(Prayer: Criminal Appeal, filed under Section 378 (4) of Cr.P.C., to call for records in connection with the case in C.C.No.3271 of 2011, on the file of Metropolitan Magistrate, F.T.C.No.III, Saidapet, Chennai, and to set aside the judgement passed by the said learned Magistrate, in C.C.No.3271 of 2011, dated 06.04.2013.)
1. The Appellant/Complainant has filed the instant Criminal Appeal as against the judgment of acquittal, made in C.C.No.3271 of 2011, dated 06.04.2013, by the learned Metropolitan Magistrate, Fast Track Court No.III, Saidapet, Chennai/Trial Court.
2. The trial Court, while passing the impugned judgment, in C.C.No.3271 of 2011, on 06.04.2013, had clearly came to the conclusion that Ex.P.3, legal notice was not served on the Accused (Respondent), and that was established through Ex.P.4, postal department's letter. That apart, it was observed by the trial Court that Ex.P.1, cheque, was not issued by the Accused (Respondent) in respect of the Bank Account that was established through the evidence of D.W.1, Ex.P.1, and Exs.D.1 and D.2. Ultimately, the trial Court had opined that the stand of the Appellant/Complainant that the cheque was signed by the Respondent/Accused and handedover to him was a doubtful one. Finally, it was observed that the cheque in respect of the 'Bank Account' was in no way connected with the Respondent/Accused and therefore, the case filed against him under Section 138 of the Negotiable Instruments Act, 1881, (hereinafter, referred to as 'N.I. Act'') was not maintainable, and dismissed the case by acquitting the Accused under Section 255 (1) of the Code of Criminal Procedure (Cr.P.C.).
3. Being dissatisfied with the judgment, dated 06.04.2013, in C.C.No.3271 of 2011, passed by the trial Court, the Appellant/Complainant has filed the present Criminal Appeal, basically contending that the trial Court had committed an error in coming to the conclusion that notice was not served on the Accused, and the said Bank Account was not that of the Accused.
4. The Learned counsel for the Appellant/Complainant urges before this Court that the trial Court should have convicted the Respondent/Accused, instead of acquitting him, and in fact, on the side of the Respondent/Accused, no witness was examined to substantiate the case of the Defence, which aspect was not taken note of by the trial Court in a proper and real perspective.
5. The Learned counsel for the Appellant/Complainant proceed to take a stand that the case of the Appellant/Complainant was that the Respondent/Accused had received a loan for a sum of Rs.1,25,000/- from the Appellant/Complainant, on 19.03.2010, and that the Respondent/Accused issued a cheque for the principal amount drawn on Tamil Nadu Mercantile Bank.
6. Continuing further, it was the case of the Appellant/Complainant that, when the cheque was deposited for encashment, through his Bankers, the same got returned unpaid for the reason 'Insufficient Funds'. In fact, the learned counsel for the Appellant/Complainant brings in to the notice of this Court that the Demand Notice, dated 31.03.2010, sent by the Appellant/Complainant was received by the Respondent/Accused on 13.04.2010, and no reply was issued to the said notice by the Respondent/Accused. As such, the criminal complaint was filed against the Respondent/Accused, when there was failure to pay the amount in question.
7. Although notice was served on the Respondent/Accused, no one has appeared on his behalf, either in person or through counsel at the time of hearing of the main Appeal.
8. At this stage, this Court pertinently points that the Appellant/Complainant, in his complaint under Section 200 Cr.P.C., in respect of offence under Section 138 of N.I.Act, had categorically averred that the Accused (Respondent) availed a hand loan of Rs.1,25,000/- only for his urgent business needs and executed a promissory note in his favour on the same day, promising to repay the same with interest at the rate of 24% p.a. on demand.
9. It is the further case of the Appellant/Complainant that the Respondent/Accused, after availing the aforesaid loan amount, had not paid the monthly interest towards the principal, and only after repeated demands and requests made by the Appellant/Complainant in this regard, the Respondent/Accused issued a cheque in his favour for a sum of Rs.1,25,000/-(vide Cheque, dated 19.03.2010, bearing No.682049) drawn on State Bank of India, Velachery, Chennai, and promised to honour the same on presentation.
10. It is to be noted that the grievance of the Appellant/Complainant is that, he presented the aforesaid cheque for encashment through his Bankers, Indian Bank, Taramani Link Road, Chennai, on 19.03.2010, but, the said cheque was dishonored by the Respondent's Bankers on 20.03.2010, for the reason, 'Insufficient Funds, and the same was intimated to the Appellant/Complainant through his Bankers.
11. In the instant case, it comes to be known that the Appellant/Complainant had issued a legal notice through his counsel to the Respondent/Accused on 31.03.2010, calling upon the latter to pay the dishonoured cheque amount of Rs.1,25,000/- within 15 days from the date of receipt of the said notice. As a matter of fact, the case of the Appellant/Complainant is that the Respondent/Accused had received the notice on 13.04.2010, and evenafter receipt of the same, he neither gave any reply, nor settled the amount, and thereby, had committed an offence under Section 138 N.I. Act.
12. The Appellant/Complainant, as P.W.1, had deposed in his evidence that the Respondent/Accused issued a cheque/Ex.P.1, and when the same was presented, in his Bank for collection, it got dishonored/returned, and further that, the notice was issued to the Respondent/Accused and that, the latter had not paid the amount even after receipt of Ex.P.3, notice, dated 31.01.2010.
13. Before the trial Court, the version of the Respondent/Accused is that he had not obtained any loan from the Appellant/Complainant and that he used to give the money handed over to him by one Vijayalath, to the Appellant/Complainant, and that person obtained the loan from the Appellant/Complainant. Furthermore, it is the stand of the Respondent/Accused that he did not have any account in the State Bank of India, Velachery Branch, and had not given Ex.P.1/cheque to the complainant.
14. In this connection, it is not out of place for this Court to make a significant reference to the deposition of D.W.1, (Respondent/Accused) wherein, he had stated that Ex.P.1, cheque was issued to one Vijayalatha, who is the holder of Account No.20027244370 in SBI, Velachery Branch. As a matter of fact, D.W.1, (in his cross-examination) had clearly stated that Ex.P.1, cheque was issued by Vijayalatha, and Ex.D.2, is the Vijayalatha's Bank account details (furnished by her Bank). Infact, the evidence of the Bank Manager of SBI, Velachery Branch, Chennai, viz., D.W.1, unerringly points out that in Ex.P.1, cheque, there was no signature of Vijayalatha, and Ex.P.1, cheque was the cheque in respect of the Bank account in her favour.
15. When it is quite evident that one Vijayalatha had issued Ex.P.1/cheque and when the Respondent/Accused was not having any account in the SBI, Velachery Branch, Chennai, and had no authority to draw the cheque for any amount, then, this Court is of the considered view that the offence under Section 138 of N.I.Act cannot be made out against the Respondent/Accused. Besides the above, the legal notice, dated 31.03.2010 was issued by the Appellant/Complainant to the Respondent/Accused and the same was received by the latter on 13.04.2010. However, on the side of the Appellant/Complainant, Ex.P.4, viz., the letter of postal department, dated 12.04.2010, showed that the letter was delivered to the addressee on 13.04.2010. However, in the complaint and proof affidavit, it was stated that notice was issued on 31.03.2010. Significantly, Ex.P.4, letter of the postal department indicates that RLs.No.7999 and 8000, dated 12.04.2010 were delivered to the addressee on 13.04.2010. As per Ex.P.3, legal notice, dated 31.03.2010, the Respondent/Accused received the loan on 01.01.2010 and executed a promissory note on that day itself. In this connection, it has to be relevantly pointed out by this Court that the promissory note was marked as Ex.P.5, and cursory glance of the same indicates that the Respondent/Accused had executed the same on 05.12.2009, for having received the loan of Rs.1,25,000/-. It is to be borne in mind that, when Ex.P.3, legal notice, dated 31.03.2010, signifies that the Respondent/Accused had received the loan of Rs.1,25,000/- from the Appellant/Complainant on 01.01.2010, the purported promissory note, viz., Ex.P.5 was not legally valid, because of the simple reason that it was secured on 05.12.2009, prior to the passing of the consideration of Rs.1,25,000/-, allegedly given to the Respondent/Accused on 01.01.2010.
16. The plea of the Respondent/Accused before the trial Court was that he is working in Rane Motors Company and he is not doing any real estate business, and therefore, he had not obtained any loan from the Appellant/Complainant, and had also not issued any cheque to the complainant, and further that, he used to give the money handed over to him by the said Vijayalatha to the complainant inasmuch as the said Vijayalatha had obtained loan from the Appellant/Complainant and used to repay the loan amount through the Respondent/Accused.
17. At this stage, this Court aptly points out that the onus of proof on the side of the respondent/accused to disprove the presumption under Sections 118 and 138 of N.I. Act, is not heavy. Preponderance of probability through a direct or substantial evidence is enough to establish the burden to the complainant. An inference of preponderance of probability can be drawn not only from the materials of record, but also by reference to the circumstances, upon which, the party relies. To put it precisely, the presumption raised under Section 118 of N.I. Act, 1881, is a presumption of Law. The presumption under Section 118 of N.I. Act does not extend to anything beyond circumstances. Further, it does not raise any presumption that the amount was advanced and that it was for a legal necessity.
18. It is to be pointed out that Section 138 of N.I. Act, 1881, brings in to operation the rule of direct liability. In fact, Section 138 N.I. Act speaks of penal provision based on a legal fiction. Besides these, the purpose of bringing Sections 138 to 142 of N.I. Act is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. Despite a civil remedy, Section 138 of N.I. Act is primarily meant to prevent dishonesty on the part of the drawer of the negotiable instrument to draw the cheque without sufficient funds in his account maintained by him in a Bank (which includes 'Payee' or 'Holder in Due Course') to act upon it.
19. It cannot be lost sight of that in a criminal case, it is the primordial principle that prosecution has to establish its case beyond all reasonable doubt. As per Section 114 of the Indian Evidence Act, 1872, it is open to the Respondent/Accused to bring in certain factual aspects in a direct or indirect manner, or through the circumstantial evidence to rebut the case of the Appellant/Complainant. In fact, presumption under Section 118 (a) N.I. Act can be repelled or rebutted with necessary oral or documentary evidence available on the side of the Respondent/Accused, as opined by this Court. Admittedly, D.W.1, the Bank Manager had deposed that Ex.P.1 belonged to one Vijayalatha and the signature found in the cheque differed with the signature of Vijayalatha/account holder of the Bank and not by Jaganathan, viz., the Respondent/Accused. Moreover, the Appellant/Complainant had not examined witnesses to Ex.P.5, the promissory note to establish that in reality the pro note was executed by the respondent/accused.
20. In the upshot of detailed quantitative and qualitative discussions, and this Court also keeping in mind of an essential fact that the Respondent/Accused is not having any account in SBI, Velachery Branch, and admittedly, when Ex.P.1, cheque belonged to one Vijayalatha, who had given the cheque, etc., in view of the fact that, in regard to the purported execution of pro note by the Respondent/Accused, no one witness in the pro note was examined to speak about the execution of the pro note by the Respondent/Accused, and also by taking note of the overall assessment of the facts and circumstances of the instant case in an encircling manner, comes to the resultant conclusion that the plea of the Respondent/Accused that he had not obtained any loan from the Appellant/Complainant and further that he had not issued any cheque towards discharge of debt all are quite probable, cogent, coherent and convincing one. Viewed in that perspective, this Court holds that the finding of the trial Court that the Respondent/Accused was not guilty in respect of offence under Section 138 of N.I. Act, and acquitting him in terms of Section 255 (1) of Cr.P.C. in the considered opinion of this Court are free from any material irregularities and patent illegalities. Therefore, the present Criminal Appeal is devoid of merits.
21. In fine, the Criminal Appeal is dismissed, the judgment, dated 06.04.2013, made in C.C.No.3271 of 2011, on the file of the Metropolitan Magistrate, FTC No.III, Saidapet, Chennai is hereby, affirmed by this Court for the reasons assigned in this Appeal.