Madras High Court
Sudhir Paul vs Dr.Arjun Mathuranayagam on 16 December, 2021
SA NO.530 OF 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
SA NO.530 OF 2016
AND CMP NO.9376 OF 2016
Sudhir Paul ... Appellant
Vs.
Dr.Arjun Mathuranayagam ... Respondent
PRAYER: The Second Appeal filed under Section 100 of the Civil
Procedure Code against the judgment and decree of the XIX Additional
City Civil Court at Chennai dated 25.02.2014 passed in A.S.No.390 of
2013 reversing the judgment and decree dated 18.04.2013 passed by the
VIII Assistant City Civil Court at Chennai in O.S.No.8878 of 2006.
For Appellant : Mr.T.Sundar Rajan
For Respondent : Mr.K.R.Manavalan
JUDGMENT
Aggrieved over the reversal of the finding of the First Appellate
Court, the defendant has preferred the above Second Appeal.
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SA NO.530 OF 2016
2.The respondent / plaintiff filed a Suit for recovery of money
for a sum of Rs.1,43,220/- and future interest @ 18% per annum on
principle sum of Rs.93,000/- till the date of realization. The plaintiff
wanted rain water harvesting arrangement made at his residence and the
defendant has offered to install the same at a reasonable price. For
executing this work, the plaintiff had made periodical payments at the
request of the defendant by cash and some by cash. The plaintiff issued
two cheques bearing Nos.315783 and 315784 drawn on ICICI Bank for a
sum of Rs.6,228/- and Rs.4,000/-. But the defendant committed fraud
and altered the cheque amounts and withdrawn Rs.14,000/- and
Rs.16,228/-. The defendant had also overcharged the plaintiff by
Rs.80,000/- for the simple work of providing rain water harvesting
arrangement. The plaintiff came to know of the real situation after
completion and asked to know about the forgery and decided to complain
to the Central Crime Branch. Knowing that the defendant begged for
mercy and requested the plaintiff not to give any complaint to the Crime
Branch Police and worked out the difference amounts due to the plaintiff
and issued two cheques bearing Nos.149972 and 149972 dated
25.10.2003 drawn on Indian Overseas Bank, Madras Christian College
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SA NO.530 OF 2016
Campus Branch, Chennai – 600 059 for a sum of Rs.35,000/- and
Rs.58,000/- respectively. When the cheques were returned, the defendant
issued another cheque, towards part payment for a sum of Rs.15,000/-
which was also dishonoured for insufficient funds. The plaintiff issued a
legal notice on 27.01.2004 which was acknowledged by the defendant on
31.01.2004, but, no payments were made by the defendant. He filed a
private complaint under Section 138 of the Negotiable Instruments Act on
the file of XIV Metropolitan Magistrate Court, Egmore, in C.C.No.10553
of 2004 which was transferred to XV Metropolitan Magistrate Court,
George Town, Chennai in C.C.No.5254 of 2006 and the matter is
pending. The amount is still due and the defendant is liable to pay the
amount together with interest @ 18% per annum from the date of
dishonour of the last cheque dated 22.11.2003 as the transaction being
commercial. Thus, he filed a Suit for Rs.1,43,200/- along with interest.
3.In the written statement, the defendant denied the averment
made in the plaint. According to him, he provided the rain water
harvesting arrangement to the defendant and completed the construction
and there was no dispute. The allegations that he altered the cheques
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SA NO.530 OF 2016
issued to him towards purchase of materials for the construction work
were denied. There was no alteration of the cheque and the plaintiff has
concated this fact with ulterior motive for the purpose of this case. The
alteration was authenticated by the plaintiff himself and therefore, no
forgery as alleged by the plaintiff. The allegation that defendant
overcharged Rs.80,000/- for the work is false. The plaint is bereft of
calculation as to how the plaintiff claims the defendant overcharging by
Rs.80,000/-. The plaint is liable to be rejected for lack of pleadings. The
plaintiff for the materials as per the details given by the defendant
perfectly completed the work. Some cheques were given to the plaintiff as
the security for completion of the work when the work was entrusted by
the plaintiff. The plaintiff had promised to return the cheques on
completion of the job. The plaintiff had urged the defendant to raise the
height of the compound wall between his house and his uncle Mr.Jeffrey
Mathuranayagam and to remove a wicket gate connecting the house of
the plaintiff and his uncle. The defendant had refused to do the same
without the permission of the plaintiff’s uncle as he is a relative of the
plaintiff as well as his uncle. Annoyed by this, the plaintiff threatened the
defendant that he would face serious consequences for not obeying his
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SA NO.530 OF 2016
order. Thereafter, he misused the security cheques given by him. The
allegation that the defendant begged for mercy and requested the plaintiff
not to give a complaint and handed over a cheque for Rs.35,000/- and
Rs.58,000/- to the plaintiff were all false and denied. No prudent person
give cheques totalling to Rs.98,000/- for the claim of Rs.20,000/- for the
amount, which was allegedly increased in the cheques the Suit was filed
with bereft of accounts and for the purpose of getting money from the
defendants. The complaint filed before the Crimina Court was dismissed
on 26.09.2007. There is no liability in respect of cheques on which the
above Suit has been laid. Therefore, he prayed for dismissal of the same.
4.The Trial Court framed appropriate issues and dismissed the
Suit. On appeal by the respondent / plaintiff, the First Appellate Court
reversed the finding and decreed the Suit, against which the defendant
has preferred the above Second Appeal.
5.The learned counsel for the appellant would vehemently
contend that the decree and judgment of the First Appellate Court
reversing the well considered the judgment of the Trial Court is illegal.
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SA NO.530 OF 2016
According to him, as per Section 118, he is entitled to rebuttal of
presumption provided under Section 139 of the Act. During cross
examination, the plaintiff was not in a position to quantify the exact
amount of overcharging as alleged by him. He would depose that the
amount for carrying out the work was not fixed and it was approximately
Rs.1,30,000/- and Rs.1,40,000/-. He did not receive any cheque from the
defendant as he is a close relative. He did not get any security from the
defendant because of the close relationship. The rain water harvesting
system work was completed and he was assigned small patch work
around his house. He paid Rs.1,30,000/- for rain water harvesting system
including material costs. The defendant exclusively charged
approximately Rs.80,000/-. He would further depose that he consulted 4
to 5 experts in the field and found that excess charges were made by the
defendant. The other experts are not given any written estimate and that
he had not given any complaint to the police against the defendant
regarding alteration of the cheques. When he claims to lodge complaint,
the defendant approached him and given three cheques so that no police
complaint was given. The cheques marked as Exs.A3 and A4 were given
by the defendant towards repayment of excess charges. The defendant
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SA NO.530 OF 2016
issued cheques for overcharge amount of Rs.80,000/- and also borrowed
an amount of Rs.10,000/-, but he has not stated in the complaint.
6.The learned counsel for the appellant would place his
submissions on the ground that the cheques were received under threat of
giving complaint against the defendant for alleged altering of three
cheques. It is not given voluntarily and it is pleaded by him that it was
given as a security for completion of work. Therefore, from the
circumstances, mentioned in the plaintiff evidence, it can be culled out
and there is no legally enforceable debt and that the cheques were not
given voluntarily, but, it was given only for the security purposes.
Therefore, the Suit filed by the plaintiff is not sustainable in law and is
liable to be dismissed. He would rely on a judgment of this Court in
SUBBURAM VS. RAJA GURU [ 2007 (5) CTC 251 ] wherein it is held
as follows:-
"9. It is from the admitted facts of the
complainant/ respondent herein, that there was no
liablity on the part of the petitioner herein, but the
question is whether he can be made liable for the
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SA NO.530 OF 2016
amount cheated by his brother. Even if the petitioner
herein admitted the criminal liability of his brother
and undertakes to pay the amount, legally the
petitioner cannot be compelled to pay the amount
and there is no legally enforceable debt or other
liability.
10. Of Course, there is a presumption in
favour of the holder under Section 139 of the
Negotiable Instruments Act:
"It shall be presumed, unless the contrary
is proved, that the holder of a cheque received the
cheque of the nature referred to in Section 138 for
the discharge, in whole or in prat, or any debt or
other liability".
11. Still, when there is material in the
Complaint itself rebutting the presumption and on
the admitted facts the liablity seems to be legally not
enforceable debt or other liability, the petitioner need
not undergo the ordeal of trial."
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SA NO.530 OF 2016
7.When the cheque was obtained under threat, coercion and
intimidation and without liability, it will not amount to legally enforceable
and though liability can be attached to the drawer of the cheque.
Therefore, he would contend that as from the deposition of the plaintiff, it
can be inferred that the cheques were obtained by force under threat to
lodge a police complaint against him and that those cheques were issued
only for the purpose of security and hence, there is no legally enforceable
debt. He would also rely on the judgment of the Hon’ble Supreme Court
in BASALINGAPPA VS. MUDIBASAPPA [CDJ 2019 SC 471] wherein
the Hon’ble Supreme Court as laid the principles with regard to the ratio
of Section 118A and 139. The relevant portion is extracted hereunder:-
"23. We having noticed the ratio laid
down by this Court in above cases on Sections 118
(a) and 139, we now summarise the principles
enumerated by this Court in following manner:-
(i) Once the execution of cheque is
admitted Section 139 of the Act mandate a
presumption that the cheque was for the discharge of
any debt or other liability.
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SA NO.530 OF 2016
(ii) The presumption under Section 139 is
a rebuttable presumption and the onus is on the
accused to raise the probable defence. The standard
of proof for rebutting the presumption is that of
preponderance of probabilities.
(iii) To rebut the presumption, it is open
for the accused to rely on evidence leg by him or
accused can also rely on the materials submitted by
the complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be
drawn not only from the materials brought on record
by the parties but also by reference to the
circumstances upon which they rely.
(iv) That it is not necessary for the
accused to come in the witness box in support of his
defence, Section 139 imposed an evidentiary burden
and not a persuasive burden,
(v) It is not necessary for the accused to
come in the witness box to support his defence."
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SA NO.530 OF 2016
8.As per the above principles enumerated by the Court, the
standard proof of rebutting presumption is that preponderance of
probability. The defendant herein relied on the materials submitted by the
complainant in order to raise a probable defence. Inference of
preponderance of probabilities can be drawn not only from the materials
brought on record by the parties but also by reference to the
circumstances upon which they rely.
9.In the instant case, there was a threat that police complaint
will be laid and that security cheques were issued. It was elicited during
the cross examination of the plaintiff. Therefore, the principles
enumerated by the Supreme Court will squarely apply to this case and the
finding of the Trial Court that the defendant failed to rebut the
presumption is erroneous and therefore, he would contend that the
judgment of the First Appellate Court is liable to be set aside.
10.Per contra, the learned counsel for the respondent / plaintiff
would contend that the defendant nowhere in his written statement had
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SA NO.530 OF 2016
explained any specific circumstances that he was compelled to give the
cheques under threat. On the other hand, the case of the defendant was
that the cheques were given to the plaintiff for security purposes for
completion of work and the plaintiff was promised to return the same on
completion of work. Therefore, the burden is cast on the defendant to
prove his onus that the cheques were not issued towards liability but they
were issued only towards security. The plaintiff has cogently deposed that
the defendant had charged him in excess of Rs.80,000/- and that he was
about to the lodged a complaint to the Crime Branch Police for altering
the cheques issued to him and drawing excess amount. The defendant
after admitting his illegal conduct, promised to repay the sums. That he
had forged and overdrawing as well as the sums which was overcharged
from that. The defendant worked out sums due to him and issued two
cheques in acknowledgment of the debt of Rs.93,000/-. It is admitted by
the defendant that the cheques were drawn for a sum of Rs.93,000/-.
Naturally, the presumption shall be that the cheque was issued in the
discharge of the debt and other liability. Hence, the First Appellate Court
discussed the issue elaborately and rightly reversed the finding of the
Trial Court. He would contend that the judgment of the First Appellate
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SA NO.530 OF 2016
Court need not be interfered.
11.Heard the submissions made on either side and perused the
materials available on record.
12.The substantial point for consideration is that whether the
defendant can rebutted the presumption and discharged the onus cast
upon him. At the outset, it is noted that the said cheques admittedly were
issued by the defendant to the plaintiff. According to the plaintiff, a sum
of Rs.80,000/- was accessed as overcharge collected by the defendant
form the plaintiff for the work entrusted to him and also the excess
amount towards overdrawing by altering the cheques. For this, the
evidence of the plaintiff was not discredited by the defendant while cross
examining the plaintiff. He denied the circumstances that the cheques
were given for security purposes. On the other hand, would also affirm
that when he tried to lodge a police complaint, the defendant approached
him and gave two cheques vide Exs.A3 and A4. When they were
dishonoured, the defendant had issued another cheque Ex.A7 towards
part payment of the returned cheques Exs.A3 and A4. Now that the
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SA NO.530 OF 2016
conduct of the defendant in issuing Ex.A7 shows that Exs.A3 and A4
were issued only towards discharge of his liability to the tune of
Rs.93,000/-. Two cheques were issued bearing a sum of Rs.35,000/- and
Rs.58,000/- respectively. There is no explanation from the defendant as to
why he had issued two different amounts of Rs.35,000/- and Rs.58,000/-.
Further, the defendant ought to have rebutted the presumption by
submitting sufficient materials that the cheques were issued only for the
purpose of security for completing the work.
13.In the instant case, strangely the defendant happened to be a
relative of the plaintiff to whom he had done the work. Further, he was
referred by the plaintiff’s uncle, who was also a relative of the defendant.
It was categorically deposed by the plaintiff during cross examination that
because of close relationship he has not received any security from the
defendant. In that event, in the absence of any convincing evidence to
prove the contrary, the contention that the cheques were issued towards
security does not get established.
14.The defendant in his cross examination would produce
certain bills but would admit that he did not get any acknowledgment
from the plaintiff for the same. Further, he would admit receipt of money
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SA NO.530 OF 2016
in cash as well as in cheques and denied certain payments. But would
admit that he did not have any document to show that Exs.A3 and A4
were given for the purpose of security. It is also relevant to note that the
plaintiff had issued a pre-suit notice. The defendant in his cross
examination, admit the receipt of the pre-suit notice and the claim of
Rs.80,000/- towards overcharge. But curiously, he has not given any
reply to his pre-suit notice. A suggestion was also made that the
defendant has taken advantage of the defective hearing of the plaintiff
and cheated him and collected in excess. However, the defendant has not
explained the circumstances in which the cheques in dispute vide Exs.A3
and A4 were given. In order to rebut the presumption that the cheques
were not given towards discharge of liability but were issued only for the
purpose of security has not adduced any evidence. Even in his chief
examination, he would only deny that the averment of the plaintiff that he
issued cheques for Rs.35,000/- and Rs.58,000/- to avoid police complaint.
Therefore, it can be inferred that the cheques were issued for a sum of
Rs.93,000/- vide Exs.A3 and A4 was not on the basis of the threat. When
the cheques were returned for insufficient funds, if there is no legally
enforceable debt, it is not necessary for the defendant to give another
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SA NO.530 OF 2016
cheque dated 22.11.2003 for a sum of Rs.15,000/- which was also
dishonoured. Therefore, the preponderance of probability is that there is a
liability on the part of the defendant to pay the plaintiff and that is why
he has issued the third cheque towards part payment of the liability of
Rs.93,000/-. Further, the defendant would admit that he had completed
the works on 10.09.2003. In that case, the cheques which were issued
towards security should be dated prior to that. On the other hand, Exs.A3
and A4 cheques were dated 25.10.2003 after a period of 15 days. The
preponderance of probability is that the cheques were not issued as
security for the completed work but the case of the plaintiff is
probablised.
15.Therefore, the First Appellate Court has rightly come to the
conclusion that the plaintiff failed to rebut the presumption and rightly
decided the case against plaintiff. I do not find any material to frame any
question of law much less any substantial question of law on the point of
rebuttal on the basis of the above discussions. Since no question of law
arises for admitting the appeal, this Court is not inclined to do the same.
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16.In fine, the Second Appeal is dismissed. No costs.
Consequently, connected civil miscellaneous petition is closed.
16.12.2021
Index : Yes/No
Internet : Yes/No
Speaking / Non-speaking order
TK
To
1. The III Additional District and Sessions Judge
Cuddalore at Vridhachalam.
2. The Additional Subordinate Judge
Vridhachalam.
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SA NO.530 OF 2016
M. GOVINDARAJ, J.
TK
SA NO.530 OF 2016
AND CMP NO.9376 OF 2016
16.12.2021
https://www.mhc.tn.gov.in/judis
