N. RAVI Vs. PRADEEP SRINIVASAN

JUDGEMENT

(1.) THIS Criminal Appeal arises out of the judgment of acquittal dated 04.09.2012 made in C.C. No. 32 of 2011 on the file of the learned Judicial Magistrate No. I, Kanchipuram.

(2.) THE appellant as a complainant preferred a private complaint under Section 138 of Negotiable Instruments Act stating that the respondent/accused and the appellant/complainant entered into a lease agreement and fixed the lease amount as Rs.15,40,000/ - and on 13.01.2009, they entered a memorandum of understanding. The complainant has paid the lease amount on various dates and the respondent/accused had also given the receipt for the same. When the appellant/complainant prepared to carry on the business, he came to know that there were no fundamental amenities required for BPO available in the premises. Hence, he cancelled the agreement and asked for the repayment of the same. Only after repeated demands, the respondent/accused along with the letter dated 22.12.2009, which is marked as Ex.P.2 acknowledging his subsisting liability to repay the lease amount, gave three cheques drawn on the State Bank of India, Anna Nagar, Chennai, bearing different dates for different amounts i.e. 05.01.2010 for Rs.50,000/ -, another one dated 10.02.2012 for Rs.50,000/ - and other one dated 30.06.2010 for Rs.7,00,000/ -. The first two cheques were encashed and when the third cheque/Ex.P.3, bearing No. 715406 dated 30.06.2010 was presented for encashment by the appellant before Karur Vysya Bank Limited, Kancheepuram, but it was returned as "insufficient funds" as per return memo Ex.P.4. So the appellant/complainant on 19.01.2011 issued Ex.P.5 statutory notice to the respondent under Section 138 of Negotiable Instruments Act, but the respondent/accused evaded the service of notice and he manoeuvred and returned the notice on 25.01.2011. Therefore, the appellant/complainant was constrained to file a private complaint against the respondent/accused under Section 138 of Negotiable Instruments Act.

(3.) CHALLENGING the judgment of acquittal passed by the trial Court, learned counsel for the appellant/complainant submitted that the appellant is a tenant and the respondent/accused is the landlord. They have entered into a lease agreement and even though, the lease amount was fixed as Rs.15,40,000/ -, the appellant/complainant paid Rs.8,00,000/ -. Since the premises of the respondent does not fulfill the requirements of the appellant, they cancelled the memorandum of understanding. For repaying the amount, the respondent/accused issued three cheques, viz. 05.01.2010 for Rs.50,000/ -, another one dated 10.02.2012 for Rs.50,000/ - and other one dated 30.06.2010 for Rs.7,00,000/ -. Out of the three cheques, two cheques were honoured and the appellant/complainant recovered Rs.1,00,000/ -. When the appellant/complainant presented the third cheque/Ex.P.3 for encashment, the same has been returned as insufficient funds and hence, he issued a notice and that has been returned. He would further submit that even though the respondent/accused has raised a point that there is no notice under Section 138(b) of Negotiable Instrument Act, the Trial Court has rightly held that notice has been sent to the correct address and so it is deemed that service is correct. He would further submit that the Trial Court has held that since the lease period is more than 11 months, the document should be an registered document but Ex.D.1/lease agreement is an unregistered document, so the Cheque was not given for discharging legally subsisting liability and on that basis, the Trial Court has acquitted the respondent/accused. He would further submit that Ex.D.1/lease agreement is an unregistered document and that can be used for collateral purpose. The respondent/accused issued a letter/Ex.P.2 dated 22.12.2009 and in that, it was specifically mentioned that Rs.8 lakhs has been given by way of three cheques. So, the Trial Court has failed to consider the same. He also relied upon the decision reported in : 2010 (11) SCC 441 (Rangappa Vs Sri Mohan), wherein it is stated that once the issuance of cheque is admitted, the presumption is that it was issued for discharging legally subsisting liability under Section 118 and 139 of Negotiable Instruments Act, which is a rebuttable presumption and here, the respondent has not rebutted the presumption. So, the Trial Court has not considered all the aspects in proper perspective. He would also relied upon Section 35 of Indian Stamps act, wherein it is stated that instruments not duly stamped inadmissible in evidence provided that nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a criminal court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 and submits that no one raised this plea. So, the Trial Court has wrongly without considering the provision of law has acquitted the respondent/accused. Hence, he prayed for convicting the respondent/accused.