THE HONOURABLE MR v. Mr.A.Balasubramaniam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 19.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.699 of 2001M.Sajjan Raj Nahar.. Appellant/Complainantrep by his Power Agent,Mr. G. Angamuthu,Authomobile Financier,No.277, Main Road, Mettupalayam 641 301,Coimbatore District.Vs.Mr.A.Balasubramaniam .. Respondent/AccusedPrayer:- This appeal has been preferred against the judgment dated1.12.2000 made in STC.No.174 of 1998 on the file of the JudicialMagistrate, Mettupalayam.For Appellant :Mr.R.BalajFor Respondent : Mr. Deivandranfor M/s. G. R. Swaminathan.JUDGMENTThis appeal has been preferred against the judgment inSTC.No.174 of 1998 on the file of the Judicial Magistrate,Mettupalayam. The complaint under Section 200 of Cr.P.C., wasfiled by the complainant under Section 138 of the NegotiableInstruments Act against the accused alleging that the accused haddrawn a cheque on 14.10.1997 for Rs.3 lakhs to discharge asubsisting liability and when the said cheque was presented in thebank the same was dishonoured on the ground that there was nosufficient funds in the account of the drawer of the cheque.2.After taking cognizance of the offence, the learnedJudicial Magistrate, after recording the sworn statement of thecomplainant, had issued summons to the accused and on hisappearance copies under Section 207 of Cr.P.C., were furnished tothe accused and when the charges were explained to him and https://hcservices.ecourts.gov.in/hcservices/ questioned he pleaded not guilty. On the side of the complainant,the power of attorney holder of the complaint was examined asP.W.1 and Ex.P.1 to Ex.P.13 were exhibited3.The power of attorney holder for the complainant in hisevidence would depose that the complainant is a financeinstitution and that he (P.W.1) is the power of attorney holder.Ex.P.1 is the power of attorney in favour of P.W.1 executed by thecomplainant. According to P.W.1, the accused for the purchase ofAshok Layland bus bearing registration No.KL-9B-846 had borrowedRs.4,50,000/- on 25.3.1994 and entered into an higher purchaseagreement under Ex.P.8 and that as per the terms of Ex.P.8 theaccused had to repay the loan amount in 30 monthly instalments andhas to pay Rs.22,500/- towards the first instalment and thesubsequent instalments are to be paid at the rate of Rs.21,500/-per instalment. But the accused had failed to pay the instalmentregularly and he has committed default in payment. Hence, hecomplainant had seized the bus bearing registration No.KL-9B-846and sold the same in the public auction and adjusted the saleproceeds of the bus towards the balace of the amount due underhigher purchase agreement Ex.P.8. According to P.W.1 to dischargethe entire due under the higher purchase agreement Ex.P.8 theaccused had drawn the impugned cheque Ex.P.2 dated 14.10.1997 infavour of the complainant. When the cheque was presented inCanara Bank, Mettupalayam branch on 7.11.1997 the same wasreturned with an endorsement that there is no sufficient funds inthe account of the drawer on 7.11.1997 itself. The complainant hadissued notice as contemplated under Section 138(2) of theNegotiable Instalments Act under the original of Ex.P.6. Theaccused had acknowledged the same under Ex.P.7. Ex.P.5 & Ex.P.6are the memo issued by the bank along with Ex.P.2-impugned cheque.Ex.P.7 is the acknowledgement. Ex.P.9 is the seizure notice forthe above said bus, which was received by the accused underEx.P.10. Ex.P.11 is the receipt issued by George for havingpurchased the bus in the auction. Ex.P.12 is the copy of theaccount maintained by the complainant. Ex.P.13 is also an accountmaintained by the complainant for his insurance particulars. 4.When incriminating circumstances were put to the accusedunder Section 313 of Cr.P.C., he would deny his complicity withthe crime. On the side of the accused D.W.1 and D.W.2 wereexamined and Ex.D1 to Ex.D.4 were marked. After going through theevidence both oral and documentary, the learned trial Judge hascome to the conclusion that the complainant has failed to provethat the impugned cheque Ex.P.2 was drawn only for discharging asubsisting debt and accordingly dismissed the complaint, whichnecessitated the complainant to prefer this appeal. https://hcservices.ecourts.gov.in/hcservices/

5.Now the point for determination in this appeal is whetherEx.P.2-impugned cheque was drawn by the accused to discharge asubsisting debt to warrant conviction against the accused underSection 138 of the Negotiable Instruments Act?6.The Point:-The learned trial Judge while dismissing thecomplaint has given a valid reason in his judgment at para 16.Ex.P.12 is the statement of accounts on which the complainant hadplaced his reliance to show that on the date of drawal of Ex.P.2-cheque by the accused, there was a balance of Rs.3,53,000/- underEx.P.8, higher purchase agreement entered into between thecomplainant and the accused. It is the admitted case of thecomplainant that since the accused had committed default inpayment of the instalments under Ex.P.8, higher purchaseagreement, the bus bearing registration No.KL-9B-846 was seizedafter issuing Ex.P.9-notice and the same was sold in publicauction to one George, who had issued Ex.P.11-voucher dated12.9.1997 for having purchased the bus bearing registration No.KL-9B-846 for a sum of Rs.2 lakhs. It is the case of the complainantthat even after adjustment of this Rs.2 lakhs, the sale proceedsof the bus under Ex.P.11, towards the balance due from the accusedto the complainant, still here is balance of a sum ofRs.3,53,000/- as per Ex.P.12 and only to discharge the balanceamount after the said adjustment, the accused had drawn theimpugned cheque Ex.P.2. But if the said sum of Rs.2 lakhs underEx.P.11 was adjusted towards the balance of Rs.3,53,000/- as shownunder Ex.P.12, then the balance amount will be Rs.1,53,000/-. ButEx.P.2-cheque was drawn by the accused for a sum of Rs.3 lakhs.Even in the notice under Ex.P.6 no details regarding the balancedue under Ex.P.8, higher purchase agreement, was given. Undersuch circumstances, the complainant cannot take shelter underSection 138 of the Negotiable Instalments Act and it cannot besaid that only to discharge a subsisting liability the impugnedcheque under Ex.P.2 was drawn by the accused in favour of thecomplainant as rightly held by the learned trial judge. Undersuch circumstances, I do not find any reason to interfere with thefindings of the learned trial Judge in STC.No.174 of 1998 on thefile of the Judicial Magistrate, Metuppalayam. Point is answeredaccordingly.7.In fine, the appeal is dismissed confirming the judgment inSTC.No.174 of 1998 on the file of the Judicial Magistrate,Mettupalayam. At this juncture, the learned counsel for theappellant would contend that he has filed an application underSection 91 of Cr.P.C., for the production of an additional https://hcservices.ecourts.gov.in/hcservices/ document and the same was dismissed by the trial Court. But thefact remains that he has not agitated or challenged the said orderof the Judicial Magistrate.ssvSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo,1.The Judicial Magistrate, Mettupalayam.2.-do-The Chief Judicial Magistrate, Coimbatore.+ 1 cc to Mr. G. R. Swaminathan, Advocate SR No. 44400+ 1 cc to M/s. Ram & Ram Associates SR No. 44151Crl.A.No.699 of 2001NSM(CO)SR/25.7.2007