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2018 DIGILAW 4001 (MAD)

T. JEYARAJ v. P. S. SUKUMARAN @ SUKUMAR

2018-10-29

M.V.MURALIDARAN

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JUDGMENT M.V. MURALIDARAN, J. 1. This appeal has been filed seeking to set aside the judgment dated 25.6.2004 made in C.C.No.3596 of 2001 on the file of the learned IX Metropolitan Magistrate, Chennai. 2. For the sake of convenience, the appellant and the respondent will be referred to as per their array in the complaint. 3. I heard Ms.R.Gowri, learned counsel for the complainant and Mr.R.Chellamuthu, learned counsel for the accused and also perused the materials available on record. 4. It is the case of the complainant that on 14.3.2001, the accused borrowed a sum of Rs. 75,000/- from him to meet his medical expenses and in discharge of the said loan, the accused had issued the impugned cheques dated 13.6.2001 for Rs. 10,000/- and Rs. 6,322/- respectively in favour of the complainant. When the complainant presented the said cheques for encashment through State Bank of India, Tanjore, on account of stop payment, the same were returned. On 29.6.2001, the appellant issued a legal notice to the accused and the accused refused to receive the notice. Hence, the appellant had filed a complaint under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the NI Act before the IX Metropolitan Magistrate, Chennai in C.C.No.3396 of 2001. On receipt of summons, the accused appeared and when he was questioned about the accusation against him, he denied the same. 5. To prove the case, the complainant examined 3 witnesses and marked 12 documents. The accused was questioned about the incriminating circumstances appearing against him under Section 313 Cr.P.C., which he denied. On the side of the accused, the accused examined himself as D.W.1 and marked 8 documents. 6. After appreciating the evidence, both oral and documentary, the trial Court held that the accused found not guilty and acquitted him. Impugning the same, the complainant preferred the present appeal. 7. On the side of the accused, the accused examined himself as D.W.1 and marked 8 documents. 6. After appreciating the evidence, both oral and documentary, the trial Court held that the accused found not guilty and acquitted him. Impugning the same, the complainant preferred the present appeal. 7. The contentions in the grounds of appeal as well as the submissions of the learned counsel appearing for the appellant are that, the trial Court's acquittal judgment is contrary to law, weight of evidence and probabilities of the case; that the trial Court failed to see that when there was nothing to show the debt how not legally enforceable and once proved the debt and issuing of cheque for the same and also the presumptions in regard to the chequse issued were for the legally enforceable debt to rebut by accused, the Court below went wrong in dismissing the complaint with no basis and hence to allow the appeal by setting aside the acquittal judgment of the trial Court and to punish the accused according to law. 8. Per contra, the learned counsel for the accused contended that the trial Court after analysing the evidence let in by both sides, arrived at a conclusion that the impugned cheques were not issued for repayment of the loan amount alleged to have been received by the accused to meet his medical expenses. He would submit that there were material alterations in the impugned cheques. The learned counsel further contended that if really the complainant has given Rs. 75,000/- to the accused towards loan and assuming that the accused paid part amount of Rs. 16,322/-, nothing has been whispered what steps he had taken to realise the balance amount. Therefore, there was no truth that the complainant had advanced a sum of Rs. 75,000/- to the accused as loan to meet the medical expenses and the learned counsel prayed for dismissal of the appeal. 9. Now the points that arise for consideration is whether there was borrowal of amount by accused as loan and issuance of the cheques and if so there was no legally enforceable debt to make liable the accused for the offence under Section 138 of the NI Act as held by the trial Court in its acquittal judgment, and if not the same is unsustainable to set-aside and with what findings. 10. 10. Before adverting to the merits of the matter, it would be appropriate to quote the provisions incorporated in Chapter XVII of the NI Act make a civil transaction to be an offence by fiction of law and with certain (rebuttable) presumptions that shall be drawn. Sections.138 to 142 are incorporated in the NI Act as Chapter XVII by the Banking Public Financial Institutions and Negotiable instruments Laws (Amendment) Act, 1981 (66 of 1988) which came into force w.e.f. 01-04-1989 and the NI Act was further amended by Act, 2002 (55 of 2002) which came into force w.e.f. 06-02-2003 incorporating new sections 143 to 147 in this Chapter XVII and further some of the existing provisions not only of the Chapter XVII, but also of other Chapters amended to overcome the defects and drawbacks in dealing with the matters relating to dishonour of cheques. 11. The object and intention of these penal provisions of Chapter XVII, in particular, Sections 138 and 139 (besides civil remedy), are to prevent issuing of cheques in playful manner or with dishonest intention or with no mind to honour or without sufficient funds in the account maintained by the drawer in Bank and induce the Payee/Holder or Holder in due course to act upon it. The remedy available in a Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. Since a cheque that is dishonoured may cause uncountable loss, injury or inconvenience to the Payee due to the latters unexpected disappointment, these provisions incorporated are in order to provide a speedy remedy to avoid inconvenience and injury to the Payee and further to encourage the culture of use of cheques and enhancing credibility of the instruments as a trustworthy substitute for cash payment and to inculcate faith in the efficacy of Banking operations. 12. 12. To fulfill the objective, the Legislature while amending the Act has made the following procedure: "In the opening words of the Section 138 it is stated: "Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid,---------, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act (See Sec.143), be punished ---- Provided, nothing contained in this section shall apply unless,-(a), (b); and (c) Explanation---." "(i) Under Section 138 a deeming offence is created by fiction of law. (ii) An explanation is provided to Section 138 to define the words "debt or other liability" to mean a legally enforceable debt or other liability." (iii) In Section 139, a presumption is ingrained that the holder of the cheque received it in discharge of debt or other liability. (iv) Disallowing a defence in Section 140 that drawer has no reason to believe that cheque would be dishonoured. (v) As per Section 146 (new section) the production of the Banks slip or Memo with official mark denoting that the cheque has been dishonoured is prima facie evidence for the Court to presume the fact of dishonour of such cheque unless such fact is disproved by the accused." 13. Further the provision for issuing notice within fifteen days under Section 138 after dishonour is to afford an opportunity to the drawer of the cheque to rectify his mistakes or negligence or in action and to pay the amount within fifteen days of receipt of notice, failing which the drawer is liable for prosecution and penal consequences. 14. Reasonability of cause for non-payment is not at all a deciding factor. Mens rea is irrelevant. It is a strict liability incorporated in public interest. 15. Availability of alternative remedy is no bar to the prosecution. 14. Reasonability of cause for non-payment is not at all a deciding factor. Mens rea is irrelevant. It is a strict liability incorporated in public interest. 15. Availability of alternative remedy is no bar to the prosecution. In the words - where any cheque, the word any suggests that for whatever reason if a cheque is drawn on an account maintained by him with a Banker in favour of another person for the discharge of any debt or other liability, the liability cannot be avoided in the event of the cheque stands returned by the Banker unpaid. 16. In the case on hand, though the accused contended that in order to drag on the accused, the complainant had preferred the complaint in Chennai jurisdiction despite knowing the fact that both parties doing business at Tanjore. More over, no proper legal notice was served on the accused before filing the complaint. 17. On a perusal of the order impugned in this appeal, this Court finds that the trial Court has elaborately dealt with the said aspect and held that the complainant has properly sent the notice to the accused and therefore, the objection of the accused that no proper notice was sent to the accused was not acceptable. Since the said finding of the trial Court was based on the evidence, this Court don't want to elaborate upon the same and it is to be held that the trial Court had rightly rejected the plea of lack of jurisdiction. It is also to be held that before filing the complaint, the complainant had issued proper legal notice. 18. The next point of the accused is that he had not given the impugned cheques in discharge of the amount of Rs. 75,000/- said to have been borrowed by him to meet his medical expenses. 19. According to the complainant, to discharge part of the amount borrowed by the accused, he had given two cheques for Rs. 10,000/- and Rs. 6,322/- respectively. When the same were presented, on account of stop payment, the same were returned. 20. The learned counsel for the complainant contended that the trial Court having rejected the plea, lack of territorial jurisdiction, ought to have convicted the accused for issuing cheque and instructing the Bank to stop the payment and it is one of the reasons given for attracting the offence under Section 138 of the NI Act. 21. 20. The learned counsel for the complainant contended that the trial Court having rejected the plea, lack of territorial jurisdiction, ought to have convicted the accused for issuing cheque and instructing the Bank to stop the payment and it is one of the reasons given for attracting the offence under Section 138 of the NI Act. 21. Countering the argument of the learned counsel for the complainant, the learned counsel for the accused contended that the accused admitted issuance of two cheques, but the same were not issued as alleged by the complainant. To prove that the impugned cheques were issued in discharge of the loan borrowed by the accused, the complainant had not produced any corroborative evidence. 22. In its order, the trial Court held that the complainant pleaded that on 14.3.2001, he advanced Rs. 75,000/- to the accused to meet the medical expenses of the accused. Though the impugned cheques were issued on 13.6.2001, it was found that already dates have been written as 26.1.2001 and 3.1.2001 respectively. In Ex.P2, below the signature, the date has been mentioned as 31.1.2001. Therefore, the trial Court doubted the impugned cheques. In fact, in paragraph 10, the trial Court held as under: "xxx xxx xxx" 23. It is the case of the complainant that earlier the accused had borrowed money from him and he used to get cheques from the accused. When that being so, why the complainant had not received the cheque for the loan amount of Rs. 75,000/- said to have been given to the accused. For this, there was no explanation from the side of the complainant. 24. It is seen from the records that there were business transaction between the complainant and the accused. The same alone would not prove that the accused had borrowed Rs. 75,000/- from the complainant to meet his medical expenses and for repayment of part of the amount, the accused had given the impugned two cheques. If really, the complainant had given Rs. 75,000/- to the accused as loan, the complainant would have taken steps to realise the balance amount. In the case on hand, absolutely, there was no material to show that the complainant had taken steps to recover the balance amount. 25. As rightly held by the trial Court, for repayment of part of the amount, the accused would not have issued two cheques i.e., one for Rs. In the case on hand, absolutely, there was no material to show that the complainant had taken steps to recover the balance amount. 25. As rightly held by the trial Court, for repayment of part of the amount, the accused would not have issued two cheques i.e., one for Rs. 10,000/- and another for Rs. 6,322/-. Generally, no ordinary prudent man would issue two cheques on the same day for repayment of the amount that too part of the amount with alteration in the dates. 26. The complainant had failed to prove that he advanced loan of Rs. 75,000/- to the accused to meet the medical expenses. On the other hand, the accused had proved that the impugned cheques were not issued in discharge of the part of the loan amount. Therefore, on proper analysis of the oral and documentary evidence, the trial Court came to the conclusion that the complainant had failed to prove the case. This Court don't want to take different view, as the finding of the trial Court is based on documentary evidence. 27. For all the above, trial Court had rightly arrived at the conclusion and thus for this Court with reference to the settled propositions in the factual matrix there is nothing to interfere with the trial Court's acquittal judgment, but for dismissal of the appeal by confirming it. 28. In the result, the Criminal Appeal is dismissed confirming the order of acquittal recorded by the trial Court in its judgment supported by reasons in its not finding the accused guilty for the offence under Section 138 of the N.I. Act.