Back
2021 Supreme(Mad) 1580
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RMT. TEEKAA RAMAN, J.
R. Selvam – Appellant
Versus
Thangapoorani – Respondent
Crl.A.No. 313 of 2015
Decided on : 27-09-2021
Advocate Appeared:
For the Appellant :S. Santhosh Kumar, Advocate.
For the Respondent:G. Anbuchezheian, Advocate.
Headnote:
Criminal Procedure Code,1973 - Section 378 (4) - Negotiable Instruments Act - Section 138 - handed over a postdated cheque - legal notice - arrangements to discharge his liability - Insufficient Funds - Appellant was distributor of food products running his business in name and style -Sri Enterprises husband of the respondent - Respondent-s husband supplied goods to appellant upon payment of advance deposit and accordingly appellant had paid an advance deposit - Respondent-s husband - Since production of food products were stopped by respondent-s husband, he became liable for refund of advance deposit and hence under a covering letter respondent had handed over a postdated cheque (Ex.P2) for sum toward discharge of liability of her husband - Prior to due respondent had caused a legal notice stating that her husband was making arrangements to discharge his liability and request the appellant to refrain from presenting the postdated cheque (Ex.P2) issued in his favour and that liability would be discharged shortly – Held, Court has held that mandate holder though is an authorized signatory on behalf of account holder complaint filed against mandate holder and not against account holder in whose account cheque was drawn, is not liable - Perusal of Ex.P2 is not issued on behalf of Company - It is issued by first accused who is the wife of second accused under his individual capacity decision is not applicable to facts and circumstances of the case and thus I find that the reasoning given by lower Appellate Court in acquitting first accused by an erroneously considering that impugned Ex.P2 cheque is a Company cheque and A1 is a mandate holder - Once drawer admits signature of cheque, it is presumed that drawer had given cheque for discharging a legally enforceable debt or liability Drawer is given an option to rebut statutory presumption by adducing positive evidence in form of proof - Respondent was admitted a signatory in covering letter (Ex.P1) issued along with her postdated cheque signature and execution of cheque by respondent herein is not disputed and clear in view of legal notice (Ex.P3) issued by respondent just prior to due date of cheque - On perusal of Ex.P1 has categorically stated that their pre-existing legally enforceable debt against accused for said amount was issued and hence in absence of any suggestive case being probablized by respondent - Lower Appellate Court has wrongly construed and allowed appeal and committed in error in setting aside the well considered judgment of the trial Court - Appeal is allowed
JUDGMENT :
(Prayer: Petition filed under Section 378 (4) of Cr.P.C, to set aside the judgment of acquittal rendered on 10th November 2014 by the Appellate Court, Viz., learned XVI Additional Sessions Judge, Chennai in Crl.A.No.138 of 2010 and restore the judgment of conviction by the trial Court in C.C.No.6007 of 2006 on the file of the learned XXIII Metropolitan Magistrate at Madras against the respondent/accused-1.)
The unsuccessful complainant is the appellant herein.
2. For the sake of convenience, the parties are referred as per the ranking before the trial Court.
3. The appellant, who was the complainant before the trial Court, impugning the acquittal judgment of the learned XVI Additional Sessions Judge, Madras dated 10th November 2014, whereby setting aside the judgment of conviction delivered by the trial Court on 16th July 2010 for an offence under Section 138 of the Negotiable Instruments Act.
4. The appellant had initiated prosecution against the respondent and her husband for an offence under Section 138 of the Negotiable Instruments Act.
5. The appellant was the distributor of food products running his business in the name and style -Sri Anandha Jothi Vinayaka Enterprises-. The husband of the respondent, M.Ramkumar (arrayed as second accused in the complaint) was a manufacturer of food products marketing in the name and style -R.R.Foods-. The respondent-s husband supplied goods to the appellant upon payment of advance deposit and accordingly the appellant had paid an advance deposit of Rs.2,40,300/- (Rupees Two Lakh Forty Thousand and Three Hundred only) to the respondent-s husband (arrayed as second accused in the complaint). Since production of the food products were stopped by the respondent-s husband, he became liable for refund of the advance deposit and hence under a covering letter dated 08.02.2005 (Ex.P1), the respondent had handed over a postdated cheque (Ex.P2) for the sum of Rs.2,40,300/- toward discharge of the liability of her husband, M.Ramkumar. Thereafter, just prior to the due date i.e., 09.05.2005, the respondent had caused a legal notice dt.05.05.2005 (Ex.P3), stating that her husband was making arrangements to discharge his liability and request the appellant to refrain from presenting the postdated cheque (Ex.P2) issued in his favour and that the liability would be discharged shortly.
6. Accordingly, the appellant waited and was thereafter on the intimation of the respondent, the cheque (Ex.P2) was presented for collection. The cheque was dishonoured for the reason -Insufficient Funds-. The appellant had issued a demand notice under the Negotiable Instruments Act to the respondent as well as Mr.M.Ramkumar. The demand notices were received by the respondent and Mr.M.Ramkumar. Neither the respondent nor Mr.M.Ramkumar had paid to the appellant the value of the dishonoured cheque. The respondent or Mr.Ramkumar had not issued any reply to the demand notice issued by the appellant, thereby constraining the appellant to initiate criminal proceeding against the respondent and Mr.M.Ramkumar (The husband of the respondent) before the Trial Court within the time prescribed under the Statute.
7. During trial, the appellant examined himself as a witness and tendered 7 exhibits including the covering letter issued by the accused (EX.P1) and the legal notice (Ex.P3) issued prior to presentation of the cheque (Ex.P2). The respondent/accused did not examine any witness or tender and documents.
8. On appreciation of evidence so recorded, the trial Court reached the conclusion that the respondent and Mr.M.Ramkumar are guilty of the offence charged and hence convicted and sentenced the respondent and M.Ramkumar to suffer 6 months simple imprisonment and a fine of Rs.5000/-, in default has to undergo further simple imprisonment of three months.
9. The respondent/accused No.1 along with his husband M.Ramkumar who has arrayed as accused before the trial Court preferred in C.A.No.138/2010 and by an order dated 10.11.2014, the
