D. Sekar vs G. Veerammal

T. Mathivanan, J.—This memorandum of Criminal Appeal is directed against the judgment dated 04.01.2007 and made in C.C. No. 560 of

2006 on the file of the learned Judicial Magistrate No. V, Tiruchirapalli, acquitting the accused on the ground that the offence u/s 138 of the

Negotiable Instruments Act has not been satisfactorily established against the accused. Being aggrieved by the impugned judgment, the

complainant has approached this Court by way of this criminal appeal.

The related facts and circumstances which giving rise to the memorandum of criminal appeal may be summarised briefly as follows:

2.1. That on 01.12.2001, the accused along with her husband had borrowed a sum of Rs. 60,000/- from the complainant for meeting out her

urgent family expenses. By way of discharging her liability, she had issued a cheque (Ex.P1) bearing No. 319657 dated 14.12.2001 drawn on the

Tamil Nadu Industrial Cooperative Bank Limited, Promenade Road, Tiruchirapalli Branch, for the value of Rs. 60,000/-.

2.2. On the instructions given by the accused, the complainant had presented the cheque on 01.03.2002 for encashment before Tiruchirapalli

District Central Cooperative Bank Limited, Subramaniapuram Branch, Tiruchirapalli. But, it was returned on 05.03.2002 with an endorsement

funds insufficient"". Ex.P4 is the cheque return letter dated 05.03.2002. Ex.P3 is the memorandum issued by the Tamil Nadu Industrial

Cooperative Bank Limited dated 05.03.2002. Then, the complainant had issued a notice (Ex.P5) to the accused on 21.03.2002 and thereby the

accused was put under notice to repay the amount covered by the cheque. After receipt of the notice on 26.03.2002 (Ex.P6 postal

acknowledgment), the accused had issued a reply (Ex.P7) on 02.04.2002. Since the accused had not repaid the loan amount even after the receipt

of the notice, the complainant had filed a complaint to deal with the accused u/s 138 of the Negotiable Instruments Act.

2.3. After taking cognizance of the offence u/s 138 of the Negotiable Instruments Act, a charge was framed and when the ingredients of the charge

were explained and questioned, the accused had pleaded innocent and claimed to be tried. Therefore she was put on trial.

2.4. In order to establish their respective cases, the parties went for trial. The complainant had examined himself as P.W.1 and one Gunaseelan,

Accountant of the Tamil Nadu Industrial Cooperative Bank, Tiruchirapalli Branch was examined as P.W.2 and one Saravanan, Branch Manager

of Tiruchirapalli District Central Cooperative Bank Limited was examined as P.W.3. During the course of their examination, Exs.P1 to P10 were

marked. When the accused was examined in respect of the incriminating circumstances arising out of the testimonies of the prosecution witnesses

she had denied their testimonies and wanted to examine witnesses on her behalf. Five witnesses were examined on behalf of the accused and

during the course of their examination Exs.D1 to D10 were marked. But the accused never opted to examine herself as a witness to prove her

case.

2.5. On appreciation of the relevant materials available on records, the Trial Court had proceeded to acquit the accused on the ground that the

offence u/s 138 of the Negotiable Instruments Act has not been proved against her. Hence, this appeal is preferred by the complainant.

Heard both sides.

The amount covered by the cheque under Ex.P1 dated 14.12.2001 is Rs. 60,000/-. The date of alleged borrowal as per the complaint is

01.12.2001. As it reveals from the complaint, the cheque (Ex.P1) dated 14.12.2001 was issued by the accused in favour of the complainant on

the date of borrowal itself. The cheque was returned when presented for encashment with an endorsement as ""funds insufficient"", then the

complainant was constrained to issue a statutory notice under Ex.P5 for which the accused had also given reply under Ex.P7.

The defence of the accused is that she had not borrowed any amount from the complainant much less Rs. 60,000/- on 01.12.2001 and that she

had not even issued any cheque for the value of Rs. 60,000/- dated 14.12.2001. Further, it is also the defence plea of the accused never had

financial transactions with the complainant and that the complainant with the connivance of others had misused the cheque of the accused bearing

No. 319657 drawn on the Tamil Nadu Industrial Cooperative Bank Limited, Promenade Road, Cantonment, Tiruchirapalli.

At the time of examination of the accused u/s 313 of Cr.P.C., she had filed a written statement u/s 243(1) of the Code of Criminal Procedure, in

which, she had stated that originally the complainant was working as a cleaner in the lorry owned by her husband in the year 1980 and thereafter,

he had purchased his own vehicle and subsequently he had acted as a middleman for five private financial institutions including Sree Venkadathri

Finance and Karpaga Vinayaka Finance. She would state further that the complainant would introduce customers to the above said financial

institutions and get commission for introducing the customers.

She would state further that on 27.09.1999 her son one Rajamuni borrowed a sum of Rs. 19,900/- from Sree Venkadathri Finance and that the

complainant had introduced her son to one N.Krishnakumar who was in charge of the above said financial institutions. Since the said N.

Krishnakumar had demanded two cheques from her (accused) as security for the loan to be advanced to her son, she had issued two signed blank

cheques to the complainant to be handed over to the said Sree Venkatadhri Finance on 27.09.1999. She would state further that her son had

repaid the loan amount in time and when she asked the complainant to return the cheques, he had stated that he would return them as soon as he

gets them back from the said Sree Venkatadhri Finance. When she asked the complainant once again for return of the cheques, he had

represented that the financier had misplaced them and they could not be traced and assured that he would see that the cheques were not misused

in future.

The accused has also come forward with another defence story that her husband Mr. Gunasekaran had introduced his nephew R. Shanmugaraj

of Dindigul to the complainant and that the complainant took the said R. Shanmugaraj to Mr. N. Krishnakumar and facilitated a loan of Rs.

30,000/- to him. Accordingly, the loan was advanced to the said R. Shanmugaraj from Karpaga Vinayaga Finance and since the said R.

Shanmugaraj had failed to repay the loan fully, the complainant had taken the husband of the accused on 05.01.2002 along with the motorcycle

owned by her son to the Finance Company and detained illegally for more than two hours and subsequently forced to sign a promissory note and

few other papers in favour of the finance and to accept the liability of the said R. Shanmugaraj as his own. Thereafter, a complaint was lodged by

her husband before the Fort Police Station on 07.01.2002 and a case in Crime No. 10 of 2002 was registered on 09.01.2002 and after enquiry,

the said motorcycle was handed over to the husband of the accused.

Further, she would state that enraged by this incident the complainant with the hand in glove with the said N. Krishnakumar with an ulterior

motive had filed this complaint by misusing her cheque.

The accused had also taken another defence plea that on 14.12.2001 her mother had died and that the entire family members had gone to

Srivilliputhur to attend funeral ceremony and as such she never borrowed any amount much less Rs. 60,000/- from the complainant as alleged by

him.

It is pertinent to note here that these facts have not been mentioned in the reply notice Ex.P7 sent by the accused through her lawyer to the

complainant. P.W.2 the accountant of the Tamil Nadu Industrial Cooperative Bank Limited, Tiruchirapalli and P.W.3 the Branch Manager of

Tiruchirapalli District Central Cooperative Bank have supported the case of the complainant with regard to the presentation and returning of

cheque as dishonoured. The evidence in cross examination of P.W.1 has not shaken the case of the complainant.

As contemplated u/s 118 of the Negotiable Instruments Act.-Until the contrary is proved, the following presumptions shall be made,-

(a) of consideration, that every negotiable instrument, was made or drawn for consideration, and that every such instrument, when it has been

accepted, endorsed, negotiated or transferred, was accepted endorsed negotiated or transferred for consideration;

(b) as to date, that every negotiable instrument bearing a date was made or drawn on such date;

(c) as to time of acceptance, that every accepted bill of exchange was accepted within a reasonable time after its date and before maturity;

(d) as to time of transfer, that every transfer of a negotiable instrument was made before its maturity;

(e) as to order of endorsements, that the endorsements appearing upon negotiable instrument were made in the order in which they appear

thereupon;

(f) as to stamps, that a lost promissory note, bill of exchange or cheque was duly stamped;

(g) that the holder of a negotiable instrument is a holder in due course, has been obtained from its lawful owner, or from any person in lawful

custody there, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud; or for

unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.

On coming to Section 139 of the Act, it says that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the

cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. As envisaged under the proviso

to Sections 118 and 139 of the act, the complainant has proved his initial burden that cheque Ex.P1 was drawn by the accused in favour of the

complainant for discharging of her liability i.e. a sum of Rs. 60,000/- which is said to have been borrowed by her from the complainant.

Of course, the presumptions under proviso to Sections 118 and 139 can be rebutted by the accused. It is, therefore, contemplated u/s 118 of

the Act that ""until the contrary is proved"" and u/s 139 that ""it is to be presumed unless the contrary is proved.

Now it is for the accused to disprove the presumption raised on the part of the complainant. In order to disprove the case of the complainant

she had examined five witnesses including her husband. As adumbrated supra she has not even chosen to examine herself as a defence witness.

The defence theory that she had issued two signed blank cheques to the complainant to be handed over to the said Sree Venkatadhri Finance on

27.09.1999 as security for the loan to be advanced to her son has not been proved. Though five witnesses were examined on her part none of the

witnesses has come forward for her rescue. Since the accused had miserably failed to prove the contrary view, this Court has left with no option

excepting to conclude that the complainant had fully satisfied the requirements of the proviso to Section 138 of the Act.

The another defence plea which was taken on behalf of the accused is that on 14.12.2001 the accused along with her family members had

been to Srivilliputhur to attend the funeral ceremony of her mother and as such there was no possibility for her to present on Tiruchirapalli on

14.12.2001 to issue the disputed cheque in favour of the complainant.

In this connection, it may be appropriate to note here that she had not even taken such a plea in her reply notice under Ex.P7. In the complaint,

the complainant has stated that on 01.12.2001 she had borrowed a sum of Rs. 60,000/- and for discharging the liability, she had issued a cheque

for the amount of Rs. 60,000/- bearing No. 319657 dated 14.12.2001 drawn on the Tamil Nadu Industrial Cooperative Bank Limited,

Promenade Road, Tiruchirapalli. But the accused had not denied her signature find a place in Ex.P1 cheque. The other details of the cheque are

type written. The complainant has never stated in his complaint that the cheque was issued on 14.12.2001 instead he has stated that for discharging

her liability the accused had issued a cheque in his favour for the value of Rs. 60,000/- bearing No. 319657 dated 14.12.2001. Therefore, the

contrary plea of the accused that she had been to Srivilliputhur for attending her mother''s funeral ceremony on 14.12.2001 has in no way cognate

to her case. Under these circumstances, the appeal is liable to be allowed.

In the result, the appeal is allowed. The impugned judgment is set aside. The accused is found guilty u/s 138 of the Negotiable Instruments Act

convicted thereunder.

Merely punishing the accused by sending her to the prison or directing to pay certain fine amount will not in any way helpful to the complainant

to recover the money from the accused. As rightly observed in Goa Plast (P) Ltd. v. Chico Ursula D''Souza 2004 SCC (Cri) 499 the filing of suit

for recovery of amount from the accused is a long-drawn process and an unscrupulous drawer normally takes various pleas to defeat the genuine

claim of the payee. Therefore, it has become necessary to follow the decision of this Court in R. Sridher v. T.K. Rajendra Sha (2008) 2 MLJ 526.

Accordingly, this Court is of the considered view that awarding the cheque amount viz., Rs. 60,000/- as compensation to be paid by the

accused to the complainant would meet the ends of justice apart from sentencing of till rising of the Court. Therefore, the accused is directed to

pay a sum of Rs. 60,000/- being the value of the cheque by way of Demand Draft drawn in favour of the complainant as compensation u/s 357 (3)

of the Code of Criminal Procedure within a period of two months from the date of receipt of a copy of this judgment. The accused is directed to

produce the Demand Draft as detailed above before the trial Court within the time stipulated. On such production of the Demand Draft, the

complainant is directed to receive the same on proper acknowledgment. The accused is directed to appear before the Trial Court viz., learned

Judicial Magistrate No. V, Tiruchirapalli, to comply with the sentence of till rising of the Court on 20.06.2010 at 10.30 a.m. It is also made clear

that in the event of default of payment of compensation amount of Rs. 60,000/-, the accused is directed to suffer Simple Imprisonment of six

months. It is also open to the complainant to take steps to recover the compensation amount as contemplated u/s 421 of the Code of Criminal

Procedure.