M/s.Emirates Finance (P) Ltd. v. V.Harikrishnan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 07.2.2008CORAM:THE HON'BLE MR.JUSTICE P.R.SHIVAKUMARCriminal Appeal No.1296 of 2002M/s.Emirates Finance (P) Ltd.,rep by its AccountantKrishnan..Appellantvs.V.Harikrishnan..Respondent Prayer : Criminal Appeal filed under Section 378 of the Cr.P.C.praying for the relief stated therein. For appellant : Mr.Walter SolomonFor respondent : Mr.A.C.Jayalakshmi Legal Aid CounselJ U D G M E N TThis Criminal Appeal has been filed against the judgment of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai, made in CCNo.411 of 1999 dated 8.5.2002 thereby acquitting the accused.

The above said Calendar Case was taken on file by the learned XVIII Metropolitan Magistrate based on the compalint of the appellant herein preferred under Section 200 Cr.P.C. alleging that the respondent herein had committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1983.

According to the appellant/complainant, the respondent obtained a loan of Rs.3 lakhs promising to repay the same with interest @ 36% per annum and in discharge of the said debt and acheque dated 11.9.1998 was issued by the respondent for the abovesaid amount. When the said cheque was presented for encashment on14.9.1998 through the appellant's banker, the same was returned on15.9.1998 with an endorsement "insufficient funds". The statutory notice issued thereafter on 22.9.1998 was received by the respondent on 23.9.1998. Even after the receipt of the said notice, the respondent did not make payment of the amount covered by the cheque within the statutory period, but chose to issue a reply notice. https://hcservices.ecourts.gov.in/hcservices/ Hence, the complaint was preferred for prosecuting him for the offence under Section 138 of the Negotiable Instruments Act. 4. The respondent, who appeared before the trial court on receipt of process, pleaded not guilty and denied the allegations found in the complaint. During trial, three witnesses were examined and 10 documents were marked on the side of theappellant/complainant. When the incriminating part of the evidence adduced on the side of the complainant was pointed out and therespondent/accused was examined under Section 313 Cr.P.C., besides denying such incriminating evidence, the respondent has taken aspecific stand that the cheque was not issued for the discharge of alegally recoverable debt. The learned Magistrate, after meticulously examining the evidence adduced in this case, came to the conclusion that the appellant/complainant failed to prove that the cheque was issued for the discharge of a legally recoverable debt or other liability and in line with the said finding, the learned Magistrateacquitted the respondent/accused by her judgment dated 8.4.2002.Challenging the correctness and the legality of the said judgment of acquittal, the present appeal has been preferred on the file of this Court.

The arguments advance on behalf of the appellant and the respondent have been heard. The materials available on record were also perused by this Court.

The unsuccessful complainant before the trial court is the appellant in this appeal, which has been filed against the acquittal of the accused in C.C. No.411 of 1999 on the file of the learnedXVIII Metropolitan Magistrate, Saidapet, Chennai. The respondent herein stood charged for committing an offence punishable under Section 138 of the Negotiable Instruments Act. Upon perusing the records and re-appraising the evidence in the light of the arguments advanced by the learned counsel appearing on either side, this Courtis not able to find out any discrepancy or infirmity in the approach of the learned Magistrate and the decision made by the saidMagistrate holding the respondent/accused not guilty of the offence with which he stood charged. Though the appellant/complainant had stated in its complaint that the cheque was issued in discharge of the debt due to the appellant/complainant to the tune of Rs.3 lakhs, there are no details regarding the date on which the amount was borrowed and the documents executed for the same. Though the details of the cheque has been furnished in the complaint, the language of the complaint has been couched in such a way that one going through the complaint would be guessing as to what could be the date on which the cheque was actually issued. Such an ingenious method of drafting the complaint has been adopted. Learned counsel for the respondent, pointing out the said fact, has contended that in fact, the blank cheque without date was handed over as an additional security for the loan advanced by the appellant/complainant and that the same was https://hcservices.ecourts.gov.in/hcservices/ subsequently filled up by putting a date in 1998 and used by the appellant in this case.

In support of the said contention, the learned counsel has taken this Court through the evidence of PW1, who during cross-examination, has candidly admitted that the loan was advanced in1993, a pronote as well as the blank cheque was obtained in 1993 and the cheque was presented for collection in 1998, on the instructions of the respondent/accused. The implication of the said admission is twofold. They are : (i) the admission that the cheque was issued asa security for the loan and not for the discharge of the loan is tobe used in support of the case of the respondent/accused that the cheque was not issued for the discharge of a debt or other liability as provided under Section 138 of the Negotiable Instruments Act. Thesaid admission itself will be enough to rebut the presumption provided under Section 139 of the Negotiable Instruments Act. (ii)The second implication of the said admission is that the debt which was incurred by the respondent/accused in the year 1993 was time barred even before the date of the cheque. Hence, the cheque could not be construed as one issued in discharge of a legally recoverable debt or other liability. It is not the case of theappellant/complainant that the debt incurred in the year 1993 was subsequently acknowledged giving a new start of limitation. It is also not the case of the appellant/complainant that a fresh promise was made for the payment of the time barred debt and the time barred debt itself proved to be the consideration for such a fresh promise.

The learned Magistrate has marshalled the evidence in this regard properly and has come to the correct conclusion that theappellant/complainant failed to prove the charge against therespondent/accused beyond reasonable doubt and that the respondent accused was entitled to be acquitted, holding him not guilty of the offence for which he stood charged. There is no merit in this appeal as no scope whatsoever is found to interfere with the well considered judgment of the trial court. The judgment of the trial court deserves to be confirmed.