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V. Ramani v/s Esabella Samuvel & Another

    Crl.A. No. 744 of 2009

    Decided On, 03 July 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE R. PONGIAPPAN

    For the Appellant: V.K. Sathiyamurthy, Advocate. For the Respondents: C. Rajaghopalan, Advocate.



Judgment Text

(Prayer: Criminal Appeal filed under Section 378 of Cr.P.C. Against the judgement made in Criminal Appeal No. 4 of 2017 dated 21.04.2008 on the file of the Additional District and Sessions Judge (FTC-V), Tiruvallur.)

1. This appeal has been directed against the judgement and order dated 21.04.2008 passed by the learned Additional District and Sessions Judge (FTC-V), Tiruvallur in C.A. No. 4/2007, wherein he set aside the judgment dated 09.01.2007 passed by the learned District Munsif-cum-Judicial Magistrate, Ambattur in C.C.No.1283 of 2004.

2. The appellant herein is the complainant in C.C. No. 1283 of 2004 on the file of the learned District Munsif-cum-Judicial Magistrate, Ambattur. A complaint for the said case has been filed by the appellant against the respondents by saying that the respondents 1 and 2 have committed the offence punishable under Section 138 of Negotiable Instruments Act. The learned Magistrate, during the course of the trial, examined the appellant as PW1 after mark

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ing 10 documents as Ex.P1 to Ex.P11. On the side of the respondents, the copy of the written statement filed in O.S.No.4442 of 2004 on the file of XIII Assistant Judge, City Civil Court, Chennai was marked as Ex.D1. After adopting procedures as laid down in Code of Criminal Procedure, the learned District Munsif-cum-Judicial Magistrate, Ambattur completed the trial and came to the conclusion that the respondents have committed offence punishable under Section 138 N.I.Act and sentenced them to undergo six months simple imprisonment and to pay a fine of Rs.5000/- each with default sentence.

3. Against which, the respondents herein have filed an appeal before the District Judge, Tiruvallur and same was tried by the Additional District and Sessions Judge (FTC-V), Tiruvallur. After elaborate enquiry, he set aside the conviction and sentence awarded by the learned District Munsif-cum-Judicial Magistrate, Ambattur. Against which, this appeal has been preferred for restoring the conviction and sentence awarded by the learned Magistrate.

4. The case of the appellant before the trial Court is that prior to the alleged occurrence, the complainant was working as a teacher in ICF School along with the first respondent. During the time of her retirement, she received terminal benefits and deposited the same in the nationalised bank for fetching interest. Thereafter upon request made by the both respondents, the appellant paid Rs.10,00,000/- as loan to them. Subsequently, they evaded to make repayment. Hence, the appellant had lodged a complaint before the III Metropolitan Magistrate, George Town, Chennai and the same was forwarded to the Deputy Commissioner of Police, Central Crime Branch, Chennai for investigation. So the case has been registered in Cr.No. 344 of 2004 for the offence under Sec.420 r/w 34 IPC. During the course of investigation, the respondents herein agreed to repay a sum of Rs.5,00,000/- instead of Rs.10,00,000/-. Further to that effect a Memorandum of Agreement was entered between the complainant and the accused. Subsequent to the execution of the memorandum of agreement, three cheques bearing No.235057 dated 02.08.2004 for Rs.50,000/-, the chequeNo. 235058 dated 30.09.2004 for Rs.50,000/- and the cheque No.235059 dated 01.11.2004 for Rs.4,00,000/- drawn on State Bank of India, Pallavaram Branch were given to the appellant by the respondents. In view of the same, the appellant had not pressed the complaint on 21.07.2004 pending with the Central Crime Branch. When the appellant deposited the cheque given by the respondent for Rs.50,000/- bearing No. 235057 dated 02.08.2004 for realisation, the same was returned with an endorsement Funds Insufficient . Therefore, without any alternative, statutory notice was issued by the appellant to the respondents on 13.09.2004, calling to repay the cheque amount and the same was acknowledged by the respondent on 15.09.2004. After receiving the statutory notice, the respondents failed to honour the cheques, thereby, the appellant presented the complaint before the trial Court for punishing them under Section 138 of N.I Act.

5. Today, when the appeal is taken up for consideration, Mr.K.V.Sathiyamurthy, learned counsel appearing for the appellant and Mr.C.Rajagopalan, learned counsel appearing for the respondents are present.

6. In order to substantiate the claim made by the appellant, the learned counsel appearing for the appellant made submission before this Court that the first appellate Court misconstrued the facts of the case and came to the conclusion that the cheque alleged to have been issued by the respondents was obtained by the appellant under the coercion and threat, thereby the learned Judge came to the conclusion that the cheques have not been issued for discharging legally enforceable debt and finally set aside the order passed by the learned District Munsif-cum-Judicial Magistrate, Ambattur.

7. On the other hand, the learned counsel appearing for the respondents made submission before this Court that before obtaining cheques from the respondents, the appellant had lodged a complaint before the learned Magistrate for registering the case of cheating and the same was forwarded to the concerned jurisdictional police and thereafter under the threat made by the police officials, cheques were issued by the respondents to the appellant, thereby he prayed to dismiss the present appeal.

8. It is an admitted fact that before presenting the complaint before the District Munsif-cum-Judicial Magistrate, Ambattur, for the same incident, the present appellant had lodged a complaint before the III Metropolitan Magistrate, George Town, Chennai for the purpose of recovering the loan amount, the same was forwarded to the police officers. Meanwhile on 20.07.2004, a compromise has been arrived between the appellant and the respondents and to that effect a Memorandum of Understanding has been executed between them. In view of the same, the complaint lodged by the appellant was withdrawn by the appellant on 21.07.2004.

9. In the said circumstances, the respondents have not disputed their signatures found in the cheques. Since, the signature is admitted by the respondent, automatically Section 139 of N.I Act is comes to play. So, it is necessary to verify whether the cheque was issued by the respondent in order to repay the legally enforceable debt or not. In this regard, the learned counsel appearing for the respondents made submission by quoting the cross examination of PW1and submitted that the dates mentioned by the complainant differs from their case. According to the cross examination, the complainant has retired from service during January 2000 and she admitted the fact that from the year 1996 onwards, there was loan transaction between the respondents and the appellant. She further stated in her evidence as follows;

'TAMIL'

As per the above said evidence, it is clear that the loan amount paid by the appellant was not from her terminal benefits.

10. In the said circumstances, it is to be noted that according to Section 139 of N.I Act, if the signature is admitted by the drawer then the presumption is that the signature is assigned only after knowing the contents of the documents.

In a judgment reported in 2009 (2) Criminal 437 in a case of V. Srinivasana Vs. E.S.Gunasekar, this Court has held as follows;

"The signature in the cheque has not been disputed. Therefore, the presumption is that such signature has been assigned only after knowing the contents. Merely because there is a different handwriting in the cheque, mechanically, without application of mind, at a belated stage, such a defence cannot be taken. The precedents relied on by the petitioner are not applicable to the case on hand, since it is apparent that such a defence and prayer has been made at a belated stage, only to drag on the proceedings."

11. Further, in a Judgment reported in 1998 (3) SCC 249,in the case of Modi Cements Ltd., Vs.Kuchil Kumar Nandi, the Hon'ble Apex Court has held that once the cheque is issued by the drawer a presumption under Section 139 must follow . So, by following the above procedure, now this Court is having the duty to verify whether any rebuttal evidence was adduced by the respondents.

12. In the trial Court, after examining the appellant as PW1, none has been examined on the side of the respondents. Moreover after receiving statutory notice from the complainant, the respondents did not send any reply with regard to the stand now taken by him.

13. Without disputing the case of the complainant at the earlier stage, as an after thought, now it is submitted that the cheques were not issued for discharging legally enforceable debt, which is not an acceptable one. Further, the cheque is dated 29.08.2004, but the complaint lodged by the appellant with regard to the dispute between the appellant and the respondent was withdrawn on 27.3.2004. Hence, considering the difference between the date of withdrawal of the complaint and the date of the cheque, it is not necessary for the respondents to issue cheque after the lapse of five months from the date of withdrawing the complaint. Thus, it is clear that all the materials submitted by the appellant before the trial Court would prove his case beyond any reasonable doubt and the learned District Munsif-cum-Judicial Magistrate, Ambattur is right in his reasoning that the alleged offence was committed by the respondents. But without knowing the principles laid in 139 of N.I Act and without analyising the dates of lodging of complaint and issuance of cheque, the first appellate court allowed the appeal, which is nothing but erroneous.

14. In the result, the criminal appeal is allowed and order passed by the learned Additional District Judge (FTC-V), Tiruvallur in Crl.A.No. 4 of 2007 dated 21.04.2008 is set aside. The conviction and sentence awarded by the learned District Munsif-cum-Judicial Magistrate, Ambattur is restored. The trial Court is directed to take steps to secure the respondents for execution of the sentence awarded.

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