The unsuccessful private complainant is the appellant herein. He has filed this Criminal Appeal against the judgment passed by the learned Judicial Magistrate No.IV, Tirunelveli, Tirunelveli District in S.T.C.No.4250 of 2007, dated 02.06.2009, wherein the accused was ordered for acquittal.
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2.The case of the private complainant before the learned Judicial Magistrate No.IV, Tirunelveli, Tirunelveli District is that the respondent herein has borrowed a sum of Rs.1,00,000/- from the appellant on 27.05.2007 and to clear the debts, the respondent has issued the cheque dated 25.07.2007 payable at Lakshmi Vilas Bank for Rs.1,00,000/-. On 08.08.2007, the cheque has been presented for collection and the same has been dishonored on the ground that funds insufficient. Subsequently, the appellant has filed this complaint.
3.Before the trial Court, the private complainant has examined himself as P.W.1 and marked Exs.P.1 to P.6 and the accused has examined herself as D.W.1 and examined one Ambalavanan as D.W.2 and marked Exs.D.1 and D.2.
4.On consideration of both oral and documentary evidence, the trial Court has ordered for acquittal. Aggrieved against the said order of acquittal, the private complainant has approached this Court by way of filing this Criminal Appeal.
5.According to the learned counsel appearing for the appellant, the evidence of P.W.1 clearly lends support to the case of http://www.judis.nic.in 3 the private complainant that the respondent / accused has borrowed a sum of Rs.1,00,000/- and issued a cheque in issue and his evidence has also corroborated by P.W.2. However, the trial Court has erroneously accepted the case of the accused and believed the evidence of D.W.1 and D.W.,2 and rejected the case of the private complainant. Therefore, he seeks to set aside the same.
6.Per contra, the learned counsel appearing for the respondent would contend that the suggestive case of the defence is that there is a chit transaction between the accused D.W.1 and one Vallinayagam and she had issued a cheque for security to the said Vallinayagam and she has specifically stated that she did not know the appellant at any point of time. To prove the suggestive case, she examined one Ambalavanan as D.W.2, who is none other than her brother.
7.The appellant / private complainant has come forward with the specific case that for meeting the family expenses, the accused has borrowed a sum of Rs.1,00,000/- from P.W.1 on 27.05.2007 and executed Ex.P.1 cheque and on presentation, the same was bounced. After issuing Ex.P.3 legal notice, the private complaint has been filed. http://www.judis.nic.in 4
8.The suggestive case of the accused is that she did not know the private complainant herein and she had chit fund transaction with one Vallinayagam. For the cheque amount, she had given the cheque by way of surety and after knowing that the said Vallinayagam has closed the chit fund, she has also lodged a complaint before the Commissioner of Police.
9.It appears from the Lower Court records that the trial Court has rendered categorical finding that for evidencing the payment of Rs.1,00,000/- as a hand loan on 27.05.2007, no document has been obtained from the accused and the signature in the cheque in issue is found in a different ink and other contents of the cheque were written in a different ink and furthermore, it is the specific evidence of P.W.1 that the elder brother of the accused knows about the transaction. After the answer given by P.W.1 in the cross-examination, the accused examined her elder brother as D.W.2, who had supported the case of the accused and denied the acquaintance of P.W.1, which also assumes significance.
10.The learned counsel appearing for the respondent draw my attention to the answer elicited in the cross-examination of P.W.1, which is extracted hereunder:-
http://www.judis.nic.in 5 “vd;Dila nrhe;j tUkhdj;jpypUe;J jhd; vjphpf;F ehd; fld; nfhLj;Njd;. vd; kidtp ve;jNtiyAk; ghh;f;ftpy;iy. vd; khj tUkhdk; Fwpg;gpl;L nrhy;yKbahJ. vdf;F Mz;L tUkhdk; nrhy;y KbahJ. ehd; ve;j NtiyAk; nra;atpy;iy vd;gjhy; jhd; vd;Dila tUkhdj;ij Fwpg;gpl;L nrhy;yKbatpy;;iy vd;why; rhpay;y. ehd; tUkhd thp nrYj;jtpy;iy.
...vjphp mtuJ rNfhjuh; mk;gythzd; %ykhf jhd; vdf;F njhpAk;. vjphpapDila FLk;g tptuk; vdf;F njhpahJ.
....ehd; vjphpf;F mk;gythzd; Kd;dpiyapy; jhd; nfhLj;Njd;. Nkw;gb mk;gythzd; Kd;dpiyapy; fld; nfhLf;fg;gl;lJ vd;w tpguj;ij ehd; vd;Dila Gfhh; kDtpYk;> tof;fwpQh; mwptpg;gpYk; nrhy;ytpy;iy.
...ehd; vjphpf;F fld; nfhLj;j Njjpapy; flDWjp rPl;Nlh> fhNrhiyNah ngwtpy;iy.
ikapYk;> ngah; njhif NtW ikapYk; vOjg;gl;bUf;fpwJ.
...mt;thW Vyr;rPl;bw;fhf nfhLf;fg;gl;l fhNrhiyia ts;spehafk; vd;gth; %ykhf vd;dplk; nfhLf;fg;gl;L> ehd; ngah;> tpyhrq;fis g+h;j;jp nra;J ,e;j tof;if jhf;fy; nra;Js;Nsd; vd;why; rhpay;y.
... ehd; eif njhopy; %ykhf jhd; Nkw;gb njhifia http://www.judis.nic.in 6 Nrkpj;J itj;Njd; vd;gij fhl;Ltjw;F eiffis tpw;gid nra;tjw;fhd ve;j MtzKk; vd;dplk; ,y;iy.”
11.It remains to be stated that in view of the answer elicited in the cross-examination of P.W.1 that though P.W.1 claimed to have engaged in the gold smith profession, he refused to advance or produce any document to support his version. Thereafter, when the accused has categorically taken a stand that P.W.1 has not a man of means to lend a sum of Rs.1,00,000/-, he refused to disclose his monthly income and he has also stated that he never paid income tax return and he has specifically admitted that through the elder brother of the accused, he came to know the accused. However, the elder brother of the accused when examined as D.W.2 has categorically disputed the statement. Furthermore, with regard to the payment of hand loan of Rs.1,00,000/- being consideration of Ex.P.1 cheque, P.W. 1 has categorically stated in the cross-examination that in the presence of the said Ambalavanan, D.W.2 he had given money to the accused. However, in further cross-examination, he had categorically stated that he never whispered any such averment with regard to the presence of D.W.2 at the time of handing over the hand loan with the accused neither in the petition nor in the legal notice, which goes against the complainant. The trial Court has given a categorical finding that in view of the evidence of P.W.1 in the cross examination, http://www.judis.nic.in 7 his evidence suffers from embellishment amounting to material contradiction on the material factum of passing of consideration for Ex.P.1 complaint and accordingly, disbelieved the evidence of P.W.1.
12.On re-appreciation of the evidence of P.W.1 and on combined reading of P.W.1 both chief and cross-examination as extracted above, this Court finds that the statement of P.W.1 that he has not received any document evidencing such payment and he has not filed any income tax return and he has also refused to disclose his monthly income though he involved in gold smith business and he also refused to disclose the income of his wife, if any and also stated that he is not in a position to show that he was engaged in gold smith business in order to maintain any document to show that he has effected the sale of gold smith and earn money.
13.Based upon the answer elicited in the cross-examination of P.W.1, as extracted supra, this Court finds that the possession of sufficient money in respect of P.W.1 for payment of consideration of Ex.P.1 cheque and also the fact that it cause serious doubt in the mind of this Court as to whether any pre-existing liability was there in support of Ex.P.1, are found to be doubtful. Admittedly, the accused http://www.judis.nic.in 8 has admitted her signature in the cheque, consequently, by operation of law, P.W.1 is entitled for presumption under
Section 139 of the Negotiable Instruments Act. Such presumption is only rebuttable presumption. In order to substantiate the suggestive case of the defence, the defence has successfully elicited in the cross-examination, as extracted supra to the extent that P.W.1 is not a man of means and he did not conduct any business as claimed by him and there is no document evidencing any business transaction as stated by him as a gold smith and there is no document or any acceptable evidence to show that he possessed sufficient means to pay the amount and there is no document to show that there was pre-existing legally enforceable debt between P.W.1 and the accused.
14.Thus, this Court finds that the accused has probabilised her suggestive case to the level of preponderance of probabilities and thus, she has rebutted such statutory presumption and in the absence of any evidence to show that there was pre-existing legally enforceable debt between the parties, the order of acquittal passed by the trial Court on different grounds, as discussed supra, is hereby confirmed.
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15.In this view of the matter, this Criminal Appeal is devoid of merits and accordingly, it is dismissed. Therefore, the order of acquittal passed by the learned Judicial Magistrate No.IV, Tirunelveli, Tirunelveli District in S.T.C.No.4250 of 2007, dated 02.06.2009, is hereby confirmed.
29.01.2019 Index: Yes / No Internet: Yes / No Myr To
1.The Judicial Magistrate No.IV, Tirunelveli, Tirunelveli District.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 10 RMT. TEEKAA RAMAN, J.
Myr Pre-Delivery Order made in CRL.A.(MD)No.201 of 2009 29.01.2019 http://www.judis.nic.in