IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 29.10.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl.A.No.650 of 2000 M/s Transcorp Finance Ltd rep by its General Manager R.Subramanian .. Appellant/Complainant vs. 1. M/s Chemicals Drugs & Formulations Ltd, rep by its Power Agent Ramesh P.Garg 2. Mr.Ramesh P.Garg .. Respondents/Accused This appeal has been preferred against the Judgment dated 30.5.2000, in C.C.No.7137 of 1996 on the file of XVIII Metropolitan Magistrate, Saidapet, Chennai-15. For Appellant : Mr.R.Vijayaraghavan,Advocate For Respondents : Mr.P.Palaninathan,Advocate JUDGMENT This appeal has been directed against the judgment in C.C.No.7137 of 1996 on the file of XVIII Metropolitan Magistrate, Saidapet, Chennai-15.The complainant is the appellant herein. 2. According to the complainant, the accused had availed bill discounting facility to the tune of Rs.3,24,852/-. In order to discharge the said debt, the second accused had drawn an impugned cheque Ex P1 dated 24.4.1996 on behalf of the first accused in favour of the complainant for a sum of Rs.3,24,852/-. When the said cheque was presented before the South Indian Bank, Triplicane, the same was returned with an endorsement "payment stopped by the drawer". Exs P2 and P3 are the intimation issued by the bank to the complainant dated 1.10.1996. On 4.10.1996, the complainant had issued a lawyer's notice under the original of Ex P4 which was received by the accused under Ex P6 acknowledgment dated 10.10.1996. Ex P5 is the power of https://hcservices.ecourts.gov.in/hcservices/ attorney. Ex P7 is the reply notice. Ex P8 is the statement of account produced by the accused. Ex P9 is the letter addressed by the accused to his bank. On behalf of the complainant, P.Ws 1 to 3 were examined apart from the above said exhibits marked through them. On the side of the accused, no oral evidence was let in but Exs R1 to R6 were exhibited. The learned trial Judge, after scanning the evidence both oral and documentary, has come to a conclusion that the charge against the accused under Section 138 of Negotiable Instruments Act has not been proved beyond any reasonable doubt by the complainant has held that the accused is entitled for an order of acquittal under Section 255(1) of Cr.P.C and accordingly after dismissing the complaint, acquitted the accused, which necessitated the complainant to prefer this appeal. 3. Heard Mr.R.Vijayaraghavan, learned counsel for the appellant and Mr.P.Palaninathan, learned counsel for the respondents and considered their rival submissions. 4. Accepting the defence of the accused that Ex P1 impugned cheque was drawn in favour of the complainant only as a security for the bill discounting facility availed by the accused, the learned trial Judge has dismissed the complainant. As per Section 138 of Negotiable Instruments Act, it is the bounden duty of the complainant to prove that the impugned cheque under Ex P1 dated 24.4.1996 which was drawn for Rs.3,24,852/-, that it was drawn only for the purpose of discharging a legally enforceable debt as held by the Honourable Supreme Court in a decision reported in Krishna Janardhan Bhat-v- Dattatraya G.Hegde(2008 SAR (criminal) 224). The learned counsel appearing for the appellant relied on the above said decision contended that non examination of the accused before the trial Court is not fatal to the defence raised by the accused and that the burden of proof is on the complainant to prove his case. Further basing his reliance on Section 139 of N.I.Act, the learned counsel for the respondent would contend that the burden of the complainant is to prove that the impugned cheque Ex P1 was drawn only for the purpose of discharging a subsisting liability as contemplated under Explanation to Section 138 of N.I.Act. The learned counsel has placed his reliance at paragraph 20 of the above said ratio wherein it has been held by the Honourable Apex Court as follows: "Indisputably, a mandatory presumption is required to be raised in terms of Section 118(b) and Section 139 of the Act. Section 13(1) of the Act defines "negotiable instrument" to mean" a promissory note, bill of exchange or cheque payable either to order or to bearer" Section 138 of the Act has three ingredients, viz., https://hcservices.ecourts.gov.in/hcservices/ (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt' and' (iii) that the cheque so issued had been returned due to insufficiency of funds. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a Court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of holder of the cheque that the same has been issued for discharge of any debt or other liability." 5. It is admitted by both the learned counsel that before the trial Court, there is no material placed to show that on the date of drawal of the impugned cheque Ex P1, the accused owes Rs.3,24,852/- to the complainant. The learned counsel appearing for the appellant would represent that if an opportunity is given to him, he will produce the relevant materials before the trial Court even before this Court since the said point was not raised before the trial Court. Even if the additional materials are placed before this Court, that is to be proved by examining the relevant witness. Under such circumstances, I am of the view that it is a fit case to be remanded to the trial Court to enable the appellant/complainant to produce relevant materials to show that on the date of drawal of Ex P1 impugned cheque ie., on 24.4.1996, the amount due to the complainant from the accused is more than Rs.3,24,852/- ie, the cheque amount. 6. In fine, the appeal is allowed and the Judgment of the learned trial Judge in C.C.No.7137 of 1996 on the file of XVIII Metropolitan Magistrate, Saidapet, Chennai-15 is set aside and the matter is remanded to the lower Court to enable the complainant to file additional documents to show that on the date of drawal of Ex P1 impugned cheque, the amount due to the complainant from the accused is more than the amount for which Ex P1 cheque was drawn. The complainant shall file necessary application before the trial Court within a period of one week from today(29.10.2008). The learned trial Judge is directed to dispose of the matter within a period of two months from the date of receipt of a copy of this order, after giving https://hcservices.ecourts.gov.in/hcservices/ due opportunities to both parties. The remuneration for the Legal Aid Counsel Mr.P.Palaninathan is fixed as Rs 1,500/-(Rupees One thousand five hundred) only to be paid by the Tamil Nadu Legal Services Authority, Chennai. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sg To, 1. The XVIII Metropolitan Magistrate, Saidapet, Chennai-15 2. -do-through the Chief Metropolitan Magistrate,Egmore, Chennai-8 3. The Tamil Nadu Legal Services Authority, Chennai. 4. The Section Officer, Criminal Section, High Court of Madras. Crl.A.No.650 of 2000 SSV {CO} TP/29.10.08 https://hcservices.ecourts.gov.in/hcservices/