Madras High Court
F.Ashok Kumar vs T.Kamalakkannan on 21 April, 2023
Crl.A.No.136 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 21.04.2023
CORAM :
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.A.No.136 of 2020
F.Ashok Kumar .. Appellant
Vs.
T.Kamalakkannan ..Respondent
PRAYER : Criminal Appeal has been filed under sections 378 of
Criminal Procedure Code to set aside the judgment dated 18.11.2019 in
Criminal Appeal No.50 of 2018 passed by the learned I Additional
Sessions Judge, City Civil Court, Chennai-104, by which the judgment
and conviction dated 18.01.2018 passed in C.C.No.7112 of 2004 by the
learned Metropolitan Magistrate, FTC-III, Saidapet, Chennai-15.
For Appellant : M/s.K.Kugan
For Respondent : Mr.S.Subramanian
JUDGMENT
This Criminal Appeal is filed by the complainant being aggrieved
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Crl.A.No.136 of 2020
by the order of the lower Appellate Court reversing the judgment of the
Trial Court and acquitting the respondent for an offence under Section
138 of Negotiable Instruments Act.
2. The sum and substance of the complaint laid by the
appellant herein is that the respondent, who is known to him for several
years, requested a hand loan of Rs.3,00,000/- in the month of June 2003
and same was advanced to him. Towards part payment of the loan
amount, the respondent issued a cheque dated 31.05.2004 for a sum of
Rs.1,50,000/- drawn in favour of the appellant. But on presentation of the
said cheque, it was returned with an endorsement “payment stopped” by
the drawer. Statutory notice under Section 138 of N.I. Act was caused by
the appellant through his lawyer on 07.06.2004 and same was received
by the respondent. However, he did not send any reply to the said notice,
thereby, he prompted the appellant to file a private complaint. The said
complaint was taken on file by the learned Metropolitan Magistrate Fast
Track Court No.III, Saidapet in C.C.No.7112 of 2004.
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Crl.A.No.136 of 2020
3. Before the Trial Court, the accused took the plea that the
cheque was obtained under threat and coercion and therefore, he
instructed the bank to stop the payment and also instituted a suit for
declaration that the cheque is invalid. The said suit in O.S.No.2484 of
2004 has been instituted prior to the presentation of the cheque and no
cause of action for prosecuting the case under Section 138 of N.I.Act
prevails.
4. The Trial Court, considering the facts and the judgments of
the higher Courts, has arrived at a conclusion that for the statutory notice
[Ex.P4], the accused has not replied and instructing the banker to stop the
payment. Once the cheque has been issued, it will not protect the drawer
of the cheque for being prosecuted under Section 138 of N.I.Act.
Therefore, the Trial Court held the accused guilty for issuing the cheque
without intention to honour it and sentenced him to undergo 6 months
S.I., and to pay the cheque amount as compensation.
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Crl.A.No.136 of 2020
5. Being aggrieved, the accused preferred an appeal on the file
of the learned I Additional Sessions Judge, Chennai. The lower Appellate
Court framed the following points for consideration:-
“1.Whether the appellant as accused had
committed the offence punishable under
Section 138 of N.I.Act?
2.Whether the Judgment of conviction
and sentence passed by the trial Court is
sustainable in law?
3.To what relief?”
6. The lower Appellate Court taking note of the fact that in the
complaint, the date of borrowing of the loan amount has not been
mentioned and the complainant admits in the cross examination that he is
not aware of the date on which he advanced the loan amount of
Rs.3,00,000/- to the accused. That apart, the contention of the accused in
his response to the 313 Cr.P.C., questioning before the Trial Court is that
after giving a false complaint against him and his wife before the central
crime branch, the cheque marked as Ex.P1 was obtained under threat and
coercion and therefore, a declaration suit in O.S.No.2484 of 2004 was
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Crl.A.No.136 of 2020
filed by the accused before the City Civil Court, Chennai to declare the
cheque is void and invalid and obtained under force.
7. Accepting the findings of the Trial Court that instructions to
the bank to stop payment will not preclude the holder of the cheque from
initiating the offence under Section 138 of N.I.Act. However, taking note
of the institution of the suit to declare the cheque as void as a rebuttal
sufficient to shift the onus on the complainant held that the complainant
has not proved the legally enforceable liability attached to the cheque.
Therefore, offence under Section 138 of N.I.Act does not attract. Thus,
reversed the findings of the Trial Court and acquitted the accused.
8. Being aggrieved, this Criminal Appeal is filed by the
complainant. The learned counsel appearing for the appellant
/complainant emphatically submitted that the rebuttal evidence presumed
by the lower Appellate Court has not been spoken by the accused by
mounting the witness box and providing an opportunity to the
complainant to cross examine about the veracity of the alleged plaint
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Crl.A.No.136 of 2020
averments. Mere informing the bank to stop the payment and filing the
suit will not satisfy the decree of proof required to rebut the present
statutory presumption without affording an opportunity to the
complainant to test the rebuttal evidence.
9. According to the learned counsel for the appellant, the
accused having issued the cheque to discharge the part liability accrued
is legally bound to honour the cheque. Even after receipt of the statutory
notice, he did not reply. Before the Trial Court, he did not mount the
witness box to put forth his rebuttal evidence. Therefore, the Trial Court
has rightly ignored the so called defence taken by the accused disputing
his liability to pay the cheque amount. Whereas in the appeal, the lower
Appellate Court heard and taking note of the plaint annexed with the
statement given by the accused under Section 313(5) of Cr.P.C.
10. Per contra, the learned counsel for the respondent submitted
that no doubt that the plaint was not marked as Exhibit on the side of the
accused. However, in the cross examination of PW.1, he has admitted
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Crl.A.No.136 of 2020
about the pendency of O.S.No.2484 of 2004, before the City Civil Court,
Chennai. The said admission is suffice to indicate that a sum of
Rs.1,50,000/- shown in the cheque is a disputed fact besides the manner
in which it was obtained from the accused. Since the suit has already
been initiated, to test the veracity, legality and enforceability of the
cheque, the lower Appellate Court has rightly dismissed the complaint as
offence under Section 138 of N.I.Act is not made out.
11. This Court, on considering the rival submissions and the
facts concur the view expressed by the lower Appellate Court, however
the cavil that the dismissal of the complaint under Section 138 of N.I.Act
on the ground that the liability is disputed and the civil suit is pending
should not be the reason to allow the suit which requires different degree
of proof by the plaintiff, who has pleaded the factum of force, threat and
coercion, the degree of proof and presumption which is contemplated
under the Negotiable Instruments Act has rendered the complaint not
sustainable. However, Civil Court which has seized of the matter has to
apply its mind independently and appreciating the evidence of the
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Crl.A.No.136 of 2020
respective parties regarding the execution of the cheque. Any observation
made by this Court or the Courts below in the complaint under Section
138 of N.I.Act, shall prejudice any of the parties concerned.
12. With these observation, this Criminal Appeal is disposed of.
21.04.2023
Internet : Yes/No
Index: Yes/No
rpl
To
1.The I Additional Sessions Judge, City Civil Court, Chennai-104.
2.The Metropolitan Magistrate, FTC-II, Saidapet, Chennai-15.
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Crl.A.No.136 of 2020
Dr.G.JAYACHANDRAN, J.
rpl
Crl.R.C.No.136 of 2020
21.04.2023
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