IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MS. JUSTICE R.MALA
CRL.R.C.No. 1309 of 2008
A.Victor .. Petitioner/Accused
M.Jayaprakash .. Respondent/Complainant
Prayer:- This Criminal Revision Case is filed under Sections 397 read with 401 of Cr.P.C., to call for the records of the order dated 18.09.2008, in C.A.No.18 of 2008, on the file of I Additional Sessions Court, Salem, confirming the order dated 02.01.2008, in C.C.No.623 of 2005, on the file of the Judicial Magistrate’s Court No.V, Salem.
For Petitioner : Mr.N.Umapathi
For Respondent : Mr.A.Babu
This criminal revision has been preferred against the judgment of conviction and sentence, dated 18.09.2008, in C.A.No.18 of 2008, on the file of I Additional Sessions Court, Salem, whereby the accused was convicted for the offence under Section 138 of Negotiable Instruments Act and sentenced him to undergo three months’ simple imprisonment and to pay a fine of Rs.2,500/- in default in payment to undergo further imprisonment for 15 days, confirming the judgment of conviction and sentence, dated 02.01.2008, in C.C.No.623 of 2005, on the file of the Judicial Magistrate’s Court No.V, Salem.
2.The gist and essence of the case is as follows:
On 10.01.2005, the revision petitioner/accused borrowed a sum of Rs.50,000/- from the respondent/complainant, for his family expenses. To discharge the said liability, the revision petitioner/accused issued Ex.P1 cheque bearing No.955574, dated 29.07.2005, for Rs.50,000/-. When the cheque was presented for encashment, it was returned as ‘Account closed’ and the same was marked as Ex.P2 return memo. So, the statutory notice has been issued on 19.08.2005 by the respondent/complainant to the revision petitioner/accused, which was marked as Ex.P3 and the same was received by the revision petitioner/accused under Ex.P5 on 24.08.2005. Since the revision petitioner/accused neither repaid the amount nor sent any reply, the respondent/complainant preferred a complaint under Section 138 of Negotiable Instruments Act.
3.The trial Court, after considering the evidence of P.W.1 and D.W.1 and Exs.P1 to P4 and D1, convicted the accused for the offence under Section 138 of Negotiable Instruments Act and sentenced him as stated above, against which, the accused preferred an appeal in C.A.No.18/2008, on the file of I Additional Sessions Court, Salem, wherein the learned I Additional Sessions Judge, after hearing the arguments of both sides counsel, confirmed the conviction and sentence passed by the trial Court, against which, the present revision has been preferred by the petitioner/accused.
4.Challenging the conviction and sentence passed by both the Courts below, the learned counsel for the revision petitioner/accused submitted that P.W.1/the respondent is stranger to the accused and he has not issued any cheque to him. As per the evidence of P.W.1, P.W.1 has withdrawn the amount of Rs.50,000/- on 10.01.2005 and handed over the same to the revision petitioner on the same day, but he has not filed any document to show that he withdrawn the amount on that day. The accused rebutted the presumption under section 139 of Negotiable Instruments Act, by way of examining D.W.1-Bank Manager and marking Ex.D1-statement of accounts. But that factum has not been considered by both the Courts below. So Ex.P1 cheque has not been issued to the respondent/complainant for discharging existing legal liability. Hence, he prayed for setting aside the conviction and sentence passed against the accused. To substantiate his argument, he relied upon the decision of this Court.
5.Refuting the same, the learned counsel for the respondent submitted that the revision petitioner herein has not disputed his signature in Ex.P1 cheque. Even though he stated that he never issued Ex.P1 cheque to the respondent/complainant, but he has not stated that how the respondent possessed the same. Even though notice has been received by the accused, no reply was sent by him. So the evidence of D.W.1 and Ex.D1, have not rebutted the presumption under Section 139 of Negotiable Instruments Act. So both the Courts below have considered all the aspects in a proper perspective and came to the correct conclusion. Hence, the judgment of conviction and sentence passed by both the Courts below does not warrant any interference and therefore, he prayed for the dismissal of the revision.
6.Considered the rival submissions made on both sides and the materials available on record.
7.The admitted facts are Ex.P1 cheque was belonging to the revision petitioner/accused herein. When the cheque was presented for encashment, it was returned as ‘account closed’. Even though statutory notice has been issued to the revision petitioner/accused, he has not given any reply and he has not given any explanation as to how the respondent/complainant had possessed Ex.P1 cheque. In such circumstances, the revision petitioner has not proved that how the respondent had possessed Ex.P1 cheque. Furthermore, the revision petitioner/accused was not got into witness box and never stated that he never borrowed money and never issued cheque. Considering the same, I am of the view that Ex.P1 cheque has been issued by the revision petitioner/accused to the respondent/complainant. Once issuance of cheque and signature in the cheque are proved by the respondent/complainant, he is entitled to invoke presumption under Section 138 of Negotiable Instruments Act and Ex.P1 cheque has been issued for discharging existing legal liability. It is rebuttable presumption. To rebut the presumption, Branch Manager of Sevvapet Urban Co-operative Bank, Azhagapuram, was examined as D.W.1 and the statement of accounts regarding the pass book of respondent/complainant was marked as Ex.D1. D.W.1 in his evidence, deposed that the respondent had not made any transaction during the month of January 2005. But it is not the case of the revision petitioner/accused that the respondent/complainant is only having account at Sevvapet Urban Co-operative Bank. After examination of D.W.1, the accused has not filed any application to recall P.W.1 to putforth his defence that on 10.01.2005, he never withdrawn money from that Bank.
8.Now, it is appropriate to consider the cross-examination of P.W.1/the respondent herein. In his cross-examination, he stated that he gave a sum of Rs.50,000/- to the accused, after withdrawing the same from the Bank. He has not mentioned in which Bank he is having account. In such circumstances, I am of the view that it is true, a rebuttable presumption can be proved by way of preponderance of probabilities, but here, the accused has not discharge the same. In such circumstances, since possession of cheque Ex.P1 has been proved and the signature is not disputed, the respondent/complainant is entitled to presumption under Section 138 of Negotiable Instruments Act. Since it is a rebuttable presumption, the presumption has not been rebutted by the revision petitioner herein.
9.At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the petitioner reported in (2008) 2 MLJ 384 (Yeshpal v. Vijayakumar), in which, it was held as follows:
I.”The presumption under Section 139, Negotiable Instruments, 1881, that the cheque was issued for the discharge in whole or in part of a debt or a liability, is a rebuttable one.”
II.”If the presumption under Section 139, Negotiable Instruments Act, 1881, is successfully rebutted, the burden shifts on the complainant to prove that there existed a legally recoverable debt or other liability in discharge of which the cheque was issued.”
There is no quarrel over the proposition laid down in the citation. Presumption under Section 139 of Negotiable Instruments Act has been rebutted by the accused by way of preponderance of probabilities, then only the burden shifted on the complainant to prove that there existed a legal liability. But here, as already stated that the revision petitioner/accused has not rebutted the presumption. So the burden never shifted on the complainant. The revision petitioner has also relied upon the above decision in the first appellate Court and the same has been considered by the learned appellate Judge therein.
10.Admittedly, Ex.P1 cheque was issued for discharging existing legal enforceable debt and when the cheque was presented for encashment, it was returned as ‘account closed’ as per Ex.P2 return memo. So the statutory notice was issued by the respondent under Ex.P3. Even though the notice was received by the accused, he has not paid that amount. Hence, ingredients of section 138 of Negotiable Instruments Act has been made out. So the revision petitioner was found guilty for the offence under Section 138 of Negotiable Instruments Act. Both the Courts below have considered all the aspects in a proper perspective and came to the correct conclusion that the accused was guilty for the offence under Section 138 of Negotiable Instruments Act. Hence, the judgment of conviction and sentence passed by both the Courts below does not warrant any interference and hence, it is hereby confirmed. Therefore, the criminal revision is dismissed as devoid of merits.
The criminal revision is dismissed.
The conviction and sentence passed by both the Courts below
are hereby confirmed.
Bail bond, if any, executed by the revision petitioner/accused
shall stand cancelled.
The trial Court is directed to secure the custody of the accused
to undergo the remaining period of sentence.
1.I Additional Sessions Court, Salem.
2.The Judicial Magistrate No.V, Salem.
3.The Public Prosecutor
High Court, Madras.
4.The Record Keeper
Criminal Section, High Court,
- debt must be legally recoverable one , else cheque bouns case not maintainable. (nayayamargalu.wordpress.com)