Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3980 (MAD)

RAVICHANDRAN v. SULAIMAN

2018-10-27

P.VELMURUGAN

body2018
JUDGMENT P. VELMURUGAN, J. 1. This Criminal Appeal has been filed to set aside the order dated 02.03.2007 made in CC No.12 of 2006 rendered by the learned District Munsif, Paramakudi. 2. The complainant is the appellant in this appeal. The case of the complainant is that the respondent borrowed a sum of Rupees three lakhs on 07.04.2005 and on the same day, for the repayment of the said amount, he issued a cheque drawn from Union Bank of India, Emaneswaram, bearing No.019790. Thereafter, when the complainant had presented the cheque in Co- Operative Bank, Paramakudi on 11.05.2005, the said cheque was returned by the respondent's bank as 'Account Closed' on 12.05.2005 and the same was intimated to the complainant with a memo dated 25.05.2015 of the Complainant's bank. Thereafter, he issued a statutory notice on 03.06.2005. However, after receiving the same, the respondent neither repaid the amount nor sent reply. 3. Therefore, the complainant had filed a complaint before the Judicial Magistrate, Paramakudi under Section 138 of The Negotiable Instruments Act and the same was taken on file by the Judicial Magistrate, Paramakudi in CC No.205 of 2005. Subsequent to the notification of High Court's Notification, No.124 of 2006 and Roc No.68/2006-Con.B.2, dated 29.06.2009, the case was transferred to the District Munsif, Paramakudi and was taken on file and re-numbered as CC No.12 of 2006. 4. On the side of the complainant, the complainant examined himself as PW.1 and as many as six documents were marked as Ex.P.1 to Ex.P.6 and on the side of the respondent, two witnesses were examined as D.W.1 and D.W.2 and three documents were marked as Ex.D.1 to Ex.D.3. 5. After completion of enquiry and hearing on either side, the learned District Munsif, came to the conclusion that the respondent had not committed any offence and therefore, acquitted the respondent/accused. 6. Feeling aggrieved against the judgment dated 02.03.2007 rendered by the District Munsif, Paramakudi, the present criminal appeal has been filed by the complainant/appellant. 7. The case of the complainant before the trial Court is that the respondent/accused has admitted his signature and the execution of the cheque. Therefore, the statutory presumption is that the cheque was given for legally enforceable debt. The learned District Munsif had failed to consider the statutory presumption and acquitted the respondent. 8. 7. The case of the complainant before the trial Court is that the respondent/accused has admitted his signature and the execution of the cheque. Therefore, the statutory presumption is that the cheque was given for legally enforceable debt. The learned District Munsif had failed to consider the statutory presumption and acquitted the respondent. 8. The case of the respondent before the Court below is that even though the signature found in the cheque is admitted, the cheque is not executed in favour of the appellant/complainant. Actually he borrowed a sum of Rupees Fifty Thousand on 05.08.1999 from one Sivaramalingam, Advocate and for that only he had given blank cheques and subsequently, the amount was repaid. He would further submit that at the time of borrowing the amount, he had obtained promissory notes and blank cheques and he promised that after repayment of the amount, he would return the promissory note and cheques, but he did not return them to the respondent and believing him that he would not misuse the cheques, he kept quite. However, one of the said cheques was misused through this complainant. Actually there is no nexus between the complainant and the respondent. He has also examined the Bank Manager and the Bank Manager had deposed that on 24.07.2004 the account was closed. Therefore, it is not possible to give the cheques on 07.05.2005, even ten months prior the date of issuance of the cheque, the account was closed. The Bank Manager had further deposed that, at the time of closing of account, the Bank always collects all the unused cheques. Further, the cheque bearing No.019790 was dated subsequent to a cheque bearing No.019791, which was given to one Hello Group of Company for a sum of Rupees Five Thousand was honoured on 21.08.2001. Therefore, if t all the said cheque was issued as stated by the complainant the said cheque could have also been honoured. Usually the customers will issue cheques in the order, ie. in the order of cheque numbers. So, when the subsequent cheque was issued and honoured in the year 2001 itself, the disputed cheque alleged to have been given to the complainant, could not have been issued on 07.02.2005 after about 4 or 5 years later. Therefore, the defence of the respondent was believed by the District Munsif and accordingly, the complaint was dismissed. 9. So, when the subsequent cheque was issued and honoured in the year 2001 itself, the disputed cheque alleged to have been given to the complainant, could not have been issued on 07.02.2005 after about 4 or 5 years later. Therefore, the defence of the respondent was believed by the District Munsif and accordingly, the complaint was dismissed. 9. Heard the rival submissions made on either side and perused the material available on record. 10. It is the case of the complainant is that the respondent borrowed a sum of Rupees three lakhs on 07.04.2005 and on the same day, he issued a cheque bearing No.019790. When the complainant had presented the cheque for collection on 11.05.2005, the said cheque was returned by bank on 12.05.2005 as 'Account Closed' on 24.07.2004 and the same was intimated to the complainant with a memo dated 25.05.2015 of the Complainant's bank. Therefore, the complainant had issued a statutory notice on 03.06.2005. However, after receiving the same, the respondent neither repaid the amount nor sent reply. Therefore, he filed a complaint before the Magistrate. Since, the complainant had admitted the signature found in the cheque, it is only the statutory presumption that the cheque is issued for legally enforceable debt/liability. 11. The case of the respondent is that actually the cheque was not given to the complainant and no amount was borrowed from him. In the year 1999 Rupees Fifty Thousand was received from one Sivaramalingam, Advocate and for that he had issued the cheque alongwith other cheques and pronotes and subsequently, he has also repaid the amount to him. After settling the amount one of the said cheque is misused through this complainant. 12. A perusal of the evidence of RW.2 Bank Manager would reveal that the account was closed even in the year 2004 on 27.04.2004. The disputed cheque is alleged to have been given on 07.05.2005. Even the cheque bearing No.019791 was issued in the year 2001 and that was honoured in the year 2001 itself. Therefore, it is not possible to issue the disputed cheque bearing No.019790 after four years of issuance of cheque bearing No.019791. Therefore, the defence taken by the respondent/accused is acceptable. It is settled law that the accused need not prove the case. It is only the complainant one who has filed the complaint has to prove the case. Therefore, it is not possible to issue the disputed cheque bearing No.019790 after four years of issuance of cheque bearing No.019791. Therefore, the defence taken by the respondent/accused is acceptable. It is settled law that the accused need not prove the case. It is only the complainant one who has filed the complaint has to prove the case. It is no doubt that the signature in the disputed cheque has been admitted. The respondent/accused has stated that the cheque has not been issued to the appellant/complainant. Therefore, it is for the complainant to prove that the said cheque was issued to him for legally enforceable debt. The accused need not prove the defence by producing direct evidence. So in this case, the evidence of RW.2 has clearly stated that the account was closed on 24.07.2004 and the disputed cheque alleged to have been given on 07.05.2005, which creates doubt. Even in the cheque, where the date is filled it is printed as 19, which denotes the year. Therefore, it is not possible after five years of the closing the account, the cheque would have been issued. Therefore, no doubt, as far as the private complaint case is concerned, it is the complainant, one who has given the complainant to prove the case beyond reasonable doubt. If two views are possible, the view one which is favourable to the accused has to be taken for consideration. 13. No doubt the presumption under Sections 118 and 139 of the Negotiable Instruments Act, is a rebuttal presumption. The accused need not rebut the presumption by producing direct evidence, even he can rebut the presumption by way of probable defence. In this case, the appellant has not proved his case beyond reasonable doubt. Whereas the respondent has rebutted the presumption through probable defence. 14. Under such circumstances, the complainant had failed to prove his case and therefore, there is no merit in this appeal and this Court finds there is no reason to interfere with the judgment passed by the learned District Munsif, Paramakudi. 15. In the result, the judgment dated 02.03.2007 in CC No.12 of 2006 passed by learned District Munsif, Paramakudi is hereby confirmed and the criminal appeal in CRL.A.[MD]No.236 of 2007 is dismissed.