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2015 Supreme(Mad) 3197
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. MALA, J.
Sun College of Engineering & Technology – Petitioner
Vs.
United Surgicals – Respondent
CRL. O.P. (MD) No.23514 & 23625 of 2014 & M.P. (MD) Nos.1 & 2 of 2014 & CRL. O.P. (MD) No.152 & 5086 of 2015 & M.P. (MD) Nos.1 & 2 of 2015
Decided On : 16.10.2015
Advocate Appeared:
For Petitioner in all cases: Mr. B. Brijesh Kishore
For Respondent in all cases: Mr. M.R. Sreenivasan
The presumption available in favor of the holder of the cheque under Section 139 of the Negotiable Instruments Act shifts the burden to the respondent to prove the cheque was issued for a legally liable purpose.
Headnote:
Negotiable Instruments Act - Cheque Bounce - The court upheld the presumption available in favor of the holder of the cheque under Section 139 of the Negotiable Instruments Act, shifting the burden to the respondent to prove the cheque was issued for a legally liable purpose.
Fact of the Case:
The petitioner, accused in multiple cases of cheque bounce, sought to quash the cases citing various reasons including non-receipt of notice and non-impleading of the accused in an individual capacity.
Finding of the Court:
The court dismissed the petitions, upholding the presumption under Section 139 of the Negotiable Instruments Act and directing the lower court to dispose of the cases within six months.
Issues: The issues included non-receipt of notice, non-impleading of the accused in an individual capacity, and the necessity of mentioning the date of borrowal.
Ratio Decidendi: The court upheld the presumption available in favor of the holder of the cheque under Section 139 of the Negotiable Instruments Act, shifting the burden to the respondent to prove the cheque was issued for a legally liable purpose.
Final Decision: The criminal original petitions were dismissed, and the lower court was directed to dispose of the cases within six months. The request to dispense with the personal appearance of the petitioner was also dismissed.
The petitioner, who is an accused in S.T.C.No.256, 257, 255 of 2014 and S.T.C.No.26 of 2015 respectively on the file of the concerned Court, would submit that the respondent herein has filed a complaint under Section 200 Cr.P.C for an offence under Section 138 of Negotiable Instruments Act, stating that the petitioner herein, in order to discharge his liability, issued a cheque, which, on presentation for encashment, was returned with an endorsement 'insufficient funds' in the following cases:-.
S.N Crl. O.P. (MD) No. S.T.C. No Amount Borrowed Rs. Cheque No. & Date Cheque Returned Notice Sent on Notice Acknowledgement Compliant date.
1 23514/14 256/14 2,00,000 532725 12.6.14 12.08.13 20.08.13 09.09.13
2 23625/14 257/14 4,50,000 532677 29.7.13 12.08.13 20.08.13 09.09.13
3 152/15 255/14 10,00,000 538421 03.6.13 12.08.13 20.08.13 09.09.13
4 5086/14 26/14 5,00,000 481753 29.7.15 12.08.13 20.08.13 09.09.13
2. After issuing a statutory notice, the complainant filed a complainant against the accused. The petitioners / accused have raised the following points for quashing the cases:-
a) That cheque has not been given to the respondent/complainant that has been given to one Natarajan;
b) Date of borrowal has not been mentioned
c) Though the accused is shown as Chairman of the College, he was not impleaded in an independent capacity.
d) Even though the statutory notice has been issued under Section 138 of Negotiable Instruments Act, that has not been received by him, since he has been receiving so many correspondences from various educational institutions. Though the notice has been addressed to the Chairman, it was received by the staff and the same was not placed before him. Hence, he is unable to give a reply. With the above reasons, he prays for quash the same.
3. Resisting the same, the learned Counsel appearing for the respondent submits that the petitioner has borrowed money and notice was also sent with all details as stated in the complaint. Non-mentioning of the date of borrowal will not vitiate the proceedings. He further submits that it is the duty of the petitioner to prove as to whether the cheque has been issued to Natrarajan at the time of trial and it is only the question of facts. He further submits that since the amount has been borrowed by the Chairman, there is no necessity for impleading him in an individual capacity and therefore, notice has been sent to the Sun College of Engineering and Technology, rep. by its Chairman, which was also received by him. Hence, he prays for the dismissal of the petitions.
4. Considering the rival submissions and on perusal of the typed set of papers, it is seen that admittedly, the petitioner is the Chairman of the College and the cheque has been signed by the petitioner as Chairman of the College. The Negotiable Instruments Act is a special enactment. In that it was specifically mentioned once the issuance of cheque and the signature in the cheque have been admitted, there shall be a presumption available in favour of the holder of the cheque under Section 139 of Negotiable Instruments Act. It is true that the presumption under Section 139 of Negotiable Instruments Act, is rebuttable presumption and the burden is shifted to the shoulders of the respondent to prove that the cheque has been issued for legally liable. The question as to whether the cheque has been issued to Natarajan or issued to discharge the liability can be decided only at the time of trial. It is not a ground to quash the same.
5. The learned counsel for the petitioners submitted that it is necessary that the notice must contained the particulars regarding the date of cheque, date of return as contemplated under Section 138 of the N.I. Act.
6. The learned Counsel for the respondent submits that C. Thayapara has not been impleaded personally and hence, he prayed for dismissal of the petitions. Admittedly, C. Thayapara is the Chairman of the College and borrowed money. I
