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SUPREME COURT OF INDIA
HIMA KOHLI, AHSANUDDIN AMANULLAH, JJ.
Sri Sujies Benefit Funds Limited – Appellant
Versus
M. Jaganathuan – Respondent
Criminal Appeal No. 3369 of 2024 [@ special leave petition (CRL.) NO.4022 OF 2022]
Decided On : 13-08-2024
Negotiable Instruments Act, 1881 – Section 138 – Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003 – Dishonour of cheque – Endorsement ‘Account Closed’ – Chit-Fund business – Neither in Pronotes nor in Statement of Accounts, principal amount has been disputed and amount arrived at, as reflected in cheque whether it is in respect of 1.8% interest or 3% interest per month cannot be given undue importance – Fact that cheque was issued as a consequence of failure to repay loan taken by respondent from appellant to which interest was added would more or less settle the issue – If rate of interest of 3% instead of 1.8% per month has been added on principal amount and amount in cheques reflects the same, it cannot be said that cheques were not for repayment of principal amount – Closure of bank accounts within a few weeks of issuance of cheque raises serious questions about conduct and intent of respondent – Trial Court has meticulously gone into each and every issue while holding in favour of appellant and Appellate Court as also High Court have only gone by scrutiny of interest amount mentioned on Pronote and effected in Statement of Accounts of appellant – This is erroneous and cannot be sustained – If parties amongst themselves, agreed to a rate which is not in conformity with Tamil Nadu Act, it was for respondent to raise objection or move appropriate forum for getting the same corrected – Having issued Pronotes, he cannot now take a plea in these collateral proceedings under N.I. Act to contend that rate of interest was more than what was permissible under Tamil Nadu Act – Respondent directed to pay fine amounting to one and a half (1½) times amount mentioned in cheque. (Paras 15, 16, 17 and 18)
Facts of the case:
Present appeal arises out of Final Judgment dated 29.01.2020, passed by Single Judge of High Court of Judicature at Madras in Criminal Appeal No.582/ 2012, whereby appeal filed by appellant was dismissed and Judgment dated 20.06.2012 of Additional District and Sessions Judge, Coimbatore in Criminal Appeal No.186/2010, was upheld.
Findings of Court:
Respondent is held liable to pay an amount of Rs.28,50,000/- . Further, as has been averred by respondent in his compliance affidavit that he is 86 years old and living with his wife who is also advanced in age and without issue, sentence of imprisonment is waived, however, subject to payment, in terms of present judgment within eight months from today, failing which such sentence of simple imprisonment for one year shall stand revived.
Result : Appeal allowed
प्रतिवादी को ₹28,50,000/- की राशि का भुगतान करने का आदेश दिया गया है। साथ ही, प्रतिवादी ने अपनी अनुपालन हलफनामे में उल्लेख किया है कि उसकी उम्र 86 वर्ष है और वह अपनी पत्नी के साथ रहता है, जो भी वृद्ध है, और उसके कोई संतान नहीं है। इस कारण, सजा-ए-मौत को माफ कर दिया गया है, लेकिन शर्त यह है कि वह इस निर्णय के अनुसार आठ महीनों के भीतर भुगतान कर दे, यदि ऐसा नहीं किया तो एक वर्ष की सादा सजा फिर से लागू हो जाएगी।
JUDGMENT :
AHSANUDDIN AMANULLAH, J.
Heard Mr B. Ragunath, learned counsel for the appellant and Mr. S. Nagamuthu, learned senior counsel for the respondent.
2. Leave granted.
3. The present appeal arises out of the Final Judgment dated 29.01.2020 (hereinafter referred to as the “impugned judgment”), passed by the learned Single Judge of the High Court of Judicature at Madras (hereinafter referred to as the “High Court”) in Criminal Appeal No.582/ 2012, whereby the appeal filed by the appellant was dismissed and the judgment dated 20.06.2012 of the Vth Additional District and Sessions Judge, Coimbatore (hereinafter referred to as the “Appellate Court”) in Criminal Appeal No.186/2010, was upheld.
BRIEF FACTS:
4. The sole Respondent (hereinafter also referred to as the “accused”), being a subscriber of the Appellant-chitfund company (hereinafter also referred to as the “complainant”), borrowed loan amounts on several dates from the Appellant over a period of about two years which swelled to a sum of Rs.21,09,000/-(Rupees Twenty One Lakhs and Nine Thousand) including interest, after eight years. The loans were advanced in the following manner: Rs.1,50,000/-(Rupees One Lakh and Fifty Thousand) was given on 09.03.1995; Rs.6,00,000/-(Rupees Six Lakhs) on 29.12.1995; Rs.1,00,000/-(Rupees One Lakh) on 22.03.1995; Rs.3,00,000/-(Rupees Three Lakhs) on 11.03.1996; Rs.1,00,000/-(Rupees One Lakh) on 09.04.1997; and finally, Rs.2,00,000/-(Rupees Two Lakhs) on 24.04.1997. In order to partly discharge the aforesaid loan amounts, Cheque No.0150573 dated 03.02.2003 was issued by the accused for a sum of Rs.19,00,000/- (Rupees Nineteen Lakhs) in favour of the complainant drawn on Indian Overseas Bank, District Court Extension Counter, Coimbatore. The complainant, on 04.02.2003, presented the cheque in Bank of India, Kurichi Industrial Estate Branch, Coimbatore which came to be returned on 05.02.2003 with the endorsement ‘Account Closed’. Thereafter, a statutory notice was issued by the complainant on 20.02.2003, reply to which was issued by the accused on 27.02.2003 repudiating the debt. Aggrieved, the complainant filed C.C.No.379/2003 before the Judicial Magistrate Court No.VII, Coimbatore (hereinafter referred to as the “Trial Court”) for the offence under Section 1381[‘138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either be cause of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless—
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 69[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
Explanation.—For the purposes of this section, “debt or other liability” means a legally enforceable debt or
Dishonour of cheque – Closure of bank accounts within a few weeks of issuance of cheque raises serious questions about conduct and intent of respondent.
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The presumption under Section 139 of the Negotiable Instruments Act is rebuttable, and the accused must raise a probable defense to contest the existence of a legally enforceable debt.
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A negotiable instrument, which includes a cheque, carries presumption of consideration under Sections 118(a) and 139 of N.I Act.
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