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2019 DIGILAW 495 (MAD)

Vanaja v. S. Sankara Narayanan

2019-02-23

P.VELMURUGAN

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JUDGMENT : P. Velmurugan, J. 1. The appellant preferred a complaint before the learned Judicial Magistrate No. III, Nagercoil. The said complaint was dismissed on 02.05.2007. Therefore, the complainant has preferred the present appeal against acquittal. 2. The case of the prosecution is that the respondent borrowed a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) from the complainant on 09.05.2005 for her family expenses for which he issued a post dated cheque dated 09.07.2005 bearing cheque No. 973157 for a sum of Rs. 2,00,000/- (Rupees Two Lakhs only). The said cheque was presented by the appellant on 21.07.2005 and the cheque was returned as 'insufficient funds'. Therefore, she issued a notice on 23.07.2005 and after receiving the notice, the respondent sent a reply on 10.08.2005. Since the respondent did not repay the amount as demanded in her statutory notice, she filed a private complaint under Section 200 of C.P.C., for the offence under Section 138 of Negotiable Instruments Act before the learned Judicial Magistrate No. III, Nagercoil against the respondent. The learned Judicial Magistrate after taking complaint on file and after completing the procedural formalities and enquiry, found the appellant has not proved the case beyond the reasonable doubt and hence, dismissed complaint acquitting the accused. Aggrieved over the acquittal rendered by the trial Court, the appellant has preferred the present appeal. 3. The case of the appellant is that the respondent borrowed a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) on 09.05.2005. For the repayment of the said amount, the respondent gave a post dated cheque dated 09.05.2005 and when the cheque was presented for collection, the same was returned as 'insufficient funds'. Subsequently the appellant issued notice and after that she filed the complaint. 4. Before the trial Court to prove the case, on the side of the appellant, 1 witness was examined, 5 documents were marked and on the side of the accused, three witnesses were examined, one document was marked. 5. The learned counsel for the appellant would submit that the appellant/complainant was examined as P.W. 1 and the cheque was marked as Ex. P1, return memo is marked as Ex. P2, notice was marked as Ex. P3, the acknowledgment received from the respondent was marked as Ex. P4 and reply notice was marked as Ex. P5. The appellant has deposed that the accused borrowed the money and issued a cheque subsequently. P1, return memo is marked as Ex. P2, notice was marked as Ex. P3, the acknowledgment received from the respondent was marked as Ex. P4 and reply notice was marked as Ex. P5. The appellant has deposed that the accused borrowed the money and issued a cheque subsequently. He would submit that the appellant has proved his case beyond reasonable doubt whereas the learned Magistrate has given much importance to the immaterial contradictions. During the cross examination of P.W. 1 that relationship regarding the address and business of the respondent and further given importance to the respondent side evidences, D.W. 2 and D.W. 3 but there are material contradictions with D.W. 2 and D.W. 3 and there is no documentary evidence to show that they had transaction only with the husband of the appellant not with the appellant. The learned Magistrate has failed to consider the statutory presumption and the respondent has not rebutted the presumption in the manner known to law. Mere bold defence is not sufficient to rebut the presumption but with some substance which is not considered by the learned Magistrate. Therefore the Judgment of the learned Magistrate is liable to be set aside and warrants interference. 6. Per contra the learned counsel appearing for the respondent would submit that the appellant has not proved her case beyond reasonable doubt and he has stated that the appellant has lent money for a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) to the respondent and she has not proved her means during the cross examination. Though he has admitted that she sold the property out of the sale proceeds and she lent the money to the respondent, she has not proved the description of the property, survey number, to whom the appellant sold the property and what was the consideration received on the date of sale. Therefore, the appellant has not proved the case beyond the reasonable doubt and that the respondent has established his defence. The respondent gave instruction to stop the payment and also D.W. 2 has clearly stated that there was a transaction with her husband of the appellant not with the appellant. Therefore, he has rebutted the presumption. Therefore, the appellant has not proved the case beyond the reasonable doubt and that the respondent has established his defence. The respondent gave instruction to stop the payment and also D.W. 2 has clearly stated that there was a transaction with her husband of the appellant not with the appellant. Therefore, he has rebutted the presumption. The first contention was that the appellant has not proved his case beyond all the reasonable doubt and the second limb of the contention is that by examining the defence witnesses, he rebutted the presumption by preponderance of probability. The learned Magistrate has rightly dismissed the case and does not warrants interference and prays for dismissal of the appeal. 7. Heard Mr. A.R. Jeyaruthran, learned counsel appearing for the appellant and Mr. M. Suri, learned counsel appearing for the respondent. 8. When the appellant has clearly stated in the complaint filed before the learned Magistrate against the respondent that the respondent borrowed a sum of Rs. 2,00,000/- (Rupees Two Lakhs only) on 09.05.2005 for which he gave post dated cheque dated 09.07.2005 and the said cheque was presented for collection on 09.07.2005 and the same was returned as 'insufficient funds' and statutory notice was issued and served and she also received the reply notice. 9. The appellant came to the witness box and produced the document and established her case beyond the reasonable doubt. Though the learned counsel for the respondent would submit that appellant has not proved her case beyond the reasonable doubt, this contention is not acceptable. Because, what she has alleged in the complaint has been deposed before the Court and produced the documents Exs. P1 to P5. On reading of Ex. P5, the respondent has not denied the signature and the execution of the cheque. Though the respondent has not disputed the signature, he has stated that he had a transaction with the husband of the appellant not with the appellant. Even assuming that he borrowed the money only from her husband and subsequently he repaid the amount but not got back the cheque. In his evidence, he has stated that he gave instructions for stop payment to his banker but in the reply he stated that he gave instruction to his Bank to stop the payment as if he had already repaid the amount. Therefore, the cheque need not be honoured which is also not proved. In his evidence, he has stated that he gave instructions for stop payment to his banker but in the reply he stated that he gave instruction to his Bank to stop the payment as if he had already repaid the amount. Therefore, the cheque need not be honoured which is also not proved. On seeing the memo not returned on the ground of stop payment. But it was returned for want of sufficient funds. Even counter file of the cheque book was not filed to show that the cheque leaf was issued only to the husband of the appellant not to the appellant and no document was also produced to show that the instruction given to the Bank. When the memo was returned for 'insufficient funds', he denied the same and stated that instruction was given for stop payment but there is no documentary evidence to prove that he has given written instructions to the Bank however, such written instructions is not produced before the Court. The trial Court cannot take different stand against the documentary evidence. 10. Further the learned counsel for the respondent would submit that the appellant has not proved the means to lend the money. She has produced the cheque and in the cheque, it is seen that the respondent received a sum of Rs. 2,00,000/- (Rupees Two Lakhs only). Though during the cross examination, the respondent put a question to the appellant that what is her source to lend the money for which she has stated that she sold the property and out of the sale proceeds she lent the money. She did not tell the description of property survey number and other particulars. Since because the appellant was not able to give particulars of the property which was said to have sold, the same cannot be the ground for disbelieving the case of the appellant. Though the respondent attempted to prove through D.W. 2 but in the reply notice, he has not stated about the DW 2 that he had transactions with the husband of the appellant. Though he has not stated anything about D.W. 2, he examined him to establish that the appellant husband used to lend money for metre interest. Though the respondent attempted to prove through D.W. 2 but in the reply notice, he has not stated about the DW 2 that he had transactions with the husband of the appellant. Though he has not stated anything about D.W. 2, he examined him to establish that the appellant husband used to lend money for metre interest. Though D.W. 2 has stated that he used to borrow money from the husband of the appellant and repaid it and the respondent also borrowed money from the husband of the appellant and repaid it, there is no documentary evidence to prove both D.W. 2 and the respondent had money transactions with the husband of the appellant. In the absence of the same, the evidence of DW 2 is not believable and the same is rejected and it is an afterthought. 11. Further the respondent has stated that he borrowed money from the husband of the appellant and he repaid the money but he has not got the cheques. When he has repaid the money, the husband of the appellant misused the cheque and sent the notice through the appellant. The respondent should have either sent a notice to return those discharged cheque leaves or should have filed a complaint either before the Jurisdictional Police or before competent authority. No complaint was given either against the appellant or her husband. If the husband of the appellant is a public servant and he is lending money, the respondent could have sent a complaint to his employer that the public servant without having permission or licence lending money for metre interest. Absolutely there is no record to show that he preferred a complaint before the Police or employer or any legal notice to get back those unfiled discharged cheques. Therefore, it shows that the defence taken by the respondent is only a false defence. The accused can rebut the presumption even by preponderance of probability. He need not prove his defence or rebut the presumption by examining direct evidence it can be done even through cross examination or it should be established in the manner known to law. In this case, admittedly the signature is not disputed. When the execution of the cheque and the signature is not disputed, the Court can draw statutory presumption under Section 139 of Negotiable Instruments Act that the cheque is issued only to discharge legally enforceable debt or liability. In this case, admittedly the signature is not disputed. When the execution of the cheque and the signature is not disputed, the Court can draw statutory presumption under Section 139 of Negotiable Instruments Act that the cheque is issued only to discharge legally enforceable debt or liability. It is for the accused to rebuttal the presumption and the rebuttal must be in the manner known to law. 12. On reading of the materials placed before this Court, the appellant has established his case and the defence has not rebutted presumption. Though the respondent attempted to establish that there is no transaction with the appellant but only with her husband. Though the respondent has placed reliance on the Judgment of this Court, absolutely there is no quarrel with the legal presumption laid down by the Hon'ble Supreme Court and this Court regarding the rebuttable presumption and also dealing with the appeal against the acquittal, this Court is conscious of the fact that reversing the acquittal judgment has to carefully consider the materials. On reading of the entire materials, as an appellate court, this Court is a fact finding Court has to re-appreciate the evidence and give independent finding for the conclusion. On reading of entire oral and documentary evidence, the appellant has proved his case beyond all the reasonable doubt. Therefore, this Court is inclined to draw the legal presumption under Section 139 of Negotiable Instruments Act and only the question is as to whether the respondent has rebutted the statutory presumption in the manner known to law. 13. As discussed above, this Court finds that the respondent has not rebutted the legal presumption in the manner known to law. Therefore, the Criminal Appeal is allowed by setting aside the Judgment passed in C.C. No. 214 of 2005 dated 02.05.2007 before the learned Judicial Magistrate No. III, Nagercoil. The respondent is convicted under Section 138 of Negotiable Instrument Act. Considering the fact that this appeal is pending more than 10 years, the respondent is directed to pay twice the cheque amount of Rs. 4,00,000/- (Rupees Four Lakhs only) to the appellant as compensation under Section 357 Cr.PC within a period of three months from the date of receipt of copy of this judgment, in default to undergo six months simple imprisonment.