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C.Loganathan v. Nallathambi - Criminal Appeal No.822 of 2001  RD-TN 1159 (28 March 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR. JUSTICE P. MURGESEN
Criminal Appeal No.822 of 2001
C.Loganathan .. Appellant
Nallathambi .. Respondent
Criminal Appeal filed under Section 378 of 4 of Crl.P.C. to set aside the order dated 3.7.2001 passed in C.C.No.319 of 1998 on the file of the Judicial Magistrate Court No.II, Dindigul and award punishment for the offence committed under section 138 of Negotiable Instruments Act by the respondent. For Appellant : Mr.V.Venkkatasamy
For Respondent : Mr.Mohideen Basha
The appeal is directed against the order dated 3.7.2001 passed in C.C.No.319 of 1998 by the Judicial Magistrate II, Dindigul.
2.The brief facts of the case of the complainant are as follows: a)The complainant is the native of Sankagiri Taluk. In the year 1993, he came to Dindigul. There the complainant and the respondent/accused became friends. The respondent/accused was doing transport business. He requested the appellant/ complainant to finance a sum of Rupees three lakhs for business purpose. On 1.7.1993, the complainant gave Rupees three lakhs to the accused. For that the accused gave a pro-note on the same day. The accused was paying interest for the said amount of Rupees three lakhs. The accused used to make endorsement in the pro-note.
b)In the year 1998, the accused demanded further sum of Rupees two lakhs. The complainant also gave Rupees two lakhs to him. The complainant also returned the two pro-notes to the accused. Then the accused handed over the post dated cheque for a sum of Rupees five lakhs dated 10.6.1998. When the cheque was presented on that date, it was returned. So, the complainant issued a notice to the accused. The accused received the said notice and sent a reply containing false information. Therefore the
complainant sent a rejoinder notice, which was received by the counsel for the accused on 21.7.1998. Since there was no reply, the complainant preferred the complaint against the accused.
3.The complainant in order to bring home the charges against the accused, examined P.Ws 1 to 3 and filed Exs.P1 to P11. On the side of defence, the accused was examined as D.Ws.1 and 2 and marked Exs.D1 to D7.
4.On consideration of the entire evidence on record, the learned Judicial Magistrate, found that the accused is not guilty of the offence under Section 138 of the Negotiable Instrucments Act and acquitted him of the charges levelled against him.
5.Challenging the judgment of the learned Judicial Magistrate, the above appeal has been filed by the complainant/ appellant.
6.Point for Determination:
1.whether the respondent/accused has committed the offence under Section 138 of the Negotiable Instruments Act ? POINTS FOR DETERMINATION:
7.P.W.1-Complainant is the resident of Sankagiri Taluk. In the year 1993, he came to Dindigul. There the complainant and the respondent/accused became friends. The respondent/accused was doing transport business. According to P.W.1, the accused/appellant requested him to finance a sum of Rupees five lakhs for business purpose and obtained a cheque-Ex.P1. Ex.P6 is the notice issued by the complainant's Advocate wherein he has categorically stated that on 1.7.1993, accused received Rupees two lakhs from him and for that he gave a pro-note on the same day and in the year 1998, the accused demanded a further sum of Rupees two lakhs. The complainant also gave Rupees two lakhs to him. The complainant also returned the two pro-notes to the accused. Then the accused handed over a post dated cheque for the total sum of Rupees five lakhs dated 10.6.1998. But, P.W.1-complainant in his cross examination denied the receipt of the cheque for Rupees five lakhs on that date. So, his evidence is contrary as claimed in the notice Ex.P6.
8.Though it is not true, that the signature of the accused found in the cheque was a forged one, after receipt of the notice the accused sent an intimation to the Bank for stop payment, which is not disputed. The main point for consideration is whether the cheque is true and valid.
9.The learned counsel for the appellant/complainant in support of his contentions relied on the following decisions:
1.GOAPLAST PVT. LTD., Vs. SHRI CHICO URSULA D'SOUZA & ANOTHER reported in
2003(2) Crimes 55 (SC)
2.B.V.Rangam Vs GOVINDA REDDY reported in 2004 CRI.L.J. 3170
3.JAYAM COMPANY & ANOTHER vs.T.RAVICHANDRAN reported in 2004-2L.W.(Crl.)662
and argued that the presumption is in favour of the appellant.
10.On the other hand it is the case of the learned counsel for the respondent/accused that previously the complainant was working as a Manager under the accused and he was getting a salary of Rs.3000/- per month and hence the complainant/ appellant could not be in a position to lend such a huge sum of Rupees five lakhs to the accused. In support of the same, the the learned counsel for the respondent/accused also contended that the complainant himself wrote a letter Ex.D6 expressing his family difficulties and requested the accused for enhancement of his
income. However, this was denied by the learned counsel for the appellant/complainant saying that it was not written by the complainant.
11.Further, while the complainant was working under the accused as a Manager, the accounts books and other documents were under his custody. This was spoken by R.W.2-accused. R.W.1 supported the case of the accused/R.W.2 and also deposed that the handwriting in the letter-Ex.D6 pertains to complainant. In that document, the complainant admitted that he was not financially sound to maintain his family.
12.Therefore, the complainant cannot be in a position to advance such a huge amount to his Master i.e. the accused/respondent herein. Further there is no evidence on record to show as to how the complainant was having Rupees Five lakhs to finance the accused. So, the alleged issue of cheque by the accused for the amount received from the complainant is not true. On consideration of entire evidence on record, the learned trial Judge has come to the conclusion rightly. I find no reason to interfere with the order passed by the learned trial Judge.
13.Accordingly, the appeal filed by the appellant/ complainant fails and the same is dismissed, confirming the order of acquittal dated 3.7.2001 passed in C.C.No.319 of 1998 by the learned Judicial Magistrate No.II, Dindigul. rpa
The Judicial Magistrate Court No.II, Dindigul.
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