TMI Blog2021 (10) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... d, this Court is in a position to presume that the said cheques have been issued to discharge the debt or liability - however, there can be no doubt that there is an initial presumption, which favours the complainant. Section 139 of the Negotiable Instruments Act is an example reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. Therefore, it is for the accused to rebut the presumption by adducing credible evidence that the cheques were issued as a guarantee or for some other reasons. After seeing the accounts maintained by the accused and after seeing the rejection orders given by J.J.M. Company, Chennai, this Court comes to the conclusion that due to belated delivery of the goods, the accused alone incurred loss and therefore, the cheques issued by him are not for discharging his liability - It is well settled legal position that the presumption under Section 139 of the Negotiable Instruments Act is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for doing so is that, on preponderance of probability. Therefore, to rebut the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and disposed of by virtue of this common judgment. 3. For the sake of convenience, the parties are referred to hereunder according to their litigative status and ranking before the trial Court. 4. Before the trial Court, the complainant filed four private complaints against the accused under Section 138 of the Negotiable Instruments Act, in C.C. Nos. 21, 12, 281 and 498 of 2006. By judgment dated 15.04.2008, the learned Judicial Magistrate No. I, Karur, found the accused guilty under Section 138 of the Negotiable Instruments Act, in all the cases, convicted and sentenced him to undergo simple imprisonment for two years and to pay a fine of ₹ 5,000/-, in default, to undergo simple imprisonment for a period of six months. 5. Challenging the same, the accused preferred appeals in C.A. Nos. 24, 23, 25 and 26 of 2008 before the Court of Sessions, Karur. The learned Sessions Judge, Karur, by judgment dated 17.09.2010, allowed the appeals and set aside the conviction and sentence imposed by the trial Court. 6. Aggrieved over the same, the complainant is before this Court with these Criminal Appeals. 7. The case of the complainant is as follows:- (i) The complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd questioned the accused in terms of Section 251 Cr.P.C., for which, the accused gave reply, as he is not guilty under Section 138 of the Negotiable Instruments Act. While at the time of trying the said cases, the complainant was examined as P.W. 1 and the accused was examined as R.W. 1. (iii) In otherwise, in C.C. No. 281 of 2006, on the side of the complainant, 11 documents were exhibited as Exs. P.1 to P.11 and on the side of the accused, one document was marked as Ex. D.1. Similarly, in C.C. Nos. 12 and 21 of 2006, on the side of the complainant, 9 documents were exhibited as Exs. P.1 to P.9 and on the side of the accused, one document was marked as Ex. D.1. In C.C. No. 498 of 2006, on the side of the complainant, 6 documents were exhibited as Exs. P.1 to P.6 and on the side of the accused, one document was marked as Ex. D.1. (iv) The common evidence given by P.W. 1 is that, in view of the transactions, which had happened between himself and the accused for the period from 12.03.2005 to 01.08.2005, the accused is liable to pay the principal sum of ₹ 3,02,572.10 to him. In order to discharge the said liability, the accused issued 8 cheques and when at the time t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of taking delivery of belated goods, he issued 8 cheques to the complainant with a condition that the same have to be encashed after taking delivery of the goods by J.J.M. Company, Chennai. The complainant also had given an undertaking to bear the loss incurred due to the belated delivery of the goods. Hence, in the said circumstances, it cannot be concluded that the cheques issued by him are for the legally enforceable debt. 10. Having considered the materials placed before him and after perusing the materials on record, the learned Judicial Magistrate No. I, Karur, came to the conclusion that the accused is guilty under Section 138 of the Negotiable Instruments Act and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of ₹ 5,000/-, in default, to undergo six months simple imprisonment in all the cases. 11. Challenging the said conviction and sentence, the accused preferred appeals before the Sessions Court, Karur. The learned Sessions Judge, Karur, by judgment dated 17.09.2010, allowed the said appeals and set aside the conviction and sentence awarded by the trial Court. 12. Aggrieved over the said findings, the complainant is b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord. 18. Primarily, in respect of filing of 4 cases by the complainant, he deposed before the trial Court that, all the cases were filed within the time stipulated under Section 138 of the Negotiable Instruments Act. Further, it is not in dispute on the side of the accused that the complainant has filed four cases after violating the limitations narrated in Section 138 of the Negotiable Instruments Act. Therefore, it was concluded that all the cases were filed within the limitation as contemplated under Section 138 of the Negotiable Instruments Act. 19. It is another thing that the accused has not disputed the signature found in the cheques in dispute. Therefore, being the reason that the signatures found in the cheques were admitted by the accused, the statutory presumption comes into play. At this juncture, it would be relevant to see the judgment of our Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan reported in 2010 (4) CTC 118, wherein our Hon'ble Apex Court has held that since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play . 20. Further, in the case of M.M.T.C. Limited and another vs. Medc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not know on what date J.J.M. Company, Chennai, had rejected the order, which has already been issued to him. He has clearly stated that the document related to the accounts and the rejection orders have not been produced before the trial Court. Therefore, the said evidence given by D.W. 1 appears that without producing the relevant documents, he had given evidence as, he only incurred a loss due to delay in delivery of goods by the complainant. At this juncture, it is necessary to see the judgment of our Hon'ble Apex Court in the case of T.P. Murugan (Dead) Through Legal Representatives vs. Bojan reported in 2018 (8) SCC 469, wherein our Hon'ble Apex Court has held as, rebuttable presumption must be by adducing credible evidence. Therefore, only in the circumstance, after seeing the accounts maintained by the accused and after seeing the rejection orders given by J.J.M. Company, Chennai, this Court comes to the conclusion that due to belated delivery of the goods, the accused alone incurred loss and therefore, the cheques issued by him are not for discharging his liability. 25. In this occasion, as rightly pointed out by the learned counsel appearing for the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said finding is not in accordance with law. Therefore, all these appeals are liable to be allowed. In respect of quantum of sentence, considering the value of the cheques, I am of the opinion that the punishment of two years simple imprisonment awarded by the trial Court in all the cases is not necessary. Hence, this Court reduces the same to three months and confirms the fine amount awarded by the trial Court in all the cases. 29. In fine, (i) Crl. A.(MD) No. 403 of 2021 is allowed and the judgment of the first appellate Court in C.A. No. 24 of 2008, dated 17.09.2008, is set aside. The accused is found guilty under Section 138 of the Negotiable Instruments Act, convicted and sentenced to undergo simple imprisonment for a period of three months and to pay a fine of ₹ 5,000/-, in default, to undergo simple imprisonment for a period of one month. (ii) Crl. A.(MD) No. 404 of 2021 is allowed and the judgment of the first appellate Court in C.A. No. 23 of 2008, dated 17.09.2008, is set aside. The accused is found guilty under Section 138 of the Negotiable Instruments Act, convicted and sentenced to undergo simple imprisonment for a period of three months and to pay a fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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