Legally enforceable debt' must to retrieve amount: Madras HC

Chennai: Madras High Court has ruled that the money lender should establish that the cheque issued by the borrower was towards a ‘legally enforceable debt’ to punish the accused / borrower or get back the amount or both, in a case of the cheque bouncing.

Justice M. Venugopal gave the ruling while dismissing an appeal from P. Thilagavathy, which sought to set aside an order of a Judicial Magistrate, Coimbatore, acquitting one B. Somasundaram in a cheque bounce-case.
According to Thilagavathy, she had lent '5 lakh to Somasundaram, a realtor in 2008. Since he failed to repay the amount borrowed and the cheque issued by him was dishonored due to insufficient funds, she filed a complaint at the Judicial Magistrate-II Court in Coimbatore to punish him under section 138 of the Negotiable Instruments Act.

Denying the charge that Somasundaram had borrowed the amount from her, his counsel alleged that Thilagavathy’s husband had stolen the cheque leaf. The Judicial Magistrate on June 8, 2011 acquitted him. Aggrieved, she filed the present appeal.

The judge said it was the admission of the appellant that she had not produced any documents to show that she had the requisite rental income. “In a criminal case, the element of ‘Legally Enforceable Debt’ is to be established by the complainant concerned. In the case on hand, this court is of the view that the appellant when she happens to be a house wife, who had not established to the subjective satisfaction of this court that she had the requisite wherewithal or means to advance such a high / heavy sum of Rs 5 lakh to the accused. Also that she had not shown the said loan amount of Rs 5 lakh in her income tax returns”, the judge added.

Pointing out that in her bank account (receipt and expenditure report) at no point of time, was there an amount of Rs 1 lakh and only once in 2008 was a sum of Rs 1 lakh reported as balance and it was withdrawn the next day, the judge said, “The complainant had not established that the cheque was issued by the accused towards a ‘Legally Enforceable Debt’. Consequently, the finding of the trial court that the accused was not guilty had ultimately ended in the judgment of acquittal, the judge added.