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2018 Supreme(Mad) 4511
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. Suresh Kumar, J.
K. Muthusekar - Appellant
Vs.
S.T.S. Jayakumar - Respondent
Crl.A. No. 367 of 2015
Decided On : 28-12-2018
For the Appellant :Mr. S. Baskar for M/s. Ram & Ram, Advocates
For the Respondent:Mr. I. Abrar Mohammed Abdullah, Advocate
Headnote:
Negotiable Instruments Act ,1881 - Sections 118,138,138(b), and 139 - Appeal Against Conviction - Dishonor of cheque - Complainant knows accused through a relative of complainant and common friend of both one Natarajan years prior to transaction in question - As such accused in order to invest some amount in a Spoken English Academy run by him in name and style of JKR Spoken English required money and therefore he along with came and requested complainant a sum for such investment as loan - Accordingly complainant had paid a sum of lakhs on at his home in presence of said Natarajan to accused and for said loan amount of lakhs accused agreed to pay interest of p.a On very same day i.e accused had executed a promissory note - On same day said Natarajan also given loan of a sum of lakhs to accused for which he executed another pro-note - Though such an amount of lakhs was paid by complainant to accused for which he executed pro-note and he agreed to repay same when demanded accused did not come forward to pay back said amount of lakhs when it was demanded - However at one point of time i.e accused issued a cheque in name of or in favour of complainant for a sum of lakhs drawn in Axis Bank Tirupur Branch with Cheque - On request of accused complainant deposited said cheque itself at his Bank however same was returned for reason Funds Insufficient in account of accused - Whether such statutory presumption has been properly rebutted by accused has to be looked into - Complainant sent a statutory notice under section 138(b) of Negotiable Instruments and said notice was sent to various addresses given by accused - Out of several copies of notice sent to various addresses of accused accused received it at first address and he also received notice at and addresses - However notice sent to addresses of accused had been returned - On receipt of notice from complainant accused sent a reply where he has made a denial of receipt of amount and also has given a different story - Since accused did not come forward to pay back money to complainant in spite of receipt of notice under section 138(b) of NI Act and had given a reply with different story it can be presumed that accused had committed offence punishable under section 138 of NI Act accordingly complainant filed a complaint under section 138 of NI Act - Held, This Court in a number of cases has that though appellate court has full power to review evidence upon which order of acquittal is founded still while exercising such an appellate power in a case of acquittal appellate court should not only consider every matter on record having a bearing on question of fact and reasons given by courts below in support of its order of acquittal it must express its reasons in judgment which led it to hold that acquittal is not justified - In those line of cases this Court has also that appellate court must also bear in mind fact that trial court had benefit of seeing witnesses in witness box and presumption of innocence is not weakened by order of acquittal and in such cases if two reasonable conclusions can be reached on basis of evidence on record appellate court should not disturb finding of trial court - Here in case in hand only evidence according to accused was that he had filed Insolvency Petition where he shown name of son-in-law of complainant as one of creditors and showing various liabilities including name of son-in-law of complainant cheques which have already been given to each of creditors have been mentioned and cheque in question had also been given to son-in-law of complainant which has been misused by complainant - It is disclosed that very same cheque of ICICI Bank had been shown against not only Palanisamy son-in-law of complainant but also against one Muthukumar - Therefore accused was not definite in specific case as he averred or deposed before trial Court and hence averment or deposition on part of accused cannot be taken as an acceptable rebuttal and statutory presumption is always in favour of complainant - Therefore this Court has no hesitation to come to conclusion that first Appellate Court has erroneously reversed finding and Judgment given by trial Court and accordingly this Court is of view that Judgment impugned passed by First Appellate Court is liable to be set aside and Judgment and conviction of trial Court is to be restored - Criminal Appeal Allowed
JUDGMENT :
R. Suresh Kumar, J.
This Criminal Appeal has been filed against the Judgment made by the I Additional District and Sessions Judge, Tirupur, dated 27.03.2015 made in Crl.A.No.7 of 2015, reversing the Judgment and conviction made by the Judicial Magistrate / Fast Track Court, Tirupur on 26.12.2014 made in S.T.C.No.109 of 2012.
2. The appellant herein is the complainant and the respondent herein is the accused before the trial Court and for the sake of convenience, they would be called herein as complainant and accused respectively.
3. The case of the complainant is that, the complainant knows the accused through a relative of the complainant and common friend of both one Natarajan 4 years prior to the transaction in question. As such, the accused, in order to invest some amount in a Spoken English Academy run by him in the name and style of JKR Spoken English, required money and therefore he along with Natarajan came and requested the complainant a sum of Rs. 10,00,000/- for such investment as loan.
4. Accordingly, the complainant had paid a sum of Rs. 7 lakhs on 02.08.2010 at his home in the presence of the said Natarajan to the accused and for the said loan amount of Rs. 7 lakhs, the accused agreed to pay the interest of 12% p.a. On the very same day, i.e., on 02.08.2010, the accused had executed a promissory note, Ex.P.1. On the same day, the said Natarajan also given loan of a sum of Rs. 3 lakhs to the accused, for which he executed another pro-note.
5. Though such an amount of Rs. 7 lakhs was paid by the complainant to the accused, for which he executed pro-note and he agreed to repay the same when demanded, the accused did not come forward to pay back the said amount of Rs. 7 lakhs, when it was demanded. However at one point of time, i.e., on 06.05.2011, the accused issued a cheque in the name of or in favour of the complainant for a sum of Rs. 7 lakhs drawn in Axis Bank, Tirupur Branch, dated 06.05.2011 with Cheque No.015026. On request of the accused, the complainant deposited the said cheque on 06.05.2011 itself at his Bank, however, the same was returned on 07.05.2011 for the reason "Funds Insufficient" in the account of the accused.
6. Thereafter the complainant sent a statutory notice under section 138(b) of the Negotiable Instruments Act (For short NI Act) on 17.05.2011 and the said notice was sent to various addresses given by the accused. Out of the several copies of the notice sent to various addresses of the accused, the accused received it on 18.05.2011 at first address and he also received the notice at 2nd and 9th addresses on 20.05.2011. However, the notice sent to 3rd and 8th addresses of the accused had been returned on 18.05.2011.
7. On receipt of the notice from the complainant, the accused on 31.05.2011 sent a reply, where he has made a denial of receipt of the amount and also has given a different story. Since the accused did not come forward to pay back the money to the complainant, in spite of the receipt of notice under section 138(b) of the NI Act and had given a reply with different story, it can be presumed that the accused had committed the offence punishable under section 138 of the NI Act, accordingly the complainant filed a complaint under section 138 of NI Act.
8. The said complaint was taken on file in S.T.C.No.109 of 2012 by the trial Court. Before the trial court, on behalf of the complainant, he himself was examined as P.W.1 and Exs.P.1 to P.24 were marked. On behalf of the accused, there was no witnesses examined, nor any documents were marked. The trial Court, after having completed the trial and after having appreciated the evidence adduced before the trial Court and after having examined the same, has rendered the Judgment and conviction by its order, dated 26.12.2014, whereby it was found that the accused was guilty of the offence punishable under section 138 of the Negotiable Instruments Act. Accordingly, the trial Court convicted him and sentenced him to undergo one year SI and
