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2022 DIGILAW 693 (MAD)

V. Jegadeesan v. R. Raju

2022-03-17

G.K.ILANTHIRAIYAN

body2022
JUDGMENT (Prayer: Criminal Appeal filed under Section 378(3) of Cr.P.C to set aside the Judgment passed by the learned Judicial Magistrate (Fast Track Court) Thanjavur in Crl.M.P.No.33 of 2018, dated 12.03.2020, convict and punish the accused under Section 138 of the Negotiable Instruments Act.) 1. This Appeal has been filed challenging the Judgment passed in Crl.M.P.No.33 of 2018, dated 12.03.2020 on the file of the learned Judicial Magistrate (Fast Track Court) Thanjavur, thereby acquitted the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act. 2. The appellant is the complainant and the respondent is the accused. The appellant lodged a complaint alleging that the respondent borrowed a sum of Rs.9,00,000/- on 23.04.2018 and he had undertaken to repay the said amount within three months. On the same day, the respondent executed a promissory note in favour of the appellant/defacto complainant. Thereafter, in order to repay the said amount, the accused had issued a post dated cheque, dated 23.08.2018 to discharge the existing valid. The appellant presented the said cheque for collection and the same was returned 'dishonoured' for the reason that 'funds insufficient'. After causing statutory notice, the appellant filed the complaint for the offence punishable under Section 138 of the Negotiable Instruments Act. 3. On the side of the appellant, he himself was examined as P.W.1 and marked Ex.P.1 to Ex.P.6 and on the side of the respondent, he himself was examined as D.W.1 and marked Ex.D.1. 4. The trial Court, after considering the oral and documentary evidence, acquitted the respondent and dismissed the complaint. Aggrieved by the same, the present Criminal Appeal has been preferred by the appellant. 5. The learned counsel appearing for the appellant would submit that the signature in Ex.P.1 was not disputed by the respondent. In view of the presumption found under Sections 118 and 139 of the Negotiable Instruments Act, the Court below ought to have convicted the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act. However, the Court below held that the said cheque was not issued for subsisting liability. The amount due to one Ilangovan was not discharged by the respondent and the said Ilangovan did not demand any amount from the respondent nor he had filed any case for recovery of amount. Therefore, the said amount was borrowed from the said Ilangovan and the liability was discharged was unacceptable one. The amount due to one Ilangovan was not discharged by the respondent and the said Ilangovan did not demand any amount from the respondent nor he had filed any case for recovery of amount. Therefore, the said amount was borrowed from the said Ilangovan and the liability was discharged was unacceptable one. In view of the admission of signature in the cheque and the issuance of cheque, there is absolutely no defence for the respondent to succeed a case. Further, the evidence of D.W.1 would not improbablise the case of the complainant. In support of his contention, he relied upon the Judgment of the Honourable Supreme Court of India reported in CDJ 2020 SC 172 [APS Forex Services Private Limited Vs. Shakti International Fashion Linkers and others], in which, the Honourable Supreme Court of India held that when the accused has admitted the issuance of cheque and his signature on the cheque and that the cheque in question was issued for the second time, after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the Negotiable Instruments Act. There exists a legal enforceable debt or liability. Further, held that Section 139 of the Negotiable Instruments Act is an example of reverse onus clause and therefore once the issuance of cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the appellant that there exists legally enforceable debt or liability and thereafter, it is for the accused to rebut such presumption by leading evidence. 6. Per contra, the learned counsel appearing for the respondent would submit that the trial Court examined the appellant as P.W.1 and the alleged cheque was marked as Ex.P.1. The presumption under Sections 118 and 138 of the Negotiable Instruments Act are rebuttable and the burden of proving the case beyond reasonable doubt only lies on the complainant. There are contradictory between the complaint and evidence deposed before the Court below in respect of date of execution of promissory note. In fact in the complaint, the appellant categorically stated that on the date of alleged loan, the respondent executed a promissory note. Whereas, he deposed that on the date of borrowal of amount, no pro-note was executed by the respondent. In fact in the complaint, the appellant categorically stated that on the date of alleged loan, the respondent executed a promissory note. Whereas, he deposed that on the date of borrowal of amount, no pro-note was executed by the respondent. That apart, the alleged pro-note was signed by three persons, whereas in the complaint it has been stated that it was executed by the respondent. The disbursement of huge sum of Rs.9,00,000/- even without verification of the business activities of the respondent was not unacceptable, that too without any interest. In fact, the appellant was having Bank loan to the tune of Rs.18,00,000/- at the time of lending a sum of Rs.9,00,000/- to the respondent. Therefore, the appellant had no money at the time of alleged loan, in fact on his own deposition he stated that he did not have a sum of Rs.9,00,000/- when the respondent approached him for loan. He said that he paid the amount only after two days and he was not able to re-collect the name from whom he received the money to pay the same to the respondent. 7. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent and perused the entire materials available on record. 8. The case of the appellant is that the respondent borrowed a sum of Rs.9,00,000/- to develop his business of Computer centre and ready made shop. On 23.04.2018, on borrowal of the said amount, the respondent also executed pro-note to the said amount. Whereas, on a perusal of the deposition, the appellant categorically deposed that on the date of borrowal, no pro-note was executed by the respondent. That apart, the said pro-note was executed by three persons. 9. On a perusal of reply notice which was marked as Ex.P.6, dated 12.09.2018 revealed that the respondent completely denied the borrowal for a sum of Rs.9,00,000/- on 23.04.2018 and also denied the fact that he never executed any pro-note on 23.04.2018. Further, the respondent stated that in the year 2013 through his father, he approached the appellant for loan. On the said request, the appellant replied that he would borrow the amount from his brother-in-law and lend loan to the tune of Rs.1,00,000/-. At the time of borrowal of the said loan, the appellant obtained signatures in the blank cheques and pro-note as if the said Ilangovan demanded as security. On the said request, the appellant replied that he would borrow the amount from his brother-in-law and lend loan to the tune of Rs.1,00,000/-. At the time of borrowal of the said loan, the appellant obtained signatures in the blank cheques and pro-note as if the said Ilangovan demanded as security. In fact, thereafter, the respondent borrowed a sum of Rs.50,000/- with interest and the entire amount has been paid by the respondent to the said Ilangovan. However, the appellant failed to return the said cheques and pro-note and therefore, there is absolutely no legal enforceable debt to the appellant herein. 10. That apart, the specific stand of the respondent is that the appellant had no source of income to lend such a huge sum of Rs. 9,00,000/- as loan to the respondent. In fact, at the time of lending the loan, he had housing loan to the tune of Rs.18,00,000/- in the Indian Bank, Thanjavur at the interest of 8.6% per annum. Further, he himself stated that on the date of request for loan, the appellant had no money and after three days, he received the money from third party and lend the same. However, he categorically deposed that he had no knowledge that from where he brought the money to lend such a huge sum of Rs.9,00,000/- as loan. 11. In this regard, the Honourable Supreme Court of India recently in Crl.A.No.362 of 2022, dated 07.03.2022 (Tedhi Singh Vs. Narayan Dass Mahant) held that in the case under Section 138 of the Negotiable Instruments Act, the complainant need not show the first instance that he had capacity to lend the loan. The proceedings under Section 138 of the Negotiable Instruments Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the Courts were right in held on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent material namely by examining his witnesses and producing documents. To that extent, the Courts were right in held on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent material namely by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross-examination of the witnesses of the complainant. Ultimately it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then, come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence. 12. In the case on hand, the respondent has established a probable defence that the appellant had no money on the date of alleged lending loan to the respondent herein. Therefore, the Court below rightly acquitted the respondent and this Court finds no infirmity or illegality in the order passed by the Court below. Accordingly, this Criminal Appeal is devoid of merits and the same is dismissed.