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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G. Jayachandran, J.
R. Sivasankaran – Appellant
Vs.
T. Shanmuga Sundaram – Respondent
Criminal Appeal No. 288 of 2018, 436 of 2018
Decided On : 12-10-2018
Negotiable Instruments Act - Dispute over loan and cheques - Sections 138, 142 - 118, 139, 20 - The court discussed the presumption under Sections 118 and 139 of the Negotiable Instrument Act, the significance of ink color and handwriting in cheques, and the burden of proof in cases of dishonor of cheques. The court emphasized that the signature of the account holder is crucial and differences in ink color and handwriting do not necessarily constitute material alteration.
Fact of the Case:
The complainant alleged that the respondent borrowed money and issued cheques which were returned for want of funds. The trial court convicted the respondent, but the appellate court acquitted him. The appellant challenged the appellate court's decision.
Finding of the Court:
The trial court convicted the respondent, but the appellate court acquitted him based on inconsistencies in the evidence and the significance of ink color and handwriting in the cheques. The appellant challenged the appellate court's decision, arguing that the findings were erroneous.
Issues: The issues revolved around the validity of the cheques, the presumption under the Negotiable Instruments Act, and the burden of proof in cases of dishonor of cheques.
Ratio Decidendi: The court held that differences in ink color and handwriting in the cheques do not necessarily constitute material alteration. The burden of proof lies with the complainant to establish the dishonor of the cheques and discharge the presumption under the Act.
Final Decision: The court allowed the criminal appeal, holding that the appellate court's decision was not in accordance with the law or the facts on record.
G.Jayachandran, J.
The appellant herein is the complainant before the learned Judicial Magistrate, Arupukottai in C.C.Nos.206 & 222 of 2012.
2. The complaints preferred by him under Sections 138 and 142 of the Negotiable Instruments Act alleging that the respondent herein borrowed Rs. 4,00,000/- (Rupees Four Lakhs only) and Rs. 2,00,000/- (Rupees Two Lakhs only) from him as hand loan and issued cheques bearing Nos.049441 dated 16.07.2012 and No.049444 dated 21.07.2012 drawn at Tamil Nadu Merchandile Bank, Arupukottai Branch. When the said cheques were presented for collection, the same were returned for want of funds. Hence, he issued notices through his lawyer on 18.07.2012 and on 03.08.2012 intimating about the return of cheques, for want of funds and demanding the cheque amount. The said notices returned un-served.
3. To prove his case, the complainant has examined himself as P.W.1. The returned cheques, bank intimations, advocate notices, postal receipts, returned un-served covers were marked as Ex.P1 to Ex.P6. The accused examined himself as D.W.1. The Bank Manager was examined as D.W.2. One Ramasubbu, friend of D.W.1/accused examined as D.W.3. The trial Court on appreciation of the evidence has held the respondent guilty of offence under Section 138 of the Negotiable Instruments Act and convicted the respondent for offence under Section 138 and sentenced him to undergo six months Simple Imprisonment and to pay Rs. 4,00,000/- as compensation in C.C.No.206 of 2012; and sentenced him to undergo six months Simple Imprisonment and to pay compensation of Rs. 2,00,000/- in C.C.No.222 of 2012.
4. The respondent/accused herein has preferred Appeal before the District and Sessions Judge, Viruthunagar in C.A.Nos.86 and 87 of 2016. The Appellate Court reversed the findings of the trial Court and acquitted the accused. Aggrieved by the said reversal of judgment, the present Appeal has been filed alleging the lower Appellate Court erroneously reversed the trial Court judgment.
5. Per Contra, the learned counsel for the respondent/accused would contend that the trial Court failed to observe the fact that the two cheques which are the subject matter of the case, wherein one cheque bearing No.049441 is dated 16.07.2012 in C.C.No.206 of 2012 whereas the subject cheque bearing No.049444 in C.C.No.222 of 2012 is dated 21.07.2012. Though the cheque numbers and date of the cheque or not in seriatim and the specific case of the defense that three cheques were given as security for the mortgage loan of Rs. 2,00,000/- on the day of mortgage which was not considered by the trial Court, but, the Appellate Court has rightly considered these aspects and reversed the findings of the trial Court. Hence, the Appellate Court judgment needs no interference.
6. Heard the learned counsel appearing for the appellant and the learned counsel for the respondent and perused the materials placed before this Court.
7. The complainant and the accused are known to each other for long time. The complainant is involved in real estate business. The accused, who wanted to establish the power loom, has borrowed money from the complainant. While the case of the complainant is that the subject cheques were issued towards the hand loan of Rs. 4,00,000/- (Rupees Four Lakhs only) and Rs. 2,00,000/- (Rupees Two Lakhs only).
8. The defense taken by the accused is that earlier, he mortgaged his ancestral property for Rs. 2,00,000/- and as a security, he issued three cheques to the complainant, on the same day which has been misused by the complainant. In support of his defense, he has examined himself and also two other witnesses. The mortgage deed dated 04.11.2011 also been marked as defense Ex.D.1.
9. The trial Court considered the consistency in case of the complainant and contradictions between the evidence of D.W.1 and D.W.3, which falsifies the explanation offered by the accused to rebut the presumption and has convicted the accused. Whereas, on appeal, the First Appellate
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