on 24.09.2002, the respondent had issued a cheque/Ex.P.1 for Rs. 2,50,000/-, drawn on Indian Bank, Melur. When the complainant presented the same for encashment, the same was dishonoured for the reason 'insufficient funds' under Ex.P.2 memo. Again at the instance of the accused, the cheque was presented for the second time on 08.11.2002 and returned for the same reason under Ex.P.3. Hence, the complainant issued a statutory notice under Ex.P.4. However, the accused neither replied the same nor repaid the amount. Hence, the complainant has preferred a private complaint under Section 138 of the Negotiable Instruments Act. 4. It is the case of the accused that the complainant is a partner in the Ice Factory run by the accused. There was some dispute in the partnership business. As a result, the cheque in question was misused and there was no privity of contract between the accused and complainant. The alleged loan is also improbable. The vehicle of the accused was also transferred in the name of the complainant's wife. 5. The learned Trial Court, considering the evidence and materials on record, found the accused guilty under Section 138 of Negotiable Instruments Act and convicted him to undergo one year simple imprisonment and imposed a fine of Rs. 1,50,000/-, in default to undergo 3 months simple imprisonment. As against which, an appeal was filed by the accused. The appeal was allowed, setting aside the sentence and conviction passed by the learned Trial Court. As against the same, the present Criminal Appeal has been filed by the complainant. 6. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 7. The main contention of the appellant is that admittedly Ex.P.1 was issued by the accused, which is not in dispute. As against the same, the present Criminal Appeal has been filed by the complainant. 6. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. 7. The main contention of the appellant is that admittedly Ex.P.1 was issued by the accused, which is not in dispute. The same was dishonoured for the reason 'insufficient funds' and necessary statutory notice was issued, which has not been replied. Hence, it is the contention of the learned counsel appearing for the appellant that once the ingredients of Section 138 of Negotiable Instruments Act has been made out, a statutory presumption is squarely applicable to the facts of the case. The accused has not rebutted the statutory presumption. The appellate Court has not considered these aspects and hence, submitted that the judgment of the trial Court can be restored by allowing this appeal. 8. On the other hand, the learned counsel appearing for the respondent/accused would contend that Ex.P.1 was not issued by the accused to the complainant and it was misused, taking advantage of the dispute in the partnership business between husband of the accused and complainant. There was no privity of contract between the parties. The alleged advance of the loan is also improbable. The passing of consideration also has not been established. Hence, he submitted that complainant/P.W.1 himself admitted that the accused's vehicle has been transferred in his name and excess amount in fact paid to the accused. All these facts clearly probablize that there was a dispute in the partnership business between the husband of the accused and complainant, wherein, the accused is noway responsible for borrowing any amount. Hence, he prayed for dismissal of the appeal. 9. I have perused the entire materials. 10. A private complaint was filed on the basis of Ex.P.1, said to have been issued towards the loan of a sum of Rs. 2,50,000/- said to have been borrowed by the accused on 24.08.2002. It is not in dispute that the above cheque has been dishonoured on two occasions. When it was dishonoured at first time, no action has been taken against the accused. Only in the second time, when it was dishonoured on 08.11.2002, a legal notice was sent on 15.11.2002. 2,50,000/- said to have been borrowed by the accused on 24.08.2002. It is not in dispute that the above cheque has been dishonoured on two occasions. When it was dishonoured at first time, no action has been taken against the accused. Only in the second time, when it was dishonoured on 08.11.2002, a legal notice was sent on 15.11.2002. Once the ingredients of the offence under Section 138 of the Negotiable Instruments Act has been established, a statutory presumption comes into play in favour of the holder in due course. The presumption not only applies to time and consideration but also the legally enforceable debt. This fact is not in dispute. But at the same time, initial onus always lies on the person to prove the execution. Once execution is proved, then the statutory presumption comes into play automatically. It is also well-settled that the statutory presumption cannot be static. It can be discharged by the accused, to dislodge such presumption there need not be a direct evidence always. Even the circumstantial evidence or circumstances in the case or admission of the parties in the trial court is suffice to discharge the legal presumption. It is the definite case of the accused that there was no privity of contract between herself and the complainant. Only in the partnership business run by the complainant and accused's husband and Others, there was some dispute, which was taken advantage by the complainant and misused the cheque of this accused. 11. On careful perusal of the entire evidence of P.W.1, it is seen that he has categorically admitted in his evidence that having visited the partnership business run by the husband of the accused, he also signed certain receipts issued in favour of other parties. This fact clearly probablize the defence case that in fact, the complainant himself was a party in the partnership business. This is further fortified by the very admission of P.W.1. In his evidence, he has admitted that the vehicle owned by the accused has been transferred in the name of the complainant's wife and the vehicle has been sold and excess amount of Rs. 10,000/- has been returned to the accused. If really there was no such business dealings between the accused and complainant, there was no necessity for transferring the vehicle of the accused in the name of the complainant's wife. 10,000/- has been returned to the accused. If really there was no such business dealings between the accused and complainant, there was no necessity for transferring the vehicle of the accused in the name of the complainant's wife. That aspect in fact clearly probalize the defence theory that the entire dispute has arisen only in a partnership business, and not in personal loan transaction. 12. It is further to be noted that it is the specific case of the complainant that he has advanced a huge sum of Rs. 2,50,000/- to the accused on 24.08.2002 without any security on that date. Nearly after one month, when insisted for payment, Ex.P.1 said to have been issued by the accused. It is also highly improbable. It is further to be noted that it is against the normal human conduct to advance a huge amount without any document at the first instance. However, it is main contention of the complainant that the accused borrowed the amount for construction activities. But, no materials are available on record. The entire admission and cross-examination of P.W.1 clearly indicate that there was no privity of contract between himself and accused. Once circumstances have been established by the accused to probalize his case that there was no privity of contract, then burden automatically shifts on the complainant to prove the passing of consideration. To prove the passing of consideration, except his oral evidence, absolutely there is no evidence whatsoever on record. Once he failed to discharge his burden, for proving the passing of consideration, his complaint has to fail. On entire perusal of the evidence, this Court is of the view that the accused has dislodged the legal presumption. Hence, this Court do not find any infirmity in the order of acquittal passed by the first appellate Court. 13. Accordingly, this Criminal Appeal is dismissed. The judgment dated 15.5.2008, passed by the learned Additional Sessions Judge, Fast Track No.I, Tuticorin, in C.A.No.130 of 2007 is confirmed.