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2018 Supreme(Mad) 3245
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
P. VELMURUGAN, J.
RAVICHANDRAN - Appellant
Versus
SULAIMAN - Respondent
Criminal Appeal No. 236 of 2007
Decided on : 27-10-2018
Advocate Appeared:
R. Venkateshwaran, Adv., Sulthan Basha, Adv.
The complainant must prove the case beyond reasonable doubt, and the accused can rebut the presumption through probable defence.
Headnote:
Negotiable Instruments Act - Cheque Bounce - Section 138 of The Negotiable Instruments Act - 118, 139 - The court discussed the statutory presumption under Sections 118 and 139 of the Negotiable Instruments Act, and how the accused can rebut the presumption by way of probable defence. The court highlighted the importance of the complainant proving the case beyond reasonable doubt and the need for the accused to rebut the presumption through probable defence. The judgment was based on the failure of the complainant to prove the case and the respondent's successful rebuttal of the presumption through probable defence.
Fact of the Case:
The complainant alleged that the respondent borrowed a sum of money and issued a cheque for repayment, which was later returned due to 'Account Closed'. The respondent denied issuing the cheque to the complainant and provided a probable defence.
Finding of the Court:
The court found that the complainant failed to prove the case beyond reasonable doubt, and the respondent successfully rebutted the presumption through probable defence.
Issues: The issues revolved around the validity of the cheque, the statutory presumption under the Negotiable Instruments Act, and the burden of proof on the complainant.
Ratio Decidendi: The complainant must prove the case beyond reasonable doubt, and the accused can rebut the presumption through probable defence.
Final Decision: The judgment of the District Munsif, Paramakudi was confirmed, and the criminal appeal was dismissed.
P. VELMURUGAN, J.
1. This Criminal Appeal has been filed to set aside the order dated 02.03.2007 made in CC No.12 of 2006 rendered by the learned District Munsif, Paramakudi.
2. The complainant is the appellant in this appeal. The case of the complainant is that the respondent borrowed a sum of Rupees three lakhs on 07.04.2005 and on the same day, for the repayment of the said amount, he issued a cheque drawn from Union Bank of India, Emaneswaram, bearing No.019790. Thereafter, when the complainant had presented the cheque in Co- Operative Bank, Paramakudi on 11.05.2005, the said cheque was returned by the respondent's bank as 'Account Closed' on 12.05.2005 and the same was intimated to the complainant with a memo dated 25.05.2015 of the Complainant's bank. Thereafter, he issued a statutory notice on 03.06.2005. However, after receiving the same, the respondent neither repaid the amount nor sent reply.
3. Therefore, the complainant had filed a complaint before the Judicial Magistrate, Paramakudi under Section 138 of The Negotiable Instruments Act and the same was taken on file by the Judicial Magistrate, Paramakudi in CC No.205 of 2005. Subsequent to the notification of High Court's Notification, No.124 of 2006 and Roc No.68/2006-Con.B.2, dated 29.06.2009, the case was transferred to the District Munsif, Paramakudi and was taken on file and re-numbered as CC No.12 of 2006.
4. On the side of the complainant, the complainant examined himself as PW.1 and as many as six documents were marked as Ex.P.1 to Ex.P.6 and on the side of the respondent, two witnesses were examined as D.W.1 and D.W.2 and three documents were marked as Ex.D.1 to Ex.D.3.
5. After completion of enquiry and hearing on either side, the learned District Munsif, came to the conclusion that the respondent had not committed any offence and therefore, acquitted the respondent/accused.
6. Feeling aggrieved against the judgment dated 02.03.2007 rendered by the District Munsif, Paramakudi, the present criminal appeal has been filed by the complainant/appellant.
7. The case of the complainant before the trial Court is that the respondent/accused has admitted his signature and the execution of the cheque. Therefore, the statutory presumption is that the cheque was given for legally enforceable debt. The learned District Munsif had failed to consider the statutory presumption and acquitted the respondent.
8. The case of the respondent before the Court below is that even though the signature found in the cheque is admitted, the cheque is not executed in favour of the appellant/complainant. Actually he borrowed a sum of Rupees Fifty Thousand on 05.08.1999 from one Sivaramalingam, Advocate and for that only he had given blank cheques and subsequently, the amount was repaid. He would further submit that at the time of borrowing the amount, he had obtained promissory notes and blank cheques and he promised that after repayment of the amount, he would return the promissory note and cheques, but he did not return them to the respondent and believing him that he would not misuse the cheques, he kept quite. However, one of the said cheques was misused through this complainant. Actually there is no nexus between the complainant and the respondent. He has also examined the Bank Manager and the Bank Manager had deposed that on 24.07.2004 the account was closed. Therefore, it is not possible to give the cheques on 07.05.2005, even ten months prior the date of issuance of the cheque, the account was closed. The Bank Manager had further deposed that, at the time of closing of account, the Bank always collects all the unused cheques. Further, the cheque bearing No.019790 was dated subsequent to a cheque bearing No.019791, which was given to one Hello Group of Company for a sum of Rupees Five Thousand was honoured on 21.08.2001. Therefore, if t all the said cheque was issued as stated by the complainant the said cheque could have also been honoured. Usually the customers will issue cheque
