Sree Gokulam Chit & Finance Co. (P) Ltd. vs G.M. Mylsamy

R.S. Ramanathan, J.—The Complaint in C.C. No. 211 of 2007, on the file of Judicial Magistrate, No II, Coimbatore, is the Appellant herein. He filed a Private Complaint against the Respondent for offence under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ''N.I. Act''). As the said Complaint was dismissed by the Trial Court, acquitting the Respondent, the present Appeal is filed.

It is the case of the Complainant/Appellant that the brother of the Respondent, by name Mr. Anandakumar, was the subscriber of the Chit-G3 SC 571, Ticket No. 13, for a sum of Rs. 1,00,000 and the monthly subscription was Rs. 5,000/-, payable in 20 instalments. The said Anandakumar was the successful bidder and received the amount. Thereafter, he failed to pay the monthly subscription, and on that ground, he owed a sum of Rs. 46,000/- to the Complainant. When the amount was demanded by the Appellant, the Respondent, who stood as Guarantor for Anandakumar, issued a Cheque, dated 22.2.2006 in favour of the Appellant, for Rs. 46,000/-. When the Cheque was presented for collection on 28.2.2006, the same was returned with an endorsement "Account Closed". The Complainant intimated the Respondent, regarding the dishonour of the Cheque, and thereafter, issued a Statutory Notice on 11.3.2006. Despite receipt of the said Notice, the Respondent did not sent and reply. Hence, the Complaint was filed against the Respondent Accused, for offence punishable under Section 138 of N.I. Act. As the Trial Court dismissed the Complaint, by Judgment, dated 2.9.2008, the present Appeal is filed as stated above.

During trial, the Appellant examined himself as PW1 and marked nine documents, viz., Exs P1 to P9 Ex.P1, is the Power of Attorney, Ex.P2 is the Cheque in dispute, Ex P3 is the Return Memo, Ex.P4, is the Debit Advice, Ex P5 is the copy of the Notice sent to the Respondent, Ex P6 is the Acknowledgment, Ex.P7 is the Payment Voucher signed by Anandakumar, Ex P8 is the copy of the Ledger and Ex.P9 is the Chit Agreement executed by Mr. Anandkumar. On the side of the Respondent, the Respondent was examined as DW1 and two documents were marked as Exs.D1 & D2.

The learned Counsel appearing for the Appellant submitted that the Trial Court relied upon Exs.D1 & D2, and acquitted the Respondent, without properly appreciating the fact that Exs.D1 & D2, have nothing to do with the fats of this case. The learned Counsel further submitted that the specific case of the Appellant is that the Respondent stood as Guarantor for his brother-Anandkumar, who was the subscriber of the Chit G3 SC 571, Ticket No. 13, and that was proved by Ex.P9. Ex P7 is the Payment Voucher, signed by Anandkumar, Ex P8, is the copy of the Ledger Account and through Ex P7 to Ex.P9, the Complainant proved that Anandkumar was the subscriber of the Chit and he owed a sum of Rs. 45,000/- to the Appellant, and when the amount was demanded by the Appellant, the Respondent, who stood as Guarantor for his brother-Anandkumar, issued a Cheque for the said amount, it was returned with an endorsement "Account closed". Though the same was informed to the Respondent, which was followed by statutory Notice, there was no reply forthcoming from the Respondent. Hence, the Appellant has no other learned Counsel submitted that the Trial Court ought to have drawn presumption in favour of the Appellant under Sections 118 & 139 of N.I. Act and ought to have convicted the Respondent.

I am unable to accept the submissions of the learned Counsel appearing for the Appellant. According to me, the Trial Court rightly appreciated Exs.D1 & D2, and also Exs.P7 to P9 and dismissed the Complaint, acquitting the Respondent. It is the specific case of the Appellant that Anandkumar was the subscriber of the Chit and he owed a sum of Rs. 46,000/- to the Appellant. Since the Respondent stood as Guarantor for his brother-Anandkumar, in respect of that Chit, he offered to pay the amount, payable by his brother, by issuing a Cheque. To substantiate the same, the Appellant marked Exs. P7 to P9. But, on a perusal of those documents, it is seen that, in none of those documents, the Respondent signed as Guarantor nor his name was mentioned as Guarantor. Ex.P7 is the Payment Voucher in favour of Anandakumar and there was no reference to the Respondent Ex P9 is the Chit Agreement, signed by the Subscriber-Anandkumar, and nowhere, it was stated that the Respondent stood as Guarantor in respect of the Chit subscribed by Anandakumar. Therefore, in the absence of any proof produced by the Appellant that the Respondent stood as Guarantor for his brother-Anandakumar, and therefore, the Respondent offered to pay the amount, payable by Anandkumar and issued the Cheque, the case of the Appellant is fallacious.

Further, it is seen from Exs. D1 & D2 that the Cheque in question, would not have been issued by the Respondent on 2.2.2006, as alleged by the Appellant. It is seen from Ex.D1 that the Respondent was the subscriber to the hit group G3 SC 571 Ticket No.13, and the Chit value was for Rs. 1,00,000/- and monthly subscription was Rs. 5,000/- payable in 20 instalments and the Respondent owed Rs. 2,80,000/- in respect of the Chit and to discharge that liability, the Respondent issued Cheque, dated 31.1.2006, bearing No. 973691, for a sum of Rs. 2,80,000/- drawn at Tamil Nadu Mercantile Bank Ltd., Big Bazaar Street, Coimbatore-1, on the same date, i.e. on 31.1.2006. When the said Cheque, was presented for collection, it was returned with Memo dated 2.2.2006, stating that the account was closed. Thereafter, the Appellant issued a Notice, dated 10.2.2006 to the Respondent herein demanding the said amount. As the amount was not paid by the Respondent, the Appellant filed case against the Respondent in S.T.C. No 1269 of 2006. The learned Judicial Magistrate No.7, Coimbatore, by judgment, dated 8.4.2008, dismissed the said case.

Therefore, it seen from Exs.D1 & D2, that the Appellant knew that the Respondent issued a Cheque, bearing No.973691, dated 31.1.2006, drawn at Tamil Nadu Mercantile Bank Ltd., Big Bazaar Street, Coimbatore-1, for a sum of Rs. 2,80,000/- and when the Cheque was presented for collection on 1.2.2006, the same was returned on 2.2.2006 with an endorsement, "account closed". Therefore, on 2.2.2006, the Appellant was well aware of the fact that account maintained by the Respondent with Tamil Nadu Mercantile Bank Ltd., Big Bazaar Street. Coimbatore, was closed. Nevertheless, it is specifically stated by the Appellant in the Complaint as well as in the evidence that the Respondent issued Cheque, bearing No.973688. for a sum of Rs. 16,000/- and that Cheque was issued on 22.2.2006.

As stated supra, the Appellant was aware on 2.2.2006 itself that the account maintained by the Respondent with the aforesaid Tamil Nadu Mercantile Bank Ltd., was closed, and he also issued notice in respect of the other Cheque, bearing No.973691, which was the subject matter in S.T.C. No 1269 of 2006. Nevertheless, the Appellant received the Cheque for Rs. 46,000/- on 22.2.2006 from the Respondent. This conduct of the Appellant brings to light the astute move of the Appellant, as no person would receive a Cheque after having known that the account maintained by the Respondent was closed. Further, as stated supra, no evidence was adduced by the Appellant to the effect that the Respondent was Guarantor for the Chit, in which, his brother-Anandakumar was the subscriber Considering all these aforesaid aspects, the Trial Court rightly dismissed the Complaint, acquitting the Respondent, and I do not find any reason to interfere with the well considered judgment of the Trial Court.

In the result, the Criminal Appeal is dismissed.