In a criminal appeal concerning a cheque bounce, the High Court dismissed the appeal as the accused successfully rebutted the presumption of liability under Section 139 by proving his absence and duty attendance at the time of the transaction.
The criminal appeal against the acquittal in the trial proceedings was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2018
CORAM
THE HONOURABLE Mr.JUSTICE R.PONGIAPPAN
Crl.A.No.763 of 2008
S.Sivaraj .. Appellant/Complainant Vs. R.Subramani .. Respondent/Accused
Prayer: Criminal Appeal filed under Section 378 of Criminal Procedure Code, to set aside the judgment dated 05.08.2008 made in C.C.No.311 of 2003 on the file of Judicial Magistrate, Sathyamangalam.
For Appellant : Mr.R.T.Doraisamy For Respondent : Mr.I.C.Vasudevan J U D G M E N T
The appeal has been preferred against the judgment dated 05.08.2008 in C.C.No.311 of 2003 on the file of Judicial Magistrate Court, Sathyamangalam.
i)The appellant and the respondent are friends. On 05.01.2003, the respondent availed a loan of Rs.2,00,000/promising to repay the same within two months. Subsequently, in order to repay the debt, on 28.02.2003, the respondent met the appellant and gave cheque for Rs.2,00,000/- dated 28.02.2003 drawn on Canara Bank, Mettupalayam Branch. On 06.03.2003, the
appellant presented the said cheque in State Bank of India, Kenbanaikenpalayam Branch for encashment. Unfortunately, on the same day the cheque was returned unpaid. Again, the respondent requested the appellant to present the cheque for collection. Thereby, the appellant on 22.07.2003 presented the cheque for encashment as a second time. But the cheque was returned on 28.07.2003, for the reason “insufficient fund”. So on 02.08.2003 the appellant issued a lawyers notice in which he demanded to pay the cheque amount within 15 days from the receipt of notice. The said notice was received by the respondent on 17.08.2003. Subsequently, he had not paid any amount. Thus, the appellant lodged the complaint before the learned Magistrate, Sathyamangalam.
ii) In the trial Court, 3 witnesses were examined on the side of appellant besides 6 documents were exhibited as P.1 to P.6. On the other hand, on the side of respondent, 3 witnesses were examined as R.Ws.1 to 3. Further, 7 documents were marked as Ex.R1 to R7. After concluding the trial, the learned Magistrate came to the conclusion that the respondent is found not guilty of the offence under Section 138 of Negotiable Instruments Act and acquitted him.
signature found in the cheque belongs to the respondent. Further, the date of presentation, date of return, the date on which statutory notice was issued and the date on which the complaint was lodged before the Magistrate are all admitted by the respondent. So this Court holds that the complaint has been filed before the learned Magistrate as per the stipulation stated in Section 138(B) of Negotiable Instruments Act.
11. Accordingly, the appeal is dismissed.
Sub Assistant Registrar
AT
TO
Copy To
3 issues framed by the court
Whether the unexplained absence of the accused at the time of alleged transaction rebuts the presumption under Section 139 of the Negotiable Instruments Act.
Whether the trial court rightly acquitted the accused by holding that he rebutted the presumption by proving his absence via attendance records.
Whether the High Court should interfere with the trial court's judgment in a cheque bouncing case where presumption was rebutted by evidence.
4 provisions across 2 enactments
S.Sivaraj
R.Subramani
R.Pongiappan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
