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2009(1) Bankmann 439 (Mad.)
MADRAS HIGH COURT
K. Mohan Ram, J.
Kalavally —Petitioner
versus
Parthasarathy —Respondent
Crl. Revision Case No. 267 of 2008 and M.P. No. of 2008
Decided on 14.10.2008
Counsel for the Parties:
For the Petitioner:Mr. K. Sakthivel and Mr. S. Vijaya Kumar, Advocate.
For the Respondent:Mr. V. Chandrakanthan, Advocate.
IMPORTANT POINT
Once the drawer of the cheque admits its execution, Section 139 of the Act merely raises a presumption that the negotiable instrument is supported by consideration but the existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act.
Headnote:Negotiable Instruments Act, 1881—Sections 118, 138 and 139—Dishonour of cheque—Presumption for valid consideration for issue of cheque—Cheque for Rs. 3,29,000/- was alleged to have been issued discharge of loan liability given in business transaction—Defence plea was that petitioner did not issue the cheque to respondent and some cheque had been stolen—Conviction by Courts below—Revision—Complainant had not stated on what date the sum of Rs. 3,00,000/- was advanced as loan and for what purpose it was advanced—No case of complainant if loan was acknowledged through any receipt or document—Specific case of petitioner that respondent was not a man of means but only used to help petitioner in her gas agency business—Trial Court recorded finding of guilt merely basing reliance on fact that accused admitted her signature in cheque and that inspite of demand notice had not repaid the cheque amount—Presumption which could be raised was that negotiable instrument was supported by consideration but existence of legally recoverable debt was not a matter of presumption, under Section 139 of the Act—Courts failed to consider the defence taken by accused or that accused had rebutted the legal presumption—Onus could be discharged by accused by preponderance of probabilities—Conviction was liable to be set aside. (Paras 24 to 37 and 41 to 45)
Result: Revision allowed.
K. Mohan Ram, J.—The petitioner in the above Criminal Revision is the accused in C.C. No.261 of 2004 on the file of the learned Judicial Magistrate No.1, Tiruvallur and the respondent herein is the complainant therein.
2. The petitioner faced trial for an offence under Section 138 of the Negotiable instruments Act (hereinafter referred to as ‘Act’) and he was found guilty and sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 5,000/- in default to undergo S.I. for one month and further directed to pay a sum of Rs. 3,29,000/ -being the cheque amount, as compensation to the complainant/respondent herein.
3. The case of the complainant/respondent herein is that the accused/petitioner herein was due Rs. 3,29,000 to the complainant in business transaction, when the respondent demanded the payment, the petitioner issued the cheque bearing No. 743152, dated 8.3.2004 drawn on Indian Overseas Bank, Nazarathpettai, Poonamallee for a sum of Rs. 3,29,000/- ; the cheque was presented for encashment on 11.3.2004; the same was returned unpaid with the endorsement “excess arrangement” on 15.3.2004; the respondent sent a legal notice, dated 29.3.2004 to the petitioner; though notice was received by the petitioner, neither there was any reply nor the cheque amount was paid and thereby, the petitioner has committed an offence punishable under Section 138 of the Act.
4. The defence taken by the petitioner herein was that she did not issue the cheque to the respondent herein; a number of cheques were stolen from her house and in respect of that already a police complaint has been lodged; the cheque said to have been issued in favour of the respondent is not supported by any consideration and the same was not issued by the petitioner.
The further case of the petitioner was that the petitioner’s husband was a Member of Parliament and belonging to a particular political party and the respondent also belongs to that political party and in that connection he used to come to the house of the petitioner; the petitioner was running a gas agency and the respondent was assisting her in the business also; the petitioner often used to visit Delhi and other places and used to leave signed blank cheques and utilising the confidence reposed on him, the respondent had stolen one such cheque leaf and filled up the same for a sum of Rs. 3,29,000/- and had presented the same for encashment; there was no business connection between the petitioner and the respondent and the petitioner had not obtained any loan as claimed by the respondent and the respondent is not a man of means and he had no resources to pay the huge amount of Rs. 3,00,000/-, as claimed by the respondent.
5. During the course of the trial, the respondent has been examined as P.W.1 and examined one Ram Prasad, who is the Manager of the Bank, as P.W.2 and marked Exts. P1 to P5 and on the side of the petitioner, three witnesses have been examined including the petitioner, who has .examined herself as D.W.3 and Exts. D1 and D2 have been marked.
6. The learned Counsel for the petitioner made the following submissions:
(a) Though both the Courts below have raised legal presumption under Section 139 of the Act in the light of the petitioner admitting her signature in Ext. P1 Cheque, such legal presumption has been rebutted by the petitioner by eliciting certain answers from P.W.1 in his cross- examination but also by going into the witness box as D.W.3 and by examining D.Ws.1 and 2, but such rebuttal evidence has not been properly considered by both the Courts below.
(b) The learned Counsel submitted that since the presumption raised against the petitioner had been rebutted by preponderance of probabilities, the Courts below ought to have held that the complainant/respondent herein had not discharged the burden of proof viz., the cheque Ext. P1 was issued by the petitioner in discharge of legally enforceable liability.
(c) The learned Counsel further submit
