Gowthamchand vs Indhrani

B. Rajendran, J—The respondent/accused was convicted by the learned X Metropolitan Magistrate, Egmore, Chennai-600 008, in C.C. Nos. 1833 of 2003 and 1832 of 2003, dated 13.12.2006, for an offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for six months in each case and to pay a sum of Rs. 73,575/- and Rs. 18,250/- respectively as compensation within six months, in default, to undergo simple imprisonment for three months. Challenging the same, the respondent/accused has preferred Criminal Appeal Nos. 9 and 8 of 2007 before the learned IV Additional Sessions Judge, Chennai, which were allowed on 07.12.2007, thereby, reversing the conviction and sentence imposed by the Trial Court. As against the same, the complainant's son has filed the present Criminal Revision Cases.

The complainant is one S.R. Jain, subsequently, he died and thereafter, in his place, his son Gowtham Chand was substituted. The case of the complainant is that the respondent/accused has borrowed a sum of Rs. 26,425/-, Rs. 47,150/- and Rs. 18,250/- and to repay the same, the accused issued four cheques. When the complainant presented the cheques for collection, the same returned with an endorsement "Insufficient Funds". The complainant issued a lawyer's notice. After receiving the notice, the accused neither sent a reply nor came forward to settle the amount, hence, the complaint was given by the complainant. The complaint was taken on the file of the learned X Metropolitan Magistrate, Egmore, Chennai, and it was assigned C.C. Nos. 1833 and 1832 of 2003. The Trial Court has found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for six months in each case and to pay a sum of Rs. 73,575/- and Rs. 18,250/- respectively as compensation within six months, in default, to undergo simple imprisonment for three months. Challenging the same, the respondent/accused has preferred Criminal Appeal Nos. 9 and 8 of 2007 before the learned IV Additional Sessions Judge, Chennai, which were allowed on 07.12.2007, thereby, reversing the conviction and sentence imposed by the Trial Court. Hence, the Criminal Revision Cases are filed by the complainant.

Ms. G. Sumithra, learned counsel appearing for the petitioner would submit that though, the Trial Court convicted the accused, on appeals, the Appellate Court reversed the judgment of conviction and sentence on finding that the accused has produced the receipts to prove pledging of gold jewels with the complainant, who is the Pawn Broker and further, the accused has denied that any amount was received by her for any other transaction. The learned counsel would further submit that according to the accused, the cheques are only given as a security measure, while pledging her jewels, which has been misused by the complainant. Pointing out to the same, the learned counsel would submit that immediately after the pledging of gold jewels, the money was advanced, after which, there is no need or necessity for giving cheques and the fact that the cheques were given, the initial presumption is in favour of the complainant, but, the Appellate Court has failed to take into consideration of the said fact and it is for the accused to rebut the presumption, but, the rebuttal has not been done by the accused by letting in proper evidence, while so, the Appellate Court has wrongly come to the conclusion and acquitted the accused.

Though, notice has been ordered in 2008, till date, no steps were taken to serve notice on the respondent and therefore, none appeared for the respondent. Heard the learned counsel appearing for the petitioner/complainant in full in both cases.

On a careful perusal of the judgments of Courts below, it is seen that the complainant is a Pawn Broker and the transaction between the complainant and the accused insofar as to the pledging of gold jewels is admitted. When the transaction regarding the pledging of gold jewels has been admitted, the question remains to be decided is that for what transaction the cheques were issued. Admittedly, as rightly pointed out by the Appellate Court, the complainant being a Pawn Broker, apart from giving money for pledging gold jewels, when he gives any hand-loan on the basis of cheques issued, the first and foremost thing the Pawn Broker would do is that in the accounts maintained by him he would have mentioned the date on which the amount was given as hand-loan to the accused, but, admittedly, the complainant has failed to produce any evidence to show as to when the accused availed the hand-loan from him, whereas, contra, the accused has produced the receipt for pledging of gold jewels to show that the transaction between the complainant and accused is only gold pledge transaction and there is no other transaction between them, therefore, the theory put forward by the complainant that the cheques were given for the hand-loan availed by the accused, apart from pledging of gold jewels, is not accepted by the Appellate Court and the reasoning given by the Appellate Court for acquitting the accused is that the date of advancement of hand-loan to the accused does not find a place neither in the Advocate Notice addressed to the accused nor in the complaint, which is fair, reasonable and correct and therefore, the Appellate Court has rightly held that the guilt against the accused is not proved beyond reasonable doubt. As regards the advancement of handloan, if the complainant has produced the accounts maintained by him to show on which date the amount has been given as handloan, the rebuttal of presumption by the accused by producing proper material evidence will come into operation. But, now, the burden is on the complainant to prove that the cheques were issued for a legally enforceable debt. When the complainant has not produced the accounts maintained by him to prove on which date the hand-loan was given to the accused and no other witness was examined to show how the consideration was passed for the hand-loan transaction, the remedy will not lie before this Court. When the initial presumption is rebutted by the accused by producing the receipt for pledging of gold jewels to show that the transaction between the complainant and accused is only gold pledge transaction and there is no other transaction between them, the Appellate Court has rightly acquitted the accused. Hence, I do not find any reason to interfere with the reasoned judgments passed by the Appellate Court and the judgments of the Appellate Court stand confirmed. Accordingly, these Criminal Revision Cases are dismissed.