A.C. Arumugaperumal Adityan, J.@mdashThese appeal have been preferred against Judgment dated 29.05.2000, in STC.No. 771 and 772 of 1998 respectively, on the file of the Court of Judicial Magistrate No. V, Coimbatore. Both the complainant and the accused are one and the same in these cases.
Crl.A.No.771/1998 (STC. No. 562/1998)
2. A private complaint was preferred by the complainant u/s 200 Cr.P.C for an offence punishable u/s 138 of the Negotiable Instrument Act, against the accused. The short facts in the complaint (in STC.No.562/1998) for the purpose of deciding this appeal are as follows:
The accused after borrowing a sum of Rs. 3, 80,000/- from the complainant on 20.12.1996 to meet his family expenses had issued two cheques acknowledging the liability. When one of the cheques, for Rs. 2,00,000/-, was presented in the bank on 01.11.1997 the same was dishonoured on the ground that the cheque amount exceeds the arrangements. When the complainant informed the dishonoure of the cheque, the accused requested the complainant to present the cheque again on 5.1.1998 and when the cheque was presented on 5.1.1998 as per the request made by the accused, against the cheque was dishonoured for the same reason. Hence, the complainant issued a notice on 8.1.1998 through his lawyer. The said notice was returned with an endorsement "not claimed". Hence the complaint.
2(a) After recording sworn statement of the complainant, the complaint was taken on file by the learned Judicial Magistrate No. V, Coimbatore, u/s 138 of the Negotiable Instruments Act. On appearance of the accused on summons, copies u/s 207 of Cr.P.C were furnished to the accused. When the offence was explained to the accused he pleaded not guilty. On the side of the complainant P.W.1 to P.W.3 were examined and Ex.P.1 to P.8 were marked.
2(b) P.W.1-Ravi is the complainant. He would depose that the accused is running a business by name Venkateswara Iron Traders. On 23.12.1996 to meet the family expenses the accused had borrowed a sum of Rs. 3,80,000/- from the him(complainant) and to discharge the said debt the accused had drawn two cheques one for Rs. 2,00,000/- and another one for Rs. 1,80,000/- in favour of the complainant and when the cheque for Rs. 2,00,000/- was present before the Karur Vysya Bank, the same was returned with an endorsement "exceeds arrangements" and when this was informed to the accused, the accused had requested him(P.W.1) to represent the same on 5.1.1998 and when the said cheque was represented on 5.1.1998, it was again returned by the bank with the same endorsement. He (P.W.1) issued a notice to the accused on 8.1.1998 informing about the dishonour of the cheque. Ex.P.1 is the dishonoured cheque for Rs. 2,00,000/-. Ex.P.2 is the memo issued by the bank. Ex.P.3 is the copy of the notice. Ex.P.4 is the returned cover. Ex.P.5 is the letter of acknowledgment given by the accused. Ex.P.6 is the document to show that the complainant had paid Income Tax. Ex.P.7 (series) is the document to show that the complainant is in affluent position to lend a sum of Rs. 3,80,000/-.
2(c) P.W.2 is the Deputy Manager, Karur Vysya Bank, Coimbatore Branch. He would admit that the complainant is having an account in their bank and when the cheque was forwarded by the State Bank of India for encashment, the same was returned by their bank (Karur Vysya Bank) with an endorsement "exceeds arrangements".
2(d) P.W.3 is the Assistant Manager in State Bank of India, Ganapathi Branch, Coimbatore. He would depose that Ex.P.1-cheque was drawn in their bank and when the cheque Ex.P.1 was received from Karur Vysya Bank for encashment the same was returned with an endorsement "exceeds arrangements" since there was debit balance of Rs. 3,73,639/- in the account of the accused and Ex.P.8 is his statement of accounts pertaining to the accused.
2(e) When incriminating circumstances were put to the accused, the accused denied his complicity with the crime. On the side of the accused. Ex.D.1 to Ex.D.4 were marked. No oral evidence was let in on the side of the accused.
2(f) After going through the oral and documentary evidence let in before the trial Court, the trial Judge has come to the conclusion that the guilt against the accused was not proved beyond any reasonable doubt to attract an offence u/s 138 of the Negotiable Instruments Act and consequently acquitted the accused u/s 255(1) of Cr.P.C. Hence, the complainant has preferred this appeal.
Crl. A. No. 772/1998 (STC. No. 1427/1998)
3. A private complaint has been preferred by the complaint u/s 200 of Cr.P.C against the accused for an offence u/s 138 of the Negotiable Instruments Act. The short facts narrated in the private complaint relevant for the purpose of this appeal are as follows:
The accused had borrowed a sum of Rs. 3,80,000/- from the complainant on 26.12.1996 and issued two cheques drawn on the State Bank of India. The accused also executed a letter of acknowledgment. The complainant present one of the cheques drawn for Rs. 1,80,000/- on 11.3.1998 before the Karur Vysya Bank, but the said cheque was returned with an endorsement '' exceeds arrangements". The complainant issued a lawyer''s notice on 13.3.1998 to the accused, but the said notice was returned with an endorsement "not claimed". Hence the complaint.
3(a) After recording the sworn statement of the complainant, the learned Judicial Magistrate has taken the complaint on file u/s 138 of the Negotiable Instruments Act and on appearance of the accused on summons, copies u/s 207 of Cr.P.C. were furnished to the accused. When the offence was explained to the accused, he pleaded not guilty. On the side of the complainant, P.W.1 to P.W.3 were examined and Ex.P.1 to Ex.P.9 were marked.
3(b) P.W.1 is the complainant. He would depose that the accused is doing hardware business in the name and style of Venkateswara Iron Traders and that on 26.12.1996 the accused had borrowed Rs. 3,80,000/- to meet his business expenses as well as his family expenses and that inorder to discharge the said debt, the accused handed over two cheques drawn on the State Bank of India. One cheque is for Rs. 2,00,000/- and another one is for Rs. 1,80,000/-. When the cheque for Rs. 1,80,000/- was presented in the bank for encashment, the same was returned with an endorsement "exceeds arrangements" and the same was informed to the accused and that as per the request made by the accused, he(P.W.1) represented the cheque again on 11.3.1998, but the same was returned with the same endorsement. The complainant issued a notice on 18.3.1998 which was returned as "not claimed". Ex.P.1 is the dishonoured cheque. Ex.P.2 is the bank memo. Ex.P.3 is the copy of the notice. Ex.P.4 is the returned cover.
3(c) P.w.2 is the Deputy Manager of Karur Vysya Bank, Coimbatore. He would depose that the complainant is having an account in their bank viz. Karur Vysya Bank, and that when Ex.P.1-cheque was presented in their bank for encashment, the same was sent to the State Bank of India for collection, but the same was returned by the State Bank of India with an endorsement ''exceeds arrangements" and that the said fact was informed to the complainant. Ex.P.5 is the statement of accounts.
3(d) P.W.3 is the Assistant Manager in the State Bank of India, Ganapathi Branch, Coimbatore. He would depose that the accused is having a cash credit account in their bank and that the cheque-Ex.P.1 bearing No. 384698 belongs to the accused and the said cheque was forwarded by the Karu Vysya Bank for encashment, but the said cheque was returned on 11.3.1998 with an endorsement ''exceeds arrangements" and the said cheque is for Rs. 1,80,000/-. The statement pertaining to the accused''s cash credit account is Ex.P.8.
3(e) when the incriminating circumstances were put to the accused, the accused denied his complicity with the crime. The learned trial judge, after going through the oral and documentary evidence let in before him, has come to the conclusion that the offence u/s 138 of the Negotiable Instruments Act has not been attracted against the accused and consequently acquitted the accused. Hence, the complainant has preferred this appeal.
4. Now the point for determination in these appeals is whether the offence u/s 138 of the Negotiable Instruments Act has been made out against the accused to warrant conviction?
5. The Point:
5(a) In both the appeals the complainant and the accused are one and the same. The learned Counsel for the appellant would contend that the learned trial judge in his judgment in STC.No.1427/1998 as well as in STC.No.562/1998, has observed that there was no subsisting liability on the date of drawl of Ex.P.1-cheque for Rs. 1,80,000/- and Rs. 2,00,000/- respectively. The learned trial Judge while discussing Ex.P.5 in STC.No.562/1998 (Ex.P.7 in STC.NO.1427/1998) would observe that Ex.P.5-letter in STC.No.562/1998 was produced to show that the said letter was given only as a security for a future amount to be obtained by the complainant and that there was no secured debt on the date of drawl of Ex.P.1-cheque. The learned trial judge has further observed in his judgment in STC.No.562/1998 at paragraph 12 that Ex.P.1-cheque for Rs. 2,00,000/- was given by the accused only to secure a loan and not for discharging any existing liability. But a reading of Ex.P.5-letter dated 26.12.1996 will go to show that the accused had borrowed a sum of Rs. 3,80,000/- on the date of execution of Ex.P.5-letter itself to meet his business expenses as well as his family expenses and that only to discharge the said loan of Rs. 3,80,000/-, he had issued two cheques one bearing Cheque No. 384698 and another cheque bearing No. 384699 in the name of State Bank of India, Gonapathi Branch, Coimbatore. A perusal of Ex.P.7 in STC.No.1427/1998 will go to show that even on the date of execution of Ex.P.7 on 26.12.1996 itself, the accused had borrowed a sum of Rs. 3,80,000/- from the complainant to meet his family expenses as well s his business expenses and to discharge the said loan, he(accused) had issued the above mentioned cheque. Ex.P.5 in STC.No.562/1998 is Ex.P.7 in STC.No.1427/1998. So the observation of the learned trial judge that Ex.P.1-cheque in STC.No.562/1998 for Rs. 2,00,000/- and Ex.P.1-cheque in STC.No.1427/1998 for a sum of Rs. 1,80,000/- are not for discharging any existing debt as per the provisions contemplated u/s 138 of the Negotiable Instruments Act, cannot be sustainable.
5(b) The next point urged by the learned Counsel for the respondent is that even before the presentation of cheques by the complainant with the Karur Vysya Bank for encashment, the accused had issued notice with a request to the complainant not to present the same but to return of the document to him and that in spite of his notice under Ex.D.2 the complainant had presented the above said cheques in Karur Vysya Bank for collection which inturn sent the same to the State Bank of India wherein the accused is having cash credit account, but both the cheques were dishonoured with an endorsement "exceeds arrangements". The learned Counsel for the respondent would rely on 1997 1 Crimes 55 : 1996(3) Crimes 385 (Mubarak Nishan v. R.M. Subramanian), wherein the learned judge of this Court has held that if a notice is issued by the accused after the issuance of cheque to the payee or to the holder in due course before the presentation of the cheque for encashment with a request not to present the same for encashment and inspite of it the payee or holder in due course presented the cheque to the bank for payment and the cheque was dishonoured then an offence u/s 138 will not be attracted. The exact dictum in the said ratio runs as follows:
After the cheque is issued to the payee or to the holder in due course and before it is presented for encahsement, notice is issued to him not to present the same for encahsment and yet the payee or holder in due course presents the cheque to the bank for payment and when it is returned on instructions, Section 138 does not get attracted
Ex.D.2-notice (in both the two cases) was issued by the accused. P.W.1 in his cross-examination would admit for having received Ex.D.2-notice issued by the accused under Ex.D.3. But Ex.P.1 in STC.No.562/1998 for Rs. 2,00,000/- was presented in the bank on 18.11.1997 ie., even before Ex.D.2-notice issued by the accused. On the other hand Ex.P.1-cheque in STC.No.1427/1998 was presented only on 11.3.1998 i.e., subsequent to the issuance of Ex.D.2-notice. Under such circumstances, applying the principle laid down in 1997 1 Crimes 55 : 1996 3 Crimes 385 (Mubarak Nishan v. R.M. Subramanian), the accused cannot be held liable for an offence u/s 138 of the Negotiable Instruments Act, in STC.No.1427/1998. But the accused will be held liable for an offence u/s 138 of the Negotiable Instruments Act, in STC.No.562/1998 because even before the issuance of Ex.D.2-notice, the cheque was presented by the complainant on 18.11.1997 itself in the bank. Under such circumstances, I am of the view that Crl.A.No.772/2000 is liable to be dismissed and Crl.A.No.771/2000 is liable to be allowed. Point is answered accordingly.
6. In the result, Crl.A.No.771 of 2000 is allowed and the judgment in STC.No.562 of 1998 on the file of the Judicial Magistrate No. V, Coimbatore is set aside and the accused is found guilt u/s 138 of the Negotiable Instruments Act and convicted and sentenced to pay a compensation of Rs. 4,00,000/- to the complaint (twice the cheque amount) within a month from this date in default to undergo one year SI. Crl. A.No.772 of 2000 is dismissed confirming the judgment in STC.No.1427/1998 on the file of the Judicial Magistrate No. V, Coimbatore. The trial Court is directed to secure the accused to undergo the sentence, in case of default in paying the compensation amount of Rs. 4,00,000/- to the complainant within one month from this date.
