THE HONOURABLE MR v. Thiru N.Ravichandran

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 24.03.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.1209 of 2000M.A.Nachimuthu .. Appellant/ComplainantVs.Thiru N.Ravichandran .. Respondent/AccusedPrayer: This appeal has been preferred against Judgment dated 21.11.2000,in C.C.No.89 of 1998, on the file of the Judicial Magistrate No.I, Mettur. For Appellant : Mr.M.Sathyanarayanan For Respondent : Mr.R.John SathyanJUDGMENTThis appeal has been preferred against the judgment in C.C.No.89 of1998 on the file of the Judicial Magistrate No.I, Mettur Dam. Thecomplainant is the appellant herein2. The short facts in the complaint are as follows:-On 01.10.1998 the accused had borrowed Rs.2,00,000/- by way ofhand loan from the complainant and to discharge the said debt, the accusedhad drawn a cheque for Rs.2,00,000/- and when the cheque was presented inMadura Bank, Vanavasi Branch, where the complainant is having hisaccount, the said cheque was bounced on 12.10.1998 on the ground thatthere is no sufficient funds in the account of the accused. A notice wasissued by the complainant on 15.10.1998 but the same was returned unservedon 16.10.1998. Hence, the complaint under section 200 of Cr.P.C., foroffence under Section 138 of the Negotiable Instrument Act.3. The said complaint was taken on by file, after recording the swornstatement of the complainant by the learned Judicial Magistrate No.I,Mettur Dam as C.C.No.89 of 1998. On appearance of the accused on summon,copies under Section 207 of Cr.P.C., were furnished to the accused andwhen the offence was explained to the accused, he pleaded not guilty. Onthe side of the complaint P.W.1 to P.W.3 were examined and Ex.P.1 toEx.P.5 were marked. https://hcservices.ecourts.gov.in/hcservices/

4. P.W.1 is the complainant. He would depose that the accused is hissister's son and that he is indulging in contract work and that he use toborrow hand loan from him(P.W.1) and on 01.10.1998 the accused hadborrowed Rs.2,00,000/- with an undertaking to return the same within oneweek and to discharge the said loan the accused had drawn a cheque forRs.2,00,000/- on 09.10.1998. When the cheque was presented in MaduraBank, Vanavasi branch, the same was returned on 12.10.1998 on the groundthat there was no sufficient funds in the account of the accused. Ex.P.2is the bank slip. Ex.P.3 is the advice slip issued by Madura Bank,Vanavasi branch. He had issued a notice dated 15.10.1998 but the same wasreturned. Ex.P.4 is the copy of the notice. The return cover containingthe original notice is Ex.P.5.5. P.w.2 is the Bank Manager in Madura Bank, Vanavasi Branch. Hewould depose that on 09.10.1998 P.W.1 has deposited Ex.P.1-cheque forRs.2,00,000/- for encashment. The said cheque was drawn in Lakshmi VilasBank. When the said cheque was sent to Lakshmivilas Bank, Jalagandapurambranch, for collection, but the same was returned on 14.10.1998 with anendorsement that there was no sufficient funds in the account of thedrawer. Ex.P.2 is the bank memo and Ex.P.3 is the collection voucher.6. P.W.3 is the cashier of Lakshmi Vilas Bank, Jalagandapurambranch. He would depose that the accused is having a current account inhis Lakshmi Vilas Bank and his current A/c No. is 1452 and that Ex.P.1 isa cheque leaf of the pass book issued by their bank in favour of theaccused and Ex.P.1 is for Rs.2,00,000/- dated 09.10.1998 drawn in the nameof the complainant and it's number is 626468 and the cheque was forwardedto Lakshmi Vilas Bank from Madura Bank, Vanavazi branch, on 12.10.1998 andthat the said cheque was returned with an endorsement that there was nosufficient funds in the account of the drawer. Ex.P.2 is the memo showingthe reason for the return of Ex.P.1-cheque.7. On the above evidence both oral and documentary incriminatingcircumstances were put to the accused, to which the accused denied hiscomplicity with the crime. The accused has examined himself as D.W.1 andexhibited Ex.D1 and Ex.D.2. On the available evidence both oral anddocumentary the learned trial judge has come to the conclusion that thecharge under section 138 of the Negotiable Instrument Act, has not beenproved against the accused and accordingly the learned trial judgeacquitted the accused under Section 255(1) of Cr.P.C. Aggrieved by thefindings of the learned trial judge, the complainant has preferred thisappeal.8. Now the point for determination in this appeal is whether thejudgment in C.C.No.89 of 1998 on the file of the Judicial Magistrate No.I,Mettur Dam, is liable to be dismissed for the reasons stated in thememorandum of appeal? https://hcservices.ecourts.gov.in/hcservices/

9. The Point:- It is the definite case of the complainant that theaccused had borrowed Rs.2,00,000/- on 01.10.1998 as hand loan and only todischarge the said loan the accused had drawn Ex.P.1-Cheque forRs.2,00,000/- on 09.10.1998. To attract the offence under Section 138 ofCr.P.C., a chque is to be drawn by any person who is having an accountwith a bank to another person in order to discharge whole or part of anydebt or other liability and on presentation dishonoured then only theaccused is liable to be prescribed under Section 138 of the NegotiableInstruments Act. The explanation to Section 138 of the NegotiableInstruments Act reads as follows:- For the purpose of this Section, "debtor other liability" means a leagally enforceable debt or other liability".To substantiate his contention the complainant has not let in anyevidence to show that he had lent Rs.2,00,000/- as hand loan to theaccused on 01.10.1998. Burden is heavily on the complainant to show thaton the date of drawal of Ex.P.1-cheque for Rs.2,00,000/- in favour of thecomplaint there was legally enforceable subsisting debt or other liabilityin favour of the complainant against the accused. Except the ipsi-dixitof P.W.1, the complainant, there is no document produced or any otherwitnesss examined to show that there was a subsisting liability on thedate of drawal or before the date of drawal of Ex.P.1-cheque. Under suchcircumstances, I am of the view that the offence under Section 138 of theNegotiable Instruments Act will not be attracted against the accused towarrant conviction under the above said provision of law. Under suchcircumstances, I am of the opinion that the findings of the learned trialjudge in C.C.No.89 of 1998 on the file of the Judicial Magistrate No.I,Mettur Dam, need not be set aside for the reasons stated in the memorandumof appeal. Point is answered accordingly.10. In the result, the appeal is dismissed confirming the judgmentin C.C.No.89 of 1998 on the file of the Judicial Magistrate No.I, MetturDam. Sd/Asst.Registrar/true copy/Sub Asst.Registrarssv https://hcservices.ecourts.gov.in/hcservices/ To,The Judicial Magistrate No.I, Coimbatore.1 cc To Mr.M.Sathyanarayanan, Advocate, SR.18531.Crl.A.No.1209 of 2000 SSV(CO)RVL 28.03.2007