THE HONOURABLE MR v. K.Natarajan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 27.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.864 of 2001R.Veeramani..Appellant/Complainantvs.K.Natarajan..Respondent/accused Prayer: This Appeal has been preferred against the judgment dated23.07.2001 made in C.C.No.650 of 2000 on the file of the JudicialMagistrate No.I, Erode.For Appellant : Mr.N.ManoharanFor Respondent : Mr.M.Ajmal KhanJUDGMENTThis appeal has been preferred against the judgment in C.C.No.650 of2000 on the file of the Judicial Magistrate No.I,Erode. The complainantis the appellant herein, who had filed the private complaint under Section200 of Cr.P.C., against the accused for an offence under Section 138 ofthe Negotiable Instruments Act alleging that the accused had drawn acheque for Rs.3 lakhs in favour of the complainant on 15.12.1999 in orderto discharge a hand loan borrowed by the accused from the complainant forthe purpose of meeting his business expenses and when the cheque wasdeposited in the bank on 23.3.2000 the same was returned with anendorsement 'referred to drawer'. A statutory notice was sent by thecomplainant to the accused on 6.4.2000. After the receipt of notice, theaccused had sent a reply dated 20.4.2000 with frivolous contentions.Hence, the complaint. 2.After recording the sworn statement, the learned JudicialMagistrate has taken the case on file and issued summons to the accsuedand on his appearance copies under Section 207 of Cr.P.C., were furnishedto the accused. When the offence was explained to the accused andquestioned the accused pleaded not guilty. On the side of the complainantP.W.1 was examined and Ex.P.1 to Ex.P.10 were marked.3.P.W.1 is the complainant. He would depose what he had narrated inthe complaint. Ex.P.1 is the impugned cheque dated 15.12.1999 along withthe cheque Ex.P.2 & Ex.P.3 were sent by the bank while it was dishonouredon presentation. As per section 138(b) of the Negotiable Instruments Act https://hcservices.ecourts.gov.in/hcservices/ a statutory notice was sent by the complainant under the original ofEx.P.4, which was received by the accused under Ex.P.6. Ex.P.5 is thepostal receipt. Ex.P.7 is the reply notice dated 20.4.2000. Thecomplainant has also produced copy of the statement of account relating tothe accused account under Ex.P.8. Ex.P.9 is the letter written by theaccused to the bank. Ex.P.10 is the cheque return register maintained inthe bank, in which the accused is having his account.4.When incriminating circumstances were put to the accused underSection 313 of Cr.P.C., he would deny his complicity with the crime. Hehas examined D.W.1 & D.W.2 and exhibited Ex.D.1 to Ex.D.12. After goingthrough the evidence both oral and documentary, the learned trial Judgehas dismissed the complaint, which necessitated the complainant toapproach this Court by way of this appeal.5.Now the point for determination in this appeal is whether thejudgment of the trial Court is leading to miscarriage of justice orperverse in nature to warrant any interference from this Court?6.The Point:- 6(a)The learned trial Judge has dismissed the complainton the ground that one Muthusamy was not examined to show that the chequewas drawn by the accused only in favour of the complainant and that thecomplainant has failed to prove that he was in affluent circumstance tolend Rs.3 lakhs to the accused by way of producing his income tax returns.I am of the view that the reasoning assigned by the learned trial judgefor dismissing the complaint preferred by the complainant is extraneous tothe facts of the present case. Even though the signature in the impugnedcheque-Ex.P.1 is admitted by the accused, the defence taken by the accusedis that it was given in favour of one Muthusamy, who is a relative of thecomplainant as a security in the business transaction between the accusedand the said Muthusamy. If such a defence is taken then as a rebuttalevidence as contemplated under Section 139 of the Negotiable InstrumentsAct the accused ought to have examined the said Muthusamy to show thatonly as a security the impugned cheque was handed over without filling thedate and other particulars in the cheque. Carried away by the documentaryevidence under Ex.D.1 to Ex.D.12 particularly Ex.D.8 to Ex.D.12 receiptsissued by the said Muthusamy, the learned trial Judge has come to anerroneous conclusion that the impugned cheque which was handed over toMuthusamy was forged by the complainant for the purpose of this case,forgetting for a moment the provision contemplated under Section 118 & 139of the Negotiable Instruments Act. It is pertinent to be noted in thiscase that the date in Ex.P.1, the amount and the signature in the impugnedcheque are all written in the same ink and there is no difference seen inthe writing of the date and the cheque amount and the admitted signatureof the accused. It is not the case of the accused that Ex.P.1 has beenforged by the complainant. Before the trial Court the accused has nottaken any steps to get an expert opinion to prove that the Ex.P.1 has beenforged by the complainant. Under section 139 of the NegotiableInstruments Act it is to be presumed that unless the contrary is proved,the holder of a cheque received the cheque, of the nature referred to in https://hcservices.ecourts.gov.in/hcservices/ section 138, for the discharge, in whole or in part, of any debt or otherliability. P.W.1, the complainant, has disposed before the trial Courtthat the accused is also closely related to him and that he (P.W.1) ispracticing as an advocate and he his also doing agriculture, there byearning sufficient income and that the accused, who is owner ofPriyadarshini Hosiery Mills, had borrowed Rs.3 lakhs on 15.6.1999 and haddrawn a cheque for Rs.3 lakhs on 13.12.1999 in favour of the complainantin order to discharge the said loan. Only at the request of the accused hehad deposited the said impugned cheque Ex.P.1 with the Catholic SyriyanBank, Bhavani Branch, for collection but the said cheque was dishonouredby the bank on the ground that there is sufficient amount in the accountof the accused. Informing about the dishonour of the cheque thecomplainant has issued notice under the original of Ex.P.4. Ex.P.7 is thereply notice sent sent by the accused. According to the accused in thereply notice, the impugned cheque was issued to third party in the year1997 and that the complainant has no means to pay Rs.3 lakhs and that thecheque was drawn in the year 1997 itself and now the claim made by thecomplainant after three years from the date of drawal of the cheque is notmaintainable. He would further contend in the reply notice that thecomplainant is not the drawee. But a perusal of Ex.P.1-impugned chequewill go to show that the cheque was drawn on 15.12.1999 and not in theyear 1997 as contended by the accused in the reply notice. It has beendrawn in the name of the complainant and not in the name of and otherperson, so to say in the name of any relative of the accused. Even thoughthere was evidence let in by the accused, a vain attempt was made to theeffect that the impugned cheque was given as a security to one Muthusamy.Absolutely there is no allegation in the reply notice Ex.P.7 that the saidcheque was handed over to one Muthusamy as a security for the businesstransaction between the accused and the said Muthusamy. So I am of theview that the findings of the learned trial Judge is perverse in naturewarrants interference from this Court. 6(b)The learned counsel for the respondent/accused relying on1998 Crl.L.J.906 (A.Bhoosanrao Vs. Purushothamdas Pantani and another),would contend that it is the duty of the complainant to prove that he isin affluent circumstance to lend money as shown in the impugned cheque.It is in evidence that P.W.1, the complainant, is an Advocate and he isdoing agriculture and was earning sufficient income. The non-filing ofthe income tax return will not derive us to take an adverse inferenceagainst the complainant to the effect that he had no income to lend Rs.3lakhs to the accused. The presumption under Section 118 & 139 of theNegotiable Instruments Act on the impugned cheque Ex.P.1 is only in favourof the complainant since there is no rebuttal evidecne to the satisfactionof the Court has been let in by the accused. So the principle laid in1998 Crl.L.J.906 (A.Bhoosanrao Vs. Purushothamdas Pantani and another)will not have any barring to the present facts of the case.6(c) When coming to the question of sentence the principle laiddown in 2004(2) SCC 235 (Goa Plast (P) Ltd. Vs. Chico Ursula D'Souza),is note worthy to be followed. The relevant observation of the Honourable https://hcservices.ecourts.gov.in/hcservices/ Apex Court in the said ratio is extracted below for the purpose ofdeciding this appeal:-"We have no doubt that the respondent has committed anoffence punishable under the provisions of Section 138 of the NIAct and is liable to be punished. The transaction in questiontook place between the parties in the year 1993, therefore,Section 138, as it stood at the relevant time, would beapplicable to the present case. Section 138 providesimprisonment for a term which may extend to one year, or withfine which may extend to twice the amount of the cheque, or withboth. Section 138 has now been amended and the penalty ofimprisonment for a term which may extend to one year has beensubstituted by two years as provided by the amending Act of 2002and the fine which may extend to twice the amount of the cheque.This has been prescribed as the punishment for the offence underSection 138 of the Act. The object and the ingredients under the provisions, inparticular, Sections 138 and 139 of the Act cannot be ignored.Proper and smooth functioning of all business transactions,particularly, of cheques as instruments, primarily depends uponthe integrity and honesty of the parties. In our country, in alarge number of commercial transactions, it was noted that thecheques were issued even merely as a device not only to stallbut even to defraud the creditors. The sanctity and credibilityof issuance of cheques in commercial transactions was eroded toa large extent. Undoubtedly, dishonour of a cheque by the bankcauses incalculable loss, injury and inconvenience to the payeeand the entire credibility of the business transactions withinand outside the country suffers a serious setback. Parliament,in order to restore the credibility of cheques as a trustworthysubstitute for cash payment enacted the aforesaid provisions.The remedy available in a civil Court is a long-drawn matter andan unscrupulous drawer normally takes various pleas to defeatthe genuine claim of the payee."After observing as above the Honourable Apex Court after givinga months time to the accused to pay a sum of Rs.80,000/- (twicethe cheque amount), with default sentence, has disposed of theappeal.I am of the opinion that the same yardstick can be followed in this appealalso. Point is answered accordingly.7. In fine, the appeal is allowed and the judgment in C.C.No.650 of2000 on the file of the Judicial Magistrate No.I, Erode, is set aside andthe accused/respondent herein is convicted under Section 138 of theNegotiable Instruments Act and two month's time is granted from this dateto the accused/respondent herein to pay a sum of Rs.6,00,000/- (Rupees SixLakhs) only (twice the cheque amount) to the complainant/appellant herein, https://hcservices.ecourts.gov.in/hcservices/ in default thereof, the respondent herein shall suffer SimpleImprisonment for one year. The appeal is disposed of with the aboveobservation.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarssvTo,1.The Judicial Magistrate No.I, Erode.2.-do- Thro. The Chief Judicial Magistrate, Erode.+ 1 cc to Mr.N.Manokaran Advocate SR.NO.46925+ 1 cc to Mr.M.Ajmal khan Advocate SR.NO.47077VRK (CO)RD 6.8.07Crl.A.No.864 of 2001