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MADRAS HIGH COURT
M.V. Muralidaran, J.
P. Surya Narayana Murthy —Appellant
versus
K. Senthil Nathan Director
of Devi Hospital —Respondent
Criminal Appeal No.610 of 2007
Decided on 21.1.2019
Negotiable Instruments Act, 1881 – Section 138 – Dishonour of cheque – Acquittal by lower Appellate Court – Presumption contained in Section 139 of N.I. Act is rebuttable one – It can be rebutted either by direct evidence or by attendant circumstances – Complainant has to prove that cheque which bounced was issued for discharging a debt or legal liability in whole or in part – Penal provision of Section 138 of N.I. Act could be attracted only when complainant proves that cheque in question was issued for discharge in whole or in part of any debt or other liability – Complainant had received a blank signed cheque as a security for the purpose of contract work to accused and said cheque was misused by complainant – Failing to prove debt or legally enforceable liability on part of accused satisfactorily, appellant had not made out offence against respondent/accused – When appellant/complainant was not forthcoming with definite evidence, penal provisions would not be attracted – Dishonour of cheque issued in consideration of future liability would not constitute offence under Section 138 of N.I. Act – Appeal dismissed. (Paras 17 to 20)
Result: Appeal dismissed.
JUDGMENT
M.V. Muralidaran, J.—This Criminal Appeal is filed against the order of acquittal passed by the learned Vth Additional Sessions Court, Chennai in C.A.No.66 of 2005 dated 10.11.2005, wherein the learned Lower Additional Sessions Judge reversed the finding of the learned XIVth Metropolitan Magistrate, Egmore, Chennai in C.C.No.8364 of 2002 dated 14.12.2005.
2. Brief case of the Appellant
On 16.5.2002 an agreement was entered between the appellant/complainant and the respondent/accused for promotion and advertisement of the respondent/ accused Hospital Industry as an official Medical Partner in the promotional and advertising event conducted by the appellants company on 7.6.2002 at Image Auditorium Chennai and thereby the respondent/accused placed the purchase order in advance to the appellant on 21.5.2002. As such the respondent/accused owes an amount of Rs.50,000/- to the appellant and Rs.40,000/- as advance and Rs.10,000/- was agreed to be paid on the date of event. In order to discharge the liability the respondent /accused issued a cheque bearing No.509168 dated 21.2.2001 for Rs.40,000/- drawn on Indian Bank. Asiad Colony Branch, Chennai. The appellant presented the above said cheque through his Banker viz, Andhra Bank, Anna Nagar Branch, Chennai for realization on 3.6.2002 and the same was returned with an endorsement “Payment stopped by the drawer” on 4.6.2002.Therefore the appellant issued a statutory notice dated 15.6.2002 through his counsel under section 138 of Negotiable Instrument Act and the same was received by the respondent/accused and failed to pay the above said cheque amount within the stipulated time and issued reply notice received on 6.7.2002. The appellant/ complainant filed the complaint before the learned XVI Metropolitan Magistrate, Egmore, Chennai in C.C.No.8364 of 2002. During trial the appellant/complainant examined himself as PW1 and marked Exhibits-P1 to P6. The respondent/accused examined himself as DW1 marked Exhibits-D1 to D9. On completion of the trial the learned trial judge convicted and sentenced the respondent /accused to undergo simple imprisonment for a period of six months and to pay a compensation of Rs.40,000/- within a period of 2 months in default to undergo simple imprisonment for a period of 2 months.
3. The respondent/accused preferred the appeal against his conviction under Section 138 of Negotiable Instrument Act before the learned Vth Additional Sessions Judge, in Criminal Appeal Number 66 of 2005.
4. The learned lower appellate Court on appreciating the evidence of both parties acquitted the respondent/accused and set aside the order passed in C.C.No.8364 of 2002 dated 14.2.2005.Hence this appeal.
5. Rival Submissions:
The learned counsel for the appellant submits that it is admitted fact that the entire transaction is vouched by a written agreement at the very initial stage, which clearly admits previous consent of the both the parties to conduct the advertisement program.
6. The learned counsel for the appellant submits that the Appellate Court failed to take note of the fact that there was a legally enforceable liability on the part of the appellant/ accused is clearly established by the documents and through evidence let in before the trial Court.
7. The learned counsel for the appellant submits that the Appellate Court failed to take note of the fact that the respondent has curiously and conveniently taken the stand of Stop Payment after the fulfillment of the terms and conditions expressed in the agreement clearly reveals the dishonest intention of him.
8. The learned counsel for the appellant submits that Appellate Court failed to negate the version of the appellant/ accused that one Ramanarayan received the cheque amount on behalf of the complainant company as utter falsehood and concocted imagination of the respondent.
9. The learned counsel for the appellant submits that the Appellate Court failed to take note of the fact that no authorization letter or iden
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