Ayyappan vs M. Chidhambaram

B. Rajendran, J—The respondent herein filed C.C. No. 506 of 2005 and STC No. 395 of 2005 on the file of the learned Judicial Magistrate No. I and VII, Coimbatore respectively against the petitioner herein under Section 138 of the Negotiable Instruments Act. After conclusion of trial, the trial court convicted the petitioner under Section 138 of the Negotiable Instruments Act in both the cases and sentenced him to undergo simple imprisonment for four months and to pay a fine of Rs. 1,000/-; in default to undergo one month simple imprisonment in C.C. No. 506 of 2005 and to undergo simple imprisonment for a period of one year in S.T.C. No. 395 of 2005 respectively. Aggrieved by the conviction and sentence imposed, the petitioner filed two separate criminal appeals in Crl.A.No. 125 of 2008 and Crl.A.No. 2 of 2007 respectively on the file of the learned Additional District and Sessions Judge-cum-Fast Track Court No. III, Coimbatore and by two separate judgments dated 15.10.2008, the first appellate Court confirmed the conviction and sentence passed by the trial Court. As against the same, the petitioner has come forward with the present Criminal Revision Cases.

The case of the complainant in short, is as follows:

The accused as well as the complainant in both the cases are one and the same. According to the respondent/complainant, the petitioner/accused borrowed a sum of Rs. 6,00,000/- for his business purposes and issued promissory note as well as cheque for the said sum of Rs. 6,00,000/- and also two other cheques for a sum of Rs. 50,000/- each towards payment of interest. However, when the cheques were presented for payment, the same were returned with the endorsement "drawer''s confirmation required". Hence, the respondent/complainant issued statutory notice. Since there was no reply and that the amount was also not repaid, the aforesaid complaints were preferred.

Learned counsel for the petitioner would submit that the very cheques and promissory note, which were alleged to have been issued by the petitioner was not given to the respondent/complainant for the alleged debt due. In fact, according to the petitioner, he along with the respondent and two other persons, were running a partnership business in the name of CSI Vegetables and during the said business, these cheques were issued towards security for the creation of funds. Later they all have decided to close the partnership business. Accordingly, there is a recital made in the agreement itself to the effect that there are no claims as against each other regarding the said business agreement.

Learned counsel for the petitioner would further submit that when an agreement was made stating that there is no business transaction existing between them, no amount is due and payable to the respondent/complainant as claimed by him. Therefore, the present theory of the respondent that he gave hand loan to the petitioner in the year 2003, for which the alleged promissory note was issued and for non-payment interest, the other cheques were issued are all concocted stories. Further, according to the petitioner, the cheque leaves were issued by the petitioner-Bank before the commencement of the year 2000. However, the respondent did not produce any document or any independent evidence to show how the amount was given and when was the exact transaction made etc., Therefore, under Section 118 of the Negotiable Instruments Act, when a presumption is raised regarding the issuance of the cheque, it is the duty of the complainant to rebut the same. However, both the Courts below failed to take into account the aforesaid fact and convicted the petitioner, warranting interference in these Criminal Revision Cases.

Learned counsel appearing for the respondent/complainant would vehemently argue that the Bank Manager was examined, who would state that the petitioner is a chronic defaulter. Considering the same and also after analysing the oral and documentary evidence adduced on the side of the respondent/complainant, the trial court came to the conclusion that the amount as stated in the complaint was borrowed by the petitioner and that the same was not repaid and therefore, convicted the petitioner, which was affirmed by the first appellate Court also. Accordingly, he would submit that no interference is warranted in these criminal revision cases.

Heard both sides.

On a careful consideration of the submission made on either side and on perusing the records, one thing is clear that the submission made by the learned counsel for the petitioner that the cheques issued by the petitioner was not given at the point, which is alleged to have been given as per the complaints, is proved to be correct. Secondly, it is seen that there existed a partnership business between the petitioner, respondent as well as with two other persons. The said partnership came to an end during the year 2003 itself. The partnership agreement entered between them is marked as document No. D2 through the accused himself, who was examined as DW2. In the said agreement, there is a recital to the effect that on the closure of the business there is no amount due and payable by anyone to any of the partners. The said recital is extracted here under for ready reference:

sd/-................"

When that be the case, the burden shifts on the complainant under Section 118 of the Act to prove when such amount was borrowed by the accused, what was the exact date of transaction, the time of acceptance, time of transfer etc. But the same was not proved by the respondent/complainant.

In fact, during the course of arguments, the learned counsel appearing for the petitioner would also contend that there is an overwriting on the very cheques issued by the petitioner. Therefore the original records were called for and it was perused.

On a perusal of the returned cheques, one could very clearly see the over writings made in it as submitted by the learned counsel for the petitioner. The cheque leaves were issued by the accused Banker before the commencement of the year 2000 as the first two digits of the year is written as "19..", which would clearly go to show that the respondent/complainant has misused the cheque leaves given by the petitioner towards security purpose for establishing the partnership business and the date has been filled as "18.10.2004 and 23.11.2004", i.e., after the closure of the business itself, which is evident from the recital made in the agreement itself dated 05.09.2004. Therefore as correctly pointed out by the learned counsel for the petitioner, this vital aspect has not been considered by both the Courts below. Hence, on the very face of it, the Courts below should have given the benefit of doubt to the accused and acquitted him. However, erroneously, the trial court convicted the petitioner/accused in both the cases, which was also affirmed by the first appellate Court, warranting interference in these criminal revision cases.

In view of the above, the judgments dated 15.10.2008 passed by the learned Additional District and Sessions Judge, Fast Track Court No. III, Coimbatore in Crl.A.No. 125 of 2008 and Crl.A.No. 2 of 2007 confirming the order dated 28.03.2008 passed by the learned Judicial Magistrate No. I, Coimbatore in C.C. No. 506 of 2005 and 12.12.2006 passed by the learned Judicial Magistrate No. 7, Coimbatore in STC No. 395 of 2005 in convicting the petitioner under Section 138 of the Negotiable Instruments Act are liable to be set aside. Accordingly, the same are set aside.

In the result, both the Criminal Revision Cases are allowed.