THE HONOURABLE MR v. Vijayanagaram RamamurthyProprietor of Sri Parameswari Agencies

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 21.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.883 of 1996Madras Cements Ltd., rep byT.R.Lakshmi Narayanan .. Appellant/Complainantvs.Vijayanagaram RamamurthyProprietor of Sri Parameswari Agencies .. Respondent/Accused This appeal filed u/s 378 and 386 of Cr.pc has been preferred againstthe Judgment dated 25.6.1996, in C.C.2707 of 1995 on the file of VIIMetropolitan Magistrate, Madras.For Appellant : Mr.K.P.Ananthakrishnan For Respondent : Mr.J.Sivaganesh (Legal Aid Counsel) JUDGMENTThis appeal has been preferred against the judgment in C.C.No.2707 of1995 on the file of VII Metropolitan Magistrate, George Town, Chennai. Aprivate complaint was filed under Section 200 of Cr.P.C. against theaccused under Section 138 of Negotiable Instruments Act(hereinafterreferred to as"the Act").2. The complaint was taken on file by the learned Judicial Magistratewho had issued summons to the accused and on his appearance, furnishedcopies under Section 207 of Cr.P.C. and when the offence was explained tohim and questioned, the accused pleaded not guilty.3. On the side of the complainant, P.Ws 1 to 3 were examined and ExsP1 to P9 were marked. https://hcservices.ecourts.gov.in/hcservices/ 3a. P.W.1 is the Accountant of the complainant Company.Ex P1 is thepower of attorney in favour of P.W.1 given by the complainant Company .Admittedly, the accused is an agent for the complainant's company forselling cements and according to P.W.1 to discharge a subsisting duesamounting to Rs.1,95,000/- incurred in the said transactions, the accusedhad drawn a cheque on 29.12.1994 in favour of the complainant for a sum ofRs.1,95,000/-. When the cheque was presented in the bank for collection,the same was returned with an endorsement, "there is no sufficent fund inthe account of the drawer of the cheque". Exs P.3 and P4 are the memo andnotice respectively sent by the bank along with the impugned cheque Ex P2. As required under Section 138(b) of the Act, the complainant had issueda notice to the accused under the original of Ex P5 on 2.2.1995 Ex P6 isthe acknowledgement dated 15.2.1995 for the accused having received theoriginal of Ex P5 notice. The accused had not sent any reply .3b.P.W.2 is the Assistant Manager of the State Bank of India,Commercial Branch, Chennai. According to him, the complainant Company ishaving current account with the said bank and Ex P2 impugned cheque waspresented on 29.12.1994 for realisatiion but the same was returned on theground that there is no sufficient funds in the account of the accused.Ex P4 is the notice sent along with Ex P2 dishonoured Cheque.3c. P.W.3 is the Branch Manager of Andhra Bank, Srinagar Colony,Gundur. According to him, the accused is having current account in theirbank in the name of "Parameswari Agencies". Ex P2 cheque was forwarded totheir bank for collection, but the same was returned by their bank on18.1.1995 on the ground that there is no sufficient amount in the creditof the account of the accused. Ex P7 is the statement of accouant relatingto the accused. P.W.3 would state that only a sum of Rs.599/- was incredit in the account of the accused as on 18.1.1995.4. When incriminating circumstances were put to the accused, hewould deny his complicity with the crime. He has examined himself as D.W.1and exhibited Ex D1 to D4. After going through the available evienceboth oral and documentary, the learned trial Judge has come to aconclusion that the complainant has failed to prove that only in order todischarge a subsisting debt, the impugned cheque Ex P2 was drawn by theaccused in favour of the complainant and consequently dismissed thecomplaint preferrred by the complainant, which necessitated thecomplainant to prefer this appeal.5. Now the point for determination in this appeal is whether Ex P2impugned cheque was drawn in favour of the complainant to discharge asubsisting debt or not?6.Heard Mr.K.P.Ananthakrishnan, learned counsel for the appellant andMr.J.Sivaganesh,the learned Legal Aid counsel for the respondent andconsidered their rival submissions. https://hcservices.ecourts.gov.in/hcservices/

7.The point:-To warrant conviction under Section 138 of the Act, it is the duty of thecomplainant to prove that the cheque drawn by another person was only todischarge or in part of any debt or other liability. As per Explanationto Section 138 of the Act, debt or other liability means a legallyenforceable debt or other liability. The learned trial Judge has observedin his Judgement that admittedly, the transaction between the accusedand the complainant has come to an end in the month of August 1994 itselfbut the impugned cheque Ex P2 was drawn on 29.12.1994. The complainanthas failed to prove through the material documents to show that as onAugust 1994, a sum of Rs.1,95,000/- was due from the accused to thecomplainant in the cement transactions. 8.According to D.W.1, the accused, Ex P2 impugned cheque was handedover to the complainant only as a security for the supply of the goods bycomplainant as a blank one and the date and amount have been subsequentlyfilled up by the complainant for the purpose of using it as a document inthis case. According to hm, he has sent a reply notice for the noticeissued by the complainant under the original of Ex D3. The reply notice ,even though, has not been produced by the complainant, has been producedby the accused as Ex D3. At this juncture, the learned counsel appearingfor the appellant would contend that the reply notice was sent 15 daysafter the receipt of the notice under Ex P3. But P.W.1 was examinedbefore the Court on 21.9.1995 but he had received the original ofEx D3 notice as on 21.4.1995 itself under Ex D4 acknowledgment. But in thechief Examination P.W.1 would depose that the accused has not sent anyreply notice. 9. Even before this Court, the learned counsel appearing for theappellant has produced certified xerox copy of the account maintained forthe said transactions between the complainant and the accused. Eventhough, the copy was not produced and marked, even the copy of thestatement of account, shows that the transactions between the complainantand the accused came to an end in the month of August 1994 itelf and inthe debit column, a sum of Rs.976/82ps was shown as the charges for thereturn of the cheque dated 26.11.1994 but the impugned cheque in this caseis dated 29.12.1994. So the abovesaid account itself will go to show thatthe said account is not relating to this transaction in which according tothe complainant a sum of Rs.1,95,000/- was due as on 29.12.1994.10. The learned counsel appearing for the appellant relying on adecision reported in K.N.Beena-v- Muniyappan and another(2002 SupremeCourt Cases(cri)14)and contended that mere denial of the accused in thereply notice is not enough to throw away the case of the complainant. Butin this case, apart from the denial in Ex D3 reply notice which was notaccepted by P.W.1, the accused had entered into the box and examinedhimself as D.W.1 to the effect that impugned cheque ExP2 was not drawn todischarge a subsisting liability. https://hcservices.ecourts.gov.in/hcservices/

11. The learned counsel appearing for the appellant relying onSections 139 and 118 (a) and (b) of the Act, would contend that if thesignature in the impugned cheque was admitted by the accused, then thepresumption must be in favour of the payee or the holder of the chequethat it was drawn only to discharge a subsisting liability. No doubtpresumption under Sections 118(a)and (b) and 139 shall be that only todischarge the liability the drawer had signed the impugned cheque. But,such a presumption is a rebuttable presumption. Even in the box, D.W.1would admit that the impugned Cheque Ex P2 was drawn only as a securityfor the cement transactions entered into him and the complainant and thatthe date and amount in the cheque were not written by him but the date ofthe cheque and other particulars in Ex P2 impugned cheque were filled uponly by the complainant for the purpose of this case. Now the burdenshifts on the complainant to show that on the date of drawal of theimpugned cheque ie., on 29.12.1994, the accused owe to the complainant asum of Rs.1,95,000/-, which is not done so in this case as rightly held bythe learned trial Judge. Under such circumstances, I do not find anyreason to interfere with the findings of the learned trial Judge inC.C.No.2707 of 1995 on the file of VII Metropolitan Magistrate, GeorgeTown, Chennai. The point is answered accordingly.12. In fine, the appeal is dismissed confirming the Judgment inC.C.No.2707 of 1995 on the file of VII Metropolitan Magistrate,GeorgeTown, Chennai. The service rendered by Mr.J.Sivaganesh, the learned LegalAid Counsel is recorded with appreciation. The Member Secretary of theTamil Nadu Legal Services Authority is directed to pay a sum of Rs.3,000/-to the legal aid counsel towards his remuneration.sgSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo, 1. VII Metropolitan Magistrate, George Town, Chennai2. -Do- Thro' The Chief Metropolitan Magistrate, Egmore, Chennai-8.3. The Member Secretary, Tamil Nadu Legal Services Authority, Chennai.+1 cc to Mr.K.P.Anantha Krishna Advocate Sr.No.45100.+1 cc to Mr.J.Shiva Ganesh, Advocate Sr.No.45176.BV(CO)dcp/30.7.07Crl.A.No.883 of 1996