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2018 Supreme(Mad) 1640
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SURESH KUMAR, J.
K. Senthilmurugan - Petitioner
Versus
P. Satishkumar - Respondent
Criminal Revision Case No. 1089 of 2016
Decided On : 18-05-2018
For the Petitioner: Mr. N. Manokaran.
For the Respondent: Mr. C.S. Saravanan.
Headnote:
CRIMINAL REVISION - SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT - REBUTTAL OF STATUTORY PRESUMPTION - BURDEN OF PROOF - STANDARD OF PROOF - PREPONDERANCE OF PROBABILITIES - THEORY OF THE ACCUSED - UNJUST ENRICHMENT - DELAY IN PRESENTATION OF CHEQUE - ABSENCE OF AGREEMENT REGARDING RETURN OF LOAN - BENEFIT OF DOUBT TO THE ACCUSED.
Fact of the Case:
The complainant claimed that the accused, who was his friend, had borrowed Rs.4 lakhs from him on 20.11.2013 and had issued a post-dated cheque for the same amount dated 20.01.2014. The cheque was returned by the bank with an endorsement "stop payment instructions were given" by the accused. The complainant issued a statutory notice under Section 138(b) of the Negotiable Instruments Act, and the accused replied to the notice. The complainant filed a complaint before the Trial Court for the alleged offence punishable under Section 138 of the Act. The Trial Court convicted the accused to undergo six months simple imprisonment with a fine of Rs.5,000/-. The First Appellate Court confirmed the judgment and conviction. The accused filed a Criminal Revision Case against the judgment of the Trial Court and the First Appellate Court.
Finding of the Court:
The Court held that the statutory presumption under Sections 139 and 118 of the Negotiable Instruments Act in favor of the complainant was rebutted by the accused with a degree of proof of preponderance of probabilities. The Court found that the theory projected by the accused that the cheque leaves were stolen by someone and that this is the reason why he had given stop payment was acceptable. The Court also found that the complainant's theory that he lent a loan of Rs.4 lakhs to the accused on 20.11.2013 and that the post-dated cheque dated 20.01.2014 was given by the accused on the same date was not believable as there was no definite agreement between the complainant and the accused regarding the return of the money.
Issues: 1. Whether the statutory presumption under Sections 139 and 118 of the Negotiable Instruments Act in favor of the complainant was rebutted by the accused. 2. Whether the theory projected by the accused that the cheque leaves were stolen by someone and that this is the reason why he had given stop payment was acceptable. 3. Whether the complainant's theory that he lent a loan of Rs.4 lakhs to the accused on 20.11.2013 and that the post-dated cheque dated 20.01.2014 was given by the accused on the same date was believable.
Ratio Decidendi: 1. The statutory presumption under Sections 139 and 118 of the Negotiable Instruments Act in favor of the complainant is rebuttable. 2. The accused can rebut the statutory presumption by raising a probable defense and by showing that the existence of consideration was improbable or doubtful. 3. The standard of proof for rebutting the statutory presumption is preponderance of probabilities. 4. The theory projected by the accused that the cheque leaves were stolen by someone and that this is the reason why he had given stop payment was acceptable as it was supported by the evidence on record. 5. The complainant's theory that he lent a loan of Rs.4 lakhs to the accused on 20.11.2013 and that the post-dated cheque dated 20.01.2014 was given by the accused on the same date was not believable as there was no definite agreement between the complainant and the accused regarding the return of the money.
Final Decision: The Court set aside the judgment of the Trial Court as well as the First Appellate Court and acquitted the accused. The Court also directed that the fine amount paid by the accused be refunded to him.
This Criminal Revision Case was filed against the judgement made in C.A.No.34 of 2015 on the file of the Principle Sessions Court, Namakkal, dated 16.12.2016 confirming the judgement and conviction made in S.T.C. No. 93 of 2014 on the file of the learned Judicial Magistrate Court/Fast Track Court, Tiruchengode, dated 04.07.2015.
2. The facts of the case are as follows :
The respondent/complainant hereinafter referred to as 'complainant' had claimed that on 20.11.2013, the revision petitioner/accused being the friend of the complainant had approached him for an urgent need of a loan of Rs.4 Lakhs, accordingly, the said loan of Rs.4 Lakhs was given by the complainant to the accused on the said date, i.e., on 20.11.2013. On the same day itself, the accused had given a post dated cheque bearing No.000103 drawn on Karur Vysya Bank, Tiruchengode Branch for a sum of Rs.4 Lakhs.
3. It is the further case of the complainant that, on the request of the accused, the complainant presented the said cheque for collection at his bank, namely, Axis Bank, Tiruchengode Branch on 10.04.2014. However, the said cheque was returned with an endorsement, “stop payment instructions was given”, by the accused. Such return memo dated 12.04.2014, was issued to the complainant and on receipt of the same, the complainant issued statutory notice under Section 138(b) of the Negotiable Instruments Act [hereinafter referred to as, ‘the Act’] on 26.04.2014. On receipt of the said notice on 28.04.2014 by the accused, he had given a reply to the said notice on 07.05.2014 to the complainant. Therefore, the complainant on 23.05.2014 filed complaint before the Trial Court for the alleged offence punishable under Section 138 of the Act. The said complaint was taken on file and was tried by the learned Magistrate in S.T.C.No.93 of 2014, ultimately, by judgement and conviction dated 04.07.2015, the Trial Court found the accused guilty of the offence punishable under Section 138 of the Act and accordingly, convicted him to undergo six months simple imprisonment with fine of Rs.5,000/-.
4. Aggrieved over the said conviction and judgement made by the Trial Court, the accused preferred Criminal Appeal No.34 of 2015 before the First Appellate Court, i.e., the Principle Sessions Judge, Namakkal District, who, after having considered the said appeal, passed the judgement on 16.02.2014 whereby, the learned Appellate Court Judge has confirmed the judgement of the Trial Court as well as the conviction and dismissed the said appeal filed by the accused. As against the said judgement and conviction made by the Trial Court as confirmed by the First Appellate Court, the present Criminal Revision Case has been filed by the accused.
5. Before the Trial Court, three witnesses were examined 17 documents were marked on the complainant's side and on behalf of the accused four witnesses were examined and 12 documents were marked. The definite case of the complainant before the Trial Court was that, the complainant and accused had been friends. They had become friends as both of them had been doing the same or similar business with a company called M/s. Alice Blue Commodities Pvt. Ltd., Chennai. Therefore, on the basis of the said business transactions both became friends and on that capacity, the accused came to the complainant on 20.11.2013 at the complainant s house where, the accused requested to part a sum of Rs.4 Lakhs as loan, for urgent expenses and the complainant also given the said loan of Rs.4 Lakhs by way of cash to the accused and on the same day, i.e., 20.11.2013 itself, the accused had issued a post dated cheque dated 20.01.2014, bearing No.000103, drawn on Karur Vysya Bank, Tiruchengode Branch for Rs.4 Lakhs.
6. It is the further definite case of the complainant that, on the request of the accused, the complainant had presented the said cheque on 10.04.2014 at his bank namely, Axis Bank, Tiruchengode Branch and the same was returned on 12.04.2014 by the said Bank with an e
