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2005(1) Bankmann 159
MADRAS HIGH COURT
R. Banumathi, J.
Rajendra Finance — Appellant
versus
S. Alosius Thairiyanatham
— Respondent
Criminal Appeal No. 682 of 1997
Decided on 30.11.2004
For the Appellant:Mr. S.N. Dhananjeyan, Counsel, Mr. Krishna-moorthy and Mr. A.C.K. Kathiravan, Advocates.
For the Respondent:Mr. K.M. Subramanian, Advocate.
IMPORTANT POINT
Failure to prove debt or liability entitles accused to acquittal.
Headnote:Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Appeal against acquittal—To attract liability under Section 138 existing debt or liability is to be proved—Accused alleged to have taken loan and executed joint promissory note alongwith his brothers and sister—Demand between 1990 and 1995 or acknowledgement of debt not produced to show subsistence of debt—Complainant also failed to show the circumstances under which demand was made after a lapse of five years—Penal provisions of Section 138 of Negotiable Instruments Act not attracted—Order of trial court does not warrant any interference.
Held: To attract the liability under Section 138, Negotiable Instruments Act, “existing debt or liability” is to be proved. Admittedly, the debt is of the year 1990. Existing debt or subsisting liability of the accused is not proved by the complainant. The demand between 1990 and 1995 or acknowledgement of the debt has not been produced to show the subsistence of the debt. Since the Complainant has not proved the existing debt or liability, learned Trial Magistrate held that the penal provisions of Section 138, Negotiable Instruments Act would not be attracted. It is also to be pointed out that Ex.P.5–Promissory Note has been jointly executed by the accused and his brothers–S. Alousius, S. Gerard, S. Eugene, S. Edwin and S. Maria Josphine. Thus, the liability of the accused arising under Ex.P.5–Promissory Note is a joint liability along with his brothers and sister. While so, the liability arising under Ex. P. 5 cannot be solely attributed to the respondent/accused. The complainant has also not clearly stated the circumstances under which the demand was made after a lapse of five years and the circumstances under which Ex. P-1–Cheque was issued. (Para 9)
Result: Appeal dismissed.
R. Banumathi, J.:—This Appeal is directed against the Judgment of acquittal (dated 14.2.1997) by the VII Metropolitan Magistrate, Chennai, acquitting the Respondent/Accused for the offence under Section 138, Negotiable Instruments Act in C.C. No .2803 of 1995.
2. The Complainant is M/s. Rajendra Finance, said to be represented by its Power of Attorney Nandagopal. Case of complainant is that the accused had taken loan of Rs. 15,000/- on 8.1.1990 by way of a cheque bearing No. 784871, for the discharge of the same, the accused, his brothers and sister had executed a Joint Promissory Note in favour of the complainant and promised to repay the same with interest. Despite repeated requests and demands, no amount was discharged. After five years, the accused issued Cheque No. 509019 dated 20.2.1995 for an amount of Rs. 24,926/- drawn on “Punjab National Bank Ltd.”, Rajaji Road, Madras in favour of the complainant and that the accused had also made oral promise to the complainant that necessary arrangements would be made to honour the cheque. On such representation of the accused, the complainant had presented the cheque for collection through his Banker—Indian Overseas Bank on 5.4.1995 for encashment and the same was returned unpaid due to “insufficient funds” in the bank account of the accused. The complainant had issued Ex.P.7—Notice on 12.4.1995 calling upon the accused to discharge the entire cheque amount of Rs. 24,926/- Ex. P.7—Notice was acknowledged by the accused under Ex. P.8—Acknowledgement. But, no amount was forthcoming. Alleging that the accused had knowingly issued the cheque for want of sufficient funds in his bank account and that the accused had committed the offence under Section 138 Negotiable Instruments Act (hereinafter referred to as Negotiable Instruments Act:), the complainant has filed the complaint.
3. To substantiate the averments in the complaint and to establish the guilt of the accused, before the Trial Court, P.Ws. 1–Bank Manager of Punjab National Bank—Banker of the accused, P.W.2—Lakshmi Narayanan—Power of Attorney of the Complainant Finance Firm have been examined. Exs. P.1 to P.8 were marked. The accused was questioned under Section 313, Crl. P.C about the incriminating circumstances and evidence. Denying the issuance of the cheque, the accused has stated that a false case has been foisted against him. In consideration of the evidence adduced by the complainant, the Trial Court acquitted the respondent/accused inter alia on the grounds that
(i)Nandagopal, who filed the complaint on behalf of the complainant M/s. Rajendra Finance has not been properly authorised;
(ii)P.W.2 is made to represent under Ex.P.4–Power of Attorney at the later stage and that the complainant has not been properly represented;
(iii)Promissory Note is of the year 1990 and that the cheque was issued in 1995, that there is no existing debt or liability in lieu of which the cheque could have been issued.
On the above reasonings, finding that the guilt of the accused has not been proved beyond reasonable doubt, learned Magistrate has acquitted the accused.
4. Aggrieved over the acquittal, the complainant has preferred this appeal. On behalf of the complainant, it is contended that once the issuance of cheque and dishonour of cheque is proved, the burden shifts to the accused to disprove the same. The finding of the Trial Court that the complainant–M/s. Rajendra Finance has not properly authorised Mr. Nanda-gopal is assailed contending that the non-filing of Power of Attorney at the time of filing of the complaint has been cured later and the accused has not taken any objection for the same at the pre-trial stage.
5. Respondent/accused was represented by the Counsel Mr. K.M. Subramanian. Heard.
6. From the submissions of the appellant/complainant, Judgment of the Trial Court and perusal of other materials on record, the point that arises for consideration is whether the Order of acquittal suffers from any serious infirmi
