Madras High Court
K.Suresh Kumar vs V.Boopathi on 20 January, 2022
Crl.R.C.No.700 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.01.2022
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
Crl.R.C.No.700 of 2016
K.Suresh Kumar
... Petitioner
Vs.
1. V.Boopathi
2. The State Represented by
The Public Prosecutor,
Erode.
... Respondents
Criminal Revision filed under Sections 397 and 401 Cr.P.C praying to set
aside the order passed by the learned Judicial Magistrate, Fast Track Court-II
Erode in S.T.C.No.275 of 2011 dated 10.12.2013 as confirmed by the Judgment
of the II Additional District Sessions Judge, Erode in C.A.No.19 of 2014 dated
17.12.2015.
For Petitioner : Mr.T.Gowthaman
For Respondents : Mr.R.Nalliyappan for R1
Mr.A.Gopinath
Government Advocate (Crl. Side) for R2
*****
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Crl.R.C.No.700 of 2016
ORDER
This Criminal Revision has been preferred challenging the judgment of
the learned II Additional District and Sessions Judge, Erode dated 17.12.2015
made in C.A.No.19 of 2014 which confirmed the judgment of the learned
Judicial Magistrate, Fast Track Court-II, Erode dated 10.12.2013 made in
S.T.C.No.275 of 2012.
2. This case has arisen out of dishonour of cheque issued by the
petitioner/accused to the first respondent/complainant. The case of the
complainant is that on 26.04.2011, the accused borrowed a sum of Rs.45,000/-
from him and in order to discharge the same, he issued a post-dated cheque
dated 26.05.2011 for Rs.45,000/-. When the cheque was presented for
collection on 26.09.2011, it was returned with an endorsement “Insufficient
Funds”. After issuing the statutory notice and complying the legal mandates,
the first respondent/complainant filed the private complaint against the
petitioner/accused for the offence under Section 138 read with 142 of
Negotiable Instruments Act.
3. After the case was taken on file and on being satisfied with the
materials available on record, the accused was questioned by the trial judge as
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Crl.R.C.No.700 of 2016
to the offence committed by him. Since the petitioner/accused pleaded
innocence and claimed to be tried, trial was conducted.
4. During the course of trial, on the side of the complainant, he himself
was examined as PW1 and 5 documents were marked as Exs.P1 to P5. On the
side of the accused, no witness was examined, but one document was marked
as Ex.D1.
5. At the conclusion of the trial and on considering the evidence available
on record, the learned Trial Judge found the accused guilty for the offence under
Section 138 of Negotiable Instruments Act and convicted and sentenced him to
undergo Rigorous Imprisonment for one year and also imposed a fine of
Rs.5,000/- in default to undergo Simple Imprisonment for one month. The
appeal filed by the accused in C.A.No.19 of 2014 was also dismissed on
17.12.2015 by confirming the judgment of the trial Court. Aggrieved over that,
the accused has preferred the present revision.
6. Heard the learned counsel for the Revision petitioner, the learned
counsel for the first respondent and the learned Government Advocate (Crl.
Side) appearing on behalf of the second respondent. Perused the entire
materials available on record.
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Crl.R.C.No.700 of 2016
7. The learned counsel for the revision petitioner submitted that the
cheque was not issued for any pre-existing debt; since PW1 had stated in his
evidence that the cheque was issued in one and the same day when the loan was
disbursed, the cheque could have been issued only for debt and not towards
discharge of the loan amount; further the cheque has been filled up by the first
respondent/complainant himself and used for the purpose of filing the
complaint; the petitioner had stated all these facts in his reply notice, but the
Courts below have not considered the above aspects and found the accused
guilty.
8. The learned counsel for the first respondent submitted that the
petitioner has admitted the issuance of the cheque and there is no dispute with
regard to the signature on the cheque; hence, the first respondent is entitled to
get the initial presumption under Section 139 of Negotiable Instruments act in
his favour; the Courts below have rightly appreciated the evidence and
convicted the accused and it does not require any interference.
9. Point for consideration:-
Whether the conviction and sentence imposed on the accused
for the offence under Section 138 of Negotiable Instruments Act by the
learned Sessions Judge based on the materials available on record is
fair and proper?
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Crl.R.C.No.700 of 2016
10. The fact that the revision petitioner/accused borrowed a sum of
Rs.45,000/- from the first respondent/complainant on 26.04.2011 was not
disputed. The only contention of the revision petitioner is that he had given the
cheque only for the purpose of security for the loan and it cannot be said that
the cheque has been issued for any debt or legally enforceable liability. It
appears from the evidence of PW1 that the cheque was issued on the same day
when he availed the loan amount of Rs.45,000/- from the first
respondent/complainant. Though the cheque was issued on the same day, the
cheque was dated 26.05.2011.
11. The first respondent/complainant has stated that the revision
petitioner has issued only a post dated cheque. But the petitioner states that he
had issued only a blank cheque and the particulars of the cheque has been filled
up by the first respondent/complainant himself and later he filed this private
complaint.
12. As per Section 20 of the Negotiable Instruments Act, when a person
signs and delivers a negotiable instrument like a cheque, the bearer of the
cheque has got the authority to make it complete for any specified amount.
Section 20 of Negotiable Instruments Act is as follows:
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Crl.R.C.No.700 of 2016
“20. Inchoate stamped instruments.- Where one person signs
and delivers to another a paper stamped in accordance with the
law relating to negotiable instruments then in force in (India),
and either wholly blank or having written thereon an
incomplete negotiable instrument, he thereby gives prima facie
authority to the holder thereof to make or complete, as the case
may be, upon it a negotiable instrument, for any amount
specified therein and not exceeding the amount covered by the
stamp. The person so signing shall be liable upon such
instrument, in the capacity in which he signed the same, to any
holder in due course for such amount; provided that no person
other than a holder in due course shall recover from the person
delivering the instrument anything in excess of the amount
intended by him to be paid thereunder.”
13. If the negotiable instruments are stamped ones, then the amount filled
in the same should not exceed the amount covered by the stamp. In this case it
is seen that the cheque was filled for an amount which did not exceed amount
borrowed by the accused from the complainant. Further, the cheque was
presented for collection only on 26.09.2011 which was 5 monts after the
disbursal of the loan amount. From the very submission of the accused, it is
made clear that the cheque was not given as a mere security and it is well
supported by a consideration of Rs.45,000/-, which was availed from the
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Crl.R.C.No.700 of 2016
complainant as loan. Even it might be true that the cheque was given in one and
the same day, but the object of issuing such cheque is to encash it at a later
point of time towards discharging the loan, which was already availed by the
petitioner/accused. Accordingly, the cheque was presented for collection after
five months on 26.09.2011. It is needless to reiterate that the cheque has been
issued by the accused only towards discharging the loan amount availed by him.
14. Further, when the execution of the cheque is not denied, the holder of
the cheque namely the accused has got the benefit of the statutory initial
presumption to be drawn in his favour as per Sections 118 and 139 of
Negotiable Instruments Act. It is not the contention of the petitioner/accused
that he had already discharged the loan amount; but his contention is that the
complainant refused to give back the cheque and misused it. As per the above
provisions, the drawer of the cheque is entitled to the initial presumption to the
effect that the cheque in question has been given only for the purpose of
discharging the debt or legally enforceable liability. However, it is subject to
the rebuttal proof if any given by the petitioner/accused to disprove the initial
presumption.
15.Admittedly, the revision petitioner did not produce any material to
disprove the above initial presumption. In fact he has admitted the borrowing of
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Crl.R.C.No.700 of 2016
the loan of Rs.45,000/- from the first respondent/complainant. So it is open to
the respondent/complainant to make use of the cheque for the purpose of
recovery of the loan amount issued to the accused by way of presenting for
collection. The courts below have rightly appreciated the facts and applied the
law. Hence, I do not find any reason for interference.
16. In the result, this Criminal Revision is dismissed. The judgment of
the learned Principal District-cum-Sessions Judge, Erode made in C.A.No.19 of
2014 dated 17.12.2015 is hereby confirmed.
20.01.2022
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Index: Yes
Speaking Order
kmi
To
1.The II Additional District-cum-Sessions Judge,
Erode.
2.The Judicial Magistrate,
Fast Track Court-II,
Erode .
3.The Public Prosecutor,
High Court of Madras,
Chennai-104.
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Crl.R.C.No.700 of 2016
R.N.MANJULA, J
kmi
Crl.R.C.No.700 of 2016
20.01.2022
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