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MADRAS HIGH COURT
M. Venugopal, J.
Subbarayulu —Appellant
versus
Lakshmanan —Respondent
A.S. No. 161 of 2003
Decided on 6.9.2011
Counsel for the Parties :
For the Appellant:Mr. V. Raghavachari , Advocate.
For the Respondent:Mr. D. Govinda Reddy, Advocate.
IMPORTANT POINT
Civil suit cannot affect launching of criminal proceedings.
Headnote:(i) Civil Procedure Code, 1908—Order 37 Rule 1—Negotiable Instruments Act, 1881—Section 138—Money suit—Suit decreed against appellant-defendant for sum of Rs.3,00,000—Cheque issued towards repayment of loan amount returned unpaid—If any cheque for discharge of any legally enforceable debt or other liability is dishonoured by Bank for want of funds and payment is not made by drawer inspite of a demand legal notice, it shall be a deemed criminal offence—However, if cheque is given by way of a gift or present and same is dishonoured by Bank, then maker of cheque is not liable for prosecution—A ‘Pay Order’ is a cheque within ambit of Section 138 of Negotiable Instruments Act and on dishonour of a ‘Pay Order’. Section 138 proceedings are competent in law—If an individual has initiated a civil suit for recovery of amount, then, he is not prevented from preferring complaint as per Section 138 of Negotiable Instruments Act, 1881 and Section 420 of Indian Penal Code—Enforcement of liability through competent Civil Court would not disentitle affected person from prosecuting offender for offence punishable under Section 138 of Negotiable Instruments Act—Appeal disposed of by directing Appellant/Defendant to pay Respondent/Plaintiff sum of Rs.3,00,000 together with 7.5% interest. (Paras 52, 53, 54, 67, 81 and 82)
(ii) Negotiable Instruments Act, 1881—Section 20—Blank instrument—A person in possession of a bill incomplete in any material particular had prima facie authority to fill the same and as such, he was an agent of person delivering blank instrument. (Para 55)
(iii) Civil Procedure Code, 1908—Section 34—Interest—Interest cannot be claimed as a matter of right unless Statute specifically provides it or provided for under specific terms of contract. (Para 78)
M. Venugopal, J.—The Appellant/Defendant had preferred this present Appeal as against the judgment and decree dated 1.10.2002 in OS No. 89 of 1999 passed by the Learned Additional Subordinate Judge, Virudhachalam.
2. The trial Court, on an appreciation of oral and documentary evidence available on record, while passing the Judgment in OS No. 89 of 1999 on 1.1.2002, had, inter alia, observed that on 15.8.1998 the Appellant/Defendant had received a sum of Rs.3,00,000 from the Respondent/Plaintiff towards loan and only after filling up the details like amount, date, had given the Ex. A1 Cheque and further held that as per written statement and exhibited through the evidence of DW1 to DW3, Ex.A1 Cheque dated 15.8.1998 was not given to the Respondent/Plaintiff by the Appellant/Defendant. Further, it decreed the suit in directing the Appellant/Defendant to pay the suit sum of Rs.3,13,500 together with future interest to the Respondent/Plaintiff together with costs.
3. Before the trial Court, in the main Suit, on behalf of the Respondent/Plaintiff, witness PW1 (Plaintiff) was examined and Exs. A.1 to A.5 were marked. On the side of the Appellant/Defendant, witnesses DW1 to DW4 were examined and Exs. B1 to B4 were marked. On the side of the Court, Ex. C1 was marked.
4. Being dissatisfied with the Judgment and Decree dated 1.10.1999 in OS No. 89 of 1999 passed by the trial Court, the Appellant/Defendant had projected this Appeal before this Court.
5. The Points that arise for determination in this Appeal are:
1. Whether the Appellant/Defendant received a sum of Rs.3,00,000 on 15.8.1998 from the Respondent/Plaintiff through Canara Bank Cheque bearing No. 458946 and handed over the same to the Respondent/Plaintiff ?
2. Whether the cheque dated 15.8.1998 was handed over to the Respondent/Plaintiff by the Appellant/Defendant based on the circumstances mentioned in the Written Statement?
The Contentions, Discussions and Findings on Point Nos. l and 2:
6. According to the Learned Counsel for the Appellant/Defendant, the trial Court ought to have appreciated that the Respondent/Plaintiff had no where withal to pay a sum of Rs.3,00,000 and the evidence also proved that there was no Debtor-Creditor relationship between the parties.
7. The Learned Counsel for the Appellant/Defendant urges before this Court that the specific case of the Appellant/Defendant is that he had not borrowed any sum and had not issued the cheques in discharge of any loan.
8. It is the further contention of the Learned Counsel for the Appellant/Defendant that one Ravichandran of Pudukuppam of Virudhachalam was not in good terms with the Appellant/Defendant and hence, there was a dispute between them and that the Respondent/Plaintiff intervened in the settlement process and only at that point of time, a blank cheque was obtained. Subsequently, no settlement was arrived at leaving the parties to settle the dispute among themselves, which could be proved by the evidence of DW2. Unfortunately, these aspects were not considered by the trial Court, which had resulted in miscarriage of justice.
9. The plea of the Appellant/Defendant is also to the effect that the Respondent/Plaintiff was inimically disposed of with him since he refused to sell his property.
10. According to the Learned Counsel for the Appellant/ Defendant, the trial Court should have seen that the cheque was dishonoured on 12.11.1998 and no notice was issued till 4.2.1999 and in fact, the cheque was presented on 4.2.1999 and only after its dishonour, a notice was issued as per Ex. A 4 Lawyer’s Notice dated 8.2.1999.
11. The Learned Counsel for the Appellant/Defendant projects an argument that the case of the Respondent/Plaintiff was that he had obtained the money by selling 6 acres of land and he admitted that he was not aware which land was sold to the Appellant/Defendant and further, he had not taken any documentary proof for advancing the loan and moreover, the very fact that when cheque was issued
