The learned counsel for the respondent admitted that execution of the
cheque and also the signature found in the cheque. Therefore, once execution
of cheque is admitted, it is a legal presumption under Section 139 of
Negotiable Instrument Act. The cheque was issued for discharging legally
enforceable debt. No doubt the presumption is rebuttable. Though, admitted
that the said cheque was issued for only security purpose and the respondent
was only a working partner and he has not invested or contributed any money
to the partnership firm. Therefore, at the time of admitting him in the
firm, the respondent had executed the cheque for the security purpose.
7.Once issuance of cheque is being admitted and even for security
purpose, the presumption under Sections 118 and 139 of Negotiable Instrument
Act and it is for the accused has to rebut the presumption there is no
legally enforceable debt and cheque has not been issued for legally
enforceable debt. Therefore, the contention raised by the learned counsel
for the respondent is not acceptable and the authorities submitted by the
respondent is not applicable for present case in the hand.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.01.2019
CORAM
MR. JUSTICE P.VELMURUGAN
Crl.A.(MD).No.179 of 2008
A.K.Mohammed Farook Vs. M.Syed Jaheer Hussain
This Criminal Appeal has been filed against the Judgment dated
21.02.2008, made in C.C.No.451 of 2006, on the file of the learned Judicial
MagistrateII, Trichy, wherein the learned Magistrate acquitted the
respondent/accused.
2. The case of the complainant is that the appellant/Complainant had
filed a complaint against the respondent/accused, under Section 138 of the
Negotiable Instrument Act, before the learned Judicial Magistrate;II,
Tiruchirappalli. It is stated that both the appellant and respondent are
running a partnership firm and subsequently, the partnership firm was
dissolved on 22.03.2006. At the time of settling the accounts, in order to
give a sum of Rs.1,50,000;(Rupees One Lakh Fifty Thousand Only) by the
respondent, he had issued a cheque in favour of the appellant. The above
said cheque was presented before the ICICI Bank, Trichy Condonment Branch on
21.06.2006 and the said cheque was returned due to insufficient fund.
Therefore, the appellant issued a statutory notice Ex.A.3 and the said
notice was received by the respondent. Even after receipt of the notice, he
did not repay the money mentioned in the statutory notice Ex.A.3 and
therefore, the appellant had filed a complaint before the learned Magistrate,
under Section 138 of the Negotiable Instrument Act.
3. The learned Magistrate after taking the complaint on file and
enquiry found that the respondent has not committed any offence under Section
138 of NI Act. Against which the complainant has filed the present appeal.
4.No representation on the side of the appellant. Though the appeal is
pending for more than 10 years, the appellant has not shown any interest to
proceed the appeal. However, heard the learned Counsel for the respondent. He
would submit that at the time of admitting the respondent into the firm for
security purpose, the cheque was issued, but the same was not issued for
legally enforceable debt. Onus of the accused in criminal case is not as
heavy as that of prosecution and he may be compared with defendant in civil
case. He has placed reliance in the judgment in MS.Narayanan Menon @ Mani Vs.
State of Kerala and another, reported in 2006(3) CTC 730.
5. Perused the records.
6.The learned counsel for the respondent admitted that execution of the
cheque and also the signature found in the cheque. Therefore, once execution
of cheque is admitted, it is a legal presumption under Section 139 of
Negotiable Instrument Act. The cheque was issued for discharging legally
enforceable debt. No doubt the presumption is rebuttable. Though, admitted
that the said cheque was issued for only security purpose and the respondent
was only a working partner and he has not invested or contributed any money
to the partnership firm. Therefore, at the time of admitting him in the
firm, the respondent had executed the cheque for the security purpose.
7.Once issuance of cheque is being admitted and even for security
purpose, the presumption under Sections 118 and 139 of Negotiable Instrument
Act and it is for the accused has to rebut the presumption there is no
legally enforceable debt and cheque has not been issued for legally
enforceable debt. Therefore, the contention raised by the learned counsel
for the respondent is not acceptable and the authorities submitted by the
respondent is not applicable for present case in the hand. On reading of the
entire materials this Court finds that the appellant proved his case beyond
reasonable doubt. The respondent also admitted the execution of the cheque.
Therefore, it is for the respondent to rebut the presumption in the manner
known to law. In this case, admittedly the respondent has not rebutted the
legal presumption in the manner known to law. Therefore, this Court finds the
respondent guilty under Section 138 of NI Act. The judgment of the Magistrate
is set aside and the appeal is allowed.
8. Therefore, under these circumstances, this Court finds that the
learned Magistrate failed to appreciate the evidence and also draw the legal
presumption and also the respondent failed to rebut the statutory
presumptions. Hence, the respondent/accused is directed to appear before this
Court, on the next Special Sitting for question of sentence.
15.12.2018
sji/ksa
As directed by this Court on 15.12.2018,
the respondent / accused is present before this Court and question of
sentence was asked, for which he has stated that he has not given the cheque
for legally enforceable debt, but has given only for security.
2.Considered his submissions.
3.As this Court has already found the respondent guilty under Section
138 of NI Act, convicts the accused under section 138 of the Negotiable
Instrument Act and sentences him to undergo six months Simple Imprisonment
and to pay a fine of Rs.1,50,000/~ within two months from today and the same
shall be paid to the complainant by way of compensation, in default to
undergo two months Simple Imprisonment.
4.The trial Court is directed to secure the accused and commit him to
prison.
19.01.2019
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