Madras High Court
M/S Sree Gokulam Chits & vs M.Jayakumar on 7 September, 2022
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
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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.
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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
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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
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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.
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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.
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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
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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
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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.
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DR.G.JAYACHANDRAN,J.
ari
Crl.A.No.296 of 2014
07.09.2022
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