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2015 Supreme(Mad) 600
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M. SATHYANARAYANAN, J.
Mohan – Appellant
Versus
Meenakshisundaram & Others – Respondents
Criminal Appeal (MD) No. 343 of 2009
Decided On : 02-02-2015
For the Appellant:R. Sivasubramanian, Advocate.
For the Respondents:R1, G. Karnan, Advocate, R2 to R4, No appearance.
Headnote:
Negotiable Instruments Act - Section 138 - Money Lenders Act, 1957 - Section 3 - Criminal Procedure Code, 1973 - Section 313(1)(b) - Order of acquittal - Insisted for repayment – Dishonor of Cheque - It is case of appellant private complainant first accused in his capacity as Managing Partner of 4th respondent accused Tyre Retreading Company for conduct of business of said firm borrowed a from agreeing to repay same with interest on demand – However in spite of demand first accused did not come forward to pay amount due and payable and once again appellant complainant insisted for repayment - First accused in response to said demand issued a Cheque drawn on State Bank of India Branch for discharge of debt - Complainant presented Cheque with his Banker and it was returned with an endorsement Funds Insufficient – Appellant complainant issued a statutory notice under Ex.P8 and first accused on receipt of same has sent a reply notice in Ex.P13 denying borrowal – Therefore complainant came forward to file above said complaint seeking prosecution of all accused for commission of offence under Section 138 of Negotiable Instruments Act, on ground that borrowal is for benefit of 4th accused firm in which all other accused are partners – Held, In that view their Lordships held taking into view scheme and provisions of Act that a single and casual transaction of loan in a different district than one in which plaintiff has held license does not in any way prevent plaintiff from recovering said sum - It is no doubt true that not only Full Bench decision of Hyderabad High Court but also decision of their Lordships of Supreme Court interpreting very same Section 9 of Hyderabad Money Lenders Act clearly establish that if it is found that plaintiff was carrying on business as a money-lender on date of transaction without a license Court is bound to dismiss suit - As already pointed out accused did not dispute signature in Cheque but his only defense was on account of abuse and degradation he was forced to issue Cheque from his own personal account and put Seal of 4th respondent firm – However said defense has not been substantiated or probabilised by letting in sufficient oral or documentary evidence - It is stand of other accused since borrowal was not on behalf of firm it will not bind them – However Cheque in question has not been subjected to any forensic analysis to find out whether Seal of 4th respondent Concern is fabricated or not and further first accused has also admitted his signature - Transaction in question is to be treated as casual in nature for reason that it is categorical evidence of PW1 complainant that all accused were his childhood friends and believing representation only he has advanced - Though first accused in his reply pleaded discharge in respect of earlier transaction he has not produced any materials to show that he discharged earlier debts due and payable to appellant complainant - In light of reasons assigned above this Court is of considered view that order of acquittal passed by trial Court warrants interference - Criminal Appeal is allowed
1. The private complainant in C.C.No.300 of 2006 on the file of the Judicial Magistrate No. II, Thanjavur, is the appellant and aggrieved by the order of acquittal passed by the said Court, he has filed this appeal.
2. It is the case of the appellant/private complainant, the first accused in his capacity as the Managing Partner of the 4th respondent/accused namely, M/s.India Tyre Retreading Company, for the conduct of the business of the said firm, borrowed a sum of Rs.1,00,000/- from him on 09.01.2000, agreeing to repay the same with interest @ 24% per annum, on demand. However, in spite of demand, the first accused did not come forward to pay the amount due and payable and once again, the appellant/complainant insisted for repayment. The first accused, in response to the said demand, issued a Cheque bearing No.689346 dated 25.04.2001 drawn on State Bank of India, Mayiladuthurai Branch, for discharge of debt of Rs.1,00,000/-. The complainant presented the Cheque with his Banker namely, Karur Vysia Bank Ltd., Thanjavur, on 09.05.2001 and it was returned with an endorsement 'Funds Insufficient". The appellant/complainant issued a statutory notice on 19.05.2001 under Ex.P8 and the first accused, on receipt of the same, has sent a reply notice in Ex.P13 dated 29.05.2001, denying borrowal. Therefore, the complainant came forward to file the abovesaid complaint seeking prosecution of all the accused for the commission of offence under Section 138 of the Negotiable Instruments Act, on the ground that the borrowal is for the benefit of the 4th accused firm, in which all other accused are partners.
3. The sworn statement of the complainant was recorded and it was taken on file and the accused on appearance before the trial court, on summons, pleaded not guilty to the charge. During the course of trial, the complainant examined himself as PW1 and examined the Bank Manager of Karur Vysya Bank, Thanjavur Branch, as PWs 2 and 3 respectively and also marked Exs.P1 to P15.
4. All the accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973, with regard to the incriminating circumstances made out against them in the evidence tendered by the prosecution and they denied it as false.
5. On behalf of the accused, no oral evidence was let in and no documents were marked. The trial court on consideration of oral and documentary evidence, has found that there is no legally enforceable debt on the part of the appellant/complainant, as he is running a money lending business without due licence and the concerned statute also prohibits him from doing so. The trial court citing the said reason, acquitted all the accused by judgment dated 30.09.2009 and hence this appeal.
6. The learned counsel for the appellant/private complainant would submit that admittedly in Ex.P1-Cheque, the Seal of the 4th respondent is found and the first accused also did not deny his signature, but he took a stand in Ex.P13-Reply Notice, that the borrowal from the complainant was for his personal use and not on behalf of the 4th respondent firm and on 25.04.2001, the complainant created a scene by abusing him and in order to get over the said difficulty only, the first accused has issued a Cheque with the Seal of the 4th accused firm.
7. It is the stand of the accused, since borrowal by the first accused was for his personal needs, it will not bind the 4th respondent firm in which other accused are partners and therefore it cannot be recovered from them. The trial Court has also accepted the same and held that there is no legally enforceable debt and citing the said reason, acquitted all the accused by judgment dated 30.09.2009 and aggrieved by the same, the complainant has filed this appeal.
8. Learned counsel for the appellant has drawn the attention of this Court to the impugned judgment passed by the trial Court and would submit that major portion of the findings recorded by the trial Court are in favour of the appellant/complainant and howev
