IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.11.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.1187/2002 M/s.Siva Sakthi Mills by its Proprietor Kandasamy Tirupur-2 ..Appellant/Complainant Vs Chandrasekar ..Respondent/Accused Prayer:- This Criminal Appeal is filed against the order of acquittal made by the learned Judicial Magistrate I, Tirupur in CC.No.539/1999 dated 16.5.2002. For Appellant : Mr.Vimal B.Crimson For Respondent : NO Appearance ORDER Challenge in this appeal is to the judgement passed in CC.No.539/1999 dated 16.5.2002 by the learned Judicial Magistrate I, Tiruppur, acquitting the Respondent for the offence under Section 138 of the Negotiable Instruments Act. 2. The Appellant is M/s.Sri Sivasakthi Mills, Tiruppur represented by its Proprietor Kandasamy. Originally the complaint was filed against the Respondent through their Power of Attorney Agent by name S.subbiah (PW.1), who was the Manager. To supply yarn to the Appellant Company, Respondent was paid with a sum of Rs.4,50,000/- by the Appellant, but the Respondent never supplied the yarn and when the Appellant demanded to return the money, the Respondent had issued a cheque Ex.P2 in favour of the Appellant and when it was deposited with their Banker, it was returned with a memo stating that a stop payment letter had been issued by the Respondent. On receipt of the memo Ex.P4, the Appellant had issued the statutory notice Ex.P10 to the Respondent, but there was no reply or response from him. Thereafter the Appellant filed the complaint under Section 138 of the Negotiable Instruments Act before the court below in CC.No.539/1999. 3. The defence of the Respondent before the Trial Court was that there was no transaction between him and the Appellant and he does not know them and he never issued the impugned cheque. According to him, a blank cheque was issued by him to a person by name Mani and it has been misused by the Appellant for filing a false case against him. https://hcservices.ecourts.gov.in/hcservices/ 4. During the trial, the Appellant had examined three witnesses as Pws.1 to 3 and marked Exs.P1 to P12. The Respondent examined himself as DW.1 and had marked Exs.D1 to D3. 5. The learned Magistrate in its comprehensive judgement has dealt with the evidence available on record and came to the conclusion that the presumption created by Section 139 of Negotiable Instruments Act as against the Respondent got displaced by the Prosecution evidence itself and that apart, the Respondent had led independent evidence in rebuttal thereof and had discharged the burden cast on him and in the result, acquitted the Respondent. As against which, the complainant has filed this appeal. 6. Mr.Vimal B.Crimson, the learned counsel for the Appellant contended that the Respondent having admitted his signature found in Ex.P2 and the said cheque having bounced on 30.8.1999 when it was sent for collection and the statutory notice having been received by the Respondent, but failing to pay the cheque amount, a presumption has to be drawn unless the contrary is proved that the holder of such cheque received the cheque in the discharge of a liability. 7. It is no doubt true that under Section 139 of the Negotiable Instruments Act, under the above said circumstances, the court has to raise a presumption, but it is a rebuttable one. Under Section 139 of the Negotiable Instruments Act burden lies upon the drawer of the cheque to rule out the existence of the debtor-creditor relationship. 8. The Respondent had examined himself as DW.1 and has deposed that one Mani promised him to get finance arrangement to renew his office and got a blank cheque as security from him, but since he failed to arrange the finance assistance, the Respondent asked him to return the cheque, however, the said Mani had told him that he lost the cheque which necessitated him to instruct the Bank not to honour the cheque. 9. In order to attract the penal provisions for the bouncing of a cheque, it is essential that the dishonoured cheque should have been issued in discharge, wholly or in part, of any debt or other liability of the drawer to the payee. It is the specific case of the Appellant that the amount was paid for supply of yarn to the Respondent, but he has failed to prove satisfactorily that the said payment was made by the Appellant, more so, when the Respondent had raised a defence that the cheque was issued to one Mani and there was no transaction between him and the Appellant. It is not disputed that the Respondent is a practicing auditor. It is the bounden duty of the Appellant to prove that the amount was actually paid by the Appellant in the dealings of supply of yarn. The Appellant being a Company could definitely maintain accounts and failure to produce the accounts to show the outstanding liability for which the cheque is alleged to have been issued, no presumption could be drawn. https://hcservices.ecourts.gov.in/hcservices/ 10. At this juncture, it is relevant to point out to the evidence adduced by PW.3 which has been referred to by the learned Magistrate as below:- @_rptrj;jp kpy;!; chpikahsh; fe;jrhkp th/rh/3 Mf rhl;rpak; mspj;Js;shh;/ ,t;tHf;fpy; Fw;wKiwaPl;oy; vjphpf;F vg;nghJ U:/4.50.000- fld; bfhLf;fg;gl;lJ vd;gJ fhl;lg;gltpy;iy/ vjphpf;F gzk; bfhLj;jij fzf;fpy; fhl;ltpy;iy vdt[k; th/rh/3 rhl;rpaj;jpy; xg;g[ bfhs;fpwhh;/ ,t;thwhd NH;epiyapy; vjphp Ehy; tpahghu tut[ bryt[ bra;tjhf Kd; itf;fg;gLk; Tw;W ek;gj;jFe;jjy;y vd vjphp jug;gpy; tYthf thjplg;gLfpwJ/ nkYk; th/rh/3 mtUila rhl;fpaj;jpy; mtUila rptrf;jp kpy;!; vd;w epWtdj;jpy;. Nkysh; th/rh/1k; mtuJ kfd; gHdpr;rhkp vd;gtUk; eph;tfpj;J te;jjhff; Fwpg;gpfpd;whh;/ th/rh/3k; mtUila rhl;rpaj;jpy; vjphpf;F gzk; bfhLj;jJ th/rh/1 kw;Wk; mtUila kfd; gHdpr;rhkp Mfpa ,UtUk; jhd; vd;Wk;. mth; gzj;ij neuoahf vjphpf;Ff; bfhLf;ftpy;iy vd;Wk; jpl;ltl;lkhf xg;g[f;bfhs;fpd;whh;/ , e;epiyapy; vjphp thjpaplk; gzk; bgw;whh; vd;w Tw;wpd; mog;gilna jfh;fpwJ/@ 11. Another significant factor, which belied the case of the Appellant, is that in another proceedings in CC.NO.419/1999 on the file of the Judicial Magistrate V, Coimbatore in the complaint marked as Ex.P12, it has been alleged that the Respondent is an auditor and is known to the Directors of Devi Karunambigai Textile Mills for many years and that the complainant supplied yarn to M/s.Sri Masani Mills represented by its Proprietor D.Mani who issued a cheque for Rs.4,11,215/- in favour of the Appellant/complaint and the Respondent recommended and guaranteed payment to the said transaction and issued cheques for Rs.1,06,000/- in favour of the Appellant towards part payment. There is no averment in the said proceedings that the Respondent was dealing in yarn trade. The above factors probabilise the case of the Respondent that he was not having any transaction with the Appellant and the cheque had not been issued by him for the legally enforceable debt due to the Appellant. 12. The use of the phrase "until the contrary is proved" in Section 118 of the Negotiable Instruments Act and further use of the words "unless the contrary is proved" in Section 139 of the Act read with definition of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, make it clear that presumption to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The Respondent in this case has shown through acceptable evidence that under the particular circumstances of the case, the non existence of consideration and debt is so probable. 13. It is settled law that to rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt, as is expected -- of the complainant in a https://hcservices.ecourts.gov.in/hcservices/ criminal trial. The accused may adduce evidence to prove that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it has to be borne in mind that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. 14. It is seen that nothing was elicited during the cross examination of DW.1 so as to create doubt about his ascertion that no transaction of sale of yarn was effected between the Appellant and the Respondent. When the sale of yarn has not been proved to have taken place, there could be no existing debt or liability, in discharge of which the Respondent was expected to issue a cheque to the Appellant. Thus, the Respondent has discharged the onus of proving that the cheque was not received by the holder for discharge of a debt or liability. Under the circumstances, the defence of the Respondent that blank cheque was given to one Mani as security forthe finance that was promised to be arranged by him becomes probable and the onus of burden had shifted to the Appellant. Whereas the Appellant has not produced any books of account or stock register maintained by him in the course of its regular business to establish that as a matter of fact the amount was paid to the Respondent for supply of yarn. 15. Having regard to the materials and evidence on record, the Trial Court had found that the Appellant failed to establish his case under Section 138 of the Negotiable Instruments Act as required by law and therefore, I do not find any illegality or infirmity, warranting interference with the well reasoned judgement of the Trial Court. 16. For the forgoing reasons, this Criminal Appeal is dismissed. The judgement dated 16.5.2002 passed by the learned Judicial Magistrate I, Tiruppur in CC.No.539/1999 is confirmed. Srcm Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1.The Judicial Magistrate I, Tirupur 2.-do-Through The Chief Judicial magistrate, Coimbatore Order in JRG (CO) Crl.A.No.1187/2002 SS (19.11.2009) https://hcservices.ecourts.gov.in/hcservices/