S. Pandi Kumaran vs E. Pushpa And Another

Sabyasachi Bhattacharyya, J

This present revisional application has been taken out against an order of conviction under Section 138 of the Negotiable Instruments Act, 1881. Learned counsel for the petitioner argues that although the amount for which the purported cheque was drawn was Rs. 4,50,000/-, it appears from the receipt issued by the petitioner that the post-dated cheque was issued in order to return the said loan amount. It is further submitted that it is evident from the complaint itself, as well as the fact that the said cheque was issued as a blank cheque, which was filled in later on, it was at best a security of the amount actually taken by the petitioner.

It is argued on the strength of paragraph nos. 6 and 8 of the complaint in particular, that apparently there were negotiations going on between the complainant and the present petitioner, which itself indicates that there was a deviation from an usual instance of Section 138 of the Negotiable Instruments Act. It is further submitted that a demand notice was issued o 31st of October, 2012 and it has been admitted in the complaint that reply thereto was given by the present petitioner. In such reply, the petitioner took a specific stand that the petitioner had taken a loan of rupees one lakh only from the complainant and her husband and as a security, two cheques of Union Bank of India, amounting to Rs. 50,000/- each, and the documents of a car and signed blank papers were given to the complainant for security purpose. It is further pointed out that the complainant, in her cross-examination, admitted that she had lodged a complaint alleging rupees one lakh having not been returned by the petitioner. It is further elicited from such cross-examination that the petitioner assured the complainant in presence of the Station House Officer, Police Station Aberdeen that he would return the said rupees one lakh within one month.

It further appears from the said cross-examination that on December 4, 2012, the petitioner gave Rs.50,000/- to the husband of the complainant.

That apart, as a condition of a stay order granted by this court, the petitioner has deposited rupees one lakh fifty thousand with the Sessions Court.

Learned counsel for the petitioner thus submits that the basic ingredients of Section 138 of Negotiable Instruments Act, being that a cheque has to be drawn for the discharge, in whole or in part, of any debt or any other liability, is missing in the present case, in view of the complainant having admitted the petitioner's contention in his reply to the demand notice, to the extent that the loan amounted only to Rs.1,00,000/-and could not have been Rs.4,50,000/-.

It is further indicated that the amount of Rs.4,50,000/- was introduced later on at the behest of the complainant. Even the hand-writing of the figure put on the cheque does not tally with the signature of the present petitioner. As such, it is argued that the conviction ought to be set aside.

Alternatively, learned counsel for the petitioner argues, that the sentence awarded to the petitioner may be diminished and/or waived, upon repayment of the total amount of loan.

Learned counsel appearing for the respondent no.1, who is the complainant, controverts the allegations made on behalf of the petitioner.

It appears from the receipt, on the basis of which the conviction was granted, that the petitioner specifically admitted to have taken a loan amounting to Rs.4,50,000/- from the complainant for his contractor business purpose. It was further admitted in the said receipt that, in order to return the said loan amount, the petitioner was issuing her the post-dated cheque-in-question.

As such, no further evidence need be looked into for searching out the ingredients of Section 138 of the Negotiable Instruments Act. Nothing in the receipt suggests that the post-dated cheque was a collateral security. In fact, the petitioner categorically admitted the quantum of loan being Rs.4,50,000/- and that the post-dated cheque was issued in order to return the said loan amount, meaning thereby to cover the loan amount itself and not as a security to such loan.

The reply given by the petitioner to the demand notice suggests that for security purpose, two cheques of the United Bank of India amounting to Rs.50,000/-and the document of a car along with a "signed blank paper" was given to the petitioner for security purpose. It was further alleged therein that, for the loan amount, the complainant and her husband had already taken the blank cheque from the petitioner for security purpose.

The said statements are obviously afterthought, in defence to the demand notice. In fact, no allegation or complaint of forgery has been levelled at all against the complainant and/or her husband in that regard, which all the more demonstrates that the reply was a sham.

The receipt itself, coupled with the cheque-in-question having been dishonoured, are sufficient to establish the ingredients of Section 138 of the Negotiable Instruments Act beyond reasonable doubt. As far as the statements of the complainant in her cross-examination are concerned, there may or may not have been a nexus between the dues amounting to Rs.1,00,000/- and the loan-in-question which was covered by the dishonoured cheque.

In any event, even if it is taken that a portion of the loan amount of Rs.4,50,000/-, as admitted in the receipt of the petitioner, was repaid, even then the language of Section 138 is categorical on the score that even if a cheque drawn for discharging a debt or other liability in part remains unpaid, then the provisions of such section are attracted.

In any event, the entire evidence cannot be re-appreciated by this Court, sitting in revision, in view of concurrent findings by both the forums below. As such, there is no substance in the present revisional application.

Moreover, it would be entirely out of question for this Court to reduce the sentence, sitting in revision, since the conviction, on its merits, is affirmed hereby and there is no alleviating factor to compel this Court to reduce the sentence, either in respect of the term of incarceration or as regards the fine imposed.

It is made clear that the amount of Rs.1,50,000/-deposited by the petitioner with the Sessions Court, pursuant to the order of a co-ordinate Bench of this Court in this revisional application, shall be adjusted with the fine which is payable by the petitioner under the sentence awarded against the petitioner.

Accordingly, CRR No.006 of 2019 is dismissed on contest, without any order as to costs.

Urgent certified copy of this order, if applied for, be supplied to the parties, upon compliance of usual formalities.