Andavar Electrical Distributors vs Syndicate Bank

R. Mala, J.—The Crl. R.C. is filed against the judgment, dated 16.9.2005 in Crl. A. No. 192 of 2005 on the file of the Additional District

Court (Fast Track Court No. 1), Coimbatore, confirming the conviction of A-1 and A-2 and setting aside the conviction and sentence of A-3 and

reducing the sentence of A-2 from six months'' simple imprisonment to two months'' simple imprisonment, and confirming the fine amounts,

imposed by the Judicial Magistrate''s Court No. 5, Coimbatore in C.C. No. 150 of 2004, dated 28.4.2005.

The case of the Respondent/complainant/Bank is as follows:

A-1 is a Company. A-2 is the Managing Partner of A-1 Company. A-3 is another Partner of A-1 Company. They have availed loan from the

Respondent/complainant/Bank and agreed to repay the same with 16.5% interest and since they are due of Rs. 36,33,244.45, as on 1.11.2003,

the complainant made a demand of repayment of money; on behalf of A-1 Company, A-2 has given a cheque for Rs. 12 lakhs, which was

presented before the Bank, and returned as ""Account Closed"" and hence, statutory notice has been issued and after receipt of the statutory notice,

the accused neither repaid the amount nor given reply and hence, the private complaint u/s 138 of the Negotiable Instruments Act, was filed.

The trial Court, after following the procedures, furnished a copy of the complaint to the accused, and since they pleaded not guilty, the trial

Court examined P.W.1 and marked Exs.P-1 to P-8 and found the accused guilty of the offence u/s 138 of the Negotiable Instruments Act and

convicted and sentenced them. A-1 was directed to pay a fine of Rs. 1,000/-. A-2 was convicted and sentenced to undergo six months'' simple

imprisonment and to pay a fine of Rs. 4,000/-, in default, to undergo one month simple imprisonment and A-3 was convicted and sentenced to

undergo three months'' simple imprisonment and to pay a fine of Rs. 3,000/-, in default, to undergo one month simple imprisonment.

Challenging the judgment of conviction and sentence passed by the trial Court, the accused preferred appeal and the first appellate Court, after

hearing the arguments of both sides, acquitted A-3 of the charge and reduced the sentence imposed on A-2 from six months to two months''

simple imprisonment and confirmed the fine amounts imposed on A-1 and A-2. Challenging the same, the present Crl. R.C. is filed by A-1 and A-

2.

Learned Counsel appearing for the revision Petitioners/A-1 and A-2 submitted that there is no proof for subsisting liability on the date of

issuance of Ex.P-1 cheque and hence, Section 138 of the Negotiable Instruments Act will not get attracted. Even though P.W.1 has admitted that

there is notice of demand issued, which was not marked, the statement of accounts has also not been marked and the Chief Manager of the Bank

from whom the cheque was issued, was not examined. Learned Counsel further submitted that the cheque was issued only as a security and not for

discharging the loan of subsisting liability and hence, he prayed for setting aside the conviction and sentence passed by the appellate Court.

Repudiating the said contentions, learned Counsel for the Respondent/complainant/Bank submitted that A-1 is a Company and A-2 and A-3

are the partners of A-1 Company. A-2 is the Authorised Signatory of A-1 Company and the accused have availed the facilities from the Bank and

the amount due is Rs. 36,33,244.45 as on 1.11.2003 and when they demanded, the cheque for Rs. 12 lakhs was issued, which was returned by

the Bank. He further submitted that the statutory notice Ex.P-3 has been issued and the accused have received the same under Exs.P-5 and P-6

acknowledgement cards. The notice was also issued under Certificate of Posting as evidenced by Ex.P-7 and even then, the accused neither

replied, nor paid the amount, and hence, the ingredients of Section 138 of the Negotiable Instruments Act, have been made out. Both the Courts

below considered these aspects in proper perspective and convicted A-1 and A-2 for the offence u/s 138 of the Negotiable Instruments Act and

the same does not warrant any interference by this Court. He prayed for dismissing the Crl.R.C.

Considering the rival submissions made on either side, it is pertinent to note that the issuance of cheque has been admitted. The Petitioners/A-1

and A-2 stated that the cheque was issued only as a security for the loan availed for improving their business. Since the issuance of the cheque has

been admitted, the presumption under Sections 118 and 139 of the Negotiable Instruments Act, comes into play.

It is true that the said presumption is rebuttable. The Petitioners/A-1 and A-2 are entitled to rebut the presumption. The averments in the

complaint itself clearly proved that as on 1.11.2003, the amount due is Rs. 36,33,244.45 and when the amount was demanded, the accused

issued cheque for Rs. 12 lakhs, and so, the issuance of cheque has been proved by the complainant.

At this juncture, it is appropriate to consider the evidence of P.W.1 and when P.W.1 was in the witness box, he stated that A-1 Company

borrowed Rs. 44 lakhs as a loan. P.W.1 fairly conceded that the Bank has filed case for recovery of money due on the loan transaction, before the

Debts Recovery Tribunal. Merely because they have taken civil remedy, there is no impediment on the part of the complainant-Bank in preferring

the complaint against the revision Petitioners/accused u/s 138 of the Negotiable Instruments Act. Since the issuance of cheque is admitted, and the

complainant being a nationalised Bank, it is painful to accept that at the time of availing the loan, a blank cheque has been issued to the Bank. So,

the revision Petitioners/accused have not paid the amount and when it was demanded, the cheque for Rs. 12 lakhs as issued, which when

presented, was returned, and memo was issued by the Bank stating that the account was closed and notice was issued under Ex.P-3 and the same

has been received by the accused under Exs.P-4 to P-6 and it was also sent by Certificate of Posting under Ex.P-7. So, the revision

Petitioners/accused neither replied to the statutory notice, nor paid the amount. In such circumstances, the ingredients of Section 138 of the

Negotiable Instruments Act, have been made out.

At this juncture, it is appropriate to consider the decision of this Court, relied on by the learned Counsel for the Petitioner, reported in Sri

Murugan Financiers Vs. P.V. Perumal, , wherein, it was held that the complainant therein has not proved the debt or legally enforceable liability

satisfactorily and cheque was in fact issued as guarantee in that case. Relying on this citation, learned Counsel for the revision Petitioners/accused

submitted that the complainant herein has not proved that on the date of issuance of cheque, there is a legally enforceable debt. No documents

have been filed to prove the legal liability.

The said citation is not applicable to the facts of the present case, because, admittedly, the Petitioners/accused borrowed Rs. 44 lakhs and

there is no evidence that they have repaid the amount and their evidence is that they have issued the cheque and a civil case has been filed and

decree would have been obtained. Furthermore, it is pertinent to note that at the time of availing the loan, the Petitioners/A-1 and A-2 have

furnished property as security, which does not belong to them, and the litigation is pending. In such circumstances, it is a legally enforceable existing

liability which has been proved by the complainant and for discharging a portion of the liability, Ex.P-1 cheque has been issued.

Hence, I am of the opinion that the trial Court and the first appellate Court considered this aspect in proper perspective and came to the

correct conclusion that the revision Petitioners/A-1 and A-2 are guilty of the offence u/s 138 of the Negotiable Instruments Act. I do not find any

infirmity or illegality in the conviction and sentence passed by the first appellate Court.

While considering the quantum of sentence, even though the trial Court convicted A-2 and sentenced him to undergo six months'' simple

imprisonment, the first appellate Court reduced the same to two months. The quantum of sentence imposed by the appellate Court is fair and

proper and it does not warrant any interference.

For the foregoing reasonings:

(a) The Crl.R.C. is dismissed.

(b) The conviction and sentence imposed by the first appellate Court, are confirmed.

(c) Since the second revision Petitioner/A-2 is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining

period of sentence.

(d) The period of sentence already undergone by the second revision Petitioner/A-2, shall be set off u/s 428 Code of Criminal Procedure