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2018 Supreme(Mad) 458
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SURESH KUMAR, J.
L. Gopi – Appellant
Versus
M. Rajini – Respondent
Criminal Appeal No. 726 of 2015
Decided on : 26-02-2018
Advocate Appeared:
For the Appellant :V. Paarthiban, Advocate.
For the Respondent:R. Sunil Kumar, Advocate.
The statutory presumption under Sections 118 and 139 of the Negotiable Instruments Act is rebuttable, and if the rebuttal satisfies the degree of preponderance of probability, it is sufficient to draw a conclusion that acceptable rebuttal has been given by the respondent/accused's side.
Headnote:
Negotiable Instruments Act - Cheque Bounce - Section 138 - 138(b) - 139 - 118
Fact of the Case:
The appellant/complainant lent a sum of Rs.5,75,000 to the respondent/accused, who issued three cheques for repayment. The cheques were returned due to insufficient funds, leading to a complaint under Section 138 of the Negotiable Instruments Act. The trial Court convicted the accused, but the first appellate Court reversed the judgment, leading to the current appeal.
Finding of the Court:
The first appellate Court accepted the rebuttal from the respondent/accused, concluding that the cheques were given as part of a different transaction and not for the legally enforceable debt. The statutory presumption under Sections 118 and 139 of the Negotiable Instruments Act was rebutted by the respondent's side beyond any doubt.
Issues: The main issue was whether the cheques issued by the accused were for the legally enforceable debt or part of a different transaction. The trial Court convicted the accused, while the first appellate Court reversed the judgment based on the rebuttal provided by the respondent/accused.
Ratio Decidendi: The statutory presumption under Sections 118 and 139 of the Negotiable Instruments Act is rebuttable. Once the rebuttal satisfies the degree of preponderance of probability, it is sufficient to draw a conclusion that acceptable rebuttal has been given by the respondent/accused's side.
Final Decision: The Criminal Appeal is dismissed, upholding the first appellate Court's decision to reverse the trial Court's judgment and acquit the respondent/accused.
This Criminal Appeal has been preferred against the order passed in C.A.No.96 of 2014, by the learned III Additional Sessions Judge, Poonamalle by judgment dated 18.04.2015 by and under which the judgment and conviction of the learned Fast Track Court- II (Magistrate level) Poonamalle made in S.T.C.No.1 of 2013 dated 18.09.2014, has been reversed.
2. The case of the appellant/complainant is that, the respondent/ accused borrowed a sum of Rs.5,75,000/- on 30.03.2012 and on the same day, in order to re-pay the same, the respondent/accused had given three cheques bearing cheque Nos. 868775, 868776 and 868777 dated 01.06.2012, 09.06.2012 and 16.06.2012 for a sum of Rs. 1,25,000/-, Rs.1,25,000/- and Rs.3,25,000/- respectively. It is the further case of the appellant/complainant that, the said three cheques were deposited for collection of money at the complainant's bank. However, the said cheques were returned on 19.06.2012, from the bank stating that there was no sufficient funds in the account of the respondent/accused. Thereafter, on information given by the appellant/complainant to the respondent/accused, he had given request to re-present the said three cheques and accordingly, on 16.08.2012, again the three cheques were re-presented and at that time also the three cheques were returned on 27.08.2012, for want of funds.
3. Thereafter, on 22.09.2012, the appellant/complainant had sent a statutory notice under Section 138(b) of Negotiable Instruments Act, which was returned as unclaimed. Therefore, the appellant/complainant set the law in motion by filing a private complaint before the trial Court seeking to try the case and punish the respondent/accused under Section 138 of Negotiable Instruments Act. The trial Court has taken the case on file and after tried the matter, by the judgment dated 18.09.2014, convicted and sentenced the respondent/accused for four months simple imprisonment and also imposed a fine of Rs.3,500/- in default, directed the respondent/accused to undergo simple imprisonment for one month.
4. Aggrieved over the said judgment and conviction made by the trial Court, the respondent/accused has preferred an appeal before the first appellate Court, viz., III Additional Session Court, Poonamalle. The first appellate Court having considered and re-appreciated the evidence on both side and having ultimately concluded that there is an error in the judgment and conviction as against the respondent/accused, allowed the appeal filed by the respondent/accused by reversing the judgment and conviction of the trial Court. Aggrieved over the order of the first appellate Court reversing the trial Court judgment and giving acquittal to the respondent/accused, the appellant/complainant has preferred this appeal before this Court.
5. It is the case of the complainant before the trial Court that, on 30.03.2012, the respondent/accused had borrowed a sum of Rs.5,75,000/- and on the same day, he gave three cheques for Rs.1,25,000/-, Rs.1,25,000/- and Rs.3,25,000/- dated 01.06.2012, 09.06.2012 and 16.06.2012 respectively, and when the cheques were presented at the bank of the complainant, they were returned for want of funds and on information, again the same were represented to the complainant's bank and once again, the cheques were returned for "insufficient funds". Thereafter, though statutory notice had been given by the complainant, the respondent/ accused had not claimed the same and therefore, without having any other option, except to invoke Section 138 of Negotiable Instruments Act r/w Section 200 of Cr.P.C., the complainant has made a complaint before the trial Court against the respondent/accused. On behalf of the complainant, he himself was examined as P.W.1 and the Bank Manager was examined as P.W.2. On the side of the respondent/accused one Sivasankaran was examined as D.W.1 and one Saravana babu was examined as D.W.2.
6. According to the respondent/accused, D.W.1 Siva Sankaran along with the complainant and one
