Madras High Court
N.Sundarrajan vs G.Saravana Kumar on 12 April, 2023
CRL.A.(MD).No.113 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.04.2023
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.A.(MD).No.113 of 2010
N.Sundarrajan ... Appellant/Complainant
Vs.
G.Saravana Kumar ... Respondent/Sole Accused
PRAYER : Criminal Appeal filed under Section 378(4) of Cr.P.C to set
aside the Judgment and order of acquittal passed by the learned
Judicial Magistrate No.I, Sattur in C.C.No.39 of 2006, dated
19.01.2009 and convict the respondent/accused for the offence
under Section 138 of the Negotiable Instruments Act.
For Appellant : Mr.M.Thikvijayapandian
For Respondent : Mr.M.Prabhu
1/6
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CRL.A.(MD).No.113 of 2010
JUDGMENT
This appeal has been preferred as against the order of
acquittal passed in C.C.No.39 of 2006, dated 19.01.2009 on the file
of the learned Judicial Magistrate No.I, Sattur.
2.The appellant is the complainant and the respondent
is an accused in the complaint lodged for the offence punishable
under Section 138 of the Negotiable Instruments Act.
3.The crux of the complaint is that on 01.04.2004, the
respondent borrowed a sum of Rs.1,00,000/- and on the same date,
he issued a post-dated cheque. On instructions, it was presented for
collection and the same was returned dishonoured for the reason
'funds insufficient'. After causing statutory notice, he lodged the
complaint.
4. On the side of the appellant, he himself was
examined P.W.1 and marked Exs.P.1 to P.5 and on the side of the
respondent, he had examined D.W.1 to D.W.3 and marked Ex.D.1 to
Ex.D.5.
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CRL.A.(MD).No.113 of 2010
5. On perusal of the oral and documentary evidence, the
trial Court found the respondent not guilty for the offence
punishable under Section 138 of the Negotiable Instruments Act and
acquitted him and dismissed the complaint. Aggrieved by the same,
the present Appeal.
6.The learned counsel appearing for the appellant would
submit that the respondent admitted his signature and issuance of
the cheque. Therefore, the appellant has discharged his initial
burden as contemplated under Section 138 of the Negotiable
Instruments Act. The respondent failed to rebut the presumption
and as such, he has to be convicted for the offence punishable
under Section 138 of the Negotiable Instruments Act. In fact, the
respondent duly received the statutory notice, and he did not
choose to reply in order to rebut the presumption. Therefore, it can
be presumed that the cheque was issued for legally enforceable
debt. In order to substantiate his contention, he relied also relied
upon the Judgment of the Honourable Supreme Court of India in
Crl.A.Nos.230-231 of 2019 in the case of Bir Singh Vs.
Mukesh Kumar, in which, the Honourable Supreme Court of India
held that in view of the provisions of Section 139 of the Negotiable
Instruments Act read with Section 118 thereof, the Court had to
presume that the cheque had been issued for discharging a debt or
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CRL.A.(MD).No.113 of 2010
liability. The said presumption was rebuttable and could be rebutted
by the accused by proving the contrary. But mere denial or rebuttal
by the accused was not enough. The accused had to prove by
cogent evidence that there was no debt or liability. Therefore, he
prayed for convicting the respondent for the offence punishable
under Section 138 of the Negotiable Instruments Act.
7.Heard the learned counsel appearing for the appellant
and the learned counsel appearing for the respondent and perused
the materials available on record.
8.On perusal of the records revealed that the appellant
and the respondent were doing contract business. Both agreed to
share the profit. The respondent was allotted a sub contract in
which the profit was to be shared by the appellant and the
respondent 60:40 share. During that business transaction, at the
instance of the appellant, the account was opened in the name of
the respondent. Three cheque leaves were received by the appellant
for security purposes. After a period of three years, there was a
dispute with regard to sharing the profits. Therefore, the appellant
lodged a complaint. On the said complaint, an enquiry was
conducted by the Sub-Inspector of Police, Sattur Town Police
Station. He conducted enquiry and on enquiry, both agreed for the
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CRL.A.(MD).No.113 of 2010
sum of Rs.3,00,000/-. During the enquiry, under coercion, two
cheque leaves were obtained from the respondent. From the said
cheques, one cheque was presented for collection for a sum of Rs.
1,00,000/-. Therefore, the alleged cheque was not issued for any
legally enforceable debt. Hence, the respondent categorically
rebutted the presumption by a preponderance of probabilities.
Hence, the trial Court rightly dismissed the complaint and acquitted
the respondent. Therefore, the Judgment cited by the learned
counsel appearing for the appellant is not helpful to the case on
hand. Hence, this Court finds no infirmity or illegality in the order
passed by the Court below. Accordingly, this Criminal Appeal is
dismissed.
12.04.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
To
The Judicial Magistrate No.I,
Sattur.
https://www.mhc.tn.gov.in/judis
CRL.A.(MD).No.113 of 2010
G.K.ILANTHIRAIYAN, J.
ps
CRL.A.(MD).No.113 of 2010
12.04.2023
https://www.mhc.tn.gov.in/judis
