K.Senthilmurugan, M/43 Vs P.Sathishkumar, M/32 — Cheque Dishonour | Madras HC (2018)

K.Senthilmurugan, M/43 Vs P.Sathishkumar, M/32 — Cheque Dishonour | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 03.08.2017

PRONOUNCED ON : .05.2018

CORAM

THE HONOURABLE MR.JUSTICE R.SURESH KUMAR

Criminal Revision Case No.1089 of 2016
K.Senthilmurugan .. Revision
Petitioner/Accused
Versus
P.Satishkumar
.. Respondent/Complainant
Criminal Revision filed under Section 397 and 401 of

Cr.P.C. against the conviction imposed in the judgement dated 16.02.2016 made in C.A.No.34 of 2015 on the file of the learned Principal Sessions Court, Namakkal confirming the judgement dated 04.07.2015 made in STC.No.93 of 2014 on the file of the learned Judicial Magistrate/Fast Track Court, Tiruchengode, sentencing him to undergo six months simple imprisonment and fine of Rs.5,000/- in default to undergo one month simple imprisonment for the alleged offence under Section138 of Negotiable Instruments Act.

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For Revision Petitioner : Mr.N.Manokaran

For Respondent : Mr.C.S.Saravanan

O R D E R

This Criminal Revision Case was filed against the judgement made in C.A.No.34 of 2015 on the file of the Principle Sessions Court, Namakkal, dated 16.12.2016 confirming the judgement and conviction made in S.T.C.No.93 of 2014 on the file of the learned Judicial Magistrate Court/Fast Track Court, Tiruchengode, dated 04.07.2015.

2.The facts of the case are as follows:

The respondent/complainant hereinafter referred to as

'complainant' had claimed that on 20.11.2013, the revision petitioner/accused being the friend of the complainant had approached him for an urgent need of a loan of Rs.4 Lakhs, accordingly, the said loan of Rs.4 Lakhs was given by the complainant to the accused on the said date, i.e., on 20.11.2013. On the same day itself, the accused had given a post dated cheque bearing No.000103 drawn on Karur Vysya

Bank, Tiruchengode Branch for a sum of Rs.4 Lakhs.

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It is the further case of the complainant that, on

the request of the accused, the complainant presented the said cheque for collection at his bank, namely, Axis Bank, Tiruchengode Branch on 10.04.2014. However, the said cheque was returned with an endorsement, “stop payment instructions was given”, by the accused. Such return memo dated 12.04.2014, was issued to the complainant and on receipt of the same, the complainant issued statutory notice under Section 138(b) of the Negotiable Instruments Act [hereinafter referred to as, ‘the Act’] on 26.04.2014. On receipt of the said notice on 28.04.2014 by the accused, he had given a reply to the said notice on 07.05.2014 to the complainant. Therefore, the complainant on 23.05.2014 filed complaint before the Trial Court for the alleged offence punishable under Section 138 of the Act. The said complaint was taken on file and was tried by the learned Magistrate in

S.T.C.No.93 of 2014, ultimately, by judgement and conviction dated 04.07.2015, the Trial Court found the accused guilty of the offence punishable under Section 138 of the Act and accordingly, convicted him to undergo six months simple http://www.judis.nic.in

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imprisonment with fine of Rs.5,000/-.

Aggrieved over the said conviction and judgement made by the Trial Court, the accused preferred Criminal Appeal No.34 of 2015 before the First Appellate Court, i.e., the Principle Sessions Judge, Namakkal District, who, after having considered the said appeal, passed the judgement on 16.02.2014 whereby, the learned Appellate Court Judge has confirmed the judgement of the Trial Court as well as the conviction and dismissed the said appeal filed by the accused. As against the said judgement and conviction made by the Trial Court as confirmed by the First Appellate Court, the present Criminal Revision Case has been filed by the accused.

Before the Trial Court, three witnesses were

examined 17 documents were marked on the complainant's side and on behalf of the accused four witnesses were

examined and 12 documents were marked. The definite case

of the complainant before the Trial Court was that, the complainant and accused had been friends. They had become friends as both of them had been doing the same or similar http://www.judis.nic.in

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business with a company called M/s.Alice Blue Commodities Pvt. Ltd., Chennai. Therefore, on the basis of the said business transactions both became friends and on that capacity, the accused came to the complainant on 20.11.2013 at the complainant’s house where, the accused requested to part a sum of Rs.4 Lakhs as loan, for urgent expenses and the complainant also given the said loan of Rs.4 Lakhs by way of cash to the accused and on the same day, i.e., 20.11.2013 itself, the accused had issued a post dated cheque dated 20.01.2014, bearing No.000103, drawn on Karur Vysya Bank, Tiruchengode Branch for Rs.4 Lakhs.

It is the further definite case of the complainant that, on the request of the accused, the complainant had presented the said cheque on 10.04.2014 at his bank namely, Axis Bank, Tiruchengode Branch and the same was returned on 12.04.2014 by the said Bank with an endorsement that “payment was stopped” i.e., instructions to stop the payment was given by the accused. Therefore, the complainant issued a statutory notice on 26.04.2014, which was received by the http://www.judis.nic.in

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accused on 28.04.2014 and in response to the same, the accused issued a reply with different version on 07.05.2014. Therefore, according to the complainant, the accused knowing well that he had issued a cheque for a sum of Rs.4 Lakhs, after having issued the cheque, had given instructions to his bank to ‘stop payment’ thereby, he has committed the offence punishable under section 138 of the Act and therefore, the complainant filed complaint before the Trial Court on 23.05.2014, which was taken on file, tried and ultimately, the accused was convicted for six months simple imprisonment with imposition of fine of Rs.5,000/-.

On the contrary, it was the definite case of the accused that, the accused was the sub agent and franchise holder to one M/s.Alice Blue Commodities Pvt. Ltd., Chennai. The said company having head quarters at Chennai and having branch office at No.39-C, East Car Street, Tiruchengode Town

and Taluk, Namakkal District and the ID number of the accused was TN 999. The further case of the accused is that, before becoming the franchise holder of the said M/s. Alice Blue Commodities Pvt. Ltd., Chennai, the accused claimed http://www.judis.nic.in

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that, he was working as a sub-agent and he was trading with one M/s.India Info Line, having its branch office at Tiruchengode and in the said company the complainant was given the ID called “Sooriyaa”. At that time, the complainant used to visit M/s. India Info Line, Tiruchengode Branch and only during that period, both the complainant and the accused

got introduced themselves and became friends.

It is the further case of the accused that, one Mr.S.P.Sakthivel, the brother-in-law of the complainant got introduced to the accused, who was also a resident of Thiruchengode Taluk, Namakkal District thereby, the said S.P.Sakthivel also became the friend of the accused. It is the further case of the accused that, on the basis of the friendship existed between the accused and the said S.P.Sakthivel, the said S.P.Sakthivel traded with M/s.Alice Blue Commodities Pvt. Ltd., Chennai in his ID No.TN999S2. Because of these business transactions both the accused and the said S.P.Sakthivel had under taken with the same company, the said S.P.Sakthivel used to visit the accused office very often as http://www.judis.nic.in

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there had been a good friendship maintained between them. At the time of the said visit to the office of the accused, sometime on the request of the accused, the said S.P.Sakthivel used to look after the business, sitting at the office of the accused.

It is the further case of the accused that, the said S.P.Sakthivel out of the said trade transactions with M/s. Alice

Blue Commodities Pvt. Ltd., Chennai sustained a loss to the tune of Rs.4 Lakhs. Since the said Sakthivel incurred a loss to the tune of Rs.4 lakhs by trading with M/s.Alice Blue Commodities Pvt. Ltd., for which, the accused was the franchise holder, therefore, the said Sakthivel claimed that only the accused shall make good of the said loss sustained by

the said Sakthivel. Since the said demand was not met by

the accused, there had been a misunderstanding between the accused and the said S.P.Sakthivel. Inspite of the said

misunderstanding, the said S.P.Sakthivel used to visit continuously to the office of the accused and after the said loss of Rs.4 Lakhs, the said Sakthivel also withdrawn the balance amount lying in his ID TN999S2 on 21.03.2014.

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It is the further case of the accused that though

the accused was having account at Axis Bank, Tiruchengode Branch, due to some operational difficulties he had closed the said account. Since the accused also was maintaining Savings Bank account at Karur Vysya Bank, Tiruchengode Branch where, the accused would have the cheque facility and also because of the business transactions, the accused had to use the cheque facility especially to M/s. Alice Blue Commodities Pvt. Ltd., Chennai with whom, the accused, since have been continuing business, had to give signed but unfilled cheque leaf as a pre-condition and that is the reason why the accused obtained a cheque book bearing Nos.000101 to 000120.

It is the further case of the accused that, out of 20 cheques, the first cheque i.e., Cheque No.000101 was given to

M/s. S.P.Communications for a sum of Rs.4,000/-. In order to

get the commission from M/s.Alice Blue Commodities Pvt. Ltd., Chennai as its franchise holder for Tiruchengode Branch, the accused had issued empty cheque to the said Private Limited http://www.judis.nic.in

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company to prove that the accused is maintaining or having the account. Therefore, he issued the cheque bearing No.000102. In that way the clients do, he had to give one more signed empty cheque to M/s.Alice Blue Commodities Pvt. Ltd. So, the accused had kept empty cheque bearing No.000103 signed but not filled along with cheque book to issue to M/s. Alice Blue Commodities Pvt. Ltd., Chennai, in his

office.

It is the further case of the accused that on 24.03.2014, when the accused tried to take a cheque leaf and sent it to the said company, the entire cheque book including the cheque leaf bearing No.000103 was found missing at the office of the accused and therefore, immediately on the same day, i.e., on 24.03.2014, the accused had given a letter to his bank i.e., Karur Vysya Bank, Tiruchengode Branch giving instructions for stop payment.

It is the further case of the accused that, since the said cheque book contained 18 cheque leaves, including the

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cheque in question since has been missing and a letter to that effect for stop payment had been given to the bank, however, the accused did not give any police complaint for the said stolen cheque or missing cheque on the alleged reason that, since the accused did not know anyone or have any clue about whom he had suspicion. When that being so, the accused received a legal notice dated 26.04.2014 from the complainant on 28.04.2014 and on seeing that he came to know that the cheque leaf No.000103 of the alleged stolen cheque book had been misused by the complainant by filing up the amount of Rs.4 Lakhs and presented it, at his bank and on collecting return memo on the instructions of stop payment given by the accused, the complainant had issued the statutory notice. Therefore, immediately on receipt of the same, i.e., the statutory notice from the complainant, the accused had given the police complaint by sending it by Register Post as he was indisposition due to health reasons, on 02.05.2014, to the

Superintendent of Police, Namakkal District to enquire into the matter and investigate.

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Explaining all these positions, the accused had

given detailed reply to the statutory notice to the complainant on 07.05.2014. Further, on receipt of the same, the complainant had filed the complaint and ultimately, the accused was convicted as stated above.

In this case, on the basis of the claim and counter

claim made by the complainant and accused respectively and on the basis of the oral evidences given through examination of witnesses on both sides as well as the documentary evidences filed and marked before the Trial Court, the Trial Court had given conviction of six months simple imprisonment

and imposition of fine of Rs.5,000/- on the accused and the said conviction was confirmed by the First Appellate Court in

the appeal filed by the accused.

This Court has given its anxious consideration to

the said rival contentions set out by both sides and have perused the materials placed before this Court. The Judgement

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and conviction made by both the Trial Court as well as the First Appellate Court have been carefully perused.

It is the case of the complainant as well as the

accused that, both of them had been friends as they became friends since they had been doing the same business with the same company. According to the accused, the friendship was

so strong to the extent that the complainant used to visit regularly to the office of the accused and at times on the request of the accused in his absence, the complainant’s brother-in-law one Sakthivel, who also used to visit the office of the accused, who also became friend of the accused, would

look after the office of the accused.

In that context, it was the case of the accused

that, due to the loss sustained by the said Sakthivel, who is none other than the own brother-in-law of the complainant, he

wanted the accused to make good of the loss as a franchise

holder of the said M/s. Alice Blue Commodities Pvt. Ltd., Chennai which the accused did not accede for, therefore, in order to make good of the said loss, the said S.P.Sakthivel,

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when he visited the office of the accused had stolen the cheque book including the cheque in question, which has been subsequently misused by filing up an amount of Rs.4 Lakhs by the complainant, as if, that the accused had borrowed a sum of Rs.4 Lakhs and therefore, the accused had given cheque in question by putting the post date.

In this regard, on the side of the complainant, he himself was examined as P.W.1 and the Branch Manager of both Banks i.e., drawees bank as well as drawers bank were examined as P.W.3 and P.W.2. On the side of the accused, the accused himself was examined as D.W.1 and the Deputy Manager of drawers bank and drawees bank were examined as D.W.2 and D.W.3 and the Branch Manager of the said M/s.Alice Blue Commodities Pvt. Ltd., was examined as D.W.4. Though all these witnesses were examined and documents were

marked, the crucial issue that has to be decided is as to whether the cheque in question i.e., Ex.P1, dated 20.01.2014 for a sum of Rs.4 Lakhs bearing No.000103 was belong to the accused and the signature made in the said cheque leaf was of http://www.judis.nic.in

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the accused. It is an admitted case on the side of the accused that the cheque belong to the accused and the signature found therein is also belongs to the accused and there can be no quarrel of the cheque leaf as well as the signature made therein.

When the cheque was accepted and the signature

of the drawer was also accepted, normally the statutory presumption under section 139 and 118 of the Negotiable Instruments Act would be in favour of the complainant. On that premise, the Trial Court taken the case and proceeded further.

Even though the statutory presumption can be in

favour of the complainant under Section 139 and 118 of the N.I.Act, such statutory presumption is always a rebuttal one and once the acceptable rebuttal has come from the accused

side to the satisfaction of the Court, certainly such statutory presumption, though intially in favour of the complainant, would be shattered and thereafter, the burden of proof would again shift on the shoulders of the complainant.

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In this context, the Trial Court in a short

judgement has proceeded to state the theory projected by the accused that the cheque leaves were stolen by someone and that this is the reason why, he has given stop payment and only on receipt of the statutory notice from the complainant, he came to know that the said cheque had been stolen by the said S.P.Sakthivel and it was misused by his brother-in-law

and only thereafter on 02.05.2014, the accused had given the police complaint by sending the complaint to the Superintendent of Police of the District concerned by registered post, citing health reason. The said defence theory projected by the accused side was not accepted by the Trial Court and therefore, based on the statutory presumption, as the said cheque leaf and the signature found on the cheque leaf since was accepted by the accused, the Trial Court had come to the conclusion that the accused had committed the offence punishable under Section 138 of the N.I.Act and accordingly, the conviction was made.

Even though an appeal was preferred by the

accused before the First Appellate Court, where also, the

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Appellate Court had gone on the line that the Trial Court had concluded the issue, ultimately, confirmed the said judgement and conviction made against the accused.

I have heard Mr.N.Manokaran, learned counsel for

the accused/the revision petitioner as well as Mr.C.S.Saravanan, learned counsel appearing for the complainant/respondent herein.

support of the case of the accused had cited the following decisions:

reported in 2007 (12) SCC 714;

(ii) Kumar Exports vs. Sharma Carpets reported in 2009 (2) SCC 513;

(iii) Santhi C. Santhi Bhavan vs. Mary Sherly and

another reported in 2011 ACD 1136 (KER);

(iv) P.Krishnaswamy vs. Delta Knit Wearabless and

others reported in 2011 ACD 1326 (MAD);

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Amin Chand Payrelal reported in 1999 (3) SCC 35;

(vi) Sanjay Mishra vs. Ms.Kanishak Kapoor @ Nikki

and Another reported in 2009 Crl.L.J.3777;

Per contra, the learned counsel appearing for the

complainant/respondent has cited the judgement of

Rangappa’s case reported in 2010(11) SCC 441.

I have gone through those decisions and also considered the arguments advanced by both the learned

counsel appearing in support of their respective case.

It is the definite case of the complainant that both

the complainant and accused were friends. The complainant did not deny expressly the friendship claimed by the accused

along with one S.P.Sakthivel. It is the further case of the complainant that on 20.11.2013, the accused came to the complainant’s house and requested to lend a sum of Rs.4 Lakhs as loan and on the very same day, issued a cheque for a

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sum of Rs.4 Lakhs bearing No.000103 drawn on Karur Vysya Bank, Tiruchengode Branch.

In this regard, the relevant portion of the statement of P.W.1 before the Trial Court reads thus:

Though it was claimed by the complainant that a sum of Rs.4

lakhs was given as loan to the accused and also the sum of

Rs.4 Lakhs was given by way of cash with all 1000 rupees notes, the P.W.1, in his cross examination has stated as follows:

“ehd; gyngUf;Ffld; bfhLf;Fk; bjhHpy; bra;J tUfpnwdh vd;why; ,y;iy/ nfl;gth;fSf;F ifkhw;Wf; fldhf bfhLg;gJ tHf;fk;/ vd;Dila jfg;gdhh; fld; bfhLf;Fk; gHf;fk; cilath;/ vd;dplk; ifkhw;whf nfl;gth;fSf;F mthplk; th';fp

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bfhLg;gJ tHf;fk;/ U:/4 yl;rk; vd;gJ vdf;F bghpa bjhifah vd;why; bghpa bjhifa[k; ,y;iy rpwpa bjhifa[k; ,y;iy/ eLjukhd bjhif ehd; tUkhd thp brYj;Jk; egh;jhd;/ mJ rk;ge;jg;gl;l Mtzk; vJt[k; ePjpkd;wj;jpy; jhf;fy; bra;Js;nsdh vd;why; ,y;iy/ 20 U:gha;f;F nky; xU egUf;F fldhf bfhLf;Fk;gl;rj;jpy; tiunthiyahfnth. fhnrhiyahfnth jhd; bfhLf;f ntz;Lk; vd;W rl;lk; cs;sJ vd;why; mJgw;wp vdf;F bjhpahJ/ vjphp fpHf;F uj tPjpapy; (jpUr;br';nfhl;oy;) mYtyfk;

itj;Js;shh;/ gHf;f tHf;fj;jpy; ehd; vjphpapd; mYtyfj;jpw;F ngha; te;Js;nsdh vd;why; ngha; te;Js;nsd;/ vd;Dila mf;fhtpd;-fzth;-v!;gp/rf;jpnty; vjphpa[ld; nrh;e;J bjhHpy; bra;J te;jhuh vd;why; bra;J te;jhh;/ vd;Dila mf;fhtpd; fzth; v!;/gp/rf;jpntYf;F ehd; t';fpf;fhf gzk; tut[ brytpw;fhf brd;W te;Js;nsd; vd;why; brd;W te;Js;nsd;/”

He further deposed in his cross examination which reads thus: “nkYk; vjphpahdth; vd;kPJk; vdJ khkh rf;jpnty; vd;gth; kPJk; 3/5/14y; fhty;Jiw fz;fhzpg;ghsh;. Jiz fz;fhzpg;ghsh; Mfpath;fsplk; g[fhh; bfhLj;Js;shh; vd;why; mJgw;wp bjhpa[k;/ mJFwpj;J fhty; Jiwapdh; v';fis tprhhpj;jhh;fsh vd;Wk; tprhhpj;jhh;fs;/ icpgo tprhhizapy; ehd; vd;d Twpndd; vd;why; fld; th';fpf;bfhz;L Vkhw;Wk;

nehf;fpy; bgha;ahf g[fhh; bfhLj;Js;shh; vd;Wk; mJFwpj;J tHf;fwp"h; mwptpg;g[ mDg;gg;gl;Ls;sJ vd;Wk; mjdhy; ePjpkd;wj;jpy; tHf;F gjpt[ bra;J ghh;j;Jf;bfhs;tjhft[k; Twp vGjpf;bfhLj;Js;nsd;/ vjphpf;F ehd; fld; bfhLj;jjw;fhd

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Mtzk; vJt[k; ePjpkd;wj;jpy; jhf;fy; bra;atpy;iy vd;why; rhpjhd;/ rpWrpW bjhiffs; ifkhw;Wf;fldhf nfl;Fk;nghJ bfhLg;gJ tHf;fk;/ vdJ jfg;gdhh; fzf;fpypUe;J vjphpf;F fld; bfhLj;jJ mjw;fhf tl;o brYj;jpaJ nghd;wjw;fhd Mtz';fs; cs;sJ/ njitg;gl;lhy; jhf;fy; bra;a jahuhf cs;nsd;/ icpgo r';fjpfis Fwpg;gpl;L vdJ g[fhhpYk; kw;Wk; Kjy;tprhuiz gpukhz thf;FK:yj;jpYk; mwptpg;gpy; Fwpg;gpl;Ls;nsdh vd;why; ,y;iy/ vdJ khkh v!;/gp/rf;jpnty; vjphpaplk; epWtdj;jpy; ovd; 999v!;2 vd;w milahs vz;zpy; bjhHpy; elj;jp te;jjpy; U:/4 yl;rk; ecp;lk; Vw;gl;ljhy; mthpd;K:yk; 103 Kjy; 120 tiuapyhd fhnrhiyfis jpUobrd;W 103 fhnrhiyia itj;J ,e;j tHf;if bgha;ahf jhf;fy; bra;Js;nsd; vd;W brhd;dhy; rhpay;y/”

The accused was examined as D.W.1, who deposed before the Trial Court both in the chief examination as well as in the cross examination which reads thus:

“k/rh/M/1 fhnrhiyapy; cs;s g{h;j;jp bra;ag;gl;Ls;s ifbaGj;J vd;Dila ifbaGj;Jjhd; g{h;j;jp bra;ag;gl;lJ my;y/ k/rh/M/2 ryhd; urPij g{h;j;jp bra;a egh; jhd; k/rh/M/1 fhnrhiyia g{h;j;jp bra;J cs;shh;/ k/rh/M/1 fhnrhiy vd;dhy; rjP!;FkhUf;F bfhLf;fg;gl;lJ my;y/ ehd; rjP!;FkhUf;F ve;j gzKk; bfhLf;f ntz;oaJ ,y;iy/ mtUk; vdf;F ve;j gzKk; bfhLf;ftpy;iy/ fhnrhiy vdJ mYtyfj;jpypUe;J jpUo brd;W bfhLf;fg;gl;l tHf;F MFk;/ mjdhy; vd;id ,e;j tHf;fpypUe;J tpLtpf;f ntz;Lfpnwd;/ ”

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“nkw;go vk;/rh/M3y; 2k; gf;fj;jpy; nkw;go rf;jpnty;. vd;dhy; jhd; mtUf;F nkw;go ecp;lk; Vw;gl;Ltpl;lJ vd;W Twp ehd; mjw;F 4 yl;rk; jpUg;gp jUkhW nfl;lhh; vd Twg;gl;Ls;sJ vd;why; rhpjhd;/ v';fsJ th;j;jf epWtdj;jpy; tpahghuk; bra;a ntz;Lk; vd;why; xU egh; jdJ bgahpy; t';fp fzf;F Vw;gLj;Jntd;/ mjpypUe;J fk;bgdpapd; t';fp fzf;F cUthf;fp t';fp fzf;fpypUe;J fk;bgdp fzf;fpw;F gzj;ij khWjy; bra;antz;Lk;/ th;j;jfk; Kot[ bgw;W tpl;lhy; fk;bgdp fzf;fpypUe;J ng mt[l; bra;ag;gl;L jdp egh; fzf;fpw;F gzk; khWjy; MFk; vd;W brhd;dhy; rhpjhd;/ ” “vdJ gpuhd;!; milahs vz;/ ovd;999 MFk;/ nkw;go gpuhd;!p!; vdJ jdpegh; fzf;F vz;/ ovd; 999v!;6 vd;gJ MFk;/ rf;jpnty; vd;gth; vd;dplk; fzf;F itj;Js;s vz;/ ovd;999 v!;2 MFk;/ xU egh; v';fsJ epWtdj;jpy; tpahghuk; bra;jhy; tpahghuk; bra;af;Toa eghpd; I/o/Mh;lh; bra;ag;gl;l I/o tpguk; kw;Wk; bghUs; tpguk; Mfpa midj;Jk; ve;j Mtzj;jpy; Fwpg;gplg;gLk; vd;why; mtUila it!;g[S fkhl;oy; epWtdj;jpdhy; bfhLf;fg;gl;l onuo'; fhd;l;uhf;l; nehl;oy; Fwpg;gplg;gLk;/”

The accused on receipt of the statutory notice from the complainant had given the police complaint by sending the complaint directly to the Superintendent of Police

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of the District concerned by registered post and the said

complaint was marked as Ex.D3 which reads thus:

“nkw;go rjP!;Fkhh; vd;Dila mYtyfj;jpw;F mof;fo te;J bry;tJ tHf;fk;/ rpy rka';fspy; ehd; ,y;yhjnghJ vd;Dila mYtyfj;ij mth;

ftdpj;Jf;bfhs;tJk; tHf;fk; ,e;epiyapy; nkw;go rf;jpnty; nkw;go v';fs; epWtdk; thapyhf j';fk;. bts;sp. cnyhfk;.

vhpbghUs; kw;Wk; tptrha bghUl;fs; (commodities) tpahghuj;jpy; th;j;jfk; bra;j tifapy; U:/4.00.000-? (U:gha; ehd;F yl;rk; kl;Lk;) tiu ec;plk; Vw;gl;Ltpl;lJ/ Mdhy;. nkw;go rf;jpnty; vd;dhy;jhd; mtUf;F nkw;go ecp;lk; Vw;gl;Ltpl;lJ vd;W Twp ehd; mtUf;F U:/4.00.000-? (U:gha; ehd;F yl;rk; kl;Lk;)?I jpUg;gp jUkhW nfl;lhh;/ mjw;F ehd; tpahghuj;jpy; Fwpg;ghf nkw;go tpahghuj;jpy; yhgecp.;lk; Vw;gLtJ rf$k; vd;Wk;. eP';fshfnt tpUg;gg;gl;L. nkw;go tpahghuj;jpy; KjyPL bra;J ecp;lkile;jjw;F ehd; ve;jtifapYk; bghWg;ghf Koahbjd;W vLj;Jf; Twpndd;/ ,e;j tifapy; vdf;Fk; nkw;go rf;jpntYf;Fk; rpwpJ kd!;jhgk; ,Ue;J te;jJ/

,Ue;jhYk; nkw;go rjP!;FkhUk;. rf;jpntYk; vd;dplk; vg;bghGJk; gHfpbfhz;Lk; vd; mYtyfj;jpw;F te;J ngha;bfhz;Lk; ,Ue;jhh;fs;/ nkYk;. nkw;go rf;jpnty; nkw;go ecp;lj;jpw;F gpwF fle;j 21/03/2014 njjpapy;

mtUila nkw;go Id TN 999S2-y; ,Ue;j epYit bjhif midj;ija[k; vLj;Jtpl;lhh;fs;/

vd;Dila nkw;go tpahghu gz ghpth;j;jidfs; midj;Jk; t';fp fzf;FKykhfjhd; eilbgWk;/ Fwpg;ghf.

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nkw;go tpahghuj;jpy; fpilf;Fk; fkpcpd; bjhif KGtJk; t';fpK:ykhfj;jhd; fpilf;Fk; ehd; nkw;go fhuzj;jpw;fhf Kjypy; Mf;rp!; t';fp. jpUbr';nfhL fpisapy; nrkpg;g[ fzf;F itj;jpUe;njd/ mjd;gpwF ehd; rpy fhuz';fSf;fhf nkw;go t';fpapy; cs;s vdJ fzf;F Koj;Jtpl;nld;/ Mdhy;. vdf;F Vw;fdnt fU:h; it!;ah t';fp. jpUr;br';nfhL fpisapy; fzf;F vz;/ 1194155000118787 bfhz;l nrkpg;g[ fzf;F ,Ue;jJ/ Mdhy;. fhnrhiy trjp ,y;yhky; ,Ue;jJ mjd;gpwF ehd; nkw;go fU:h; it!;ah t';fp fzf;fpw;F fhnrhiy trjp bgw;W vd;Dila nkw;go bjhHpy; ghpth;j;jidfis bra;a epidj;njd;/ mjd;go vdf;F nkw;go fzf;fpy; nkw;go t';fpahy; fhnrhiy vz;fs;/000101 Kjy; 000120 tiu bfhz;l fhnrhiy g[j;jfk; tH';fg;gl;lJ/ ,jpy; 000101 vz; bfhz;l fhnrhiyia S.P.fk;a{dpnfrd; vd;w epWtdj;jpw;F U:/4000-?f;Fk; kw;Wk; 000102 vd;w vz;

bfhz;l fhnrhiyia ehd; nkw;go Alice Blue Commodities Private Limited, Chennai?d; jpUr;br';nfhL franchise Id TN

999 vd;w tifapy; fkpcpd; bjhifia bgWtjw;F ehd; nkw;go fk;bgdpf;F ehd; Fwpg;gpl;l t';fp vd;gjw;fhf

ifbaGj;J kl;Lkpl;L g{h;j;jp bra;ahky; nkw;go fk;bgdpf;F bfhLj;Jtpl;nld;/ nkYk;. nkw;go fk;bgdpapy; ehDk; xU

KjyPl;lhsuhf ,Ue;J te;njd;/ mjDila Id TN 999S6 MFk;/ ,e;j vdJ ghpth;j;jidf;fhf ehd; nkw;go

fk;bgdpf;F ehd;. Fwpg;gpl;l t';fpapy; fzf;F

itj;jpUg;gjw;F Mjhukhf Kjypy; xU fhnrhiy?I bfhLf;f ntz;Lk; vd;gjw;fhf ifbaGj;J kl;Lkpl;L g{h;j;jp bra;ahky; fhnrhiy vz;/000103?I itj;jpUe;njd/

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mjd;gpwF fle;j 24/03/2014k; njjpad;W fhnrhiy vz;/000103?I nkw;go fk;bgdpf;F bfhLg;gjw;fhf nkw;go vd;Dila fhnrhiy g[j;jfj;ij njoanghJ mJ ehd; itj;jpUe;j ,lj;jpy; ,y;yhky; ,Ue;jnjhL kl;Lky;yhky; mJ v';F njoa[k; fpilf;ftpy;iy/ clnd ehd; fU:h; it!;ah t';fp jpUr;br';nfhL fpisapy; 24/03/2014k; njjpad;W 'Stop Payment' fojk; bfhLj;njd;/ ,Ue;jhYk;. vd;dhy; nkw;go vdJ fhnrhiy g[j;jfj;ij ahh; vLj;jpUg;ghh;fs; vd;W vd;dhy; Ch;$pjk; bra;a Koatpy;iy/ mjdhy; ,J Fwpj;J ehd; fhty;epiyaj;jpy; ve;j g[fhUk; mg;nghJ bfhLf;ftpy;iy/

,e;epiyapy; fle;j 26/04/2014 njjpad;W nkw;go rjP!;Fkhh; jpU/T.V.M.rutzuh$; vd;w tHf;fwp"h; Kyk; xU mwptpg;ig mDg;gpapUe;jhh;/ mjpy; ehd; nkw;go rjP!;Fkhhplk; U:/4.00.000-?$ fle;j 20/11/2003k; njjpad;W fldhf th';fpapUe;jjhft[k; mij milg;gjw;fhf ehd; fUh; it!;rpah t';fp. jpUr;br';nfhL fpisapy; 20/01/2014k; njjpapl;l 000103 vd;w vz; bfhz;l fhnrhiy?I U:/4.00.000-?f;F nkw;go rjP!;Fkhh; njjpapy; mtUila t';fpahd Mf;!p!; t';fp jpUr;br';nfhL fpisapy;

tNYf;fhf jhf;fy;. mJ Payment Stoped vd;w fhuzj;jpw;fhf fle;j 12/04/2014k; njjpad;W jpUg;gg;gl;ljhft[k; mjdhy;. ehd; nkw;go rjP!;FkhUf;F

nkw;go bjhifahd U:/4.00.000-?I nkw;go mwptpg;g[ fpilj;j 15 ehl;fSf;Fs; nkw;go rjP!;FkhUf;F bfhLf;f ntz;Lk; vd;Wk; Fwpg;gplg;gl;oUe;jJ/ nkw;go mwptpg;ig ehd; fle;j 28/04/2014k; njjpad;W bgw;Wf;bfhz;nld;/ nkw;go mwptpg;gpypUe;Jjhd; ehd; nkw;go vd;Dila

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fhnrhiy g[j;jfj;ij nkw;go rjP!;Fkhh; jpUo brd;w tptuj;ija[k;. nkw;go vd;Dila fhnrhiy vz;/000103?I itj;J bgha;ahtdk; g[ide;J nkw;go mwptpg;ig vd;id t";rpj;J nkhrk; bra;J jtwhd tHpapy; gzk; <l;Ltjw;fhf mDg;gpa[s;shh; vd;gija[k; mwpe;J bfhz;nld;/ nkYk;. mth; vd;Dila kw;w fhnrhiyfis gad;gLj;jp vdf;F bghUs; ecp;lKk; kw;Wk; jtwhd rl;leltof;ifa[k; vd;kPJ vLf;f tha;g;gpUf;fpwJ/”

Based on these documents and evidences, the Trial Court has proceeded with the trial and has ultimately found that the accused was guilty of the offence punishable under Section 138 of the N.I.Act. According to the Trial Court Judge, the accused, though had a chance of knowledge about the reduction of a sum of Rs.337/- for the return of the cheque on 12.04.2014 as on 16.04.2014, he had withdrawn some amount from ATM, he could have taken caution immediately against the stealing of cheques and therefore, without giving any police complaint by directly going to the police station, the accused since had sent the complaint only after twenty days, the theory of the defence side cannot be accepted. In this regard, the learned Trial Court Judge has given his reason in his judgement which reads thus:

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“nknyhl;lkhf ghh;f;Fk;nghJ nkw;fz;l Mtz';fs; vjphp jug;g[ Tw;iw epUgpg;gdit nghd;W njhd;wpdhYk; gpd;tUk; re;njf';fSk; njhd;Wfpd;wJ/ v/k/rh/M1 vd;gJ vjphpapd; t';fp fzf;F g[j;jfkhFk;/ mjpy; 12/04/2014y; tHf;F fhnrhiy tNYf;F nghlg;gl;lJ fhl;lg;gl;Ls;sJ/ 12/04/2014 tiu nkw;go fzf;F g[j;jfj;jpy; nyrhd ika[ld; gphpz;l; bra;ag;gl;Ls;sJ/ nkw;go fhnrhiy tNYf;F nghlg;gl;lJ vjphpapd; ifngrpf;F FWe;jfty; K:yk; bjhpe;jpUf;Fk;/ tHf;fpw;fhf FWe;jfty; vjphpf;F te;jpUf;fhJ vd;W bfhz;lhy; Tl 16/04/2014y; vjphp jhd; ,a';fp gzk; tH';Fk; ,ae;jpuj;jpy; gzk; vLj;Js;shh;/ mg;nghJ ,Ug;g[ fzf;fpy; U:/337-? fhnrhiy tNYf;fhf) Fiwe;jpUg;gJ vjphpf;F bjhpe;jpUf;Fk;/ jdJ 18 fhnrhiyfs; jpUl;L ngha;tpl;lJ vd;w ahh; jpUo ,Ug;ghh;fs; vd ghpjtpf;Fk; epiyapy; ,Uf;Fk; xUth; nkw;go tprak; bjhpe;jt[ld; fhty;Jiwaplk; jpUl;L Fw;wj;jpw;fhf nehpy; bry;yhky; 20 ehl;fs; fHpj;J gjpt[ jghypy; g[fhh; mDg;gpaJ Fwpj;J vjphp jug;gpy; tpsf;fk; mspf;fg;gltpy;iy/ mLj;jjhf vjphpahy; t';fpaplk; bfhLf;fg;gl;l !;lhg;ngbkz;l; fojj;jpy; fhnrhiyfs; fhzhky; nghd njjp Fwpg;gplg;gltpy;iy/ fhnrhiyfs; fhzhky; nghdJ Fwpj;J clnd fhty;Jiwapdhplk; g[fhh; juhjjw;F. ahh; jpUodhh;fs; vd bjhpahjjhy; g[fhh; jutpy;iy vd TWtJ Vw;fj;jf;fjhf ,y;iy/”

The learned Judge has also stated further http://www.judis.nic.in reasoning in his judgement which reads thus:

28

“nkYk; fhnrhiyia jpUor; bry;Yk; egh; clnd

jhd; tNYf;F nghLthh;fns jtpu 18 ehl;fs; fHpj;J tNYf;F nghlkhl;lhh;fs;/ ”

Though the Trial Court has come to the conclusion

based on the aforesaid reasons that the accused had been guilty of the offence under Section 138 of the N.I. Act, the said

aspect has also been accepted by the First Appellate Court.

When this Court applied its mind independently by

perusing the documents produced before this Court as well as the reasoning given by the learned Trial Judge as well as the First Appellate Court Judge to come to a conclusion that the accused had been guilty, it has found that a sum of Rs.4 Lakhs was claimed to have been given as loan to the accused by the complainant. The date of said loan according to the complainant was 20.11.2013. Though the averment made before the Trial Court that the complainant is an Income Tax Assessee, he had not produced any document to show that the said amount of Rs.4 Lakhs lent by him, to the accused had been shown in his account. Further, such a huge amount of

http://www.judis.nic.in Rs.4 Lakhs was given as loan and no other documents or

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instruments had been obtained or received from the complainant from the accused as the guarantee for the repayment of the said loan. Further, according to the complainant, the said loan of Rs.4 Lakhs would carry no interest. If the amount does not carry any interest, normally that kind of hand loan would be given by very closely associated person, like friends and relatives and in that case, the question of giving any empty post dated cheque may not arise. If the complainant received post dated cheque, that too after few months period on the date of lending the loan itself, it comes without any controversy that the loan of Rs.4 Lakhs would not be returned by the accused at least for the said period, because the date of loan was 20.11.2013 and the post dated cheque was dated 20.01.2014. On what basis, the said date was mentioned in the cheque has not been explained by the complainant. Assuming that the said post dated cheque is only some document or instrument as a guarantee for the said

loan, then the complainant himself has to explain that within which period the said loan was assured to be returned by the accused. In the absence of any such claim made by the complainant one can presume that the loan would be returned

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back by the accused after few months, i.e., in January 2014. Assuming that the said loan would be returned only in January 2014 and the same had not been returned back by the accused in January 2014 then, why the complainant waited till April 2014 to present the cheque. This position also has not been explained by the complainant.

Though it was claimed by the complainant that

only on instructions of the accused, the cheque was presented on 12.04.2014, the complainant did not tell anything about the date on which or on what date such instructions was given by the accused. A huge amount of Rs.4 Lakhs since had been given as a loan, as claimed by the complainant to the accused, certainly, the said amount would carry some nominal interest

even though the accused is a friend of the complainant. Even

if any short term hand loan was given between the friends there may not be any interest and in that case, the loan should

have been returned within a short period of a month or two. Here in the case in hand, on the date of the loan itself, a post dated cheque had been given that means, even beyond the period, the amount may not be given or returned back by the

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accused. Certainly for such a long period, a huge amount cannot be given as a hand loan, that too without carrying any interest.

In this regard, as rightly pointed out by the

learned counsel for the accused, the following judgement of the Honourable Apex Court can very well be pressed into

service. In 2007 (12) SCC 714 in the matter of John &

John vs. Tom Varghese and Another , the Honourable Apex Court has held as follows:

”Relationship between the parties is not in dispute. The complainant is a partner of a firm which is in the business of running chitty fund. The fact that the respondent subscribed three chitties and that he could not pay the instalments of the prized amount is not in dispute. Pendency of three civil suits filed by the firm through the appellant against the respondent is also not in dispute. The High Court upon analyzing the materials brought on records by the parties had arrived at a finding of fact that in view of the conduct of the parties it would not be prudent to hold that the respondent borrowed a huge sum despite the fact that the suits had already been filed against him by the appellant. Presumption raised in terms of Section 139 of the Act is rebuttable. If, upon analysis of the evidence brought on records by the parties, in a fact situation obtaining in the instant case, a finding of fact has been arrived at by the High Court that the cheques had not been issued by

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the respondent in discharge of any debt, in our opinion, the view of the High Court cannot be said to be perverse warranting interference by us in exercise of our discretionary jurisdiction under Article 136 of the Constitution of India. The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent even was not in a position to discharge his burden to pay instalments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken.”

Further, the learned counsel relied upon number

of judgements in this regard and the principles underlined in those judgements, in the opinion of this court can be pressed into service, in the facts and circumstances of the case,

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therefore, the relevant portion of the said judgements are extracted hereunder for easy reference.

In the matter of Bharat Barrel And Drum

Manufacturing Company vs. Amin Chand Payrelal

reported in 1999(3) SCC 35, it has been held in paragraph-

12 thus:

“Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would dis-entitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising

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under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High Court in this regard.”

The High Court of Bombay in Sanjay Mishra vs.

Ms.Kanisha Kapoor @ Nikki and Another reported in 2009

Crl.L.J. 3777 has underlined the issue that, lending of the

amount which has not been disclosed in the Income Tax return of the lendor, cannot be said to be legally enforceable and in this regard, the learned Judge of the Bombay High Court has held as follows:

“It is true that merely because amount advanced is not shown in Income Tax Return, in every case, one cannot jump to the conclusion that the presumption under section

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139 of the said Act stands rebutted. There may be cases where a small amount less than a sum of Rs.20,000/- is advanced in cash by way of loan which may be repayable within few days or within few months. A complainant may not show the said amount in the Income Tax Return as it is repayable within few days or few months in the same financial year. In such a case the failure to show the amount in the Income Tax Return may not by itself amount to rebuttal of presumption under section 139 of the said Act. If in a given case the amount advanced by the complainant to the accused is a large amount and is not repayable within few months, the failure to disclose the amount in Income-Tax return or Books of Accounts of the complainant may be rebut the presumption under section 139 of the sufficient said Act.”

The next judgement is 2009 (2) SCC 513 in the matter of Kumar Exports vs. Sharma Carpets , where the Honourable Apex Court has held in paragraph 17 to 21 as follows:

“17.Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability.

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Applying the definition of the word `proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.

19.The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.

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The accused in a trial under Section 138 of the

Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also

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rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act.

The accused has also an option to prove the non-

existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue.”

In so far as the word 'execution', is concerned, it

has been interpreted by the single judge of Kerala High Court

in a reported judgement in 2011 ACD 1136 , in the matter of Santhi C. Sathi Bhavan vs. Mary Sherly and another. The

relevant portion of the said judgement reads as thus:

On consideration of the various aspects and provisions of the Act, I am of view that the contention raised by an accused in a prosecution under Section 138 of the Act

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that he issued a blank signed cheque will not amount to admission of execution of cheque. A signed blank cheque leaf is very often referred to as a blank "cheque", but, strictly speaking, it is not a "cheque", as defined under the Act. It can be treated only as a "cheque leaf" containing admitted signature of accused. The admission of signature in a cheque leaf alone will not constitute admission of execution of the cheque. The argument that accused admitted "execution" of the cheque in the reply notice etc., cannot therefore, be accepted.

Learned counsel for appellant also argued that no where in the Negotiable Instruments Act, it is stated that execution is to be proved by complainant in a case involving offence under Section 138 of the Act. He also argued that what is meant by "execution" is not stated in the Act, but most of the courts insist that complainant must prove execution and accused are illegally acquitted, on the ground that "execution" is not proved. According to learned counsel for appellant, it is illegal to cast any burden on complainant to prove "execution", in a prosecution for offence under Section 138 of the Act, since the said provision does not even refer to the word, "execution".

True, the expression, "execution" is not used

in Section 138 of the Act. A reading of Section 138 of the Act however, shows that to prove the offence under the said section, prosecution shall inevitably prove that the cheque was "drawn" by accused. The only overt act which makes a person liable for the offence under section 138 of the Act is "drawing" of cheque by him. So, the main factor to be proved by

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complainant to establish guilt of accused under Section 138 of the Act is that accused has "drawn" the cheque.

The expressions "draw" or "drawn" is not defined in the Act. Section 7 defines "drawer" thus: "maker of a cheque is called the drawer". So, a person who "makes" the cheque is the drawer and the corollary follows that "draw" means, "to make a cheque". As per Oxford Advanced Learner's Dictionary, 7th Edition, the word, "make" means "to create or prepare something by combining materials or putting parts together or to write, create or prepare something". As per Black's Law Dictionary, Eighth Edition, "draw" means, "to create and sign; to prepare and frame (a legal document).

Thus, a person can be said to have "drawn" a cheque, if he has made, prepared or created a "cheque". A cheque is an instrument which is created, in conformity with the requirements of Section 6 read with Section 5 of the Negotiable Instrument Act. A reading of section 5 and 6 of the Act shows that a cheque consists of mainly, two parts. One is, an unconditional order in writing directing the banker to pay a certain sum of money only, or to the order of, a certain person or to the bearer of the cheque. The second part is the signature of the drawer.

Therefore, if prosecution proves that accused has made or prepared or created a cheque, which contains an order in writing, under his signature, directing the banker to pay a certain sum of money only to the payee or the bearer or

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to the order of a certain person, he can be said to have "drawn" the cheque. Such "drawing" is also referred to as "execution" as a legal synonym by various courts and the Bar. Therefore, absence of word "execution" in section 138 is of no consequence. It is also not an excuse not to prove execution/drawing in a prosecution under Section 138 of the Act.

The fact that accused has "drawn" the cheque, as stated above can be proved by any known method recognised by law. The mere production of a cheque or marking the same as an exhibit in a case however, will not prove that the cheque is "drawn" by the accused. The factum of drawing or execution of cheque has to be proved by evidence of person or persons who can vouchsafe for the truth of the facts in issue. It can be proved by direct or circumstantial evidence, which is admissible in law. This proposition will be clear from what Supreme Court stated in Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745, at page 751 :

"The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue".

Even though, the learned counsel for the complainant/respondent would very well rely upon the judgement of the Honourable Apex Court in Rangappa's case

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reported in 2010(11) SCC 441 [Rangappa vs. Sri Mohan] this

court respectfully state that there can be no quarrel in the principle enunciated by their lordships in the said judgement in Rangappa's case. It cannot be forgotten that the decree of proof of statutory presumption as well as the rebuttal under Section 139 and 118 of the Negotiable Instruments Act are only to the decree of preponderance of probability. In this regard, I had an occasion to consider this aspect on the basis of the principle laid down by the Honourable Apex Court in Rangappa's case in the judgement reported in 2018 (1) L.W.Crl.584 in the matter of N.Lakshmi vs.

P.Damodarasamy. The relevant paragraphs are usefully extracted here under:

26.In a number of cases, the Law under Section 138 of the Negotiable Instruments Act, has been developed and strengthened by Law Courts at various point of time. If the initial presumption under Sections 139 and 118 of the Negotiable Instruments Act give a favourable tilt towards the complainant, such a statutory presumption is always a rebuttable presumption only.

27.In this regard, if decree of proof, to come to a presumption in favour of the complainant, is the preponderance of probability. Equally the decree of proof for

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rebutting on the side of the accused, again would be the preponderance of probability.

28.In this regard, the classic Judgment of the Hon'ble Apex Court in Rangappa v. Sri Mohan reported in 2010 11 SCC 441 can very well be pressed into service. In the said Judgment cited supra, their Lordships at Paragraphs 26 to 28 has held as follows:

In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat [(2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.

Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of

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cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard or proof.

In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations,

the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."

In the said case cited above, I have also considered and followed the principles laid down by the

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Honourable Apex Court in M/s.Narayana Menon @ Mani vs. State of Kerala reported in 2006(6) SCC 39 and has made the following observation:

33.Since the proceedings under Section 138 of the Negotiable Instruments Act, is punitive in nature and once the Court has come to the conclusion that the accused is guilty, such conclusion has to be supported by clear evidence. In this regard, the Law laid down by the Hon'ble Apex Court in M.S. Narayana Menon @ Mani v. State of Kerala and another reported in 2006 6 SCC 39, can be taken as a precedent. The Hon'ble Apex Court in the said Judgment cited supra has stated that the presumption under Sections 118 and 139 shall be with the standard of proof of preponderance of probability only. The relevant portions of the said Judgment are extracted hereunder:

In view of the aforementioned backdrop of events, the questions of law which had been raised before us will have to be considered. Before we advert to the said questions, we may notice the provisions of Sections 118(a) and 139 of the Act which read as under:

Presumptions as to negotiable instruments.Until the contrary is proved, the following presumptions shall be made

(a) of consideration.that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

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Presumption in favour of holder.It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. Presumptions both under Sections 118(a) and 139 of the Act are rebuttable in nature.

30.Applying the said definitions of proved or disproved to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the nonexistence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.

A Division Bench of this Court in Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [(1999) 3 SCC 35] albeit in a civil case laid down the law in the following terms: (SCC pp. 50-51, para 12) 12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is

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supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence.

The standard of proof evidently is preponderance

of probabilities. Inference of preponderance of

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probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.

If the above said principles of the Apex Court

in both Judgments cited above, are applied to the present case, the statutory presumption found in favour of the complainant merely on the basis of the issuance of cheques and acceptance of signature by the accused, has been acceptably rebutted with a decree of proof of preponderance of probability, by the accused.”

Therefore, if the above said principles in the

matter of cases tried and decided for the offences punishable under Section 138 of the Negotiable Instruments Act are taken into account and applied to the facts of the present case, this Court has no hesitation to hold that, the complainant, though had the initial advantage of statutory presumption under

Section 139 and 118 of the Negotiable Instruments Act, merely on the ground that the signature found in the cheque in question was of the accused, the said statutory presumption considerably has been shattered by the acceptable rebuttal,

which had come from the side of the accused as he had projected a cogent case. The accused had taken all possible

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efforts to prove the alleged unjust enrichment of presenting the cheque in question for a sum of Rs.4 Lakhs as the said stop payment was given in March 2015 itself, however, the cheque was presented only on 10.04.2014 by the complainant. The date of the cheque is of January 2014 and no reason had been adduced by the complainant, why he had waited till April 2014 to present the same. Only in that circumstances, the defence theory projected by the accused that, on finding that the missing of the cheque leaves in March 2014 immediately, he gave a stop payment instructions to his bank on 24.03.2014 has gained significance. Only subsequent to the said stop payment instructions, since the cheque in question was presented i.e., on 10.04.2014 we cannot brush aside the theory projected by the accused. For the sake of arguments, we can also say that the said theory projected by the accused may not be correct as he did not give any police complaint immediately on finding that the cheque leaves were missing, we cannot forget that the said theory of the accused would have also happened.

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At the same time, the theory projected by the

complainant to the extent that he lent a loan of Rs.4 Lakhs on the request of the accused on 20.11.2013, the further theory of the complainant that on the said date post dated cheque dated 20.01.2014 was given by the accused cannot be believed, as it is not definite, on which date or within which period, the said loan should have been returned back to the complainant. No person would lent a loan of Rs.4 Lakhs without any other instrument except the post dated cheque that too without carrying any interest, for several months and even after that period on the date of post dated cheque i.e., 20.01.2014 admittedly, the complainant did not present the cheque. Between 20.01.2014 and 10.04.2014, why the complainant waited for presenting the cheuqe has not been explained by him, except to state that only on instructions from the accused he had presented the cheque. In this regard also the complainant did not say or explained anything as to

when or on what date such an instructions was given by the accused. The complainant also did not said anything that at the time of lending the loan, what was the agreement between the complainant and the accused with regard to the return of

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the money i.e., the period within which the said return can be made by the accused. In the absence of all these ingredients, the theory of the complainant as projected before the Trial Court cannot also be believed.

Therefore, if there is possibility of two views in a criminal case, the view which can be taken in favour of the accused alone shall be chosen by the law courts as the guilty of the person under punitive provision of law has to be proved beyond a reasonable doubt. Therefore, if there is any iota of doubt available in the mind of the Court, based on the theory of giving benefit of doubt to the accused, the accused shall be acquitted and cannot be punished, that is why, even though

the statutory presumption initially would be in favour of the complainant under the strength of Section 139 as well as 118

of the Negotiable Instruments Act, such statutory presumption would be considered always as a rebuttal presumption and

once an acceptable rebuttal comes from the accused side certainly, the statutory presumption build up in favour of the complainant shall be shattered and in that case, unless it is proved by the complainant beyond reasonable doubt that the

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accused had been guilt for the offence punishable under Section 138 of the Negotiable Instruments Act, Courts cannot come to a conclusion that the accused is guilty of the offence.

Therefore, for all these reasons and discussions made above, this Court is of the considered view that both the Trial Court as well as the First Appellate Court have not considered the aforesaid facts and circumstances, within the para meter of the legal principles enunciated in the judgements cited above in proper perspective, and thereby, both the judgements of the Court below are liable to be interfered with. Accordingly, the judgement of the Trial Court as well as the First Appellate Court, which are impugned herein are set aside and the revision petitioner/accused is set at liberty. The fine amount if any, paid by the revision petitioner/accused shall be refunded to him. Criminal Revision Case is thus allowed accordingly.

Index :Yes/No Speaking order/Non-speaking order smi

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To

1.The Principal Sessions Court, Namakkal.

2.The Judicial Magistrate/ Fast Track Court, Tiruchengode.

3.The Public Prosecutor, High Court, Madras.

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R.SURESHKUMAR, J.

smi

Pre-Delivery Order in
Crl. R.C. No.1089 of 2016
.05.2018

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