Madras High Court
S.Jegadeesan vs N.Vaithiyalingam on 16 June, 2023
Crl.R.C(MD)No.23 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.06.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.23 of 2019
S.Jegadeesan ... Petitioner/
Appellant/Complainant
Vs.
N.Vaithiyalingam ... Respondent/
Respondent/Accused
PRAYER: Criminal Revision Case filed under Sections 397(1) r/w
401 of the Code of Criminal Procedure, to call for the records and
set aside the acquittal Judgment passed in S.T.C.No.198 of 2012 on
the file of the learned Judicial Magistrate cum Fast Track Court No.2,
Madurai, dated 14.09.2016 and confirmed by the Judgment dated
09.11.2018 in C.A.No.91 of 2016 on the file of IV Additional District
and Sessions Judge, Madurai.
For Petitioner : Mr.G.Prabhu Rajadurai
For Respondent : Mr.S.Ayyanar Prem Kumar
for M/s.P.Sepana Alias Sree
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Crl.R.C(MD)No.23 of 2019
ORDER
This revision has been filed to set aside the order passed
in S.T.C.No.198 of 2012, dated 14.09.2016, on the file of the
learned Judicial Magistrate cum Fast Track Court No.2, Madurai,
confirming the Judgment made in C.A.No.91 of 2016, dated
09.11.2018 on the file of the learned IV Additional District and
Sessions Judge, Madurai.
2.The petitioner is the complainant and the respondent
is an accused in the complaint lodged by the petitioner for the
offence punishable under Section 138 of the Negotiable Instruments
Act.
3.The crux of the complaint is that the petitioner had
lent a sum of Rs.5,30,000/- to the respondent for his urgent
business purpose and also to meet out the expenses for the
reconstruction of his lodge. Towards repayment of the said amount,
the respondent issued a cheque for a sum of Rs.5,30,000/- and the
same was presented for collection. However, it was returned
dishonoured for the reason 'funds insufficient'. After causing
statutory notice, the petitioner lodged a complaint.
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Crl.R.C(MD)No.23 of 2019
4.In order to prove his complaint, the petitioner himself was
examined as P.W.1 and also marked Exs.P.1 to P.5 and on the side of
the respondent, he had examined D.W.1 to D.W.4 and Ex.D.1 to
Ex.D.3 were marked.
5.On perusal of the oral and documentary evidence, the
trial Court found the accused not guilty for the offence punishable
under Section 138 of the Negotiable Instruments Act and acquitted
the respondent. Aggrieved by the same, the petitioner preferred an
appeal in C.A.No.91 of 2016 on the file of the learned IV Additional
District and Sessions Judge, Madurai and the Appellate Court also
dismissed the same, confirming the order of the trial Court. Hence,
the present revision.
6.The learned counsel appearing for the petitioner would
submit that the signature and issuance of cheque were not denied
by the respondent. Therefore, the petitioner had discharged his
initial burden as contemplated under Section 138 of the Negotiable
Instruments Act. That apart, the respondent failed to rebut the
presumption arising under Sections 118 and 139 of the Negotiable
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Crl.R.C(MD)No.23 of 2019
Instruments Act by cogent evidence. Though the respondent had
examined D.W.2/Banker and he deposed that he cannot say that the
cheque would not have been issued in the year 2011, though the
subsequent cheque Ex.P.1 was honoured during the year
2006-2007. Even assuming that the said cheque was issued for the
purpose of security, the respondent did not take any steps to return
back the cheque, after repaying the entire loan amount. Further, the
respondent stated that in the earlier transaction, the cheque was
issued as a security and after completion of the said loan, the
cheque which was issued for security was not returned by the
petitioner, the respondent failed to produce any iota of evidence to
show that there was an earlier transaction between the petitioner
and the respondent herein in order to prove that Ex.P.1 was issued
for the purpose of security. In support of his contention, he relied on
the following Judgments:-
(i) T.Vasanthakumar Vs. Vijaykumari
reported in (2015) 8 SCC 378.
(ii) M.Senguttuvan Vs. S.Balasubramanian
[Crl.R.C.No.779 of 2018, dated 09.11.2022.
(iii) Gunasekaran Vs. Dhandapani
[Crl.R.C.No.12 of 2018, dated 19.01.2021.]
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Crl.R.C(MD)No.23 of 2019
(iv) T.P.Murugan (dead) through legal
representatives Vs. Bojan reported in (2018) 8
SCC 469.
7.Per contra, the learned counsel appearing for the
respondent would submit that the alleged cheque was issued for the
purpose of security, that too, the cheque was of the year
2006-2007. No prudent man would lend such a huge amount
without any documents. That apart, the loan amount was repaid by
the respondent within a period of one month by issuance of Ex.P.1.
Therefore, the respondent categorically rebutted the presumption
and as such, the burden again shifted on the shoulder of the
petitioner. Even then, the petitioner failed to prove that the cheque
was issued for any legally enforceable debt and as such, both the
Courts below rightly acquitted the petitioner for the offence under
Section 138 of the Negotiable Instruments Act.
8.Heard the learned counsel appearing for the petitioner
and the learned counsel appearing for the respondent and perused
the materials available on record.
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Crl.R.C(MD)No.23 of 2019
9.According to the petitioner, he is a moneylender and
he lent a sum of Rs.5,30,000/- as loan to the respondent on
20.09.2011. In order to repay the same, the respondent issued the
cheque for a sum of Rs.5,30,000/-, which was marked as Ex.P.1. It
was presented for collection and the same was returned
dishonoured for the reason “funds insufficient”. The petitioner
caused statutory notice as contemplated under Section 138 of the
Negotiable Instruments Act. On receipt of the same, the respondent
issued a reply notice, which was marked as Ex.P.5. On perusal of
the reply notice revealed that the respondent categorically denied
the issuance of the cheque for any legally enforceable debt as
alleged in the statutory notice. The alleged cheque was issued as
security while the respondent borrowed a loan in the year
2006-2007. Even after discharging the entire loan amount, the
cheque was not returned by the petitioner. Therefore, with ill
motive, the petitioner presented the cheque for collection which was
issued for security purposes and not issued for any legally
enforceable debt and got bounced. Further, the respondent stated
that in the year 2006 while borrowing the loan, the respondent
issued a pro-note in which his wife also signed as a witness.
Therefore, in the reply notice, the respondent called upon the
petitioner to return the cheque and promissory note which was
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Crl.R.C(MD)No.23 of 2019
executed at the time of borrowal of loan in the year 2006. On
receipt of the same, the petitioner failed to send any rejoinder
denying the allegations made in the reply notice. Thereafter, the
petitioner lodged a complaint for the offence punishable under
Section 138 of the Negotiable Instruments Act. On perusal of the
complaint, the contention raised in the reply notice was denied by
the petitioner simply without any explanation for each and every
allegation made in the reply notice.
10.The respondent had examined D.W.1 to D.W.4. He
was examined himself as D.W.1 and his banker was examined as
D.W.2. D.W.2 categorically deposed that Ex.P.1 was issued in favour
of the respondent in the year 2006-2007. Further, subsequent to
Ex.P.1, namely cheque bearing Nos. 476047, 476049, 476048,
476042, 476043, 476044 and 476045 had been presented for
collection in the year 2006-2010 itself and all the cheques were
formatted. Through D.W.2, the statement of accounts were also
marked as Ex.D.1 and Ex.D.2. The statement of account for the
period from 21.10.2011 to 16.02.2016 was marked as Ex.D.1 and
the statement of account for the period from 01.01.2005 to present
date was marked as Ex.D.2. Thus, it is clear that Ex.P.1 was issued
in the year 2006-2007. If at all the cheque was given in the year
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Crl.R.C(MD)No.23 of 2019
2011, as alleged by the petitioner, the subsequent cheque leaves
would not be honoured by the respondent issued in favour of other
parties. Therefore, the contention of the respondent that the alleged
cheque was issued only for security purposes is a believable. In fact,
the petitioner categorically admitted about the previous loan
transaction between the petitioner and the respondent. Accordingly,
the respondent used to borrow Rs.1,00,000/-. Further, the present
loan of Rs.5,30,000/- was given without any other documents.
Therefore, it creates huge doubt and as such, the respondent
categorically rebutted the presumption arose under Sections 118
and 139 of the Negotiable Instruments Act.
11.In T.Vasanthakumar Vs. Vijaykumari reported
in (2015) 8 SCC 378, the Honourable Supreme Court of India held
as follows:-
“9.Therefore, in the present case since
the cheque as well as the signature has been
accepted by the accused respondent, the
presumption under Section 139 would operate.
Thus, the burden was on the accused to disprove
the cheque or the existence of any legally
recoverable debt or liability. To this effect, the
accused has come up with a story that the cheque
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Crl.R.C(MD)No.23 of 2019
was given to the complainant long back in 1999 as
a security to a loan; the loan was repaid but the
complainant did not return the security cheque.
According to the accused, it was that very cheque
used by the complainant to implicate the accused.
However, it may be noted that the cheque was
dishonoured because the payment was stopped and
not for any other reason. This implies that the
accused had knowledge of the cheque being
presented to the bank, or else how would the
accused have instructed her banker to stop the
payment. Thus, the story brought out by the
accused is unworthy of credit, apart from being
unsupported by any evidence”.
12.However, in the present case on hand, huge lending
of Rs.5,30,000/- to the respondent without even assurance to
return back the said amount within a stipulated time, on-demand
the respondent issued Ex.P.1 is not a believable one. No prudent
man would borrow such a huge amount with assurance of repaying
the same within a period of one month and similarly, no prudent
man would lend such a huge amount without any security
documents. It is also seen from Ex.P.1, which is a typed one.
According to the petitioner, when he made a demand in the house of
the respondent, the respondent issued cheque at about 08.00 a.m.
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Crl.R.C(MD)No.23 of 2019
It would not have been possible for any person to issue a cheque by
typing the name of the petitioner herein immediately on demand.
Therefore, the respondent categorically rebutted the presumption
and even then, the petitioner failed to prove his case that Ex.P.1
was issued for any legally enforceable debt. Hence, both the Courts
below rightly acquitted the respondent. In view of the dictum laid
down by the Honourable Supreme of India and this Court, the
Judgments cited by the learned counsel for the petitioner are not
applicable to the case on hand, since the respondent categorically
rebutted the presumption and this Court finds no infirmity or
illegality in the order passed by the Courts below. Accordingly, this
Criminal Revision Case is dismissed.
16.06.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
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Crl.R.C(MD)No.23 of 2019
To
1.The Judicial Magistrate cum
Fast Track Court No.2,
Madurai.
2.The IV Additional District and Sessions Judge,
Madurai.
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Crl.R.C(MD)No.23 of 2019
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.R.C(MD)No.23 of 2019
16.06.2023
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