Petitioner/Accused v. Rajarajan

In the High Court of Judicature at MadrasDated : 11.11.2010Coram :The Honourable Mr.Justice T.SUDANTHIRAMCrl.R.C.No.1460 of 2004Kumar..Petitioner/Accused-vs-Rajarajan..Respondent/ComplainantRevision Petition against the order dated 08.03.2004 passed inC.A.No.26 of 2003 on the file of Sessions Judge, Nagapattinam,confirming the judgment dated 19.03.2003 passed in C.C.No.71 of 2000on the file of Judicial Magistrate No.I, Mayiladuthurai.For Petitioner:Mr.S.SountharFor Respondent:Mr.D.VeerasekaranO R D E RThe revision petitioner herein is the accused in C.C.No.71 of2000 on the file of Judicial Magistrate No.1, Mayiladuthurai and hewas convicted for an offence under Section 138 of the NegotiableInstruments Act and sentenced to undergo simple imprisonment for sixmonths and also to pay fine of Rs.2,000/-, in default, to undergothree months simple imprisonment. The said conviction and sentencewere confirmed by the learned Sessions Judge, Nagapattinam inC.A.No.26 of 2003. Challenging the said conviction and sentence, thepetitioner has preferred this revision.2.The case of the complainant is that the accused received aloan of Rs.1,20,000/- and towards that loan, he issued a cheque dated07.06.1999 drawn on Indian Overseas Bank. While the complainantpresented the cheque for collection in the Lakshmi Vilas Bank,Mayiladuthurai on 04.10.1999, it was returned with an endorsement"not arranged for". The complainant issued a statutory noticecalling upon the accused to pay the cheque amount. The accused senta reply for the same. As the accused had not paid the cheque amount,the complainant filed a complaint against the accused.3.In order to prove the case of the complainant, P.Ws.1 to 3were examined and Exs.1 to 5 were marked. The accused was questionedunder Section 313 Cr.P.C. and he has denied his complicity. Theaccused, in order to prove his defence, examined D.Ws.1 and 2 andmarked Exs.D.1 to D.3. It is the evidence of D.Ws.1 and 2 that D.W.2is the brother-in-law of D.W.1 and that D.W.2 availed a loan fromMayilai Finance and the said finance company was run by Balakumar, a https://hcservices.ecourts.gov.in/hcservices/ Village Administrative Officer. He has stated that the accused issueda blank cheque and that though D.W.2 cleared all the debts, thecheque was retained. According to D.W.2, the loan was obtained inthe year 1996 and Ex.D.3 series are the receipts for clearing theloan amount. On analysing the evidence, both the trial Court and theappellate Court found the accused guilty.4.The learned counsel for the revision petitioner has submittedthat the accused had sent a reply notice, which is marked as Ex.P.5and he had denied his liability to the complainant. According to theaccused, the cheque was issued blank in the year 1996 and he stoodonly as a co-applicant along with D.W.1 for the loan obtained byD.W.2. Though the loan amount had been settled by D.W.2, the chequehad been mis-used. The complainant is none else than the nephew ofBalakumar, who was a Village Administrative Officer and who wasrunning the finance company. The learned counsel for the petitionerfurther submitted that though Ex.P.1, cheque is dated 07.06.1999, thecheque book containing the said cheque leaf was issued to the accusedby the bank in the year 1995 and in the year 1996, another chequebook was also issued by the bank to the accused. Both the chequebooks were marked as Exs.D.1 and D.2. The learned counsel furtherdrew the attention of this Court to the complaint and the statutorynotice wherein the date of borrowing of loan was not mentioned and itis merely mentioned that the cheque was issued towards the subsistingliability. In the chief examination, P.W.1 had stated that the loanwas obtained on 07.06.1999 and the cheque was issued on the samedate. But, in the cross examination, he had stated that the loan wasgiven one day prior to the date of issuing the cheque. The learnedcounsel for the petitioner vehemently submitted that the accused,with all materials, had rebutted the presumption that arose underSection 139 of the Negotiable Instruments Act and established withsubstantial materials that there was no liability for the accusedtowards the complainant. The learned counsel also submitted thatboth the trial Court and the appellate Court have rejected theevidence of defence witnesses on flimsy grounds and on minorcontradictions.5.Per contra, the learned counsel for the respondent hassubmitted that the trial Court and the appellate Court did not acceptthe defence witnesses and the evidence let in by the accused forrebutting the presumption being not accepted by both the trial Courtand the appellant Court, it is not proper for the accused seeking forre-appraisal of those evidence in this criminal revision petition.The learned counsel for the respondent has further submitted that theaccused had not denied his signature in the cheque and Exs.D.1 andD.2 series would not lead to a presumption that the cheque must havebeen given in the year 1996 itself. The learned counsel also pointedout that the evidence of D.Ws.1 and 2 contradict each other and theloan amount obtained is different and according to D.W.2, the accusedwas known to him only and he was not known to D.W.1, but the name ofD.W.1 is mentioned in Ex.P.5, reply notice, which would lead to showthat the evidence of D.Ws.1 and 2 have been set up only for thepurpose of the case. https://hcservices.ecourts.gov.in/hcservices/

6.This Court considered the above submissions and perused thematerials. It is the evidence of P.W.1, the respondent herein, thatthe accused issued the cheque Ex.P.1 on 07.06.1999 for the loanamount of Rs.1,20,000/- and when the cheque was presented with thebank, it was dishonoured. P.W.1 had admitted in cross-examinationthat except the cheque, he has no other material in order to provethe liability of the accused. Of course, under Section 139 of theNegotiable Instruments Act, it should be presumed, unless thecontrary is proved, that the holder of the cheque received the chequefor the discharge of any debt or liability. Initially thepresumption arises under Section 139 of the Act, which could berebutted by the accused. It is to be seen that the accused in thiscase had rebutted the presumption that arises under Section 139 ofthe Act. On receiving the statutory notice from the complainant, theaccused had sent his reply, Ex.P.5. In Ex.P.5, the accused hadspecifically denied his liability to the complainant. It is alsospecifically stated that the cheque was given by the accused to aforeman of Mayilai Finance and the cheque was issued blank. It wasalso stated that the person by name Marimuthu had availed the loan inthe year 1996 and the accused stood as co-applicant for the saidloan. The cheque was taken from the accused. While P.W.1 was cross-examined, he had denied the fact that the cheque was given in theyear 1996. Though he had stated in the chief-examination that theloan was given on 07.06.1999, in the cross-examination he had statedthat the loan was given one day prior to that date. 7.While the bank officer, P.W.3 was examined to prove the factthat the cheque was dishonoured, during his cross-examination,Exs.D.1 and D.2 were marked. According to P.W.3, Ex.D.1, cheque bookwas issued in the year 1995 and Ex.D.2, cheque book, was issued inthe year 1996 and they have been used from 1996 to 1998. Ex.D.1 isthe cheque book for the cheques bearing No.389311 to 389320 andEx.P.1, cheque bears the number 389314. Therefore, this Ex.D.1probabilise the fact that the accused was in possession of the chequeleaf given in the year 1995 and after using the cheque book, Ex.D.1,he had obtained another cheque book, Ex.D.2 in the year 1996.Further, Marimuthu, whose name is mentioned in the reply notice,Ex.P.5, was examined as D.W.1. According to D.W.1, his brother-in-law, who is D.W.2, wanted a loan and therefore, he obtained a loanfrom Mayilai Finance. As the finance company insisted for Governmentservant's sureties, D.W.2 obtained a cheque from the accused and gaveit to the finance company. D.W.1 has also stated that his brother-in-law had cleared the entire loan amount. D.W.1 stated that D.W.2and the accused were friends and D.W.2 obtained loan in the year1996. The brother-in-law of D.W.1, Dhatchinamoorthy, is D.W.2. Hehas also given specific evidence that he obtained loan of Rs.15,000/-from Mayilai Finance and he obtained cheque from the accused andhanded over to the finance company. Subsequently, he had dischargedthe loan and he produced the receipts, Ex.D.3 series. 8.This Court finds that the evidence of D.Ws.1 and 2 coupledwith Exs.D.1 and D.2 and also the reply notice, Ex.P.5, are https://hcservices.ecourts.gov.in/hcservices/ sufficient materials to rebut the presumption that arose underSection 139 of the Act. The accused had denied his liability withprobable materials. Of course, both the trial Court and the appellateCourt have rejected the evidence of D.Ws.1 and 2 on some minorcontradictions. According to D.W.1, the loan amount was Rs.20,000/-and according to D.W.2, the loan amount was Rs.15,000/- and thereceipts, Ex.D.3 series were also not accepted by the Courts belowfor the reason that the signature in the receipts are not proved andthey did not contain date. A Perusal of Ex.D.3 shows that theycontain date, but only the year is not mentioned and some onerepresenting the finance company had signed in the receipts. Itcannot be said that Ex.D.3 series were cooked up for the purpose ofthe case.9.Once the liability is denied by the accused and also thedenial is supported by probable materials, the presumption thatarises under Section 139 of the Act being rebutted, then the burdenis shifted on the complainant to prove the fact of liability of theaccused beyond reasonable doubt. As already observed, according toP.W.1, except the cheque, Ex.P.1, he has no other material to provethe liability of the accused. The complainant had not obtained anypromissory note from the accused to show that the accused wasdirectly liable to pay to the complainant by receiving loan from him.In the absence of any such material from the complainant, except thecheque, it is not possible to accept the case of the complainant whenthe accused had denied his liability with supporting materials.For the above said reasons, the conviction and sentence imposedon the accused are set aside. The Criminal Revision Case is allowed.The fine amount, if any paid, shall be refunded to the petitioner.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarsraTo1. The Sessions Judge, Nagapattinam.2. The Judicial Magistrate No.I, Mayiladuthurai.3. -do- Through the principal Disttict & Sessions Judge, Nagapattinam. Copy to The Section Officer Criminal Section, High Court Madras.+ 1 cc to Mr.S. Sounthar Advocate SR.81390Crl.R.C.No.1460 of 2004TAM(CO)EU 24.11.10