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2025 DIGILAW 787 (MAD)

P. S. S. Bagyalakshmi v. K. Vijayakumar

2025-02-03

K.K.RAMAKRISHNAN

body2025
ORDER : The appellant, who is the defacto complainant in S.T.C.No.153 of 2005, has filed this appeal challenging the acquittal judgment passed in S.T.C.No.153 of 2005, dated 31.05.2011, by the learned Judicial Magistrate No.III, Madurai. 2.The case of the appellant is that the respondent borrowed a sum of Rs.3,00,000/- for his family expenses, from him. Both have had long relationship prior to the borrowal. Towards repayment of the said amount, the respondent issued a cheque bearing No.621515, under Ex.P.1, dated 08.12.2003, for the value of Rs.3,00,000/- drawn on State Bank of India, Vinayagar Nagar Branch, Madurai, in favour of the appellant. While, the appellant presented the same on the same day for encashment through account maintained by him with the Indian Overseas Bank, Vadampokki Stree Branch, Madurai, the same was returned on 09.12.2003 with an endorsement “Insufficient of Funds”, for which, the appellant issued the statutory notice on 07.01.2004. The notice was duly served on the respondent on 09.01.2004 and further, the respondent neither paid any amount nor sent any reply. Hence, the appellant filed a complaint under Section 138 r/w 142 of Negotiable Instruments Act, and the same was taken on file in S.T.C.No.153 of 2005, by the learned Judicial Magistrate No.III, Madurai. 3.The learned trial Judge issued summons to the accused and after his appearance, served the copies under Section 207 Cr.P.C. Thereafter, he framed necessary charges and questioned the accused. The accused pleaded not guilty and he stood for trial. 4.The defacto complainant, to prove her case, examined herself as P.W.1 and one Narayanan as P.W.2 and exhibited 5 documents as Ex.P.1 to Ex.P5. The learned trial judge thereafter, questioned the accused under Section 313(1)(b) of Cr.P.C., by putting incriminating materials available on record. The accused denied the same as false and he examined himself as D.W.1 and exhibited 4 documents as Ex.D1 to Ex.D4. 5.The learned trial judge, after considering the oral and documentary evidence, passed impugned judgment in S.T.C.No.153 of 2005, dated 31.05.2011, acquitting the respondent for the offence under Section 138 r/w 142 of NI Act. The accused denied the same as false and he examined himself as D.W.1 and exhibited 4 documents as Ex.D1 to Ex.D4. 5.The learned trial judge, after considering the oral and documentary evidence, passed impugned judgment in S.T.C.No.153 of 2005, dated 31.05.2011, acquitting the respondent for the offence under Section 138 r/w 142 of NI Act. Aggrieved over the same, the appellant filed in C.A.No.136 of 2017, before the learned VI Additional District and Sessions Judge, Madurai, and in view of development of law and as per the Hon'ble Full Bench Judgment of this Court in Crl.A.Nos.89 and 90 of 2020 and Crl.R.C.Nos.494 and 536 of 2019, dated 28.05.2020 , the appeal was transferred from the District Court to this Court. Thereafter, this Court issued notice to the appellant as well as the respondent and both appeared through their counsel. 6.The learned counsel appearing for the appellant would submit that the respondent has admitted the issuance of cheque and also the receipt of the portion of the consideration. During the pendency of the proceedings, he also made part payment of Rs.25,000/- and also received the proper acknowledgment for handing over the said amount. In view of the above circumstances, the presumption under Section 139 of NI Act, would come into operation and hence, the acquittal judgment passed by the learned trial judge is not correct. The case of the defence that he only borrowed a sum of Rs.1,00,000/- is not proved through legal evidence. Therefore, he seeks for setting aside the acquittal judgment passed by the learned trial Judge. To substantiate his contention, he relied the following judgment of the Hon'ble Supreme Court: (i) Sham Kant v. State of Maharashtra , reported in 1992 SCC (Cri) 765 at page 533 (ii) Babu Sahebagouda Rudragoudar v. State of Karnataka , reported in (2024) 8 SCC 149 (iii) Kumar Exports v. Sharma Carpets , reported in (2009) 2 SCC 513 ) (iv) Sri Sujies Benefit Funds Ltd. v. M. Jaganathuan , (2024) 246 Comp Cas 486 : 2024 SCC OnLine SC 1942 (v) Kalamani Tex v. P. Balasubramanian , (2021) 5 SCC 283 (vi) Sumeti Vij v. Paramount Tech Fab Industries , (2022) 15 SCC 689 7.The learned counsel appearing for the respondent would submit that the learned trial Judge has considered Ex.D1 and the evidence of D.W.1 and inherent improbabilities, inconsistencies in the case of the appellant and acquitted the respondent. The learned trial Judge has accepted the case of the respondent that he had borrowed only a sum of Rs.1,00,000/- and he also repaid the same. The learned trial Judge has appreciated the evidence and came to the conclusion that the respondent was not guilty under Section 138 r/w 141 of NI Act. He also submitted that the view taken by the learned trial Judge is also a probable view and there is no perversity or illegality in the well merited judgment of the learned trial Judge. Therefore, he seeks to dismiss this appeal. He also relied the following judgment of the Hon'ble Supreme Court: (i) Jeet Ram vs. NCB reported in 2021 14 SCC 592 (ii) Triyambak S. Hegde vs. Sripad reported in 2022 1 SCC 742 8.This Court considered the rival submissions made by the learned counsel appearing on either side and perused the materials available on records and the impugned judgment and also the precedents relied upon by them. 9. P.W.1 categorically deposed before the Court about the existence of the debt amount and issuance of cheque by Respondent. The respondent himself has examined as D.W.1 and he also admitted the issuance of cheque. During the course of the trial, he also made part payment of Rs.25,000/- on 24.09.2009 to the appellant to discharge his liability, mentioned in the cheque/Ex.P1. In the midway of the trial after making the part payment after accepting the liability of amount mentioned in the Cheque, took a contrary stand that he borrowed only a sum of Rs.1,00,000/-. This Court perused the evidence of D.W.1 and the documents. He specifically deposed that he is obliged to pay a sum of Rs. 3,00,000/-without interest during the pendency of the trial and also paid a sum of Rs.25,000/- thereafter. The relevant evidence is as follows: In the complaint Ex.D3, he stated different story about the amount mentioned in the cheque amount that the appellant demanded exorbitant interest and filled various cheques issued to him. Therefore, from the records produced by the respondent and evidence, this Court finds no material to presume that the consideration was only Rs.1,00,000/-. It is the case of the respondent that he borrowed only Rs.1,00,000/-, in which case, the duty is cast upon him to prove the same. Therefore, from the records produced by the respondent and evidence, this Court finds no material to presume that the consideration was only Rs.1,00,000/-. It is the case of the respondent that he borrowed only Rs.1,00,000/-, in which case, the duty is cast upon him to prove the same. Once he admitted the signature and issuance of cheque and also made part payment, it is the duty of the respondent to dispel the presumption under Section 139 of NI Act. The oral evidence of D.W.1 alone that he borrowed only a sum of Rs.1,00,00 0/- is not sufficient to hold that he discharged his burden and rebutted the presumption under section 139, 118 of Negotiable Instrument Act as held by the Hon'ble Supreme Court in paragraph No.20 of the judgment in the case of Kumar Exports [ Kumar Exports v. Sharma Carpets , reported in (2009) 2 SCC 513) “20....At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. ... 10.The learned trial Judge has relied Ex.D1. Ex.D1 does not convey clean cut information. There was a mentioning of some amount. There was no clear mentioning about the debt amount of Rs.1,00,000/-. But, the learned trial Judge has relied the same. The respondent has not sent any reply notice and on receipt of the notice he made a complaint to the police officers as if exorbitant interest was demanded. The similar circumstance was considered by the Hon'ble Supreme Court in the case of Sri Sujies Benefit Funds Ltd. v. M. Jaganathuan reported in 2024 SCC OnLine SC 1942. In the said case, similar plea of total discharge of loan amount and plea of exorbitant interest was rejected by the Hon'ble Supreme Court in paragraph Nos.15,16 and 17. Further, in the case of Dattatraya v. Sharanappa , (2024) 8 SCC 573 33.1. In the said case, similar plea of total discharge of loan amount and plea of exorbitant interest was rejected by the Hon'ble Supreme Court in paragraph Nos.15,16 and 17. Further, in the case of Dattatraya v. Sharanappa , (2024) 8 SCC 573 33.1. Criminal jurisprudence emphasises on the fundamental essence of liberty and presumption of innocence unless proven guilty. This presumption gets emboldened by virtue of concurrent findings of acquittal. Therefore, this Court must be extra-cautious while dealing with a challenge against acquittal as the said presumption gets reinforced by virtue of a well-reasoned favourable outcome. Consequently, the onus on the prosecution side becomes more burdensome pursuant to the said double presumption. 33.3. Where two views are possible, then this Court would not ordinarily interfere and reverse the concurrent findings of acquittal. However, where the situation is such that the only conclusion which could be arrived at from a comprehensive appraisal of evidence, shows that there has been a grave miscarriage of justice, then, notwithstanding such concurrent view, this Court would not restrict itself to adopt an oppugnant view. [Vide State of U.P. v. Dan Singh [State of U.P. v. Dan Singh, (1997) 3 SCC 747 : 1997 SCC (Cri) 469] .] The Hon'ble Supreme Court also in the case of Sumeti Vij v. Paramount Tech Fab Industries , (2022) 15 SCC 689 has held as follows: 15. It is well-settled that the proceedings under Section 138 of the Act are quasi-criminal in nature, and the principles which apply to acquittal in other criminal cases are not applicable in the cases instituted under the Act. 16. Likewise, under Section 139 of the Act, a presumption is raised that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To rebut this presumption, facts must be adduced by the accused which on a preponderance of probability (not beyond reasonable doubt as in the case of criminal offences), must then be proved. In Rohitbhai Jivanlal Patel v. State of Gujarat [ Rohitbhai Jivanlal Patel v. State of Gujarat , (2019) 18 SCC 106 : (2020) 3 SCC (Civ) 800 : (2020) 3 SCC (Cri) 575] , this Court has examined the scope of Sections 138 and 139 of the Act, which reads as under : (SCC pp. 118-20, paras 15 & 17) “15. 118-20, paras 15 & 17) “15. So far the question of existence of basic ingredients for drawing of presumption under Sections 118 and 139 of the NI Act is concerned, apparent it is that the appellant-accused could not deny his signatures on the cheques in question that had been drawn in favour of the complainant on a bank account maintained by the accused for a sum of Rs 3 lakhs each. The said cheques were presented to the bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. All the basic ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. The trial court had also consciously taken note of these facts and had drawn the requisite presumption. Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the appellant-accused to establish a probable defence so as to rebut such a presumption. *** 17. On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, time and again, emphasised that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under Sections 118 and 139 of the NI Act. This Court stated the principles in Kumar Exports [ Kumar Exports v. Sharma Carpets , (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] as follows : (SCC pp. 520-21, paras 20-21) ‘20. The accused in a trial under Section 138 of the Act has two options. This Court stated the principles in Kumar Exports [ Kumar Exports v. Sharma Carpets , (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] as follows : (SCC pp. 520-21, paras 20-21) ‘20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non- existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. 21. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. 21. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue.’ ” It was further considered by this Court in Uttam Ram v. Devinder Singh Hudan [ Uttam Ram v. Devinder Singh Hudan , (2019) 10 SCC 287 : (2020) 1 SCC (Civ) 126 : (2020) 1 SCC (Cri) 154] . 20. That apart, when the complainant exhibited all these documents in support of his complaints and recorded the statement of three witnesses in support thereof, the appellant has recorded her statement under Section 313 of the Code, but failed to record evidence to disprove or rebut the presumption in support of her defence available under Section 139 of the Act. The statement of the accused recorded under Section 313 of the Code is not a substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstances appearing in the prosecution case of the accused. Therefore, there is no evidence to rebut the presumption that the cheques were issued for consideration. 21. The statement of the accused recorded under Section 313 of the Code is not a substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstances appearing in the prosecution case of the accused. Therefore, there is no evidence to rebut the presumption that the cheques were issued for consideration. 21. The judgment on which the learned counsel for the appellant has placed reliance i.e. K. Prakashan v. P.K. Surenderan [K. Prakashan v. P.K. Surenderan, (2008) 1 SCC 258 : (2008) 1 SCC (Civ) 182 : (2008) 1 SCC (Cri) 200] may not be of any assistance for the reason that in the case dealing under Section 138 of the Act, the prosecution has to prove the case and these cases being quasi-criminal in nature are to be proved on the basis of the principles of “preponderance of probabilities”, and not on the principles as being examined in the criminal case to prove the guilt of the accused beyond reasonable doubt. 22. So far as other case cited by the learned counsel for the appellant i.e. Indus Airways (P) Ltd. v. Magnum Aviation (P) Ltd. [ Indus Airways (P) Ltd. v. Magnum Aviation (P) Ltd. , (2014) 12 SCC 539 : (2014) 5 SCC (Civ) 138 : (2014) 6 SCC (Cri) 845] , there was sufficiency of material on record to justify that the cheques were issued as advance payment for purchase of goods, and one of the terms and conditions of the contract was that the entire payment would be made to the supplier in advance. However, much within the time, the supplier-complainant received the letter from the purchasers cancelling the purchase orders and requested the supplier to return both the cheques. The supplier pursuant thereto, sent response asking the purchasers as to when the supplier could collect the payment, and only thereafter, the supplier sent a legal notice to the purchasers and filed a complaint under Section 138 of the Act. In the given circumstances, it was observed by this Court that the complainant had failed even prima facie that there was a legally enforceable debt or other liability subsisting on the date of drawal of the cheque as contemplated under Section 138 of the Act. This judgment would not be of any help to the appellant in the instant case. 11.In this case, The plea of discharge of liability is without material. This judgment would not be of any help to the appellant in the instant case. 11.In this case, The plea of discharge of liability is without material. When the cheque was produced as Exhibit before the Court and there was no proper proof of discharge of debt even as per Ex.D4, the trial Court's finding that the offence under Section 138 of Negotiable Instrument Act is not made out is perverse. The learned Trial Judge has not considered the same in proper manner and rendered a finding that he discharged his liability. Apart from that, on appreciation of the evidence of PW1 and DW1 and considering the documents filed by DW1 and PW1, the only possible view is that DW1 received the amount of Rs.3,00,000/- from PW1 and to discharge the same, he issued the cheque bearing No.621515 under Ex.P1 dated 18.12.2003 and his case of payment of entire cheque amount is not proved and hence the presumption under Section 139 of Negotiable Instrument Act had not been dispelled. Therefore, the appellant has proved his case beyond reasonable doubt and this Court finds respondent guilty under Section 138 r/w 141 of Negotiable Instrument Act and hence, he is liable to be convicted under Section 138 of Negotiable Instrument Act. 12. The Hon'ble Supreme Court in the case of Tedhi Singh v. Narayan Dass Mahant , reported in (2022) 6 SCC 735 at page 739 has held that the accused needs to establish a probable defence in the following paragraph: 8. It is true that this is a case under Section 138 of the Negotiable Instruments Act. Section 139 of the NI Act provides that court shall presume that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. It is in the context of this provision that the theory of “probable defence” has grown. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. It is in the context of this provision that the theory of “probable defence” has grown. In an earlier judgment, in fact, which has also been adverted to in Basalingappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571] , this Court notes that Section 139 of the NI Act is an example of reverse onus (see Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] ). It is also true that this Court has found that the accused is not expected to discharge an unduly high standard of proof. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist. 12.1.In this case, the accused raised plea of receipt of Rs.1,00,000/- alone and the same was discharged. The said probable defence neither proved nor established through the circumstances. The learned trial Judge has rendered a finding that the respondent borrowed only a sum of Rs.1,00,000/- as against the material on records. The respondent had produced neither any document nor established any circumstances to presume that the cheque in issue was issued for consideration of Rs.1,00,000/- only. The respondent has admitted the transaction between him and the appellant and issuance of the cheque and made part payment during the pendency of the case. Therefore, the presumption under Section 139 of the NI Act, comes into play. Therefore, the learned trial Judge committed error in acquitting the accused with perverse finding that the respondent received a sum of Rs.1,00,000/- only and he also discharged the same. Even he paid a sum of Rs.25,000/- during the course of trial admitting his liability. Therefore, the presumption under Section 139 of the NI Act, comes into play. Therefore, the learned trial Judge committed error in acquitting the accused with perverse finding that the respondent received a sum of Rs.1,00,000/- only and he also discharged the same. Even he paid a sum of Rs.25,000/- during the course of trial admitting his liability. Therefore, this Court interferes with the unmerited acquittal passed by the learned trial Judge in S.T.C.No.153 of 2005 dated 31.05.2011 with perverse finding as per the guiding principles laid down by the Hon'ble Supreme Court in the following cases: 12.2.In the case of Sham Kant v. State of Maharashtra , reported in 1992 SCC (Cri) 765 at page 533 30.. . It is now well settled by the long course of decisions of this Court that where the view taken by the trial court in acquitting the accused is extremely perverse and is not reasonably sustainable on the evidence on record, then the appellate court can interfere with such an order of acquittal and set at naught the injustice done to the parties. 12.3.In the case of Babu Sahebagouda Rudragoudar v. State of Karnataka , reported in (2024) 8 SCC 149 : 41 . Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity; 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 13.Accordingly, this criminal appeal is allowed by setting aside the acquittal judgment passed by the learned Judicial Magistrate No.III, Madurai, in S.T.C.No.153 of 2005, dated 31.05.2011. Accordingly, this Court finds that the appellant has proved the case against the respondent beyond reasonable doubt and hence this Court convicts the respondent for the offence under Section 138 r/w 141 of NI Act. 14.List this case for appearance of the respondent for questioning the sentence of imprisonment on 31.01.2025.