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2017 Supreme(Mad) 659
IN THE HIGH COURT OF JUDICATURE AT MADRAS
B. GOKULDAS, J.
Smt. Deepa - Appellant
Vs.
S.P. Navaneetha Krishnan - Respondent
Crl.A.No.412 of 2008
Decided On : 12-04-2017
For the Appellant : Mr. C.S. Dhanasekaran.
For the Respondent: Mr. P.G. Perumal Pandian, Amicus Curiae.
The accused can rebut the presumption under Section 139 of the Negotiable Instruments Act by preponderance of probabilities.
Headnote:
Negotiable Instruments Act - Cheque bounce - Section 138 - 138 - 139 - 142 - 138 - 139 - 142
Fact of the Case:
The accused borrowed a sum of Rs.5,00,000 for business purpose and issued a cheque which was returned due to insufficient balance. The complainant filed a complaint under Section 138 of the Negotiable Instruments Act.
Finding of the Court:
The lower appellate Court acquitted the accused, stating that the cheques were issued for security purposes only for chit fund transactions, and the complainant failed to prove that the cheques were issued for a loan transaction. The trial Court's decision was held to be in error.
Issues: Validity of the cheques, purpose of issuance, burden of proof under Section 139 of the Negotiable Instruments Act
Ratio Decidendi: The accused successfully rebutted the presumption under Section 139 by preponderance of probabilities. The complainant failed to discharge the reverse burden of proof on the rebuttal of the presumption.
Final Decision: The criminal appeal was dismissed, confirming the judgment of the lower appellate Court.
This Criminal appeal is filed against the judgment dated 08.04.2008 passed by the Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore in CA.No.540 of 2007 acquitting the respondent and by setting aside the conviction and sentence passed by the Judicial Magistrate No.VII, Coimbatore in STC.No.3045 of 2005 dated 22.11.2007.
2. The brief facts of the case are as follows :-
The accused approached the complainant and borrowed a sum of Rs.5,00,000/-, for business purpose and the accused also issued a cheque drawn from Vijaya Bank, Saibaba Colony dated 05.11.2005. The complainant presented the cheque in her account Canara bank, Saibaba Colony, on 11.11.2015. The said cheque was returned with an endorsement "insufficient balance". On 16.11.2005, the complainant sent notice to the accused, but, the accused refused to receive the notice and the same was retuned on 25.11.2005. Hence, the complainant preferred the complaint under Section 138 of the Negotiable Instruments Act.
3. The complainant in order to prove her case examined herself as PW1 and her father as PW2 and produced the cheque, bank memo, debit advice, advocate notice, acknowledgment card, Certificate of posting, undelivered notice as Ex.P1 to Ex.P7 and no oral evidence was adduced and the accused in support of his contention adduced documentary evidences viz., Advocate notices as Ex.D1 and Ex.D2 and no oral evidence was adduced on the side of the accused.
4. The trial court on the basis of the available records found the accused guilty for the offence under Section 138 of the Negotiable Instruments Act and convicted him to undergo simple imprisonment for a period of one year, on the ground that PW2 has stated that a sum of Rs.5,00,000/- was handed over to the accused by PW1 in the presence of him. Aggrieved against the said order, the accused preferred an appeal in CA.No.540 of 2007 and the complainant preferred revision in Crl.RC.10 of 2008 before the lower appellate Court.
5. The lower appellate Court tried both the review petition filed by the complainant and the appeal filed by the accused together, and dismissed the revision and allowed the appeal filed by the accused by setting aside the order of the trial Court, on the ground that the trial Court has not properly considered the oral and the documentary evidence adduced on both sides. Aggrieved against the same, the complainant is before this Court by way of present appeal.
6. Heard the rival submissions made on both sides and perused the records.
7. The learned counsel for the appellant/complainant has stated that the PW1 has handed over the cheque for a sum of Rs.5,00,000/- to the accused in the presence of her father/PW2. PW2 also reiterated in his evidence about his presence during the said transaction between the appellant and the accused. The accused has not replied to the statutory notice issued by the appellant. Further, the learned counsel contended that the accused has not given any cheque to discharge his debt. The cheque was issued only for the security purpose, for the business transaction.
8. The learned counsel for the appellant in support of his contention relied on the judgment of the Hon'ble Supreme Court reported in 2011 ACD 7 (SC) 7 - Rangappa v. Mohan, wherein it is held as follows :
"15. ...... Since the accused dud admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant."
9. The learned Amicus Curiae appearing for the respondent submitted that two cheques were issued by the respondent towards security purpose only for the chit fund transaction. For rebutting the presumption under Section 139 of the Negotiable Instruments Act, the preponderance of probabilities, the accused has successfully rebutted the presumption.
10. The learned Amicus Curiae appearing on behalf of the respondent/accused relied on the judgment of this Court reported in 2012 (3
