Back
2018 Supreme(Mad) 1201
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. PONGIAPPAN, J.
Gowrishankar & Others - Petitioner
Versus
N. Muralidharan - Respondent
Crl.R.C. No. 36 of 2011
Decided On : 20-04-2018
For the Petitioners:C. Prakasam, Advocate.
For the Respondent:R. Asokan, Advocate.
The burden of proof under Section 139 of the Negotiable Instruments Act shifts to the accused to prove that the cheques were not issued to discharge the loan.
Headnote:
Negotiable Instruments Act - Cheque Bounce - Section 138 - 138, 139, 142
Fact of the Case:
The accused borrowed a sum of money and issued cheques to repay the loan. The cheques were dishonored, and the accused failed to pay despite statutory notice.
Finding of the Court:
The Court found the accused guilty under Section 138 of the Negotiable Instruments Act based on the evidence presented and the failure of the accused to prove their defense.
Issues: Accused's liability under Section 138 of the Negotiable Instruments Act, failure to prove defense, and validity of the lower courts' judgments.
Ratio Decidendi: The burden of proof shifts to the accused under Section 139 of the Negotiable Instruments Act to prove that the cheques were not issued to discharge the loan. The accused's failure to present evidence led to the confirmation of their guilt.
Final Decision: The Court dismissed the Criminal Revision and confirmed the conviction and sentence passed by the lower courts.
1. The revision petitioners are the accused nos.1 to 3 in C.C.No.184 of 2008 on the file of the learned Judicial Magistrate No.V, Salem. In the said Court, the respondent in this revision petition had filed a private complaint against these petitioners under Section 138 of the Negotiable Instruments Act.
2. It is alleged that the revision petitioners on 06.12.2006 borrowed a sum of Rs.2,50,000/- from the respondent and in order to discharge the said loan, they issued a cheque drawn on Karnataka Bank Limited, Salem. Further, the petitioners were also borrowed another sum of Rs.2,50,000/- on 13.12.2006, for which, they executed a promissory note agreeing to repay the same along with interest at the rate of 24% per annum. Subsequently, the petitioners paid a sum of Rs.22,000/- towards interest. Thereafter, neither the loan amount nor the interest have not been paid by the petitioners.
3. However, on 15.10.2007, the petitioners had issued two cheques in favour of the respondent [one cheque for Rs.5,00,000/- dated 01.12.2007 drawn on UCO Bank, Salem, towards the principal amount and another one cheque for Rs.78,000/- dated 06.12.2007 drawn on UCO Bank, Salem, towards interest]. Those cheques were presented for collection but they were returned as funds insufficient. So, as per the provision of the Negotiable Instruments Act, statutory notice was issued to the revision petitioners. The petitioners 1 and 2 had refused to receive the notice but the third petitioner received the notice. Subsequent to that notice, the petitioners did not pay the amount.
4. In the Trial Court, after examining the respondent as P.W.1 and after marking 9 documents as Ex.P.1 to Ex.P.9, the learned Judicial Magistrate No.V, Salem, after considering the oral and documentary evidence found the petitioners guilty for the offence punishable under Section 138 of the Negotiable Instruments Act and awarded conviction and sentenced to undergo one year Rigorous Imprisonment with a fine of Rs.5,000/-, in default to undergo three months Simple Imprisonment. As against the said conviction, the petitioners preferred an Appeal [in Crl.A.No.55 of 2009] before the learned Additional District and Sessions Judge [Fast Track Court No.II], Salem [in C.C.No.184 of 2008].
5. After elaborate enquiry, on 22.10.2010, the learned Additional District and Sessions Judge [Fast Track Court No.II], Salem, dismissed the Appeal and confirmed the sentence awarded by the learned Magistrate. Before that during the time when the appeal is pending with that Court, the matter was referred to the Lok Adalat for amicable settlement. After negotiation, a settlement was arrived, in which, the revision petitioners were agreed to pay the entire cheque amount on installment basis. Subsequent to that, the petitioners had not followed the settlement arrived in the Lok Adalat, thereby, the learned Additional District and Sessions Judge, dismissed the appeal and confirmed the sentence awarded by the learned Magistrate.
6. Aggrieved by the judgment passed by the learned Additional District and Sessions Judge [Fast Track Court No.II], Salem, the petitioners have filed the present Criminal Revision before this Court to check the correctness of the said concurrent judgments.
7. During the pendency of this revision, the learned counsels appearing on either side made a submission before this Court that a settlement was arrived for Rs.2,25,000/- and sought adjournment for effecting the payment. After giving sufficient adjournments, the petitioners and the respondent have not recorded the settlement in this revision petition. In-spite of repeated adjournments, they were not appeared before this Court for disposing this Revision. In the said circumstances, except to pass orders on merits, this Court is not having any alternative measures for disposing this Revision.
8. In the Trial Court, the Cheques, returned memos, letter of the petitioners/appellants, statutory notice, returned covers, acknowledgement card, re
