Crl.A.No.296 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07.09.2022
Coram:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Criminal Appeal No.296 of 2014
M/s Sree Gokulam Chits &
Finance Company (P) Limited,
Represented by its Power Agent
Mr.Ganesan, S/o K.Ramaswamy,
Assistant Manager,
No.713, MMY Complex,
Kamaraj Road, Tirupur. .. Appellant
/versus/
M.Jayakumar .. Respondent
Prayer: Criminal Appeal has been filed under Section 378 of Cr.P.C.,
to call for the records and judgment acquitting the respondent/accused in
C.C.No.19 of 2013, dated 27.02.2014 passed by the Special Judicial
Magistrate, Special Court for Exclusive Trial of Land Grabbing cases,
Tiruppur and set aside the same.
For Appellant :Mr.L.Rajasekar
For Respondent :Mr.K.V.Muthuvisakan,
Legal Aid Counsel
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Crl.A.No.296 of 2014
JUDGMENT
The appeal filed by the private complainant, being aggrieved by the dismissal of his complaint filed under Section 138 of the Negotiable Instruments Act, 1881.
2. Though notice to the accused/respondent was served, he has not engaged counsel, hence, State Legal Services Authority was requested to appoint a Legal Aid Counsel to represent the respondent. Accordingly, Mr.K.V.Muthuvisakan, as Legal Aid Counsel for the respondent and he has ably assisted the Court.
3. A short facts involved in this case is that, the complainant a non banking finance company running chit transaction has filed a private complaint under Sections 138 and 142 of Negotiable Instruments Act, 1881 alleging that the respondent subscribed to the chit in a Group and Ticket No.G2E/145G/1 for the amount of Rs.1,00,000/-. The chit commenced on 17.09.2009 and terminated on 17.04.2011. The respondent participated in Page No.2/13 https://www.mhc.tn.gov.in/judis Crl.A.No.296 of 2014 the chit auction, the prized money of Rs.75,529/- was paid to the respondent on 07.03.2010 through cheque. The same was encashed by the respondent/accused. Though the accused is liable to pay the subscription money for the subsequent month, he defaulted the payment. As on 11.10.2011, a sum of Rs.48,898/- was due and payable. To discharge the said debt, the respondent/accused gave a cheque in favour of the complainant company drawn from Mercantile Bank Limited, Tiruppur Branch. The said cheque dated 11.10.2011 for a sum of Rs.48, 898/- was presented for collection on 14.10.2011. It was returned with an endorsement “funds insufficient”. This was conveyed to the respondent/accused vide notice dated 02.11.2011. The respondent received the notice and made request to represent the cheque after two weeks. When the cheque was represented for collection on 07.12.2011, again the said cheque was returned for insufficiency of funds. Before lodging the complaints, statutory notice dated 14.12.2011 was caused. Since no reply from the accused was forthcoming, the complaint was presented. Page No.3/13 https://www.mhc.tn.gov.in/judis Crl.A.No.296 of 2014
4. Before the trial Court, the complainant examined one Ganesan the Authorised Agent of the complainant company. 11 exhibits were marked.
5. To rebut the presumption and prove his innocence the accused and one Sekar were examined as defence witnesses. 3 exhibits were marked in support of the accused. The trial Court dismissed the complaint for the following reasons:-
(a)The Board Resolution to corroborate the authorisation of PW-1 has not produced before the Court.
(b)The complainant has not filed the evidence to show, he is running a registered chit finance company, as per the provisions of law.
(c)The issuance of cheque for the legally enforceable debt was not proved.
(d)The complainant has failed to disclose two subscriptions of chit by the accused and adjustment of the Page No.4/13 https://www.mhc.tn.gov.in/judis Crl.A.No.296 of 2014 installment paid for the second chit.
(e)The complainant not aware of the exact amount due and payable. The cheque admittedly written by the staff of the complainant company and not by the drawer.
6. The learned counsel appearing for the appellant/complainant submitted that the trial Court has miserably failed to consider the fact that the accused has admitted the issuance of cheque as well as his chit transaction with the complainant company. While so, Ex.P9-statement of account and Ex.D2 receipts are relied on by the accused on a conjoint reading with the admission of the accused that he owe money to the complainant company towards the balance prized money clearly prove the cheque is issued for legally enforceable debt and to discharge the said debt, the respondent/accused has given the subject cheque marked as Ex.P2.
7. Regarding the authorisation, the learned counsel submitted that the minutes of the Board of Directors authorising PW-1 to represent the Page No.5/13 https://www.mhc.tn.gov.in/judis Crl.A.No.296 of 2014 company is explicitly mentioned in Ex.P1. Therefore, when there is no dispute regarding the authenticity of PW-1 to represent the complainant company, the trial Court has invented imaginary reason to dismiss the complaint. While the accused himself has admitted that he has subscribed the chit run by the complanant and not questioned the legality of the chit run by the complainant company, the complaint ought not to have been dismissed on the ground that the complainant has not placed documents to show that they are legally authorised to conduct the chit. Regarding the mismatch of the hand-writing, the learned counsel submitted that there is no impediment under law that a Negotiable Instruments cannot be executed in two different inks and two different hand-writings. Having admitted the signature found in Ex.P2, the statutory presumption under the Negotiable Instruments Act, 1881, falls against the accused and not disproved by DW-1, DW-2 and Ex.D1 to D3. The accused failed to rebut the presumption and infact the evidence of DW-1 substantially admits his liability and the guilt of dishonouring the cheque issued by him. Page No.6/13 https://www.mhc.tn.gov.in/judis Crl.A.No.296 of 2014
8. The learned counsel appointed by the Legal Services Authority to represent the accused/respondent submitted that the time and date on which the disputed cheque given to the complainant is highly doubtful and PW-1 neither able to disclose about the date on which the cheque was issued or for what amount the cheque was given. Having admitted that it was the blank cheque given by the accused/respondent, the exact debt recoverable ought to have been disclosed with proper statement of account. In the complaint, there is no evidence to substantiate the debt of Rs.48,898/- payable. To fill up the lacuna, PW-1 was recalled and Ex.P9 was marked. The trial Court has rightly declined to rely Ex.P9, since it is the document which was in the custody of the complainant but not disclosed in the complaint or during the chief examination of PW-1.
9. Heard the learned counsel appearing for the petitioner and learned Legal Aid counsel appearing for the respondent. Perused the materials available on record.
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10. It is the case where the complaint was dismissed for the reasons narrated in paragraph 5(a) to (e).
11. In view of this Court, the non production of license or permission issued to the complainant to run the chit is neither relevant nor vital. The issuance of cheque and dishonour of the same is the pivotal point for determination in the case in hand. The authorisation letter marked as Ex.P1 is substantially sufficient to sustain the private complaint by a registered company.
12. In the light of the presumption under Section 118 of the Negotiable Instruments Act, 1881, the complainant is expected to prove the fundamental facts like, issuance of cheque and prima facie evidence to show that the said cheque was issued to discharge an enforceable debt. So, even without adverting to the evidence on the side of the complainant, on the reading of DW-1 testimony, it is seen that the accused admits he had chit transaction with the complainant company. He subscribed two chits. Page No.8/13 https://www.mhc.tn.gov.in/judis Crl.A.No.296 of 2014 Each for Rs.1,00,000/-. He admits that he has withdrawn the prized money for the first chit on the 7th month and paid three more installments thereafter. It means out of 20 months, he had paid installment for only 11 months. Similarly, he admits that from the 2nd chit he was irregular and did not pay the entire installment. He also admit that on 07.03.2010 he has withdraw the prized money of Rs.75,529/- and the money was paid through cheque which he has encashed through his bank. In such circumstances, besides his own admission, if one look at Ex.P9 the monthly ledger extract, the entire transaction between the complainant company and the accused is reflected and liability gets proved.
13. To rebut the presumption of legally enforceable debt, the accused rely upon three documents. But they had not substantiated the defence, contrarily only confirm the case of the complainant. Ex.D1 pass book is in respect of group G2 E1459 GAN ticket 04. The entries indicates that as on 19.05.2010, the accused is liable to pay the amount of Rs.53,058/-. Ex.D2 is the receipt to show that the accused paid a sum of Page No.9/13 https://www.mhc.tn.gov.in/judis Crl.A.No.296 of 2014 Rs.5,600/- by way of cash. Ex.D3 is the notice issued by the lawyer on behalf of the complainant company to the accused that towards the chit prized money received there is a running balance of Rs.39,442/- is due and payable and further a sum of Rs.9,456/- payable towards default interest. The accused was informed that total a sum of Rs.48,898/- to be paid within 10 days from the date of receipt of notice or else appropriate proceedings will be initiated against him. Thereafter the cheque Ex.P2 issued and on the first presentation, it was returned. Notice Ex.P3 dated 02.11.2011 was caused and the same was received by the accused on 05.11.2011. It is stated by the complainant that on the request of the accused, the cheque was represented again for the second time. This averment is denied by the accused. However, there is no documentary evidence either for request to representation or for the denial. Therefore, it is to be presumed that the cheque, which was presented for the second time within the period of 6 months is re-represented and statutory notice dated 14.12.2011 marked as Ex.P6 is a valid statutory notice.
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14. For the said reasons, this Court finds that the dismissal of the complaint is erroneous. Hence, it is liable to be set aside.
15. Accordingly, this Criminal Appeal is allowed. The judgment of the acquittal passed by the learned Special Judicial Magistrate, Special Court for Exclusive Trial of Land Grabbing cases, Tiruppur made in C.C.No.19 of 2013, dated 27.02.2014 is hereby set aside. The accused is held guilty for the offence under Section 138 of the Negotiable Instruments Act, 1881.
For questioning the accused regarding the sentence, post the case on 28.09.2022.
07.09.2022 Index:yes/no Speaking order/non speaking order ari Page No.11/13 https://www.mhc.tn.gov.in/judis Crl.A.No.296 of 2014 Note:
Registry is directed to issue warrant to the accused to be executed through the jurisdictional Police for production before this Court on 28.09.2022.
To:
1.The Special Judicial Magistrate, Special Court for Exclusive Trial of Land Grabbing cases, Tiruppur
2.The Inspector of Police, Tiruppur, Tiruppur District.
3.The Public Prosecutor, High Court, Madras. Page No.12/13 https://www.mhc.tn.gov.in/judis Crl.A.No.296 of 2014 DR.G.JAYACHANDRAN,J.
ari Crl.A.No.296 of 2014 07.09.2022 Page No.13/13 https://www.mhc.tn.gov.in/judis