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2011 Supreme(Mad) 1655
2011 (2) MWN (Cr) DCC 18
High Court of Judicature at Madras
R. MALA
R. Raju
Versus
K. Sivasamy
Crl.R.C.No.1433 of 2007
Decided on : 23-03-2011
For the Petitioner:S. Thiruvengadam, Advocate. For the Respondent:V. Sai Ram, Advocate.
The presumption under Sections 118 and 139 of the Negotiable Instruments Act is rebuttable, and the burden of proof lies on the accused to show a valid discharge of consideration for the issued cheque.
Headnote:
Negotiable Instruments Act - Conviction under Section 138 - 138 - The court discussed the issuance of the cheque, rebuttal of presumption under Sections 118 and 139, burden of proof, and the sufficiency of evidence. The court found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act.
Fact of the Case:
The accused was convicted for the offence under Section 138 of the Negotiable Instruments Act for issuing a cheque that was returned due to insufficiency of funds and not repaying the amount after receiving a statutory notice.
Finding of the Court:
The court found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act based on the evidence of cheque issuance, dishonor, receipt of statutory notice, and failure to repay the amount.
Issues: The main issue was whether the accused was guilty of the offence under Section 138 of the Negotiable Instruments Act.
Ratio Decidendi: The court held that the presumption under Sections 118 and 139 of the Negotiable Instruments Act is rebuttable and must be concrete and convincing. The burden of proof was on the accused to show that the cheque was issued for a valid consideration, which was not discharged.
Final Decision: The Criminal Revision Case was dismissed, and the conviction and sentence imposed on the accused were confirmed.
1. The Crl.R.C. is filed against the judgment dated 13.8.2007 in Crl.A.No.524 of 2006 on the file of the Additional Sessions Court-cum-Fast Track Court No.2, Coimbatore, confirming the judgment dated 21.11.2006 in C.C.No.202 of 2004 on the file of the Judicial Magistrate No.2, Pollachi, whereby the revision petitioner/accused was convicted for the offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo one year simple imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for three months.
2. The respondent as a complainant, filed a complaint under Section 138 of the Negotiable Instruments Act; the revision petitioner/accused borrowed Rs.3 lakhs on 20.11.2002 and executed a Promissory Note and for discharging the same, he paid interest @ Rs.30,000/- in cash and issued cheque for Rs.3 lakhs on 12.12.2003, i.e. Ex.P-2, which was presented for encashment and that has been returned as evidenced by Ex.P-3; statutory notice had been issued under Ex.P-4, which has been received by the petitioner/accused under Ex.P-5; after receipt of the notice, the revision petitioner/accused neither sent a reply nor repaid the amount to the respondent/complainant, and hence, the respondent preferred the complaint.
3. The trial Court after following the procedures and since the revision petitioner/accused pleaded not guilty, examined P.Ws.1 and 2 and marked Exs.P-1 to P-6 and found the revision petitioner/accused guilty of the offence under Section 138 of the Negotiable Instruments Act and convicted and sentenced him as stated above.
4. Challenging the said judgment of the trial Court, the revision petitioner/accused preferred Crl.A.No.524 of 2006, and the learned appellate Judge confirmed the conviction and sentence passed by the trial Court, against which, the present Crl.R.C. has been filed by the revision petitioner/accused.
5. Challenging the conviction and sentence passed by both the Courts below, learned counsel appearing for the revision petitioner/accused submitted that the Bank of Madura merged with ICICI Bank in 2000, whereas Ex.P-2 cheque was alleged to have been issued on 12.12.2003. In the year 2000, the revision petitioner-accused borrowed by loan an amount of Rs.75,000/-, which has already been discharged, and the same is accepted by P.W.1 complainant while he was in the box and so, Ex.P-2 cheque is not supported by any consideration, and it has been fabricated for the purpose of the case, and hence, he prayed for allowing the Crl.R.C. and to set aside the conviction and sentence passed by the Courts below.
6. Repudiating the said contentions, learned counsel for the respondent/complainant submitted that it is true that there was previous transaction between the revision petitioner and the respondent and while P.W.1 complainant was in the witness box, he fairly conceded that he lent Rs.75,000/- which was discharged. He further submitted that as soon as the cheque has been dishonoured, the statutory notice under Ex.P-4 was issued and that has been received by the revision petitioner/accused under Ex.P-5 acknowledgement card and he neither gave any reply nor he got into the box rebutting the presumption under Section 139 of the Negotiable Instruments Act and so, both the Courts below have considered this aspect in proper perspective and found the revision petitioner/accused guilty of the offence under Section 138 of the Negotiable Instruments Act. He further submitted that the conviction and sentence passed by the Courts below do not suffer from any irregularity or illegality and he prayed for dismissal of the Crl.R.C.
7. Considering the rival submissions made by both sides, it is seen that the issuance of cheque Ex.P-2 is accepted by the revision petitioner/accused and his defence is that he issued the same only when he borrowed Rs.75,000/- from the respondent/complainant in 2000. The presumption under Sections 118 and 139 of the Negotiable Instruments Act, is re
