Madras High Court
M.Goutamchand vs V.Nagarajan on 26 April, 2023
Crl.A(MD)No.288 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.04.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.A(MD)No.288 of 2015
M.Goutamchand ... Appellant/Complainant
Vs.
V.Nagarajan ... Respondent/Accused
PRAYER: Criminal Appeal filed under Section 378(4) of the Code of
Criminal Procedure, to set aside the Judgment and acquittal order
passed by the learned I Additional District cum Sessions Judge
(PCR), Thanjavur, dated 08.10.2014 in C.A.No.6 of 2014 and convict
the respondent herein for the offence under Section 138 of the
Negotiable Instruments Act with maximum punishment and to
award a compensation of twice the cheque amount.
For Petitioner : Mr.B.Anandan
For Respondent : Mr.N.Subramani
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Crl.A(MD)No.288 of 2015
JUDGMENT
This appeal has been preferred as against the order of
acquittal passed in Crl.A.No.6 of 2014 on the file of the learned I
Additional District cum Sessions Judge (PCR), Thanjavur, dated
08.10.2014, reversing the findings of the conviction passed in
S.T.C.No.322 of 2006 on the file of the learned Judicial Magistrate,
Kumbakonam, dated 08.01.2014, thereby convicted the respondent
for the offence punishable under Section 138 of the Negotiable
Instruments Act.
2.The appellant is the complainant and the respondent is
an accused.
3.The crux of the complaint is that the respondent is
doing jewellry business in the name and style of V.S.N jewellry. He
was introduced by one Hemanth Kumar, who is working in Iswarya
Jewellry, to the appellant herein. The respondent used to borrow
money from the appellant and repay the said amount with interest.
Finally, he borrowed a sum of Rs.1,00,000/- from the appellant for
the improvement of his business on 30.10.2005. He also agreed to
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Crl.A(MD)No.288 of 2015
repay the said amount with interest at the rate of 18% per month.
On the date of borrowal itself, the respondent issued post-dated
cheque for the said sum. On instruction, the said cheque was
presented for collection and the same was returned dishonoured for
the reason “funds insufficient”. After causing statutory notice, the
appellant lodged the complaint.
4.In order to prove his case, on the side of the
appellant, he himself was examined as P.W.1 and marked Exs.P.1 to
P.9 and on the side of the respondent, he himself was examined as
D.W.1 and marked Ex.D.1 to Ex.D.3.
5.On perusal of the oral and documentary evidence, the
trial Court found the respondent guilty for the offence punishable
under Section 138 of the Negotiable Instruments Act and sentenced
him to undergo three months Simple Imprisonment. Aggrieved by
the same, the respondent preferred an appeal in Crl.A.No.6 of 2014
on the file of the learned I Additional District cum Sessions Judge
(PCR), Thanjavur and the Appellate Court set aside the conviction
and sentence imposed by the trial Court and acquitted the
respondent for the offence punishable under Section 138 of the
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Crl.A(MD)No.288 of 2015
Negotiable Instruments Act. Aggrieved by the same, the
complainant preferred this revision.
6.The learned counsel appearing for the appellant would
submit that the respondent admitted the signature found in the
cheque and also issuance of the cheque. Therefore, the appellant
discharged his initial burden and the respondent failed to repay the
same by probable defence. According to the respondent, he had
issued the cheque to one Hemanth Kumar. After settling the entire
amount, the said Hemanth Kumar failed to return the said cheque to
the respondent and the appellant snatched the same and initiated
the proceedings under Section 138 of the Negotiable Instruments
Act. Further, the respondent failed to substantiate the same with
any material evidence. He failed to examine the said Hemanth
Kumar. Therefore, the trial Court rightly convicted the respondent.
However, without considering the above facts and circumstances,
the Appellate Court set aside the conviction and acquitted the
respondent.
7.The learned counsel appearing for the appellant would
further submit that the said Hemanth Kumar and respondent
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Crl.A(MD)No.288 of 2015
colluded together and created documents as if the cheque was
issued to the said Hemanth Kumar and it was snatched by the
appellant herein. Therefore, he prayed for setting aside the
Judgment passed by the Appellate Court.
8.On perusal of records revealed that even according to
the appellant the respondent only introduced the said Hemanth
Kumar to him. The specific defence taken by the respondent is that
he borrowed a loan from the said Hemanth Kumar. At the time of
borrowal of loan, he issued the alleged cheque for security
purposes. Even after repaying the entire amount, the said Hemanth
Kumar failed to return the same. He informed that the cheque was
misplaced and its whereabouts were not known. At that juncture, to
his shock and surprise, he received statutory notice from the
appellant and on receipt of the same, the respondent sent a reply
notice, dated 06.01.2006, which was marked as Ex.P.6. He
categorically rebutted the presumption that the cheque was not
issued to the appellant for any legally enforceable debt, since the
appellant is a stranger to him and he never borrowed any loan from
the appellant. Immediately, after receipt of the notice, he had
issued notice to the said Hemanth Kumar on 16.01.2006 which was
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Crl.A(MD)No.288 of 2015
marked as Ex.D.1, thereby calling upon him to return the cheque
which was marked as Ex.P.1. The same was duly received by the
said Hemanth Kumar and he had also sent reply notice. Therefore,
the respondent raised the reasonable defence in order to rebut the
presumption arising out of Sections 118 and 139 of the Negotiable
Instruments Act. Therefore, the entire burden again shifted on the
shoulder of the appellant to prove his case beyond any doubt.
However, except the cheque, no other materials were produced by
the appellant to prove that the respondent borrowed a loan from
the appellant and in order to repay the said sum, the respondent
issued the alleged cheque. Even according to the appellant, the
respondent only introduced the said Hemanth Kumar to him and he
is working in another jewellry shop called Iswarya Jewellry. In fact,
the respondent issued a reply notice and categorically stated that
the said alleged cheque was not issued to the appellant for any
legally enforceable debt. Even then, the appellant did not choose to
examine the said Hemanth Kumar in order to prove his case. The
trial Court, without considering these aspects, convicted the
respondent on the mere fact that the respondent did not dispute the
signature.
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Crl.A(MD)No.288 of 2015
9.It is settled law that the presumption under Sections
118 and 139 of the Negotiable Instruments Act is rebuttable in
nature. The respondent herein categorically rebutted the
presumption by sending a reply notice, dated 06.01.2006, which
was marked as Ex.P.6, by examining himself as D.W.1 and notice
issued to the said Hemanth Kumar, which was marked as Ex.D.1.
Therefore, the Appellate Court rightly reversed the findings of the
trial Court and acquitted the respondent. Hence, this Court finds no
infirmity or illegality in the order passed by the Appellate Court.
Accordingly, this Criminal Appeal is dismissed.
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NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
To
1.The I Additional District cum Sessions Court (PCR),
Thanjavur.
2.The Judicial Magistrate,
Kumbakonam.
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Crl.A(MD)No.288 of 2015
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.A(MD)No.288 of 2015
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