Smt. Vijayakumari vs Sri. T. Vasanthakumar

V. Jagannathan

The petitioner calls in question her conviction u/s 138 of the N.I. Act and the consequent, sentence of imposing fine of Rs. 5,55,000/- and in default of payment of fine, to undergo S.I. for 5 months and, the lower appellate court confirming the trial court judgment. The case of the respondent-complainant before the trial court was that, he had advanced loan of Rs. 5 lakhs to the petitioner on 20.5.06 and the petitioner did not repay the loan amount, but on being asked by the complainant to pay the loan amount, the petitioner issued a cheque for Rs. 5 lakhs and the said cheque was issued on 16.1.2007. On being presented to the bank, the cheque was returned with the endorsement ''payment stopped by the drawer''. Thereafter the complainant issued a notice to the petitioner and not being responded positively by the petitioner, u/s 200 of Cr.P.C. a complaint was lodged alleging commission of the offence punishable u/s 138 of the N.I. Act by the petitioner.

The trial court after appearance of the parties before it and on considering the evidence let in by the complainant, who examined himself as PW-1 and produced ten documents and PW-1 to PW-3 being examined on behalf of the petitioner and seven documents being produced, ultimately concluded that the complainant had established his case because cheque Ex. P1 bears the signature of the petitioner which is not disputed by the petitioner herself. Therefore, the conviction and sentence was the result. The lower appellate court confirmed the trial court judgment in all respects by dismissing the petitioner''s appeal.

I have heard learned counsel Smt. Nethravathi for the petitioner and Sri. Ambaji Rao Najne for the respondent and perused the records of this case.

Submission of the learned counsel for the petitioner is that, the petitioner never took loan of Rs. 5 lakhs on 20.5.06 and it is the case of the petitioner that, she had taken Rs. 5 lakhs in the year 1999 and the said amount had been repaid by her and it is also acknowledged by the complainant. In respect of the loan taken in the year 1999, the petitioner had issued a blank cheque with her signature and the complainant after having received the amount of Rs. 5 lakhs, did not return the blank cheque to the petitioner. The cheque was issued by the petitioner as a collateral security to the loan transaction of the year 1999. It is the further case of the petitioner that the relationship between the parties was cordial till the release of the Tamil film ''Pokari''. As the petitioner''s husband was in the cinema business, but the name of the petitioner was being used by her husband on account of the film mentioned above which was released on 14.1.07 in Bangalore, but not being released in the theatre of the complainant, the complainant therefore thought of making use of the blank cheque given in the year 1999 and he filled up the name and date in the cheque and presented it to the bank and the cheque was dishonoured.

Referring to the aforesaid stand of the petitioner, learned counsel for the petitioner argued that, even the complainant has admitted in the course of his cross examination that in respect of the loan given by the complainant earlier, no balance was to be paid by the petitioner and secondly, the complainant has also admitted the contents of Ex. D1, D2 and D3 being in his own handwriting.

Nextly, it is argued that the complainant has not produced any documents to show that he withdrew Rs. 5 lakhs from the bank a day or two prior to giving loan to the petitioner and the complainant also has not produced any income tax returns to show that he had paid Rs. 5 lakhs to the petitioner on 20.5.06. Therefore, the facts and circumstances narrated above would go to show that the petitioner has placed enough material to rebut the presumption in favour of the complainant. The initial burden was not discharged by the complainant by producing any bank document or income tax returns to show that, on 20.5.06 he had given loan of Rs. 5 lakhs to the petitioner. Under these circumstances, the courts below did not appreciate the evidence properly and merely because the cheque Ex. P1 bears the signature of the petitioner, both the courts proceeded to convict the petitioner.

Hence, relying on the decisions reported in Shiva Murthy Vs. Amruthraj, learned counsel for the petitioner argued that the complainant has failed to establish that the cheque Ex. D1 was issued by the petitioner towards discharge of a legally enforceable debt and as such, the petition be allowed by setting aside the judgments of the courts below.

On the other hand, submission of Sri. Ambaji Rao Najne for the respondent is that, once the cheque is admitted by the petitioner as having been issued by her as per Ex. P1, nothing more is required to be proved by the complainant and moreover Ex. D1, D2 and D3 are written on a plain paper without the signature of the complainant, nor is there mention of cheque number in respect of Rs. 5 lakhs and therefore those documents were rightly discarded by the courts below.

As far as the capacity of the complainant to pay the amount of Rs. 5 lakhs to the petitioner is concerned, it is argued by him that the complainant is in the cinema business and therefore he will be having cash all round the year. As such, the courts below did not find any infirmity in the case of the complainant and there was no rebuttal evidence placed by the petitioner for the court to draw an adverse inference against the complainant. As such, the judgments of the courts below call for no interference.

Having thus heard both sides, the question that requires to be answered is as to whether the petitioner has placed enough, material by way of rebuttal evidence to rebut the presumption in favour of the complainant.

The fact that Ex. P1 the cheque bears the signature of the petitioner is not in dispute. Whether on that score alone, can it be said that the complainant has established his case. One of the essential ingredients of Section 138 of the N.I. Act. is that, the complainant will have to establish that the cheque was issued towards discharge of legally enforceable debt. Whether it can be said that, as on the date of issuance of cheque, the petitioner was due a sum of Rs. 5 lakhs to the complainant.

It has come in the evidence of PW-1 during the cross- examination that, after the date of issuance of cheque Ex. P1. there was no amount due by the petitioner. It is also the case of the petitioner that, she had taken Rs. 5 lakhs loan in the year 1999 and that was repaid by her long back. With the aforesaid admitted facts, if the evidence is closely examined, the contention put forward by the learned counsel for the petitioner that there was no debt that was payable by her as on 16.1.07 appears to carry enough weight behind it for the following reasons.

The first one is that the cheque Ex. P1 is not in the handwriting of only the petitioner. Except the signature part of the cheque, the other writings, even according to PW-1, are in different ink and different handwriting. Secondly, the date mentioned in the cheque in ink is 16.1.07. The cheque leaf itself indicates that the year starts with 19... Thus, one wonders as to whether the petitioner could have issued a cheque which was of the year 19..... long after in the year 2007. This itself raises serious doubt about the petitioner having issued the cheque in the year 2007.

The further fact is that. PW-1 has admitted in the course of his evidence that, no amount was due by the petitioner till the date of issuance of the cheque Ex. P1. The only ground which the petitioner has taken is, loan from the complainant is said to be Rs. 5 lakhs in the year 1999 and it is also the case of the petitioner that as collateral security, she had given a blank cheque signed by her. Another factor to be taken note of is that, it has come in the evidence of PW-1 that the Tamil film ''Pokari'' was released in Bangalore on 14.1.07 and it is also his admission that the said film was not released in his theatre. Therefore, the argument of the learned counsel for the petitioner that, on account of the said film being not released in the theatre of the complainant, the complainant made use of the old cheque which starts with the year 19, in the year 2007, two days after the release of the film, also carries enough weight behind it. Moreover, as rightly submitted by the petitioner''s counsel, the petitioner who is also the wife of one Kuppuswamy who is dealing with the film business, that the petitioner would have given a cheque which is printed with the year commencing 19... long after that in 2007. It is also unlikely that, a person would have given a cheque, which is more than nine years old in respect of a transaction that takes place nine years later. Therefore, all these materials placed on record goes to indicate that the petitioner has placed enough material by way of rebuttal evidence to discard the case of the complainant.

Apart from the aforesaid observations it also will have to be mentioned that PW-1 in the course of his cross examination has stated that, he withdrew the amount of Rs. 5 lakhs from the bank two days prior to giving the amount to the petitioner. In other words, he ought to have withdrawn the amount on 14.1.07 and to show that Rs. 5 lakhs was withdrawn by him on that day, no bank statement is produced and apart from that, no income tax returns are produced to show that, in the year 2007, he had given loan to the petitioner.

Another defect in the case of the complainant is that, according to him, the amount was given to the petitioner on 20.5.06 and if the petitioner had not paid the amount, the complainant would not have waited for more than a year to present the cheque to the bank. All these factors therefore goes to establish that the complainant has failed to prove before the trial court that Ex. P1 was issued by the petitioner to enforce a legal debt.

The rulings referred to by the petitioner''s counsel are applicable to the case on hand. In the decision reported in Shiva Murthy Vs. Amruthraj, a learned Single Judge of this court has held that, the complainant will have to prove the existence of legally enforceable debt and only thereafterwards the court can proceed to draw (he presumption u/s 138 of the N.I. Act. In the Apex Court decision reported in AIR 1961 S.C. 1316. It has been observed that, where the plaintiff says that he has sold certain goods 10 the defendant and that promissory note was executed as a consideration for the goods and that the plaintiff is in possession of the relevant account books, non production of the said documents would be considered against the plaintiff on the footing that if the documents had been produced, they would have been unfavourable to the plaintiff. In the last of the decision referred to by the petitioner''s counsel reported in 2003(1) DCR 549. It has been held by a learned Single Judge of the Kerala High Court that the issuance of a cheque will have to be shown as towards discharge of a legally enforceable debt.

In the light of the aforesaid reasons, in my view, the courts below failed to appreciate the evidence in proper perspective and the petitioner has placed enough material to rebut the presumption in favour of the complainant. As such, the judgments of the courts below are liable to be set aside and hence I pass the following order. The revision petition is allowed. The judgments of the courts below stand set aside. The petitioner is acquitted of the offences alleged against her and fine amount, if any, deposited shall be returned to the petitioner.