{"id":25651,"date":"2006-07-27T00:00:00","date_gmt":"2006-07-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/p-eswaran-vs-j-a-abdul-hameed-on-27-july-2006"},"modified":"2014-08-05T20:56:53","modified_gmt":"2014-08-05T15:26:53","slug":"p-eswaran-vs-j-a-abdul-hameed-on-27-july-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/p-eswaran-vs-j-a-abdul-hameed-on-27-july-2006","title":{"rendered":"P.Eswaran vs J.A.Abdul Hameed on 27 July, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
P.Eswaran vs J.A.Abdul Hameed on 27 July, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDATED: 27\/07\/2006  \n\nCORAM   \n\nTHE HON'BLE MR. JUSTICE K.N.BASHA        \n\nCriminal Appeal No.21 of 2003\n\nP.Eswaran  \n                                .. Appellant\/Complainant\n\n-Vs-\n\nJ.A.Abdul Hameed  \n                                .. Respondent\/Accused\n\n        Appeal against the Judgment dated 22.11.2002 made in C.C.   No.134  of\n1996  on  the  file  of  the  learned District Munsif-cum-Judicial Magistrate,\nAvinashi.\n\n!For Appellant  :  Mr.M.Deivanandam\n                  for Mr.G.R.Swaminathan\n\n^For Respondent :  Mrs.Vedavalli Kumar \n\n:JUDGMENT   \n<\/pre>\n
        This appeal is preferred by the complainant challenging  the  Judgment
\nof  acquittal  passed  by  the Judicial Magistrate, Avinashi, in C.C.No.134 of
\n1996 dated 22.11.2002 acquitting the accused for the offence under Section 138
\nof Negotiable Instruments Act (for short “The Act”).\n<\/p>\n
        2.  The case of the complainant is that  on  10.04.1996,  the  accused
\nborrowed  Rs.2,50,000\/-  from  him  with a promise to return the same within a
\nperiod of two months.  Thereafter, the complainant made several  reminders  to
\nthe  accused  to  repay  the amount and ultimately on 10.05.1 996, the accused
\nissued a cheque, Ex.P.1, dated 10.05.1996 for a sum of Rs.2,50,000\/- drawn  on
\nState Bank  of  India,  Avinashi  Branch,  in  favour of the complainant.  The
\ncomplainant further stated that on 23.0 8.1996, he has deposited  the  cheque,
\nEx.P.1,   dated   10.05.1996   before  the  State  Bank  of  India,  Avinashi.
\nThereafter, the cheque was dishonoured on the ground of “Insufficient  Funds”.
\nEx.P.2 is  the Banker’s Memo.  Ex.P.3 is the State Bank of India, Bank Chalan,
\ndated 23.08.19 96.   Thereafter,  the  complainant  sent  a  registered  legal
\nnotice, Ex.   P.4, dated 26.08.1996 calling upon the accused to pay the amount
\ntowards the dishonoured cheque.  The accused gave a  reply,  Ex.P.5,  dated  0
\n7.09.1996,  denying  the  averments  contained in the legal notice sent by the
\ncomplainant.  The complainant sent  a  rejoinder  notice  under  Ex.P.6  dated
\n17.09.1996.   But in spite of receiving the notice and even after 15 days from
\nthe receipt of the notice, the accused failed to pay the  amount  towards  the
\ndishonoured  cheque,  Ex.P.1  and  therefore  the  complainant stated that the
\naccused has committed the offence punishable under Section 138 of the Act.\n<\/p>\n
        3.  The complainant, in order to prove his case, examined  himself  as
\nP.W.1  and  examined  P.W.2, the Accountant of the State Bank of India and the
\ncomplainant marked Exs.P.1 to P.9.\n<\/p>\n
        4.  When the accused was questioned  under  Section  313  Cr.P.C.,  he
\ndenied  his  complicity  in  the  offence and he has not chosen to examine any
\nwitness on his side and he has marked Ex.D.1, the reply notice sent by him  to
\nthe complainant dated 12.10.1996.\n<\/p>\n
        5.   The  learned  Magistrate  on consideration of the entire evidence
\navailable on record through the evidence of  P.Ws.1  and  2  as  well  as  the
\nExs.P.1  to P.9 and Ex.D.1 has come to the conclusion that the complainant has
\nnot proved his case for establishing the  ingredients  of  the  offence  under
\nSection  138  of  the  Act,  by adducing acceptable evidence and acquitted the
\naccused on the following grounds:\n<\/p>\n
i.The complainant has not stated in his legal notice, Ex.P.4 for what  purpose
\nthe  amount  was  given  by  him  to  the accused as a loan and it is also not
\nmentioned on what date the amount was paid.\n<\/p>\n
ii.There is  no  explanation  for  presenting  the  cheque,  Ex.P.1,  dated  1
\n0.05.1996  only  on  23.08.1996  and  therefore  the  defence version that the
\naccused gave two blank cheques while he joined in the chit funds organised  by
\nthe complainant as security for taking the chit amount and the complainant has
\nfilled  up  one of the cheques and misused the same by foisting a case against
\nthe accused.\n<\/p>\n
iii.The present version of the complainant that he has presented  the  cheque,
\nEx.P.1  dated  10.05.1996  on 23.08.1996 at the instruction of the accused, is
\nnot stated either in his notice, Ex.P.4 or in his complaint.\n<\/p>\n
iv.A perusal of the cheque, Ex.P.1, dated 10.05.1996 shows that the  signature
\nis  in one ink and the letters written in the cheque is in different ink which
\nraises doubt about the genuineness of Ex.P.1.\n<\/p>\n
v.The complainant suppressed the  material  facts  in  his  notice,  Ex.P.4  ,
\ncomplaint  and  in  his chief examination and those materials are the issue of
\nreply notice by the accused, Ex.D.1, and  the  particulars  mentioned  in  the
\nEx.P.6, the rejoinder.\n<\/p>\n
        6.  Learned counsel for the Appellant, while assailing the Judgment of
\nacquittal  submitted  that  the learned Trial Judge has given the findings for
\nacquitting the accused which are all contrary to the law and  facts.    It  is
\nalso  submitted  by the learned Counsel for the Appellant that the complainant
\nhas complied with all the mandatory requirements  contemplated  under  Section
\n138 of the Act.  The learned counsel for the appellant also submitted that the
\nTrial  Judge  has  committed  error  of  law by placing reliance on irrelevant
\nfactors such as omission of certain particulars in  Ex.P.4,  Statutory  Notice
\nand  also  the  complainant  has  not  given the reason for giving loan to the
\naccused.  It is also submitted by the learned counsel for the  appellant  that
\nthe learned Trial Judge has wrongly held that the cheque, Ex.P.1, was given by
\nthe  accused as security, while availing the chit amount from M\/s.Eswaran Chit
\nFund.  The learned counsel  for  the  appellant  further  contended  that  the
\naccused  has failed to rebut the presumption contemplated under Section 139 of
\nthe Act and as such it has to be held that the cheque, Ex.P.1, issued  by  the
\naccused is towards the legally enforceable liability.\n<\/p>\n
        7.  Per contra, Mrs.Vedavalli Kumar, learned counsel appearing for the
\nrespondent\/accused  contended that the learned Trial Judge has given clear and
\ncategorical reasons based on the materials available on record for passing the
\norder of acquittal.  The learned counsel for the respondent\/  accused  further
\nsubmitted  that  the  learned  Trial  Judge  has  rightly held that neither in
\nEx.P.4, statutory notice, nor in his complaint the complainant has stated  the
\nreason for  giving loan of Rs.2,50,000\/- to the accused.  It is also contended
\nby the learned counsel for the respondent\/accused that there is absolutely  no
\nexplanation  given by the complainant that why the cheque issued on 10.05.1996
\nwas deposited by him only on  23.08.1996,  nearly  after  a  period  of  three
\nmonths,  and  that  the  conduct of the complainant itself throws considerable
\ndoubt about his version to the effect that the cheque, Ex.P.1 , was issued  by
\nthe accused towards the legally enforceable liability.  It is also pointed out
\nby the learned counsel for the respondent\/ accused that the present version of
\nthe  complainant  in  the  deposition  that  he  has  deposited  the cheque on
\n23.08.1996 at the instruction of the  accused  is  neither  mentioned  in  his
\nstatutory  notice, Ex.P.4 nor mentioned in his complaint and therefore it is a
\nclear case of afterthought and made only with a view to fill  up  the  lacuna.
\nThe  learned  counsel  for  the respondent\/accused also contended that several
\nmaterial factors were not mentioned in Ex.P.4, Statutory notice, sent  by  the
\ncomplainant to  the  accused.   It is further submitted by the learned counsel
\nfor  the  respondent\/accused  that  the  defence  theory  of  the  complainant
\nreceiving  two  blank  cheques  while the accused availed the chit fund amount
\nthrough M\/s.Easwaran Chit Fund running by the complainant is also probabilised
\nby the  materials  available  on  record.    The  learned  counsel   for   the
\nrespondent\/accused   lastly  submitted  that  the  accused  has  rebutted  the
\npresumption contemplated under Section 139 of the Act by eliciting answers  in
\nthe  cross-examination  of  the evidence of P.W.1, the complainant, as well as
\nthrough circumstance and preponderance of probabilities of the  case  and  the
\nlearned  counsel  placed  reliance  on  the decision in BHARAT BARREL AND DRUM
\nMANUFACTURING COMPANY VS.  AMIN CHAND PAYRELAL reported in AIR 1999 SC 1008.\n<\/p>\n
        8.  I have given my careful consideration to the rival contentions put
\nforward by either side.\n<\/p>\n
        9.  The entire perusal of records including the impugned  judgment  as
\nwell  as  the  deposition  shows  that  the  complainant has chosen to examine
\nhimself to prove his case and also produced certain documents, Exs.P.1 to P.9.
\nThe sum and substance of the allegation of the complainant is that the accused
\nborrowed a sum of Rs.2,50,000\/- from him on 1  0.04.1996  and  after  repeated
\ndemand  he  has  issued  a  cheque, Ex.P.1, dated 10.05.1996, for an amount of
\nRs.2,50,000\/- in his favour and when the same was deposited in his Bank  viz.,
\nState   Bank   of   India,  the  cheque  was  returned  with  the  endorsement
\n“Insufficient Funds” and thereafter he has sent the statutory notice,  Ex.P.4,
\ncalling  upon  the accused to settle the amount towards the dishonoured cheque
\nand the accused in spite of receiving the same not settled the  amount  within
\n15  days  from  the date of receipt of the notice and thereby he has committed
\nthe offence under Section 138 of the Act.  The undisputed  fact  remains  that
\naccording  to  the complainant P.W.1, an amount of Rs.2,50,00 0\/- was borrowed
\nby the accused on 10.04.1996 but except the oral statement of P.W.1, there  is
\nno  material produced by the complainant to prove that he has given the amount
\non 10.04.1996.  It is also relevant to note at this juncture  that  P.W.1  has
\nalso not stated that whether he has given that amount by way of cash or by way
\nof cheque  in  favour  of  the accused.  Even in the notice, Ex.P.4, it is not
\nstated by P.W.1 on what date he has given the amount to the accused though the
\npresent version is that he has given the amount on 10.04.1996 and it  is  also
\nnot  stated about the mode of payment whether he has given that amount by cash
\nor by way of cheque and it is also stoutly denied by the accused that  he  has
\nissued the cheque, Ex.P.1 for an amount of Rs.2,50,000\/- dated 10.05.1996.\n<\/p>\n
        10.  The defence is that the accused was one of the subscribers in the
\nunregistered chit fund business run by the complainant and the complainant has
\nreceived  two  blank cheques and one blank promissory note as security for the
\npurpose of receiving the chit amount and the said blank cheques  were  misused
\nby the complainant.  This defence version is probabilised by the fact that the
\ncomplainant\/P.W.1  has  received  the  reply  sent by the accused under Ex.D.1
\naddressed to the complainant mentioning the address as M\/s.Eswaran Chit  Funds
\nand the same was received by the complainant and the complainant also admitted
\nthe same in his cross-examination.\n<\/p>\n
        11.   Yet  another infirmity in the case of the prosecution is that in
\nthe cheque, Ex.P.1, the signature is in one ink and the wordings in respect of
\nthe amount is in a different ink which also raises doubt about the version  of
\nthe  complainant and also probabilised the defence theory that the complainant
\ncould have misused the  two  blank  cheques  said  to  have  received  by  the
\ncomplainant during the course of the chit transaction.\n<\/p>\n
        12.   It  is  also  relevant  to note that the cheque, Ex.P.1 is dated
\n10.05.1996 but the same was deposited by the complainant only on  23.08.1  996
\nand  there  is  absolutely no reasonable and probable explanation given by the
\ncomplainant for the delay of more than three months in depositing the  cheque,
\nEx.P.1, into his Bankers for collection of the amount.  The present version of
\nthe  complainant  in  the  deposition that he has deposited the cheque, Ex.P.1
\ndated 10.05.1996 on 23.08.1996 at the instruction of the  accused  is  neither
\nmentioned  in the statutory notice, Ex.P.4, nor mentioned in his complaint and<\/p>\n
therefore it is rightly contended by the learned counsel  for  the  respondent
\nthat  the  complainant  has  come  forward with the developed version and such
\nversion is made only with a view to fill up the lacuna.\n<\/p>\n
        13.  The presumption contemplated under Section  139  of  the  Act  is
\nrebuttable presumption.    The  learned  counsel  for  the appellant cited the
\nfollowing authorities :\n<\/p>\n
(1)K.N.BEENA VS.  MUNIYAPPAN & ANR.  reported in 201(4) Crimes 376 (SC)
\n(2)GOA PLAST (P) LTD.  VS.  CHICO URSULA D’SOUZA reported in 2004  SCC  (Cri.)
\n499  to  the proposition that under Section 139 of the Act, the onus is on the
\naccused to rebut the presumption and it is not the complainant to  prove  that
\nthe cheque was issued towards the legally enforceable liability.
\nThis court is also of the considered view that it is the burden on the accused
\nto rebut   the   presumption.     Therefore,  this  Court  is  left  with  the
\nconsideration whether the accused in this case has  rebutted  the  presumption
\ncontemplated under Section 139 of the Act.\n<\/p>\n
        14.   The  Hon’ble  Supreme  Court  of  India  in  HITEN  P.DALAL  VS.
\nBRATINDRANATH BANERJEE reported in 2001 SCC (Cri.) 960 held that,      <\/p>\n
“It is obligatory on the court to presume the liability of the drawer for  the
\namount of the cheque in eery case where the factual basis for such presumption
\nis  established   Such a presumption can be rebutted by the drawer by proving
\non evidence that the holder of the cheque had not received  the  same  towards
\nthe  discharge  of  any  liability    Such  rebuttal  does  not  have  to  be
\nconclusively established  The court must either believe the defence to  exist
\nor consider its existence to be reasonably probable”.\n<\/p>\n
        15.   In  yet  another  case  the Apex Court in BHARAT BARREL AND DRUM
\nMANUFACTURING COMPANY VS.  AMIN CHAND PAYRELAL reported in AIR 1999 SC 10  08,
\nwhile  considering the similar provision that of Section 139 viz., Section 118
\nof the Act regarding the rebuttal of presumption has held as follows :\n<\/p>\n
“12.  Upon consideration  of  various  judgments  as  noted  hereinabove,  the
\nposition of law which emerges is that once execution of the promissory note is
\nadmitted,  the  presumption  under  Section  118(a)  would  arise  that  it is
\nsupported by consideration.  Such a presumption is rebuttable.  The  defendant
\ncan  prove  the  non-existence of consideration by raising a probable defence.
\nIf the defendant is proved to  have  discharged  the  initial  onus  of  proof
\nshowing  that the existence of consideration was improbable or doubtful or the
\nsame was illegal, the onus would shift to the plaintiff who will be obliged to
\nprove it as a matter of fact and upon its failure to prove  would  dis-entitle
\nhim to  the  grant  of  relief on the basis of the negotiable instrument.  The
\nburden upon the defendant of proving the non-existence  of  the  consideration
\ncan   be  either  direct  or  by  bringing  on  record  the  preponderance  of
\nprobabilities by reference to the circumstances upon which he relies.  In such
\nan event the plaintiff is entitled under law to rely upon all the evidence led
\nin the case including that of the plaintiff as  well.    In  case,  where  the
\ndefendant  fails  to  discharge  the  initial  onus  of  proof  by showing the
\nnon-existence of the consideration, the plaintiff  would  invariably  be  held
\nentitled  to  the  benefit  of presumption arising under Section 118(a) in his
\nfavour.  The Court may not insist upon the defendant to disprove the existence
\nof consideration by leading direct evidence as existence of negative  evidence
\nis  neither  possible  nor  contemplated  and even if led is to be seen with a
\ndoubt.  The bare denial of the passing of the cons ideration  apparently  does
\nnot appear to be any defence.  Something which is probable hs to be brought on
\nrecord  for  getting  the  benefit  of  shifting  the  onus  of proving to the
\nplaintiff.”\n<\/p>\n
Therefore, in view of the above settled principles of law, this  Court  is  of
\nthe considered view that the accused in this case has rebutted the presumption
\ncontemplated  under  Section  139  of  the  Act  by  eliciting  answers in the
\ncross-examination and also by preponderance of probabilities on the  basis  of
\nthe following materials available on record viz.,<\/p>\n
(1)The  signature in the cheque, Ex.P.1, is in one ink and the contents of the
\nsaid cheque is in a different ink which raises doubt and also probabilise  the
\ndefence  theory  that the complainant might have received the blank cheque and
\nsubsequently filled up the amount etc.<\/p>\n
(2)The defence theory of joining as  a  subscriber  in  the  chit  transaction
\nconducted   by  the  complainant  and  while  availing  the  chit  amount  the
\ncomplainant has received two blank  cheques  as  security  and  the  same  was
\nmisused  by the complainant on the ground that the complainant has admitted in
\nhis cross-examination that the reply notice, Ex.D.1, sent by the accused which
\nwas addressed to the complainant mentioned the address as Eswaran Chit  Funds,
\nAvinashi, is said to have been received by the complainant.\n<\/p>\n
(3)No  explanation  for  depositing  the cheque, Ex.P.1 dated 10.05.1996 after
\nmore than three months viz., on 23.08.1995 by the complainant is  also  throws
\nconsiderable doubt about the veracity of his version.  The present explanation
\nthat  the  complainant deposited the cheque, Ex.P.1, as per the instruction of
\nthe accused is neither mentioned in the statutory notice, Ex.P.4 nor mentioned
\nin his complaint.\n<\/p>\n
(4)The mode of payment of the amount of Rs.2,50,000\/- as loan is not mentioned
\nby the complainant in his statutory notice, Ex.P.4 or in his complaint whether
\nhe has paid the amount by cash or by cheque.\n<\/p>\n
(5)Though P.W.1 claimed that there are  enough  sources  for  giving  loan  of
\nRs.2,50,000\/- to the accused and also stated that he has mentioned the same in
\nthe  Income  Tax  Return,  the  complainant  has not produced those Income Tax
\nReturn to substantiate his version.\n<\/p>\n
        16.  The learned Trial  Judge  has  also  considered  the  above  said
\naspects  and  given the categorical reasons for acquitting the accused in this
\ncase and it cannot be stated that the learned Judge has overlooked or  misread
\nany  evidence  available  on record and as such nothing warrants this Court to
\ninterfere with the Order of acquittal.  Accordingly, the Appeal is dismissed.\n<\/p>\n
Gg
\ngg<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court P.Eswaran vs J.A.Abdul Hameed on 27 July, 2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27\/07\/2006 CORAM THE HON’BLE MR. JUSTICE K.N.BASHA Criminal Appeal No.21 of 2003 P.Eswaran .. Appellant\/Complainant -Vs- J.A.Abdul Hameed .. Respondent\/Accused Appeal against the Judgment dated 22.11.2002 made in C.C. No.134 of 1996 on the file […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-25651","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nP.Eswaran vs J.A.Abdul Hameed on 27 July, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/p-eswaran-vs-j-a-abdul-hameed-on-27-july-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"P.Eswaran vs J.A.Abdul Hameed on 27 July, 2006 - 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