In the Court of the Judicial Magistrate [Link].

, Dindigul
Present: Thiru M. Seyadhu Sulaiman Ussain, B.A.B.L.,
Judicial Magistrate [Link]., Dindigul.
Dated Wednes day the 11th day of September 2013

Calender Case No. 38 / 2012

Joseph Selvaraj
S/O Amaladoss Hendry .. Complainant

Versus

A. Josehp Irudaya Arockiaraj

S / O Amirtham ... Accused.

This case was taken on file on 24.01.2012 and in the presence of Thiruvalargal S.D.
Immavuel and L. Layola Sheba Jose Advocates for the Complainant and of Thiruvalargal
S.A. Rajan, and V. Abraham Advocates for the Accused. after hearing the both side
arguments , this court passed the following
Judgment

The complainant namely A Selvaraj has filed this case Under Section 138 NI Act
alleging that he along with the accused and One Mr. Rajendran has contracted into a
partnership business on 21.09.2006 and they have been doing real estate business. Out
of the said business the accused is due a sum of Rs. 50 lakhs to the complainant as part
payment . To discharge the said due, the Accused issued Two cheques 1) No. 687901
dated 22.06.2011. 2) No. 687902 dated 22.07.2011 each for a sum of Rs. 25 lakhs. The
said cheques were presented by complainant in his account maintained in Canara Bank,
Chinnalapatti Branch on 16.08.2011 for Collection. The said cheques were returned on
16.08.2011 for the reason that the funds are insufficient. Upon dishonour of the both
cheques, the complainant issued a legal notice on 13.09.2011 by the registered Post and
the same was received by the accused on 13.09.2011. The accused has sent a reply to
the complainant on 22.09.2011 containing false allegation. As the accused failed to
honour the cheques, he has committed the Offence under Section 138 NI Act, the
complainant has approached the court, by the filing this petition, for necessary action.
Upon taking cognizance of the Offence in this petition, the accused was summoned
and on his appearance before this Court substance of the allegation was explained to him.
He denied the same and prayed trial.
 Therefore on the side of complainant, Complainant was examined as PW1 and Ex.
P1 to P7 were marked. The PW1 was also cross examined by the accusd. In the course
of the cross examination of PW1 3 documents were marked on behalf of the accused No
witnesses were examined on the side of respondent.
Upon the conclusion of trial the accused was put on notice about the incriminating
evidence available against him, and he replied that the cheques were issued by him and
such cheques were issued to the complainant, since One Mr. Malairajan was due to the
complainant. The accused has also filed a written statement at the time of 313
questioning stage, that he is not due to any personal debt to the complianant, and the
cheques were not issued in discharge of any debt or liabilities.
The learned Counsel for the complainant submitted that the accused has admitted
the issuance of two cheques as cited above in favour of the complainant. Therefore a
statutory permission available in favour of the complainant as regards the fact that the
cheques where infact issued for the discharge of debt or other [Link] learned
counsel further submitted that the accused has not examined himself or any other
independent witnesses to discharge the said presumption and thus the issuance of cheque
is proved and prayed this Court to convict him for the Offences alleged above.
The learned Counsel further submitted that even in the reply notice sent by the
accused, the accused only said that the alleged cheques were handedover by the force.
The learned Counsel also produced authorties of the various High Courts to substantiate
his contention. The learned counsel for the accused would submitted the accused was in
no one way due to the complainant. Though the cheques were issued by the accused , it is
not for the discharge of any debt or liability. He further submits that there is no details
even in the notice of the complainant, in the cheque petition, or in the sworn statement, the
chief examination as to how the accused became due to the complainant to such a huge
amount. Though there is presumption under section 139 of the NI Act , it is only a rebuttal
presumption. The accused has duly discharged the said presumption by cross examining
the complainant by creating a reasonable doubt over the case of the complainant. The
complainant has to prove his case beyond reasonable doubt the presumption under
section 139 of NI Act. The case of prosecution is not proved in the manner known to law
and prayed for the dismissal of the complainant and acquitted the accused.
From the above arguments of the accused counsel, it is admitted the case of the
both side that the respondent and the complainant were in partnership business and doing
real estate business and issueance of both cheques by the accused is also admitted. But
the only questionto be decided by this court upon the submission of the both parties is that
whether the subject matter of two cheques were issued for the discharge of debt or other
liabilities debt by the accused It is true that the statutory presumption is available in
favour of the complainant under section 139 NI Act.
The judgment produced by the learned counsel for the complainant reported in
212(1) DCR 258, 2012( 1) DCR 255, 2012(1) DCR 46, 2012(1) DCR 265
2012(2) DCR 416,, 2013 (1) DCR 295 fortify his submissions.
The learned counsel for the accused submits that the partnership firm were
dealing with the business with One Mr. Malairajan and he issued a cheques in favour of
the defacto complainant and the same was dishonoured. To get back the money from the
Malairajan, the accused has given 2 cheques in favour of defacto complainant with
assuarance that the money due from the Malairajan to the complainant is received.
The Learned Counsel for the accused submits that in the cross examination of the
PW1, the complainant categorically admitts that the account of the partnership firm has to
be audited every year and the same has to be accepted by the parties, according to the
partnership firm agreement. The parties has to share the profits and loss in the ratio
mentioned in it. In such view of the matter the complainant has not given any details as to
how and in what manner, the accused became due to a sum of Rs. 50 lakhs to the
complainant.
The only averment mentioned by the complainant in his petition and in chief
examination is that the accused was due to the complainant for a sum of Rs. 50 lakhs out
of the partners real estate business. The learned counsel for the accused rely on a
decision reported in 2008 (1) CTC 433 ( Krishna Janarthan Bhat // Versus //
DADARAYA G HEGDE ) to the effect that presumption under Section 139 NI Act is only
relates to the fact that the cheques were issued for the discharge of any debt or liabilities,
but it does not relates to the legally recoverable debt. It is also seen from the cross
examination of the complainant that he is not aware of the share of the partners in the
profit of the partnership firm, since the accounts of the firm was not aduited fully. It is also
admitted by the complainant that he hasno accounts books of the firm. That being the
case, it is not proved by any documents that the accused was due to the complainant.
The entire relationship between the parties with regard to the transaction arises only out of
the partnership firm. Hence to substantiate the debt, the complianant ought to have
produced the accounts books of the firm. But he has not done so. In such view of the
matter, this Court is of the opinion that the complainant has not established the vital fact
that he is legally entitled to recover a sum of Rs. 50Lakhs from the accused. The above
cited judgment of the Supreme Court comes to the rescue of the accused.
 Though the Learned Counsel for the complainant vehimently argued that the
accused having failed to examine himself before this Court, the statutory presumption
guaranteed under the act is not rebutted. Again,in the judgment of the Supreme Court,
cited supra, it is held that an accused, for discharging the burden of proof placed upon him
under a statute need not examine himself. He may discharge his burden on the basis of
the materials brought on record. An accused has a constitutional right to maintain silence
and standard of proof on the part of the accused and that of the prosecution in a criminal
case is different.
This Court is of the view that, though the accused didn't examine himself in this
case, it no way affects his defence, which is available in the evidence of the complainant.
The judgment of our Honourable High Court reported in 2008-5- CTC 527 ( Kalavally //
Versus // Parthasarathy) also comes in favour of the accused.
In the result, the complainant has not proved the fact that he is legally entitled to
recover the debt covered under the subject matter of two cheques, from the accused, the
charge against the accused is not proved beyond reasonable doubt.
Hence, the accused is acqitted under Section 255(1) Cr.P.C. from the case.
Pronounced by me in open Court, this the 11th day of September 2013.
Sd. [Link] Sulaiman Ussain,
Judicial Magistrate [Link]
Dindigul
Complainant side witnesses List.
PW1 Joeph Selvaraj

Complainant side documents list

01 22.06.2011
22.07.2011 Cheques (2)
02 16.08.2011 Canara Bank Chalan Receipts Original
03 16.08.2011 Memorandum of Chqeus unpaid Original
04 13.09.2011 Legal Notice Original
05 .. Acknowledgment Card Original
06 22.09.2011 Reply Notice Original
07 29.01.2006 Partnership Deed. Xerox Copies

Accused side witnesses List Nil

Accused side Documents List

01 10.07.2006 Partnership Deed Xerox Copies

02 27.07.2012 FIR Certified Copies
03 12.09.2012 Memorandum of understanding deed. XeroxCopies
Sd. [Link] Sulaiman Ussain,
Judicial Magistrate [Link]
Dindigul
True copy