Madras High Court
K.Vimala vs Veenus Textiles Suppliers on 24 June, 2022
Crl.A.No.140 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.06.2022
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Criminal Appeal No.140 of 2012
K.Vimala ... Appellant/Complainant
Vs.
1.Veenus Textiles Suppliers,
10-A, Kalapana Road,
Jose Building,
Near Kaliamman Koil,
Udumalpet.
2.C.Venugopal,
Prop: Veenus Textiles Suppliers,
10-A, Kalapana Road,
Jose Building,
Near Kaliamman Koil,
Udumalpet. ... Respondents/Accused 1 & 2
Prayer :- This Criminal Appeal has been filed under Section 378 Cr.P.C.,
against the judgment passed in C.C.No.206 of 2005 dated 08.02.2011 on
the file of the Judicial Magistrate No.I, Udumalpet and the same is liable to
be set aside.
For Appellant : Mr.M.N.Balakrishnan
For Respondents : Mr.R.Babu
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Crl.A.No.140 of 2012
JUDGMENT
This Appeal is preferred by the complainant against the order dated
08.02.2011 passed in C.C.No.206 of 2005 filed under Section 138 of the
Negotiable Instruments Act, which came to be dismissed by the trial Court
for want of evidence that the subject cheque was issued to discharge legally
enforceable debt.
2. The substance of a complaint is that on 08.02.2004, 2nd accused
came to the house of the complainant and borrowed Rs.1,00,000/- for
improvement of 1st accused/business and based on the assurance that the
loan will be discharged with interest, the complainant gave Rs.1,00,000/- to
2nd accused. As a security, 2nd accused as a proprietor of 1st accused
concern, gave cheque from the account maintained by 1st accused/Firm
namely Veenus Textiles Suppliers. Thereafter, 2nd accused failed to repay
the loan amount with interest, within 6 months as assured. After repeated
demand, he gave the cheque dated 21.12.2004 and when the same was
presented for collection, it was returned for a reason 'insufficient funds'.
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Crl.A.No.140 of 2012
3. The specific case of the complainant is that 1st accused/Veenus
Textiles Suppliers is owned by 2nd accused and as a Proprietor of the said
Firm, 2nd accused is administering the affairs of 1st accused/Firm. Further,
the specific averment made in the complaint is that when the complainant
demanded back the money from 2nd accused, he gave the cheque dated
21.12.2004 for Rs.1,00,000/- and assured that the cheque will be realised on
presentation date and with that assurance, 2nd accused took back the
Promissory Note given to the complainant while availing the loan. On
receiving the intimation from the Bank, statutory notice was issued to 2 nd
accused and thereafter, the complaint was lodged.
4. To prove the case, the complainant examined herself as P.W.1 and
marked 8 exhibits. 2nd accused to rebut the burden and to prove his
innocence, examined himself as D.W.2 and marked 1 document which is
cheque book counter foil. D.W.1 & D.W.3 were also examined on the side
of 2nd accused.
5. The specific defence taken by 2nd accused is that he and the
complainant had no financial contract. The cheque was never given to the
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Crl.A.No.140 of 2012
complainant. In fact, 1st accused/Firm was closed in the year 1995 itself.
While he was active in business, he borrowed Rs.5,000/- from one
Subramani who was running a Finance Company and as a security, gave a
cheque to him. Thereafter, when 2nd accused discharged the loan borrowed
from Subramani, he asked him to return back the cheque and Subramani
promised to return it within a week since he is busy with annual account
reconciliation. To substantiate the said defence, 2nd accused has marked
Ex.D1 which is cheque book counter foil. The subject cheque was in use
during the year 1995. The other defence's witness had deposed to the effect
that 1st accused/Firm namely M/s.Veenus Textiles Suppliers was closed in
the year 1995 itself.
6. The trial Court after appreciating the evidence held that though the
complainant claims that she is known to 2nd accused, she admits that after
her marriage she settled at Karadikottam, whereas, the money transaction
alleged to have taken place at Udumalpet where her father resides. The trial
Court has also observed that the complainant is not a resident of Udumalpet
or carrying any business at Udumalpet and she has no separate source of
income or property in her name.
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Crl.A.No.140 of 2012
7. In the cross-examination, the complainant says that the cheque was
given to her at the time of borrowing the money whereas in the complaint,
she says that the money was borrowed on 08.02.2004 and cheque was
issued on 21.12.2004. Regarding the source of income to lend a sum of
Rs.1,00,000/, the complainant could not give any reasonable explanation.
Her inconsistent evidence regarding the source coupled with the
contradictions elucidated in the cross-examination that she lived in
Udumalpet during the year 1995, the money transaction between her and 2nd
accused was from the year 2000. Further, her inability to produce the sale
deed of the property which she alleged to have been the source for lending
Rs.1 Lakhs, cumulatively put together made the trial Court to hold that the
complainant has created doubts as to the existence of debt or liability.
Therefore, the presumption under Section 138 of the Negotiable
Instruments Act, has been rebutted and the prosecution/complainant has
failed to prove her case. Having failed to prove the existence of an
enforceable debt or liability, the accused is entitled for acquittal.
8. Aggrieved by the order of acquittal, the present Appeal is filed
wherein, it is stated that the trial Court ought not to have accepted the case
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Crl.A.No.140 of 2012
of the defence to hold that he has discharged the burden while the signature
found in the cheque is accepted and the account maintained by 2 nd accused
is also accepted.
9. The presumption under Section 139 of the Negotiable Instruments
Act requires proof of fundamental facts and prima facie it is the burden of
the accused to discharge the presumption by placing believable evidence.
D.W.2 & D.W.3 are not reliable witnesses and the trial Court itself has
expressed doubt about the reliability. While so, the trial Court ought not to
have discharged the accused.
10. This Court on reappreciating the evidence relied on by both the
parties, find that 2nd accused has proved that during the year 2004, he was
not running 1st accused/Firm namely M/s.Veenus Textiles Suppliers and it
has been closed long back. Secondly, he has also proved that the subject
cheque was issued by him in the year 1995 and the rest of the cheque in the
said cheque book has been used by him during the year 1995. In the said
context, his defence that while he was active in business, he borrowed
money from one Subramani which he discharged within 5 months. Though
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Crl.A.No.140 of 2012
this part of defence cannot shift the burden in toto, the fact that the
complainant is a non-working, non-earning member, had lent a loan of
Rs.1,00,000/- and failed to show prima facie source of income, creates
doubt about the case of the complainant and the allegation that the cheque
was issued for discharging of liability not even prima facie proved, which
has inured a benefit of acquittal to the accused. When there are two views
possible and the view favourable to the accused been taken into
consideration for his acquittal by the trial Court, this Court finds that the
benefit inured to the accused shall not be deprived by entertaining this
appeal.
11. For the foregoing reasons, this Criminal Appeal stands dismissed.
No costs.
24.06.2022
Speaking/non-speaking order
Index: Yes/No
Sni
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Crl.A.No.140 of 2012
DR.G.JAYACHANDRAN.J.,
Sni
To
Judicial Magistrate No.I,
Udumalpet.
Crl.A.No.140 of 2012
24.06.2022
https://www.mhc.tn.gov.in/judis
