K.Padmanathan v. M.Somasundaram

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:22.02.2008CORAMTHE HONURABLE MR.JUSTICE P.R.SHIVAKUMARCriminal Appeal No.526 of 2002K.Padmanathan .. Appellant/ComplainantVs.M.Somasundaram .. Respondent/AccusedThis Criminal Appeal is filed under Section 374 (2) of Cr.P.C.to set aside the judgment in C.C.No.451 of 1999 dated 08.02.2002 onthe file of the learned Judicial Magistrate No.I, Tirupur andconvict the accused for the offence under Section 138 of theNegotiable Instruments Act, 1881.For Appellant :Mr.J.Antony Jesus For Respondent:Mr.S.KolandasamyJUDGMENTThis appeal is directed against the judgment of acquittalpronounced by the learned Judicial Magistrate No.I, Tirupur inC.C.No.451 of 1999 a case taken on file based on the complaint ofthe petitioner herein against the respondent herein alleging thatthe respondent committed an offence punishable under Section 138 ofthe Negotiable Instruments Act, 1881 (hereinafter referred as theAct).2. The learned Judicial Magistrate after trial found therespondent herein/accused not guilty of the offence for which hewas prosecuted and acquitted him of the said offence by hisjudgment dated 08.02.2002. 3. The appellant herein had preferred the private complaintunder Section 200 Cr.P.C. containing the following averments:-On 16.11.1998 the respondent/accused borrowed a sum ofRs.5,00,000/- from the appellant/complainant at Tirupur for hisurgent business expenses and on the same date executed a promissory https://hcservices.ecourts.gov.in/hcservices/ note in favour of the appellant/complainant promising to repay thesaid amount with an interest at the rate of 24% per annum. Despiterepeated demands the respondent/accused did not pay any amounteither toward principal or interest. At last on 21.07.1999 therespondent/accused issued a cheque bearing No.145826 drawn onLakshmi Vilas Bank limited, Tirupur Branch for a sum ofRs.5,00,000/-. When the said cheque was presented on 28.07.1999through Syndicate Bank, Tirupur Branch for collection, the samewas returned with an endorsement “account closed”. The said factwas informed to the appellant/complainant by his bankers on29.07.1999 whereupon a statutory notice demanding payment wascaused to be issued on 04.08.1999 to the residence as well as theoffice of the respondent/accused. The notices sent to the residenceof the respondent and the office of the respondent/accused werereceived on 06.08.1999 and 09.08.1999 respectively. As therespondent/accused did not comply with the demand made in thenotice, the appellant/complainant was constrained to file theprivate complaint for prosecuting and punishing therespondent/accused for the offence punishable under Section 138 ofthe Act.4. The learned Judicial Magistrate, after recording the swornstatement of the appellant/complainant, registered the same asC.C.No.451 of 1999 and issued process. On appearance of therespondent/accused he was questioned regarding the allegations madein the complaint constituting the offence. The respondent/accuseddenied them to be false and pleaded not guilty. In the trial thatfollowed such a plea, the complainant examined himself as PW1 andone Ramesh, the Manager of Lakshmi Vilas Bank, Tirupur Branch asPW2. Ex.P1 to Ex.P9 were marked on his side. The respondent/accusedwas examined under Section 313(b) of the Cr.P.C. regarding theincriminating materials appearing in the evidence adduced on theside of the prosecution (complainant). The respondent/accuseddenied them to be false and it was his further contention that thepromissory note and the cheque produced on the side of theappellant/complainant and marked as Ex.P1 and Ex.P2 respectivelywere the blank promissory note and blank cheque given as collateralsecurity for the amount borrowed from one Santha Lakshmi Finance inwhich the appellant/complainant as well as his brother Panchanathanwere partners and that the same were filled up in the name of theappellant/complainant and the present case was filed as a vexatiousone. The other contention of the respondent was that out ofRs.5,00,000/- borrowed from Santha Lakshmi Finance, Rs.3,00,000/-had been repaid on 14.11.1998 for which a receipt was issued byPanchanathan, the brother of the appellant/complainant and that thesaid receipt would clearly prove Ex.P2 cheque was one of the blank https://hcservices.ecourts.gov.in/hcservices/ cheques handed over by the respondent/accused to the said SanthaLakshmi Finance as collateral security. Six witnesses were examinedas DW1 to DW6 and four documents were marked as Ex.D1 to Ex.D4 onthe side of the respondent/accused.5. The learned Judicial Magistrate after hearing the argumentsadvanced on both sides, evaluated the evidence and came to theconclusion that the charge under Section 138 of the Act against therespondent/accused was not proved beyond reasonable doubt and hencepronounced a judgment acquitting the respondent/accused in respectof the said charge. Aggrieved by the said judgment of acquittal,the appellant/complainant has come forward with this criminalappeal with the leave of this Court obtained under Section 317(4)Cr.P.C.6. On the previous hearing date, the matter was adjourned atthe request of the learned counsel for the appellant as well as thelearned counsel for the respondent so as to give them a chance toexplore the possibility of arriving at a settlement. Today, thelearned counsel for the respondent/accused submitted that there wasno chance of settlement and hence this Court heard the argumentsadvanced on either side and also perused the materials available onrecord.7. The unsuccessful complainant before the learned JudicialMagistrate is the appellant in this criminal appeal. The complaintwas made for punishing the respondent/accused for the offencepunishable under Section 138 of the Act based on the contentionthat the respondent/accused borrowed a sum of Rs.5,00,000/- fromthe appellant/complainant on 16.11.1998 and after having failed topay any amount towards principal or interest choose to issue acheque on 21.07.1999 and the said cheque when presented forcollection was returned with an endorsement “account closed”. Thedefence plea raised by the respondent/accused before the lowercourt was that he never borrowed any amount from theappellant/complainant and the cheque in question marked as Ex.P2was not the one issued in favour of the appellant/complainant, muchless for the discharge of any debt due to him. On the other hand,it was the specific contention before the lower Court that theblank cheque handed over to Santha Lakshmi Finance at the time ofborrowing a sum of Rs.5,00,000/- had been filled up and misused toprosecute the respondent/accused as if he had issued the saidcheque in discharge of the debt due to the appellant/complainant. 8. The learned counsel for the appellant submitted that thatthe appellant had nothing to do with the Santha Lakshmi Finance and https://hcservices.ecourts.gov.in/hcservices/ that the transaction between the appellant and the respondent wasan entirely different one. The learned counsel for the appellantcontended further that Ex.D4 receipt allegedly issued byPanchanathan, the brother of the appellant/complainant in hiscapacity as partner of Santha Lakshmi Finance would not bind theappellant/complainant as he had no connection with the said financecompany. Per contra, the learned counsel for the respondent/accusedtook the Court through the evidence of PW1 who has candidlyadmitted that he was one of the Directors of Santha LakshmiFinance. In view of the said admission, the contention of thelearned counsel for the appellant/complainant that any receiptissued by Panchanathan on behalf of the Santha Lakshmi Finance willnot be binding upon the appellant becomes unsustainable anduntenable. However, the learned counsel for the appellant submittedan alternative argument to the effect that the transaction betweenthe respondent/accused and Santha Lakshmi Finance and thetransaction between the respondent/accused and the appellant as anindividual were two different unconnected transactions and thecheque in question was issued in respect of the transaction thatthe respondent had had with the appellant as an individual and notas partner or director of Santha Lakshmi Finance. The saidsubmission at the outset seems to be somewhat appealing. However,it becomes ineffective in the light of the fact that thedishonoured cheque marked as Ex.P2 is found to be one of thecheques issued as blank cheque as collateral security for the loanadvanced by Santha Lakshmi Finance. This is obvious form the oraland documentary evidence adduced on the said of therespondent/accused and more particularly the receipt issued byPanchanathan on behalf of the Santha Lakshmi Finance marked asEx.D4. 9. In Ex.D4 it has been clearly stated that therespondent/accused borrowed a sum of Rs.5,00,000/- from the saidfinance company out of which a sum of Rs.3,00,000/- was repaid on14.11.1998 and that whenever the balance amount would be paid, 10cheques of Lakshmi Vilas Bank bearing numbers 145825 to 145834would be returned along with the five blank promissory notes. Ex.A2cheque bears the number 145826. That itself will be enough to cometo the conclusion that the cheque in question was issued ascollateral security in favour of Santha Lakshmi Finance and thesame has been filled in the name of the appellant as if it wasissued for the discharge of the loan advanced by him in hisindividual capacity. Had the appellant come to the Court with thetrue facts that the amount was lent by the Finance company of whichhe was a partner and that as such the cheque was issued to him as apartner of the said Finance company in discharge of the said debt,there would have been some substance in the case of the appellant. https://hcservices.ecourts.gov.in/hcservices/ On the other hand, since the appellant has come forward with twoalternative theories: one to the effect that there was noconnection between himself and Santha Lakshmi Finance and the otherto the effect that though he was a partner/director in SanthaLakshmi Finance, the cheque was issued in entirely a differenttransaction between himself as an individual and therespondent/accused. Under the above mentioned circumstances, theevidence adduced on the side of the respondent/accused is not onlysufficient to rebut the presumptions under Sections 118 and 139 ofthe Act, but also sufficient to prove that the cheque was not atall issued to the appellant/complainant, much less for thedischarge of any debt due to him. This Court finds no defect orinfirmity either in the approach made by the learned JudicialMagistrate No.I, Tirupur or the conclusion arrived at by him. Thefinding of the learned Judicial Magistrate No.I, Tirupur to theeffect that the respondent/accused was not proved beyond reasonabledoubt to be guilty of the offence under Section 138 of theNegotiable Instruments Act cannot be termed either infirm ordefective. There is no ground, whatsoever, to interfere with thesame. This Court finds no merit in the appeal and the same deservesto be dismissed. Accordingly it is dismissed. jikrSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1. The Judicial Magistrate No.I, Tiruppur2. -do- Through The Chief Judicial Magistrate,Coimbatore.1 cc to Mr.J.Antony Jesus, Advocate, SR.103321 cc to Mr.S.Kolandasamy, Advocate, SR.9806kg (co)dv/5.3. Criminal Appeal No.526 of 2002