IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.11.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl.A.No.262 of 2002 1.Seethalakshmi 2.Malini 3.Hemalatha 4.Nandhini 5.Kavitha .. Appellants/Complainants vs. S.Ranganathan .. Respondent/Accused This appeal has been preferred against the Judgment dated 28.10.1999 in C.C.No.230 of 1993 on the file of Judicial Magistrate,Gudiyatham, Vellore District. For Appellants : Mr.R.Vijayaraghavan,Advocate For Respondent : Mr.K.Goviganesan,Advocate JUDGMENT This appeal has been preferred by the Complainants/appellants under Section 138 of Negotiable Instruments Act against the judgment in C.C.No.230 of 1993 on the file of Judicial Magistrate,Gudiyatham,Vellore District. 2. The brief facts of the complaint, filed by the complainant are as follows: The present complainants are the legal representatives of the deceased Sathyamurthy, the original complainant, from whom the accused had borrowed a sum of Rs.70,000/- as hand loan and issued three cheques dated 17.8.1993 for Rs.40,000/-(Cheque No.74902), Rs.20,000/-(Cheque NO.74903) and Rs.10,000/-(Cheque No.74904). The complainant had presented those three cheques for encashment, but the same were dishonoured on the ground of "insufficient funds in the account of the accused." The complainant had issued a notice dated 27.9.1993 which was received by the accused on 28.9.1993. The accused had sent a reply notice dated 7.10.1993 with false contentions. Hence the complaint. https://hcservices.ecourts.gov.in/hcservices/ 3. After taking the complaint on his file, the learned Judicial Magistrate, after following the formalities had furnished copies under Section 207 Cr.P.C to the accused and when the offence was explained to the accused, he pleaded not guilty. 4. Before the trial Court,on the side of the complainant, the complainant had examined himself as P.W.1 besides examining the official of Canara Bank, Pernambut Branch as P.W.2 and exhibited Exs P1 to P7. Neither oral nor documentary evidence was let in on the side of the accused. No material object was marked. 5. After going through the evidence both oral and documentary, the learned trial Judge has dismissed the complaint on the ground that the complainant had failed to prove that Exs P1 to P3 impugned cheques were drawn by the accused in order to discharge a subsisting liability. Aggrieved against the findings of the learned trial Judge, the legal representatives of the complainant, who died pending trial before the trial Court have preferred this appeal. 6. Now the point for determination in this appeal is whether the offence under Section 138 of Negotiable Instruments Act has been attracted against the accused to warrant conviction under the said provision of law? 7. Heard Mr.R.Vijayaraghavan,learned counsel for the appellant and Mr.K.Goviganesan, learned counsel for the respondent and considered their rival submissions. 8.The Point: The complainant had deposed before the trial Court and his chief examination was recorded before the trial Court on 17.2.1997 and through whom the impugned cheques Exs P1 to P3 were marked. P.W.1 has deposed to the fact that after receiving a sum of Rs.70,000/- from him, the accused had drawn Ex P1 cheque for Rs.40,000/- and Ex P2 cheque for Rs.20,000/- and Ex P3 cheque for Rs.10,000/- on the same date ie., on 17.8.1993 and when those cheques were presented one month after the date of drawal of cheque as requested by the accused, those cheques were dishonoured by the bank on 23.9.1993 on the ground of " insufficient funds". Ex P4 is the bank intimation sent along with the dishonoured cheques Exs P1 to P3. Thereafter, the complainant had issued notice under the original of Ex P5 which was received by the accused on 28.9.1993 under Ex P6 acknowledgment. Ex P7 is the reply notice sent by the accused. 8a. P.W.2 is the Manager of Canara Bank, Pernamput Branch who would depose to the fact that Exs P1 to P3 impugned cheques were dishonoured by the bank on the ground of "insufficient funds" . Against the said evidence of P.W.1 and P.W.2, there was no contra evidence let in by the accused. https://hcservices.ecourts.gov.in/hcservices/ 9. P.W.1 could not be cross examined by the accused because he died during trial. After chief examination was over, there was sufficient time given to the accused to cross examine P.W.1. It is represented by the learned counsel appearing for the appellants that P.W.1 died one month after he gave chief examination before the trial Court,but he was not cross examined by the accused. In the reply notice Ex P7, the defence raised by the accused is that during 1992, he had some monetary transactions with the complainant and as a security for the amount borrowed from the complainant, he had handed over three undated blank cheques and subsequently, the entire loan amount of Rs.1,20,000/- inclusive of interest was discharged by the accused. But the accused had already discharged the entire loan amount, he has not produced any material on his side. It is the case of the accused that instead of returning three blank cheques issued by the accused for the earlier loan, as a security, the complainant had misused the same and filed a complaint. The burden is heavily on the accused to show that the impugned cheques Exs P1 to P3 are forged one. It is seen from Ex P4 bank intimation that the cheques were returned on the ground of "insufficient funds" and not on the ground that the impugned cheques were forged documents. 10.The presumption that the cheque was drawn for discharging a subsisting liability is in favour of the holder of the impugned cheque Exs P1 to P3 unless the contrary is proved. Section 139 of Negotiable Instruments Act runs as follows: "It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability". In the absence of any contra evidence on the side of the accused as to the effect that the cheques were not drawn to discharge a subsisting liability, it cannot be said that the complainant is not entitled to the relief under Section 138 of the Negotiable Instruments Act. The learned trial Judge, on the presumption and assumption that the impugned cheques Exs P1 to P3 were not drawn for discharge a subsisting liability had erroneously held that the complainant is not entitled to the relief under Section 138 of the Negotiable Instruments Act which warrants interference from this Court. Under such circumstances, the Judgment in C.C.No.230 of 1993 on the file of Judicial Magistrate, Gudiyatham Vellore District is set aside and the accused is convicted under Section 138 of Negotiable Instruments Act. https://hcservices.ecourts.gov.in/hcservices/ 11.When coming to the question of sentence, the principle laid down in Goa Plast (P) Ltd-vs-Chico Ursula D'Souza(2004(2) Supreme Court Cases 235)can be followed in this case too. The ratio decidenti in the above said ratio runs as follows: "Section 139: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole, or in part, of any debt or other liability"Thus it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act which is to promote the efficacy of banking operation and to ensure credibility in business transactions through banks persuades us to take a view that by countermanding payment of post-dated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act. A contrary view would render Section 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong. If we hold otherwise, by giving instructions to banks to stop payment of a cheque after issuing the same against a debt or liability, a drawer will easily avoid penal consequences under Section 138. Once a cheque is issued by a drawer, a presumption under Section 139 must follow and merely because the drawer issued notice to the drawee or to the bank for stoppage of payment, it will not preclude an action under Section 138 of the Act by the drawee or the holder of the cheque in due course. This was the view taken by this Court in Modi Cements Ltd.v.Kuchil Kumar Nandi(1998)3 SCC 249). On same facts is the decision of this Court in Ashok Yeshwant Badave.v.Surendra Madhavrao Nighojakar (2001) 3 SCC 726). The decision in Modi Case overruled an earlier decision of this Court in Electronics https://hcservices.ecourts.gov.in/hcservices/ Trade and Technology Development Corpn Ltd., v. Indian Technologists & Engineers (Electronics) (P) Ltd., (1996) 2 SCC 739:1996 SCC(cri)454) which had taken a contrary view. We are in respectful agreement with the view taken in Modi case(1998)3 SCC 249). The said view is in consonance with the object of the legislation. On the faith of payment by way of a post-dated cheque, the payee alters his position by accepting the cheque. If stoppage of payment before the due date of the cheque is allowed to take the transaction out of the purview of Section 138 of the Act, it will shake the confidence which a cheque is otherwise intended to inspire regarding payment being available on the due date.. . . . . . . .We have no doubt that the respondent has committed an offence punishable under the provisions of Section 138 of the Act and is liable to be punished. The transaction in question took place between the parties in the year 1993, therefore, Section 138, as it stood at the relevant time, would be applicable to the present case. Section 138 provides imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both,. Section 138 has now been amended and the penalty of imprisonment for a term which may extend to one year has been substituted by two years as provided by the amending Act of 2002 and the fine which may extend to twice the amount of the cheque. This has been prescribed as the punishment for the offence under Section 138 of the Act.. ... We have no doubt that the respondent has committed an offence punishable under the provisions of Section 138 of the Act and is liable to be punished. The transaction in question took place between the parties in the year 1993, therefore, Section 138, as it stood at the relevant time, would be applicable to the present case. Section 138 provides imprison ment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. Section 138 has now been amended and the penalty of imprisonment for a term which may extend to one year has been substituted by two years as provided by the amending Act of 2002 and the fine which may extend to twice the amount of the https://hcservices.ecourts.gov.in/hcservices/ cheque. This has been prescribed as the punishment for the offence under Section 138 of the Act. The object and the ingredients under the provisions, in particular, Sections 138 and 139 of the Act cannot be ignored. Proper and smooth functioning of all business transactions, particularly, of cheques as instruments, primarily depends upon the integrity and honesty of the parties. In our country, in a large number of commercial transactions, it was noted that the cheques wee issued even merely as a device not only to stall but even to defraud the creditors. The sanctity and credibility of issuance of cheques in commercial transactions was eroded to a large extent. Undoubtedly, dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious set back. Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee." Under such circumstances, the above said ratio applies to the present facts of the case in all four corners. Following the principle enunciated in the above said dictum,I am of the view that instead of giving any imprisonment, the accused can be directed to pay twice the amount of the cheque in this case also. The point is answered accordingly. 12. In the result, the appeal is allowed and the Judgment in C.C.No.230 of 1993 on the file of the Judicial Magistrate, Gudiyatham, Vellore District is set aside and the accused is convicted and sentenced under Section 138 of Negotiable Instruments Act. Four month's time from this date is given to the respondent/accused herein to pay a sum of Rs.1,40,000/-(Rupees One Lakh and forty thousand ) only (Twice the amount of the Cheque) to the appellants/complainants. In default, thereof, the respondent/accused shall suffer simple imprisonment for six months. It is represented by the learned counsel appearing for the respondent/accused that this Court had already issued bailable warrant. Only if the accused fails to pay the amount passed under this Judgment, on petition, warrant to compel his attendance is to https://hcservices.ecourts.gov.in/hcservices/ be issued and not before that. So registry is directed to recall the bailable warrant issued against the accused. sg Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To, 1.The Judicial Magistrate No.1, Gudiyatham, Vellore District 2.-do- the Chief Judicial Magistrate,Vellore 3. The Inspector of Police, Gudiyatham Town Police Station Vellore District. 4. The Public Prosecutor, High Court, Madras. GV(CO) SR/13.11.2008 Crl.A.No.262 of 2002 https://hcservices.ecourts.gov.in/hcservices/