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2025 Supreme(Mad) 3116
IN THE HIGH COURT OF JUDICATURE AT MADRAS
SATHI KUMAR SUKUMARA KURUP, J.
M. Senthil Nathan - Appellant
Versus
K. Saravanan - Respondent
Criminal Appeal No. 836 of 2012
Decided On : 18-03-2025
Advocate Appeared:
For the Appellant : V.M. Ravishankar
For the Respondent: R. Muthukumar
The presumption under Sections 118 and 139 of the Negotiable Instruments Act does not favor the complainant when the evidence fails to establish that the cheque was issued for a legally enforceable debt.
Headnote:(A) Negotiable Instruments Act, 1881 - Sections 138, 118, and 139 - Criminal Appeal against acquittal - The accused borrowed Rs.1,50,000/- and issued a cheque which was dishonoured due to insufficient funds - The trial court acquitted the accused, concluding that the cheque was unnecessary due to an existing mortgage deed - The appellate court found that the presumption under Sections 118 and 139 applies, but the complainant failed to prove the cheque was issued for a legally enforceable debt - The appeal was dismissed, confirming the acquittal. (Paras 1, 3, 9, 16)
(B) Power of Attorney - The Power of Attorney agent cannot testify about the transaction as he was not a party to it, leading to an adverse presumption against the complainant. (Paras 9, 14)
(C) Burden of Proof - The burden lies on the accused to rebut the presumption, but the complainant's failure to provide competent evidence weakened the case. (Paras 10, 15)
Facts of the case:
The accused borrowed money and issued a cheque which was returned unpaid. The complainant filed a complaint after a significant delay.
Findings of Court:
The trial court's acquittal was based on the lack of competent evidence from the complainant and the existence of a mortgage deed.
Issues: Whether the acquittal should be set aside and the accused convicted.
Ratio Decidendi: The court upheld the trial court's finding that the complainant failed to prove the cheque was issued for a legally enforceable debt, and the presumption under the Negotiable Instruments Act did not favor the complainant.
Result: Appeal dismissed.
JUDGMENT :
1. This Criminal Appeal is filed to set aside the order of acquittal dated 05.10.2012 passed by the learned VIII Metropolitan Magistrate, George Town, Chennai in C.C.No.797 of 2010 and consequently convict the respondent/accused for having committed the offence under Section 138 of the Negotiable Instruments Act.
2. The brief facts, which are necessary for disposal of this Criminal Appeal, are as follows:
2.1. As per the complaint in C.C. No. 797 of 2010 filed by the complainant, the Accused borrowed a sum of Rs.1,50,000/- as loan from the Complainant on 18.12.2008 and agreed to repay the same along with interest at 18% per annum. For securing the prompt repayment of the loan amount, the accused mortgage his property – wet land comprised in Survey No. 95/6 situated in Aameethanallur Village, Oothukottai Taluk, Tiruvallur District within the Sub-Registration of Aarani and Registration District of Chennai North. The mortgage deed was registered as Document No.5846 of 2008 on the file of the Sub-Registrar Aarani in favour of the Complainant. The Accused had also deposited the title deeds relating to the above said property to create collateral security for the said repayment of the loan. Subsequently, for the repayment of the loan, the Accused issued a cheque bearing No.740401 dated 20.10.2009 drawn on State Bank of India, Janapanchatram Branch, G.N.Y. Road, Sholavaram Post, Ponneri Taluk, Pin Code - 600067 for Rs.1,50,000/- and assured that there are sufficient funds in his Bank account and cheque would be honoured on presentation. However, when the Complainant presented the cheque through his Bank, ICICI Bank, Nungambakkam Branch, Chennai for realisation, the said cheque was returned unpaid for the reason 'insufficient funds' on 23.10.2009. On receipt of the returned cheque along with memo issued by the ICICI Bank, Nungambakkam Branch the Complainant issued a statutory notice through his Counsel to the Accused calling upon him to pay the cheque amount. The Accused received the statutory notice, but failed to pay the cheque amount. Therefore, the complainant, after waiting for a period of 15 years had preferred the complaint in C.C. No. 797 of 2010 against the Accused.
2.2. After recording the sworn statement of the Complainant, the learned VIII Metropolitan Magistrate had taken the complaint under 138 of the Negotiable Instruments Act on file and issued summons to the Accused. The Accused appeared and he was questioned regarding the dishonour of the cheque and commission of the offence under 138 Negotiable Instruments Act. The Accused denied the charge against him and claimed to be tried. Therefore, trial was ordered.
2.3. During trial, the Complainant examined his Power of Attorney Agent as P.W-1 and marked 6 documents. Ex.P-1 is the Power of Attorney deed. Ex.P-2 is the dishonoured cheque. Ex.P-3 is the return memo issued by the Bank. Ex.P-4 is the debit advice issued by the Bank. Ex.P-5 is the legal notice issued to the accused. Ex.P-6 is the acknowledgement card.
2.4. The incriminating evidence against the Accused was put to him under 313 Cr.P.C. The Accused denied the incriminating evidence against him. To prove the case, the Accused adduced evidence in an attempt to rebut the initial presumption raised by the Complainant. The Accused examined himself as D.W-1 and the brother in law of the Accused was examined as D.W- 2. The accused also marked Ex.D-1, mortgage deed executed in favour of the Complainant and contended that the Accused was forced to part with two cheques at the time of execution of the mortgage which were filled up by the complainant and presented before the Bank.
2.5. On assessment of the oral and documentary evidence, the learned VIII Metropolitan Magistrate by judgment dated 05.12.2012 dismissed the complaint and acquitted the Accused.
2.6. Aggrieved by the judgment of acquittal, the Complainant had filed this Appeal.
3. Thiru V.M. Ravishankar, for Mr.B.Jayaraman Learned Counsel for the Appellant submit
