Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 11.06.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.1081 of 2000 MeyyammaiProprietrix ofM/s Murugan Enterprises10/2-B,Mariappa Konar StreetKattoor, Coimbatore 641 009 .. Appellant/Complainantvs.

M/s India Engineering Corporation C-25,Private Industrial Estate Kuruchi Coimbatore 641 0212. V.D.Indiran3. G.RenukaRespondents/Accused Prayer: This appeal has been filed under Section 378 of Crl.P.C. preferred against the Judgment dated 21.08.2000, in C.C.No.324 of 1997 on the file of Judicial Magistrate No.1, Coimbatore. For Appellant : Mr.P.Jagadeesan For Respondents : Mr.C.D.Johnson JUDGMENTThis appeal has been preferred against the judgment in C.C.No.324 of1997 on the file of the Judicial Magistrate No.1, Coimbatore. On a private complaint under Section 200 of Cr.P.C., the accused was charged under Section 138 of the Negotiable Instruments Act, 1881.(herinafter referred to "the Act").2. The complainant was examined before the trial Court and the learned Judicial Magistrate , after taking cognizance of the offence and after the accused appearing on summons, copies under Section 207 ofCr.P.C. Were furnished and when the offence was explained to the accused, they pleaded not guilty. https://hcservices.ecourts.gov.in/hcservices/

On the side of the complainant, P.Ws 1 and 2 were examined and ExsP1 to P8 were marked.

P.W.1,the complainant, in her evidence would depose that there wasa transactions between the complainant and the accused in respect ofG.I.Pipes and on the date of drawal of the cheque Ex P1 by the accused, the amount due to the complainant under the above said transactions was Rs.6,00,244/50ps and when the cheque was presented in the Bank of Madura, Ramnagar Branch, the same was returned with an endorsement "there was no sufficient funds in the account of the drawer of the cheque". ExsP2 and P3 are the memos issued by the Bank of Madura, Ramnagar branch along with the dishonoured cheque Ex P1. The complainant had issued anotice to the accused under the original of Ex P4 on 26.4.1995. So the accused have received the said notice under Ex P5 to P7 acknowledgments. The second accused has signed in Ex P1 cheque on behalf of A1 company. According to P.W.1 both A2 and A3 were managing the affairs of A1 Company.4a. P.W.2 is the Deputy Manager of Catholic Syrian Bank, wherein A1Company is having an account . According to P.W2,Ex P1 cheque was forwarded to their bank for collection on 10.4.1995 through the Bank of Madura and that the said Ex P1 cheque was returned with an endorsement that there is no sufficient funds in the account of the drawer of the Cheque. Ex P8 is the statement of account relating to the account of A1Company.

When the incriminating circumstances were put to the accused, they deny their complicity with the crime. D.W.1 the Accountant of A1 Companywas examined on behalf of the accused and Exs D1 to D22 were marked.

After scanning the evidence both oral and documentary, the learnedJudicial Magistrate, Coimbatore has come to a conclusion that the complainant has failed to prove the guilt against the accused under Section 138 of the Act and accordingly acquitted the accused under Section 255(1) of Cr.P.C. Aggrieved by the findings of the learned trialJudge, the complainant has preferred this appeal.

Now the point for determination in this appeal is whether the findings of the learned trial Judge is perverse in nature to warrant anayinterference from this Court?.

Heard Mr.P.Jagadeesan, learned counsel for the appellant andMr.C.D.Johnson, learned counsel for the respondents and considered their rival submissions.

The Point: Under Section 138 of the Act, it is the bounden duty of the complainant to prove that there was a legally enforceable debt or other liability, to warrant conviction against the accused. The learned counsel appearing for https://hcservices.ecourts.gov.in/hcservices/ the appellant relying on a decision reported in K.N.Beena-v- Muniyappanand another(2001 (4) Crimes 376(SC) and contended that the burden is on the accused to prove that the impugned cheque was drawn for another existing debt or other liability and onus is not on the complainant.

In the said dictum, the trial Magistrate has convicted and sentenced the accused under Section 138 of the Act but in the revision, the High Court has set aside the conviction which necessitated the complainant to approach the Honourable Apex Court wherein it has been held as follows: "In our view the impugned Judgment cannot be sustained at all. The Judgment erroneously proceeds on the basis that the burden of proving consideration for adishonoured cheque is on the complainant. It appears that the learned Judge has lost sight of Sections 118and 139 of the Negotiable Instruments Act. UnderSection 118, unless the contrary was proved, it is tobe presumed that the Negotiable Instruments (includinga cheque) had been made or drawn for consideration. Under Section 139 , the Court has to presume, unless the contrary was proved that the holder of the cheque received the cheque for discharge, in whole or in part of a debt or liability.

The learned counsel appearing for the complainant relying on Ex P9letter dated 14.3.1992 addressed on behalf of A1 Company to M/s MuruganEnterprises, the company owned by the complainant and contended that evenin the year 1992, the accused have admitted that a sum of Rs.6,00,244/50pswas due to the complainant by the accused in the transaction. Butadmittedly, the impugned cheque Ex P1 is dated 10.4.1995. Relying on aletter written by the accused in the year 1992 the complainant cannot say that even in the year 1995, the same amount ie., Rs.6,40,368/10ps was issued to the complainant from the accused. If it is so, then, the complainant would not have accepted the cheque for lessor amount in the year 1995. If the interest is added to the amount due under Ex P9, then will be much more higher than the amount mentioned in the impugned cheque dated 10.4.1985. It is the case of the accused by way of defence that amount due to the complainant in the year 1995 was only Rs.5,07,230/70psas observed in by the Honourable Apex Court in K.N.Beena-v- Muniyappanand another(2001 (4) Crimes 376(SC) cited above, the burden of proof now shifts on the shoulders of the accused to claim that during 1995 the amount due to the complainant from the accused was only Rs.5,07,230/70psand not Rs.6,00,244/50ps. To substantiate their contention, the accused have examined their Accountant as D.W.1 and through him have produced ExsD1 to D22 accounts maintained by A1's Company. Ex D9 is the day book maintained in the year 1994-95 for A1's Company contains the relevant entries for the transactions at Page Nos.4, 14, 28,34, 38,39,41, 44, 46,48, 59, 74, 94, 98, 103, 104, 11, 115, 119, 128,129,134,139,141 and 143. As per Ex D14(series) bills for the purchase of G.I.Pipes from the complainant company by A1 Company shows that the amount due for the month of January 1995 to the complainant company by A1 Company wasRs.5,07,230/70ps only.

To warrant conviction under Section 138 of the Act, the burden ison the complainant to prove that the impugned cheque drawn by the accused related to discharge the legally enforceable debt or other liability. Theaccused in this case has proved that on the date of issue of Ex P1impugned Cheque, the amount due was only Rs.5,07,230/70ps and that impugned cheque is not for the transactions mentioned in the complaint. Under such circumstances, the said ratio decidenti(K.N.Beena-v- Muniyappanand another(2001 (4) Crimes 376(SC) will not be applicable to the present facts of the case. https://hcservices.ecourts.gov.in/hcservices/

Under such circumstances, I do not find any reason to interfere with the findings of the learned trial Judge who after relying on the evidence of D.W.1 and documents Exs D1 to D22 produced on the side of the accused, has come to a conclusion that there is no reason to warrant conviction against the accused under Section 138 of the Act. The point is answered accordingly.

In the result, the appeal is dismissed confirming the Judgment inC.C.No.324 of 1997 on the file of Judicial Magistrate No.1, Coimbatore. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sgTo, 1. The Judicial Magistrate-No1,Coimbatore2. -do- the Chief Judicial Magistrate, Coimbatore.+ 1 CC To Mr. P.Jagadeesan, Advocate SR NO.33331Crl.A.No.1081 of 2000mbs[co]Gp/18.6