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2021 DIGILAW 2492 (MAD)

M. C. B. Rajesh v. R. Sivasubramani

2021-09-22

RMT.TEEKAA RAMAN

body2021
JUDGMENT : (Prayer : This Criminal Appeal has been filed under Section 398 of Cr.P.C., against the judgment passed in C.A.No.34 of 2014 on the file of the VII Additional City Civil Court, Chennai, dated 28.08.2014 acquitting the accused in C.C.No.11205 of 2010 on the file of Fast Track Court No.III, Chennai.) (The case has been heard through Video Conference) Unsuccessful private complainant is the appellant herein. 2. The appellant herein/private complainant has filed a private complaint in C.C.No.11205 of 2010, before the learned Judicial Magistrate No. II, Fast Track Court, Chennai, for the offence under Sections 138 & 142 of the Negotiable Instruments Act, on the basis of Ex.P1/cheque. 3. It is alleged in the complaint that the respondent herein/accused is a good friend of complainant, who was introduced through a friend viz., Ganesan two years before. The accused based on their friendship, during the year December 2009 requested him to advance an amount of Rs.25,00,000/- as he had some business as well as family commitments and further stating that he will return the same within a period of one month time. Accordingly, the complainant advanced a sum of Rs.25,00,000/- to the accused and the accused had failed to return the said amount. Thereafter, on repeated request the accused had issued Ex.P1/cheque for a sum of Rs.25,00,000/-, dated 10.02.2010 drawn on UTI Bank, Karur branch bearing Cheque No.024814 and it was dis-honoured and after issuing the notice, the complainant has filed complaint against the accused. 4. The suggestive case of the respondent/accused is that the complainant is a stranger and the complainant has no source of income to lend such a huge amount of Rs.25,00,000/- in the year 2010. Further, it is stated that the complainant has given 10 unfilled signed cheques to his brother viz., Chellaperumal. One Ganeshan, who is the friend of the Chellaperumal, has taken some of the unfilled signed cheques from Chellaperumal-s office and he set up the complainant to file the complaint. The said cheques were issued from UTI Bank and it was subsequently amalgamated with Axis Bank. Old cheque of the year 2007 was fabricated in this case. 5. One Ganeshan, who is the friend of the Chellaperumal, has taken some of the unfilled signed cheques from Chellaperumal-s office and he set up the complainant to file the complaint. The said cheques were issued from UTI Bank and it was subsequently amalgamated with Axis Bank. Old cheque of the year 2007 was fabricated in this case. 5. After the trial, the learned Judicial Magistrate has convicted the respondent/accused for the offence under Sections 138 & 142 Negotiable Instruments Act and sentenced him to undergo one year simple imprisonment and to pay the cheque amount as fine, in default to under go one month simple imprisonment. As against the order of conviction, the respondent/accused has preferred an appeal in Crl.A.No.34 of 2014, before the VII Additional City Civil Court, Chennai. The learned Judge has allowed the said appeal by an order dated 28.08.2014 and set aside the conviction and sentence passed by the trial Courts and acquitted the respondent/accused. As against the said order of acquittal, the complainant has preferred the present appeal before this Court. 6. Heard both the counsel appearing for the parties and perused the materials placed on record. 7. The learned counsel for the appellant herein/complainant would contend that the source of income of the respondent/accused has been duly explained by P.W.1 and there was no reply notice sent by the respondent/ accused and in the absence of any cogent evidence, the Lower Appellate Court has committed an error in reversing the order of conviction passed by the trial Court and acquitting the respondent/accused. The learned counsel also relied upon a decision of the Hon-ble Supreme Court, reported in CDJ 2019 SC 1545 – [Rahul Sudhakar Anantwar Vs. Shivkumar Kanhiyalal Shrivastav]. 8. From the evidence of PW1 and Ex.P1/Cheque, Ex.P2/return Memo, Ex.P3/statutory notice, Ex.P4/acknowledgment card for Ex.P3, this Court finds that in the absence of any dispute as to the signature and the cheque being issued from the account of the respondent/accused, the appellant/private complainant is entitled for presumption under Section 139 of the Negotiable Instruments Act. Now, it is the turn of the respondent/accused to rebut the same. 9. Now, it is the turn of the respondent/accused to rebut the same. 9. The standard of the proof that is required to probablise the suggestive case of the accused in a case filed under Section 138 of Negotiable Instruments Act is that the presumption under Section 139 of Negotiable Instruments is as that of statutory presumption, however, the same is rebuttal. Then, it is for the accused to rebut the evidence either by entering into the witness box or by eliciting answer in the cross-examination of the prosecution witnesses. The standard of proof that required to shift the burden on the shoulders of the accused is based on the principles of preponderance of probability” and not on the principle as being examined in the criminal case to prove the guilt of the accused “beyond reasonable doubt”. 10. It is well settled that the proceedings under Section 138 of Negotiable Instruments Act are quasi-criminal in nature. The principles that will apply to acquittal in other criminal cases are not applicable in cases instituted under the Act. 11. The test of proportionality should guide the construction and interpretation of “reverse onus clauses” and the respondent/accused cannot be expected to discharge an unduly high standard of proof. Since the proceedings under Section 138 of the Negotiable Instruments Act are quasi-criminal in nature, it is sufficient enough for the accused to prove the “suggestive case or defence theory” up to the “level of preponderance of probability”. 12. The learned counsel for the respondent/accused would draw my attention to the averment made in the complaint and the evidence of PW1 to the effect that as stated supra, based upon the friendship during the year December 2009 at the request of the accused, the complainant said to have advanced a sum of Rs.25,00,000/- to the accused, for the purpose of his business and family commitments, so is the evidence of PW1 in the chief examination. However, in the cross examination, PW1 could state that it is for the construction of his house. 13(a). On a perusal of the complaint and its averments and evidence in chief examination of PW1, this Court finds that the date of the borrowal and how the complainant lend such a huge amount of Rs.25,00,000/-, even in the year 2010 whether he is financially sound enough or not were not spoken to. 13(a). On a perusal of the complaint and its averments and evidence in chief examination of PW1, this Court finds that the date of the borrowal and how the complainant lend such a huge amount of Rs.25,00,000/-, even in the year 2010 whether he is financially sound enough or not were not spoken to. However, this Court in view of the statutory presumption under Section 139 of the Negotiable Instruments Act, confine itself as to the rebuttal evidence. 13(b) The purpose of the loan alleged to have been given by PW1 to the accused as mentioned in the complaint is totally finds to be different as elicited in the cross examination. Date of the payment of money has not spoken to by PW1 either in the complaint or in PW1 witness box, however, during the cross examination, he has evaded to answer the exact date. Rs.25,00,000/- as loan is not a small amount. No reasonable and prudent man, having given loan of a sum of Rs.25,00,000/-, without remembering the date. 14. For the reasons best known he evaded to answer the same in cross examination assumes significance. Neither in the complaint nor in PW1’s chief examination, he has avoided the date of payment of loan of such huge amount of Rs.25,00,000/- and he evaded the answer in the cross examination too assumes significance and relevant. 15. Furthermore, in the cross examination, he could state that he had borrowed a sum of Rs.18,00,000/- from one Mr.Ganeshan in order to pay Rs.25,00,000/- to the complainant. As to the date of borrowal, it is elicited from the cross examination of PW1 that PW1 alleged to have paid an amount of Rs.25,00,000/-, in the month of December 2009, whereas, he received money loan from his friend Ganeshan to the tune of Rs.18,00,000/- only in the year 2010. This Court did not find any nexus since alleged borrowal of the complainant of Rs.18,00,000/- from his friend only in the year 2010 not in the year 2009, so as to make a payment to the accused in December 2009 assumes significance. 16. In order to demolish the case of the complainant, the accused during the cross examination has elicited answer to create a reasonable doubt to the level of preponderance of probability as to the non existence of legally enforcible debt preceding Ex.P1/cheque. 16. In order to demolish the case of the complainant, the accused during the cross examination has elicited answer to create a reasonable doubt to the level of preponderance of probability as to the non existence of legally enforcible debt preceding Ex.P1/cheque. In the cross-examination, PW1 has developed his case that he had received a sum Rs.18,00,000/- from his friend viz., Ganesan and two lakhs from one Ekambaram and he had only Rs.5,00,000/- at his hand except the cheque subsequently issued, he has not recorded any evidence as to the alleged hand loan borrowed by the accused from the private complainant. Had there been a payment of Rs.25,00,000/- as hand loan from complainant to accused no reasonable and prudent man will lend such a huge amount of Rs.25,00,000/- without any assurance. Evidencing such payment from PW1 to the accused also caused serious doubt as to the alleged loan said to have been given by PW1 to the accused before the execution of Ex.P1/Cheque. In the cross examination it is elicited that “TAMIL” 17. Yet another point is that Ex.P1, the cheque in issue is from UTI Bank Limited. In the cross examination it is specifically put to PW1 that Ex.P1/cheque is of UTI Bank and the same is amalgamated with Axis Bank and the old cheque of the year 2007 has been misused and presented after amalgamation. However, PW1 has denied the same. Though PW1 has denied the same, he has not taken any steps to show that the cheque is an active cheuqe even after amalgamation on the date of the issuance of cheque viz., 10.02.2010. In the cross examination he has stated that “TAMIL” 18. From the answer elicited in the cross examination, PW1 has admitted that he has not filed any document to show that he had Rs.25,00,000/- in his account and he has not paid the amount by withdrawing from his bank account. However, used to say he borrowed a sum of Rs.18,00,000/- from one Ganesan and Rs.2,00,000/- from Ekambaram and Rs.1,00,000/- from one Dr.Balagurusamy and mortgaged jewels to raise Rs.4,00,000/-. 19. However, used to say he borrowed a sum of Rs.18,00,000/- from one Ganesan and Rs.2,00,000/- from Ekambaram and Rs.1,00,000/- from one Dr.Balagurusamy and mortgaged jewels to raise Rs.4,00,000/-. 19. Furthermore, for the reasons best known, neither in the notice nor in the complaint or in the PW1-s evidence, the private complainant has successfully evaded to mention the particulars of the payment made and besides the details of the payment has been deliberately omitted to be mentioned in the above said pleadings because of evidence and hence, in view of the lacunae in the complaint and the evidence of PW1 as to the particulars of payment as narrated supra coupled with answer elicited in the cross examination of PW1, cause serious doubt as to the existence of the alleged relationship or business transaction alleged to have been entered between PW1 and the accused. 20. The financial capacity of PW1 to lend such a huge amount of Rs.25,00,000/- in the year 2010 and on a cumulative reading of the cross examination and the answer elicited in the cross-examination as narrated supra, goes to show that the defence have successfully probablised the suggestive case that PW1/private complainant does not have any source of income to raise such huge amount of Rs.25,00,000/- and the fact that he has evaded to say the date of such alleged payment especially when the payment is such a huge amount of Rs.25,00,000/- and the other contradiction with regard to details of payment of alleged loan and alleged cumulation of source of finance before lending and specific answer in the cross examination about his borrowal of Rs.18,00,000/- from the said Ganeshan, that was only in the subsequent year not during the period of alleged payment, this Court finds that the accused has successfully demonstrated the suggestive case to the preponderance of probability level and hence presumption in favour of the accused under Section 139 of the Negotiable Instruments Act is successfully rebutted. 21. Now, it is turn for the appellant/private complainant to prove his legally enforcible debt and his financial source. The complainant has not examined any person to show his alleged borrowal and cumulation of the source of income as elicited in the cross-examination. 21. Now, it is turn for the appellant/private complainant to prove his legally enforcible debt and his financial source. The complainant has not examined any person to show his alleged borrowal and cumulation of the source of income as elicited in the cross-examination. In the absence of any legally enforcible debt and also his financial capacity to lend such a huge amount and other lacunae as made out earlier, this Court finds that his complaint has not made out offence under Section 138 of the Negotiable Instruments Act and no positive evidence has been let in by the private complainant/appellant to show his financial capacity and pre-existing legally enforcible debt, after rebuttal by the accused. 22. In such view of the matter, this Court is of the considered view that the order of acquittal passed by the Lower Appellate Court for different reasoning is just and proper and the same does not suffer from any irregularity or illegality, perversity in finding and hence, this appeal is devoid of merits liable to be dismissed. 23. Accordingly, this Criminal Appeal stands dismissed and the order passed in C.A.No.34 of 2014, by the VII Additional City Civil Court, Chennai, dated 28.08.2014 acquitting the accused in C.C.No.11205 of 2010 on the file of Fast Track Court No. III, Chennai, is hereby confirmed.