both Crl.As.
Criminal Appeals filed against the judgment dated 29.10.1999 passed in C.C.Nos.133 of 1998 and 65 of 1999 respectively on the file of the learned District Munsif-cum-Judicial Magistrate, Paramathy.
In Crl.A.No.214 of 2000, the name of the appellant is Rasappan and in Crl.A.No.215 of 2000, the name of the appellant is P.Tamilmani. The respondent in both the cases is one and the same. The learned Judicial Magistrate, Paramathy, has acquitted the accused/respondent from the charge under Section 138 of the Negotiable Instruments Act in C.C.No.133 of 1998 and also in C.C.No.65 of 1999. Aggrieved by the said acquittals, Rasappan, who is the complainant in C.C.No.133 of 1998, has preferred the Crl.A.No.214 of 2000 and Tamilmani, who is the complainant in C.C.No.65 of 1999, has preferred the Crl.A.No.215 of 2000.
2. Mr.M.Nirmalkumar, the learned counsel appearing for the appellants and Mr.S.Ashokkumar, the learned Senior Counsel appearing for the accused/respondent in both the cases have agreed to hear both the appeals together and a common judgment to be delivered by this Court.
3. The case of the complainant in C.C.No.133 of 1998 is that the accused borrowed a loan of Rs.3,00,000/- on 10.01.1998 and issued a cheque on 11.09.1998 bearing No.812590 drawn on Lakshmi Vilas Bank, Tiruchengode for a sum of Rs.3,00,000/- towards the above said liability. When the cheque was presented in the bank, it was returned on 14.09.1998 for insufficient funds. On getting intimation on 15.09.1998, the complainant sent a notice through his lawyer to the accused on 19.09.1998. The accused received the said notice on 21.01.1998, but he has not paid the cheque amount and therefore, the complaint was filed by the complainant.
4. The case of the complainant Tamilmani in C.C.No.65 of 1999 is that the accused borrowed a loan of Rs.2,50,000/- on 05.12.1998 and issued a cheque on 07.01.1999 drawn on Lakshmi Vilas Bank, Tiruchengode for a sum of Rs.2,50,000/- towards the above said liability. When the cheque was presented by the complainant on 13.01.1999, it was returned on 23.01.1999 for the reason that the account was already closed. The complainant has sent a notice through his lawyer to the accused on 28.01.1999 and it was received by the accused on 30.01.1999, but he has not repaid the cheque amount and therefore, the complainant has filed the complaint against the accused.
5. In C.C.No.133 1998, the complainant himself was examined as P.W.1 and the Bank officials were examined as P.Ws.2 and 3 and eight exhibits were marked by the complainant. The accused was questioned under
Section 313 Cr.P.C. and after denying his complicity, one Ramasamy was examined as D.W.1 and seven documents were marked as defence exhibits.
6. In C.C.No.65 of 1999, the complainant himself was examined as P.W.1 and the Bank officials were examined as P.Ws.2 and 3 and 19 exhibits were marked by the complainant. The accused was questioned under
Section 313 Cr.P.C. and after denying his complicity, one Ramasamy was examined as D.W.1 and seven documents were marked as defence exhibits.
7. The Trial Court, after considering the evidence, acquitted the accused mainly on the ground that the complainants have not established that the accused had issued the cheques to discharge the liability to them.
8. According to the accused, he had not borrowed any loan from the appellants/complainants and one Kannammal wife of the accused entered into hire purchase agreement while purchasing a Maruthi van with M/s.Shanmuga Investments and at that time, the accused stood as surety for his wife and also he issued two blank cheques signed by him. The complainant Rasappan is the partner of the said M/s.Shanmuga Investments and he had misused both the cheques and filled up one cheque in his name and misused the other cheque in the name of the other complainant-Tamilmani, who is the employee of the said Rasappa.
9. Mr.M.Nirmalkumar, the learned counsel appearing for the appellants vehemently contended that under Negotiable Instruments Act, as per
Section 139, presumption is available in favour of the holder of the cheque and cheque was issued only towards the discharge of the liability. While so, the Trial Court ought to have convicted the accused, since no positive evidence has been let in by the defence to rebut the presumption available under
Section 139 of the Negotiable Instruments Act. Except the bald denial made by the accused while sending the reply notice, no other evidence has been let in by the defence. Further, Ramasamy, who is the Managing Partner of the M/s.Shanmuga Investments, has been examined as defence witness by the accused. It is not elicited in the chief examination by the accused that two cheques, which were subject matter of these two cases, were given as security by the accused for the loan obtained by his wife. D.W.1 also admitted in the cross examination that while entering into the hire purchase agreement, it was not the practice to receive the cheques as collateral security.
10. Mr.S.Ashokkumar, the learned Senior Counsel appearing for the accused submitted that the learned Magistrate had dealt with the evidence elaborately and has come to the conclusion that the liability of the accused towards the complainant has not been established. The accused had no dealings with the complainants and the signed blank cheques were given only to M/s.Shanmuga Investments and the complainant Rasappan, who is one of the partner in the said M/s.Shanmuga investment, misused those cheques. When the accused received notice in respect of the cheque No.852190, he had given reply under Ex.P.8 in detail and in the said reply itself, it was mentioned that two cheques were given to M/s.Shanmuga Investments. In spite of that, after some time, the complainant Rasappan misused the other cheque also through the employee of Shanmuga Investments Tamil Mani, who is the complainant in the other case. On receiving notice in respect of the cheque No.852191, the accused had also given a reply notice. The learned Senior Counsel further submitted that the presumption under
Section 139 of the Negotiable Instruments Act is rebuttable presumption and as such, the accused had denied his liability. After denying his liability, the complainants have not proved their case as the burden is shifted on them and the learned Magistrate has also given detailed reasons. The complainants did not have any account to show that they had money to give it as a loan to the accused. The learned Senior Counsel also relied on a decision of the Hon'ble Supreme Court reported in AIR 2000 Supreme Court 1325 (Krishna Janardhan Bhat Vs. Dattatraya G.Hegde).
11. This Court considered the submissions made by the learned counsel on either side and also perused the evidence of witnesses and other documents in both the cases.
12. The main ground urged by both parties is now on the question of liability of the accused towards the complainants. According to the complainant Rasappan-P.W.1 in C.C.No.133 of 1998 loan for a sum of Rs.3,00,000/- was given on 10.01.1998 to the accused. According to the complainant Tamilmani-P.W.1, in C.C.No.65 of 1999 on 05.12.1998, a sum of Rs.2,50,000/- was given as loan to the accused. According to P.W.1-Rasappan, though loan was given on 10.01.1998 on the basis of a promissory note said to have been executed by the accused, as the cheque was issued on 11.09.1998 by the accused, the promissory note has been returned to the complainant. This part of the evidence of P.W.1-Rasappan in chief examination is not so convincing to this Court. If he had given loan on the basis of promissory note, when the loan amount has not been repaid, it is not known as to why P.W.1 had returned the promissory note to the accused even though the cheque is issued towards the liability. P.W.1 though denying in the chief examination that no reply was sent by the accused after cross examination, in the re-examination, the reply notice Ex.P.8 has been marked by P.W.1 himself. In Ex.P.8 reply given by the accused, it has been clearly stated that two blank cheques were issued by the accused as security for the loan obtained by his wife from M/s.Shanmuga Investments. It is an admitted fact now that P.W.1 is a partner in the said M/s.Shanmuga Investments. The accused also denied his liability while he was questioned under
Section 313 Cr.P.C. and specifically stated that two cheques were given as security for the car loan obtained by his wife. Even thereafter the complainant has not strengthened his evidence regarding the liability of the accused to him.
13. P.W.1-Tamilmani in C.C.No.65 of 1999 has stated that the loan was given on 05.12.1998 and on receiving the loan amount, a cheque dated 07.01.1999 was issued by the accused. P.W.1 was cross examined and it was also suggested to him that he is working under Shanmugam, who is the partner in the M/s.Shanmuga Investments and he had no means to give a sum of Rs.2,50,000/- as a loan to the accused. After the cross examination, P.W.1-Tamilmani was again re-examined after few days. Even then, he could not show any material that he had cash of Rs.2,50,000/- to give it as a loan to the accused.
14. According to the complainant Rasappan, cheque was given on 11.09.1998. According to the complainant Tamilmani, cheque was given on 07.01.1999 and both the cheques were in consecutive number. The signatures in the both the cheques have been admitted by the accused. According to the accused, the cheques were filled up not by the accused. In Ex.P.1, marked in C.C.No.133 of 1998, the particulars of name, date and amount are in different ink and in Ex.P.1 marked in C.C.No.65 of 1999, those particulars have been typed. The Trial Court also has given various reasons to come to the conclusion that the cheques were not issued by the accused to the complainants towards their liability.
15. In the decision of the Hon'ble Supreme Court reported in AIR 2000 Supreme Court 1325 in paragraph No.34, it has been held as follows:-
"34. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by
Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
16. Keeping in view the above decision of the Hon'ble Supreme Court, this Court is of the opinion that the learned Magistrate has approached the case from the right angle and applied the legal principles in the facts situation of the cases. The reasons given by the Trial Court for acquitting the accused are sustainable. Therefore, both the appeals are dismissed.
jrl To The District Munsif-cum-Judicial Magistrate, Paramathy