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2019 Supreme(Mad) 210
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. Muralidaran, J.
M/s. Arjun Amaravathi Chits (P) Ltd. – Appellant
Versus
Balraj – Respondent
Criminal Appeal No.1033 of 2005
Decided On : 02-01-2019
For the Appellant : Mr. M.J. Jaseem Mohamed
For the Respondent: Mr. I. David Singh Legal Aid Counsel
The legal burden on the accused to prove the non-existence of the presumed fact and the fulfillment of all necessary ingredients under Section 138 of the Negotiable Instruments Act.
Headnote:
Negotiable Instruments Act - Chit Fund - 138, 142 - Summary of Acts and Sections: The court discussed the provisions of Section 138 and 139 of the Negotiable Instruments Act, 1883, which deal with the presumption in favor of the holder of a cheque for the discharge of debt or liability. The court also highlighted the legal burden on the accused to prove that the cheque was not received for the discharge of any liability. The interpretation of these provisions influenced the court's decision to dismiss the appeal.
Fact of the Case:
The appellant filed a case under section 138 of the Negotiable Instrument Act against the respondent for issuing a cheque with insufficient funds. The trial court acquitted the respondent, leading to the appeal.
Finding of the Court:
The court found that the appellant failed to prove that the cheque was issued for an enforceable liability, and the respondent was rightly acquitted.
Issues: The issues revolved around the presumption in favor of the holder of a cheque, the burden of proof on the accused, and the fulfillment of the necessary ingredients under Section 138 of the Act.
Ratio Decidendi: The court emphasized the legal burden on the accused to prove the non-existence of the presumed fact and the fulfillment of all necessary ingredients under Section 138 of the Act.
Final Decision: The appeal was dismissed, and the Legal Aid Authority was directed to pay a sum of Rs.5,000 to the Legal Aid Advocate.
This Criminal appeal is filed by the appellant/complainant against the judgment dated 9.11.2005 passed by the Learned VII Metropolitan Magistrate Court in C.C.No.5106 of 1999, wherein the learned trial judge acquitted the respondent/accused on the complaint made under section 138 r/w 142 of the Negotiable Instruments Act, 1883.
2. The brief case for the appellant :
One Radhakrishnan joined in the chit fund conducted by the appellant and he taken chit amount of Rs.1,00,000/- and for reimbursing the same, the respondent/accused as a guarantor issued the cheque for Rs.45,300/- dated 22.4.1999 bearing No.992875 drawn on Indian Bank Purasaivakkam Branch. When the cheque was presented in the Nedungadi Bank George Town Branch for collection, by the appellant/complainant, the cheque was returned on 11.5.1999 with an endorsement of “Insufficient funds”. Hence the appellant/complainant issued statutory notice on 19.5.1999 to the respondent/accused and the same was received by him on 19.5.1999. Since there is no reply nor repayment of the cheque amount, the appellant filed this case under section 138 of Negotiable Instrument Act.
3. Before the trial Court the appellant/complainant examined himself as PW1 and branch manager PW2 marked Exhibits P1 to P11. The respondent/accused examined himself as DW 6 and examined DW 1 to 5 on his side.
4. On completion of trial, the learned trial Court acquitted the respondent/accused under Section 138 of the Negotiable Instruments Act.
5. The learned counsel for the Appellant submits that the learned magistrate erred in holding that the cheque was issued not to discharge the debt or liability for the respondent/accused, especially when section 138 of the Act mandates general presumption in favour of the holder/appellant.
6. The learned counsel for the Appellant submits that the learned Magistrate has totally overlooked the fact that the procedure is the hand maid of justice and not it mistress when going into the question of the pleadings found in the complaint and totally absolved the respondent from the entire proceedings opening the flood gates of further litigation. If the respondent/accused was really aggrieved he ought to have filed a discharge petition and got himself discharged at the earliest point of time.
7. The learned counsel for the Appellant submits that the learned magistrate failed to see that if notices were to be exchanged between the parties and their counsels then there would be no end to it and the limitation to file the statutory complaint would be lost. Further there is no question of suppressing any material fact because what appears to be material to the respondent/accused would appear immaterial to the Appellant/complainant and vice-versa. Further suppression arises only when any document which is in possession of the Appellant/complainant alone was not marked. On the other hand copy of the reply notice was marked by the respondent/accused.
8. The learned counsel for the Appellant submits that the Court below even after extensively discussing and debating in Exhibit-P2 (promissory note) has been signed by the respondent/accused though holding him liable and duty bound to pay the lawful and legitimate cheque amount, discharged him on very flimsy grounds.
9. The learned counsel for the Appellant submits that the learned magistrate misunderstood and misconstrued the judgments relied upon by the appellant/complainant viz. 2002 (I) CTC 530, 2003 (2) CTC 31, 1998 1 Crl. LW 354, 1998 (1) MWN 311, 1999 (2) Crl. LW 618, 2005 Crl. LJ 1454, 2001 Crl. J 2178 and the judgment of this Court confirmed by the learned V Additional Sessions Court in C.A.No.90 of 2000. Therefore all the judgments relied upon by the respondent/accused will not apply to the facts and circumstances of the present case.
10. The learned counsel for the Appellant submits that the Court below failed to note that the respondent/accused himself admitted in his witness (DW6) that his signature in the pro-note and in the c
