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2015 Supreme(Mad) 937
HIGH COURT OF JUDICATURE AT MADRAS
R. MALA, J.
V.P. Sakhariya - Appellant
Versus
V. Abdul Azeez - Respondent
Criminal Appeal No. 581 of 2005
Decided on: 18-02-2015
Advocate Appeared:
For the Petitioner:R. Natarajan, Advocate.
For the Respondent:C.D. Johnson, Advocate.
The complaint under Section 138 of the Negotiable Instruments Act is not maintainable without impleading all necessary parties and without a legally subsisting liability at the time of issuance of the cheque.
Headnote:
Section 138 of the Negotiable Instruments Act, 1881 - Offences by companies. Section 139 of the Negotiable Instruments Act, 1881 - Presumption in favor of holder. Section 141 of the Negotiable Instruments Act, 1881 - Offences by companies. The Court considered these sections in relation to the arguments made by the appellant and the evidence presented in the case. The Court found that the complaint was not maintainable without impleading all necessary parties and that there was no legally subsisting liability at the time of issuance of the cheque.
Fact of the Case:
The appellant challenges the judgment of acquittal passed by the Trial Court in a case under Section 138 of the Negotiable Instruments Act. The appellant alleges that the respondent issued a cheque without sufficient funds. The Trial Court acquitted the respondent, and the appellant has filed an appeal against this judgment.
Finding of the Court:
The appellant argues that the issuance of the cheque entitles them to invoke the presumption under Section 118 and 139 of the Negotiable Instruments Act. They also argue that filing a complaint under IPC does not amount to double jeopardy. The appellant further argues that even stop payment instructions for a post-dated cheque would attract Section 138 of the Act. The Trial Court acquitted the respondent on the grounds that the complaint was not maintainable without impleading all necessary parties and that there was no legally subsisting liability at the time of issuance of the cheque. The Court also considered the evidence of both parties and found no perversity in the judgment of acquittal.
Ratio Decidendi: The Court confirms the judgment of acquittal passed by the Trial Court. The Court holds that the complaint is not maintainable without impleading all necessary parties and that there was no legally subsisting liability at the time of issuance of the cheque. The Court also finds no perversity in the judgment of acquittal.
Result: The Criminal Appeal is dismissed. The judgment of acquittal is confirmed.
1. The complainant as an appellant challenging the judgment of acquittal passed by the learned Judicial Magistrate (Sub-Judge) at Mahe in C.C.No.47 of 2004 on 12.05.2005 acquitting the respondent/accused from charges under Section 138 of Negotiable Instruments Act, 1881 has preferred the present appeal.
2. The learned counsel for the appellant/complainant would submit that the appellant and the respondent entered into an agreement/Ex.D.2, dated 20.02.2003 by which the appellant agreed to invest a sum of Rs.6,00,000/- (Rupees Six Lakhs Only) in the business venture and the respondent/accused agreed to pay 35% of the profit within one year and if the business runs in loss, the respondent/accused agreed to return the money invested by the appellant with 22% interest. On the very same date of execution of the agreement, the respondent/accused issued Ex.P.1/Cheque for a sum of Rs.7,32,000/- without filling the date. Since the respondent/accused did not pay any money even after the time specified in the agreement, the appellant/complainant filled up the date and presented the Ex.P.1/Cheque for encashment. However, the said cheque was returned as 'insufficient funds'. The memo issued by the Union Bank of India is marked as Ex.P.2. Hence statutory notice under Section 138(b) of Negotiable Instruments Act, 1881 has been issued under Ex.P.3/Notice dated 03.03.2004 to the respondent, for which the respondent issued Ex.P.4/Reply dated 25.03.2004 stating that the respondent has no personal liability. The postal receipt is marked as Ex.P.5, Postal acknowledgment is marked as Ex.P.6 and the Statement of Account is marked as Ex.P.7. The appellant also preferred a complaint under Section 406 and 420 IPC and a case has been registered in Crime No.103 of 2004. The respondent/accused pleaded that he has not borrowed the money as alleged by the appellant but the appellant has only invested the amount in the business of a partnership firm 'Yes Coffee curing works' in the respondent/accused is one of the partner and to prove the same, Ex.D.1 to Ex.D.3 were marked.
3. The Trial Court, after considering the oral and documentary evidence has acquitted the respondent/accused, against which the present appeal has been preferred.
4. Challenging the judgment of acquittal passed under Section 139 of the Negotiable Instruments Act, the learned counsel appearing for the appellant would raise the following points:
(i) Once the issuance of cheque has been admitted, the appellant is entitled to invoke presumption under Section 118 and 139 of the Negotiable Instruments Act, 1981 and that presumption was not rebutted by the respondent. To substantiate the same, the learned counsel for the petitioner relied upon the following decisions:
(a) (2002) 1 Supreme Court Cases 234, M.M.T.C. Ltd., v. Medchil Chemicals & Pharma (P) Ltd.,
(b) (2001) 8 Supreme Court Cases 458, K.N.Beena v. Muniyappan and Another.
(c) (2002) 6 Supreme Court Cases 426, ICDS Ltd., v. Beena Shabeer and Another.
(ii) Merely because the appellant/complainant had already preferred a complaint under Section 406 and 420 IPC and a case has been registered in Crime No.103 of 2004, it will not amount to double jeopardy. To substantiate the same, the learned counsel relied upon the decision reported in (2012) 7 Supreme Court Cases 621, Sangeetaben Mahendrabhai Patel v. State of Gujarat and Another.
(iii) In case of the post dated cheque, even stop payment instruction issued by the Drawer to the Bank would attract Section 138 of the Negotiable Instruments Act. To substantiate the same, the learned counsel relied upon the decision reported in (2003) 3 Supreme Court Cases 232, Goaplast (P) Ltd., v. Chico Ursula D'Souza and Another.
(iv) The Trial Court has acquitted the respondent/accused on the basis that since the appellant/complainant had already preferred a complaint under Sections 406 and 420 IPC, he is barred from preferring a complaint under Section 138 of the Negotiable Instruments Act. The learned coun
