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IN THE HIGH COURT OF MADRAS
G. JAYACHANDRAN, J.
Rasipuram Lorry Owner's Association and Ors. – Appellants
Versus
M. Velayutham – Respondents
A.S. No. 988 of 2009 and M.P. No. 1 of 2009
Decided On : 04-02-2021
Appeal Suit - Money Decree - Negotiable Instrument Act - Section 138 - The allegation that the Cheque and the Bank Intimation Slip was forcible taken from the Plaintiff by the Defendants is false and invented story of the Plaintiff. The reason stated for not producing the original Cheque is false. The Suit filed based on the Photocopy of the Negotiable Instrument is not maintainable - Whether the limitation for the Suit based on a dishonoured Cheque commence from the date of Cheque or date of dishonour and whether in this case the Plaintiff had satisfied the foundational requirement to adduce Secondary evidence to sustain the Suit on a lost Negotiable Instrument - Whether the limitation for the Suit based on a dishonoured Cheque commence from the date of Cheque or date of dishonour and whether in this case the Plaintiff had satisfied the foundational requirement to adduce Secondary evidence to sustain the Suit on a lost Negotiable Instrument – Held, parties are not absolutely restrained from adducing Secondary evidence. What is expected under laws is, before adducing Secondary evidence plausible reason and factual foundation for laying Secondary evidence has to be established - san filing formal application to receive Secondary evidence and no separate Application or Notice caused to the Defendants for production of document, the Plaintiff had laid the necessary factual foundation for adducing Secondary evidence and had accounted for not producing the original Cheque. The Defendants had not pleaded or proved that they were prejudiced by admitting Secondary evidence - Appeal Suit is dismissed
JUDGMENT :
Dr. G. Jayachandran, J.
1. This Appeal Suit is preferred by the Defendants in the Suit, assailing the money Decree passed against them by the Trial Court.
2. Pleadings in brief:
The Plaintiff is a Businessman residing at Rasipuram Town. The Defendants are President and Secretary of Rasipuram Lorry Owners' Association. The Plaintiff and Defendants are known to each other. The Rasipuram Lorry Owners' Association is running a Petrol Bunk at Rasipuram. The affairs of the Petrol Bunk is administered through the Defendants. For the urgent financial requirement of the Petrol Bunk, the Defendants borrowed Hand Loan of Rs. 6,00,000 from the Plaintiff on 20.11.2002. When the Plaintiff demanded back the Loan amount, the Defendants issued a Cheque bearing No. 657002, dated 28.11.2002 for Rs. 6,00,000 of Canara Bank, Rasipuram assuring that, sufficient balance is available in the account. The Cheque was presented on 11.12.2002 for collection. The Cheque returned on the same day with endorsement "Not arranged for. Exceeds arrangement and Payment stopped by the drawer". The Plaintiff met the Defendants and informed them about the bouncing of the Cheque. The Defendants promised to pay the money soon. Next day, on 12.12.2002, the Defendants came to the Plaintiff house and asked him to come to the Office of the Lorry Owners' Association with the Cheque and get the cash. Believing their words, the Plaintiff went to the Office of the Defendants. At the Defendants Office, the Defendants and three others forcible took the Cheque and the Bank Intimation Slip from him. They told him that the money will be paid only after verification of the accounts and till then, the Plaintiff should not trouble them demanding the money. They refused to give back the Cheque and the Bank Slip. The attempt of the Plaintiff to get back his money through one A.K.B. Chinnaraj, Treasurer of the Lorry Owners' Association and others failed. Hence, on 14.12.2002, the Plaintiff gave a Criminal Complaint at Rasipuram Police Station against the Defendants and requested the Police to get back the original Cheque and Bank Intimation Slip taken forcible by the Defendants from him. The Defendants handed over the Cheque to the Inspector of Police, Rasipuram. However, the Inspector did not hand over the Cheque to the Plaintiff on the pretext that, the Defendants had given to him two Cheques, one blank Cheque and another Cheque drawn in favour of the Plaintiff. He will handover both the Cheques and refused to handover the Cheque drawn in the name of the Plaintiff separately.
3. Narrating these facts, the Plaintiff issued Notice, dated 21.12.2002 to the Defendants and demanded to repay the money or to face legal consequence. The Defendants gave a Reply through their Lawyer vide Reply Notice, dated 30.12.2002 with false allegations. The Plaintiff had proceeded against the Defendants with the photocopy of the Cheque under Section 138 of Negotiable Instrument Act, before the Judicial Magistrate Court at Rasipuram. In the said Private Complaint, Miscellaneous Petition filed against the Inspector of Police, Rasipuram, for production of original Cheque which was left in his custody. In the said Petition, the Inspector of Police, in his Counter stated that, he had returned the Cheque to the Second Defendant. Therefore, another Miscellaneous Petition was filed against the Second Defendant for production of the original Cheque. To escape from the liability, the Second Defendant averred that, he has handed over the Cheque to the Plaintiff. Therefore, the Plaintiff filed Criminal Revision Petition before the High Court. The High Court in Crl.R.C. No. 1161 of 2003 granted leave to proceed with the Private Complaint under Negotiable Instrument Act with the Secondary evidence namely the Photocopy of the Cheque. The other documents relevant to the Suit were filed before the Magistra
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