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2018 Supreme(Mad) 1145
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. PONGIAPPAN, J.
Umashankar – Appellant
Versus
The State rep. by Public Prosecutor, Coimbatore & Another – Respondent
Crl.R.C. No. 1348 of 2011
Decided on : 25-04-2018
For the Petitioner:A.R. Suresh, Advocate.
For the Respondents:T.P. Savitha, Government Advocate, P. Dinesh Kumar, J. Ramakrishnan, Advocates.
The main legal point established in the judgment is the application of statutory presumptions and legal principles under the Negotiable Instruments Act, particularly in cases involving dishonored cheques.
Headnote:
Negotiable Instruments Act - Loan Discharge - Section 138 - 138 - 139 - 114 - 2010 [4] CTC 118 - The court discussed the provisions of the Negotiable Instruments Act, particularly Sections 138, 139, and 114, and applied the legal principles established in the case of RANGAPPA vs. SRI MOHAN (2010 [4] CTC 118) to determine the existence of a legally enforceable debt or liability and the statutory presumption in cases involving dishonored cheques.
Fact of the Case:
The petitioner availed a loan and issued a post-dated cheque to discharge the loan. The cheque was dishonored, leading to a private complaint and subsequent conviction under Section 138 of the Negotiable Instruments Act.
Finding of the Court:
The court found the petitioner guilty under Section 138 of the Negotiable Instruments Act based on the evidence presented, including the dishonored cheque and the absence of a probable defense.
Issues: Discharge of loan, validity of the post-dated cheque, service of statutory notice, and existence of a legally enforceable debt or liability.
Ratio Decidendi: The court applied the legal principles established in the case of RANGAPPA vs. SRI MOHAN (2010 [4] CTC 118) to determine the existence of a legally enforceable debt or liability and the statutory presumption in cases involving dishonored cheques.
Final Decision: The Criminal Revision Petition filed by the petitioner was dismissed, and the conviction and sentence passed by the lower courts were confirmed.
1. This Revision has been preferred against the judgment rendered by the learned First Additional District and Sessions Judge, Coimbatore in C.A.No.25 of 2011. The said Criminal Appeal has been filed by the present revision petitioner praying to set aside the conviction and sentence awarded by the learned Judicial Magistrate No.VI, Coimbatore in C.C.No.45 of 2009.
2. The petitioner, namely, Umashankar, availed a loan of Rs.3,00,000/- from the second respondent, for which, he executed a promissory note, promising to repay the said loan with interest at the rate of 24% per annum. The said pro-note was executed on 29.01.2007. Later, on 21.05.2008, the second respondent advanced another sum of Rs.2,00,000/-, which amount the petitioner had repaid on 27.05.2008. Subsequent to that, on 21.05.2008, the petitioner gave him a letter of assurance and a post dated cheque bearing No.162710 dated 24.09.2008 drawn on Canara Bank for Rs.4,19,000/- towards discharge of the first loan of Rs.3,00,000/- with interest due there on.
3. The said Memorandum of Understanding and the cheque had marked as Ex.P.2 and Ex.P.3. The second respondent presented the said cheque on 27.09.2008 for collection but the same was dishonoured on the ground of “insufficient funds”. So, Ex.P.6 [statutory notice] was issued by the second respondent, in which, he called the petitioner to pay the entire amount within 15 days from the date of receipt of the notice. But as the amount was not paid, the second respondent laid a private complaint.
4. Before the Trial Court, the second respondent examined 3 witnesses as P.W.1 to P.W.3 and 8 documents were marked as Ex.P.1 to P.8. The petitioner had examined himself as R.W.1 and he exhibited two documents as Ex.D.1 and Ex.D.2. After full trial, the learned Magistrate held the petitioner found guilty for the offence under Section 138 of the Negotiable Instruments Act and thereafter, awarded the sentence to the petitioner. Against which, the petitioner filed the Criminal Appeal [Crl.A.No.25 of 2011] before the learned First Additional District and Sessions Judge, Coimbatore.
5. After elaborate enquiry, on 30.06.2011, the learned First Additional District and Sessions Judge, Coimbatore, dismissed the Appeal and confirmed the sentence awarded by the learned Magistrate. Now, in order to check the correctness of the above concurrent judgments, the petitioner filed the present revision before this Court.
6. According to the evidence given by the second respondent that the pro-note [Ex.P.1] was executed for the loan of Rs.3,00,000/-. Subsequent to that, the cheque now in question was issued only for discharging the said loan. So, according to him, the second loan, which was mentioned in Ex.P.2 [letter of assurance] was given to the petitioner without getting any security.
7. In this aspect, the learned counsel appearing for the petitioner would submit that as per the case of the second respondent, the earlier loan availed on 21.05.2008 had not been discharged till 21.05.2008. Even there is no evidence let in for showing the payment of interest, in the said circumstances, giving another loan of Rs.2,00,000/- is probably not possible. So, the evidence given by the second respondent with regard to this case is nothing but a lie. Further, he vehemently submitted that Ex.P.2 [letter of assurance] and Ex.P.3 [cheque] are filled by way of typing letters. On the other hand, the pro-note executed by the petitioner was filled in hand-writing. This has also creates a doubt whether the alleged transaction made between the petitioner and the second respondent is a genuine one. Further added that no prudent man can give a loan of Rs.2,00,000/- without closing the earlier loan. Accordingly, prayed for allowing the Revision.
8. Before the Trial Court, the petitioner submitted that he borrowed a sum of Rs.50,000/- from the second respondent and in order to discharge the said loan along with interest, he paid Rs.2,00,000/- by drawing the amount from h
