V. Muniramappa vs A. Jaganatha Raja

R.S. Ramanathan, J.—The complainant in S.T.C.No. 20/2013 on the file of the Judicial Magistrate, fast Track Court, Hosur is the petitioner. He filed the above private complaint under Section 138 of the Negotiable Instruments Act against the respondent and that complaint was dismissed and the respondent was acquitted. Aggrieved by the same, the present petition seeking leave of this Court to file appeal against that judgment was filed.

The case of the petitioner as seen from the complaint given in S.T.C.No. 20/2013 is as follows:-

The petitioner and the respondent are family friends. The respondent approached the petitioner for a loan of Rs.13,00,000/- and agreed to pay interest at the rate of 1% per month and on 17.8.2011, the petitioner paid a sum of Rs.13,00,000/- and the respondent was paying interest as agreed for 8 months and on the payment of eighth month interest, the petitioner asked the respondent to repay the sum of Rs.13,00,000/- and the respondent requested for 3 months'' time for repaying the amount and also issued a cheque for Rs.13,00,000/- drawn on ICICI Bank, Hosur Branch bearing No. 190028 dated 17.12.2012 and the cheque was presented for collection on 18.12.2012 and it was returned with an endorsement ''payment stopped by the drawer''. Therefore, on 26.12.2012, a statutory notice was issued to the respondent calling upon him to make the payment and the respondent did not send any reply and therefore, the complaint was filed against the respondent.

During trial, the petitioner examined himself as PW.1 and also examined one R.Magesh as PW.2 and marked Exs.P.1 to P.5. On the other hand, the respondent examined 3 persons and also marked 4 documents.

The trial Court, after considering the inconsistencies in the evidence and the allegations made in the complaint and the statutory notice and having regard to Ex.D.2 the letter given by the respondent to ICICI Bank, Hosur Branch, stating that Cheque No. 190028 was obtained from him by force by the petitioner and two others and therefore, requesting the bank authorities to stop payment in respect of the cheque, held that the complainant / petitioner herein failed to prove that the cheque was given towards legally enforceable liability and even though the signature was that of the respondent, the respondent discharged the rebuttal presumption and the petitioner failed to prove that the cheque was given for a legally enforceable liability, and dismissed the complaint. Aggrieved by the same, this petition is filed.

The learned counsel for the petitioner submitted that the trial Court without properly appreciating Section 118 of the Negotiable Instruments Act, erred in holding that the petitioner failed to prove that the respondent received Rs.13,00,000/- from him as stated by the petitioner. He submitted that, admittedly, no reply was sent by the respondent to the statutory notice and no evidence was let in by the respondent to prove that the signature found in the cheque was not that of his signature and therefore, the trial Court ought to have held that presumption can be drawn in favour of the petitioner for passing of consideration and that the respondent failed to rebut the presumption and ought to have convicted the respondent. He further submitted that even though there are some discrepancies in the evidence of PW.1 as well as in the averments made in the complaint as well as in the notice that cannot be taken as a ground to disbelieve the case of the petitioner inasmuch as the signature found in the cheque is admitted by the respondent. He also submitted relying upon the judgment reported in Shukla Dutta Roy, rep. by Power of Agent Biplab Dutta Roy Vs. V. Mohamed Hussain between Shukla Duta Roy, rep. by Power of Agent Biplab Dutta Roy Vs. V.Mohammed Hussain and the judgment reported in Jayam Company and Senthil Murugan Company Vs. T. Ravichandran, between Jayam Company rep. by its Partner, Ramasamy Nadar and Senthi Murugan Company rep. by its partner, Velpandian Vs. T.Ravichandran and submitted that in those two cases, the Hon''ble Judges have clearly held that when there was no reply to the statutory notice given by the complainant, the Court can draw presumption that the accused has admitted the borrowal and in this case also, there is no reply sent by the respondent and therefore, trial Court ought to have drawn presumption regarding passing of consideration in favour of the petitioner and no rebuttal evidence was produced by the respondent and therefore, leave may be granted.

I am unable to accept the contention of the learned counsel for the petitioner. According to me, the trial Court rightly appreciated inconsistencies in the evidence of PW.1 and the allegations made in the complaint as well as the evidence and having regard to Ex.D.2 rightly held that the petitioner failed to prove that the cheque was given by the respondent towards a legally enforceable debt. The trial court also rightly relied upon the judgments of the Hon''ble Supreme Court reported in Kundan Lal Rallaram Vs. Custodian, Evacuee Property, Bombay, in the matter of Kundan Lal Rallaram Vs. Custodian, Evacuee Property, Bombay and Kuppayammal Vs. A. Sitheswaran, S. Natarajan, Shanmugham.S. and S. Palanivel in the matter of Kuppayammal Vs. A.Sitheswaran, Kumar Exports Vs. Sharma Carpets, , and held that the petitioner failed to prove passing of consideration and the respondent has rebutted the presumption.

As stated supra, in the complaint, it is stated that on 17.8.2011, the respondent received a hand loan of Rs.13,00,000/- and paid interest for 8 months and while paying eighth month interest, the petitioner demanded principal amount and the respondent pleaded for 3 months'' time and also issued a cheque for Rs.13,00,000/- and the Cheque was dated 17.12.2012. In the statutory notice, Ex.P.3 also the very same allegations were reiterated. In evidence, PW.1 the petitioner herein deposed that, on 17.8.2011, he paid Rs.13,00,000/- to the respondent and the respondent gave a cheque. He also admitted that after receiving the amount, the cheque was given by the respondent. Therefore, the case of the petitioner during evidence that the cheque was given on 17.8.2011 immediately on receipt of the amount is contrary to the allegations made in the complaint as well as in the statutory notice, wherein it is stated that the cheque was given after 8 months. Even assuming that those contradictions cannot be taken into consideration, having regard to the fact that the accused admitted the signature in the cheque, having regard to Ex.D.2 and evidence of PW.2 and PW.3, the trial Court rightly held that the accused has rebutted the presumption and the petitioner failed to prove the passing of consideration.

PW.2/RW.3 are one and the same person and PW.2 is the manager of ICICI Bank, Hosur Branch. He stated in his chief examination that on 26.8.2011, a letter was given by the respondent/accused asking the bank to stop payment in respect of the disputed cheque stating that the cheque was obtained from him by force by the petitioner and two others. That letter was marked as Ex.D.2. In the letter, it is stated that on 23.8.2011, the petitioner and his brothers forcibly obtained the cheque from him and therefore, request was made to the bank to effect stop payment. It is contended by the learned counsel for the petitioner that if really had the cheque been obtained by force on 23.8.2011, the respondent would have given a police complaint and would not have left the matter and the fact that no police complaint was given regarding forcibly taking of cheque from him and that would falsify the case of the respondent. According to me, whether the respondent has given a police complaint or not will not matter having regard to Ex.D.2 and the evidence of PW.2/RW.3. According to PW.2/RW.3, the letter was given by the respondent on 26.8.2011 regarding the loss of cheque.

It is also stated therein that cheque was forcibly obtained from the respondent by the petitioner on 26.8.2011. Therefore, the cheque could not have been given by the respondent in April, 2012 as stated in the complaint as well as in the evidence. Probably, after receipt of Ex.D.1 Notice from the respondent, the petitioner must have realised that his case that the cheque was given 8 months later will not stand scrutiny and therefore, gave a different version during evidence that the cheque was given immediately on receipt of the payment. According to me, even though the respondent has admitted the signature in the cheque, having regard to Ex.D.2 and the evidence of PW.2/RW.3, the respondent had rebutted the presumption drawn against him and that was properly appreciated by the trial Court by relying upon various judgments referred to above.

Further, the respondent also issued notice Ex.D.1 dated 21.12.2012 to the petitioner on coming to know of the presentation of the cheque by the petitioner after receiving information from the bank and only thereafter, statutory notice was issued. That would also prove that the respondent has rebutted the presumption in the manner known to law and considering all these aspects, in my considered opinion, the trial court has rightly dismissed the complaint.

The judgments cited by the learned counsel for the petitioner cannot be applied to the facts of the case as the facts involved in those cases are different. Therefore, having regard to the fact that the petitioner came out with inconsistent version regarding the issuance of cheque and that was also falsified by the evidence of the respondent, the trial Court rightly dismissed the complaint and acquitted the respondent.

For the reasons stated above, I do not find any infirmity in the judgment of the trial Court and no case has been made out by the petitioner to grant leave as sought for. Hence, this petition is dismissed. Consequently, the Criminal Appeal in SR stage is also dismissed.