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2000 DIGILAW 754 (KAR)

G. Premdas v. Venkataraman

2000-11-17

S.R.BANNURMATH

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JUDGMENT S.R. Bannurmath, J.—This appeal filed by the complainant challenging the order of acquittal dated 20.12.1997 passed by the XI Additional Chief Metropolitan Magistrate, Bangalore, in C.C. No. 24324 of 1994 acquitting the accused for the offence under Section 138 of the Negotiable Instruments Act (hereinafter called the Act). 2. The brief facts as per the complainant's case are as follows: On 18.2.1993 the accused/Respondent herein approached the complainant/Appellant herein for a hand loan of Rs. 60,000/- to meet his financial commitments with a promise that he will return the same with interest at 18% per annum. As such, the Appellant withdrew a sum of Rs. 60,000/- from his bank account and handed over the same to the Respondent on the very same day and further the Respondent issued on the very same day a post-dated cheque dated 18.8.1993 drawn on the Corporation Bank, M.G. Road, Bangalore, for Rs. 65,400/-. It is alleged that the said cheque was presented to the Bank on 18.8.1993. The said cheque was returned by the Bank with an endorsement insufficient fund. Thereafter, the Appellant issued a legal notice dated 25.9.1993 to which the Respondent gave an untenable reply. As such, after making several requests and demands, as the Respondent failed to make the payment, the Appellant filed complaint under Section 138 of the Act. Process was issued to the Respondent by the learned Magistrate after satisfying himself as to the existence of a prima facie case. During the trial, the Appellant got himself examined as PW-1 and got marked Exhibits P-1 to P-6. The Respondent denied the entire case in his statement under Section 313 Code of Criminal Procedure and also filed his written statement explaining the circumstances under which the cheque came to be issued. The trial Court appreciating the evidence held that the Appellant has failed to prove the very transaction dated 18.2.1993 alleged by him; that there was doubt as to whether the actual amount was paid or not; that as it is the very case and the evidence of the Appellant that the cash was paid by the son, it was for the son to file the complaint and as such the present complainant has no locus standi. It was also observed by the trial Court as it was admitted by the complainant himself that the accused was not present in Bangalore on the day when the alleged transaction including the request for money, the withdrawal of the amount and payment of the same so also the issuance of the alleged post-dated cheque, Exhibit P.1, took place and that there is reasonable doubt as to the correctness of the complainant's case. As such, the trial Court giving the benefit of doubt acquitted the accused. Hence, the present appeal. 3. Sri Chengappa, learned Counsel for the Appellant, vehemently argued that the trial Court even after noticing that all the necessary ingredients under Section 138 of the Act have been complied with by the complainant, was in error in acquitting the Respondent. It is submitted that, when the Respondent himself has admitted the signature on the cheque, Exhibit P.1, the presumption ought to have been drawn that it was for the purpose of the transaction in issue. It is further contended that except filing the written statement under Section 313 Code of Criminal Procedure, the Respondent has not examined himself or any other witness to disprove the Appellant's case and in such circumstances the presumption under Section 139 of the Act ought to have been drawn. In this regard, the learned Counsel has relied upon the following judgments of the Apex Court: 1. K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, AIR 1999 SC 3762 2. NEPC Micon Limited and Others Vs. Magma Leasing Limited, AIR 1999 SC 1952 3. Balio Ram Prasad Vs. The State of Mysore, AIR 1973 SC 504 4. On the other hand, the learned Counsel for the Respondent contended that as these are criminal proceedings it is for the complainant to prove the basic requirements to show that the transaction did take place on the day alleged and the money changed hands from the Appellant to the Respondent and in pursuance of such transaction the Respondent gave the post-dated cheque. Learned Counsel relying upon the very evidence of the Appellant himself contended that there is total variation from point to point regarding the entire transaction and as such the trial Court was justified in disbelieving the evidence of the Appellant and in acquitting the Respondent. 5. Learned Counsel relying upon the very evidence of the Appellant himself contended that there is total variation from point to point regarding the entire transaction and as such the trial Court was justified in disbelieving the evidence of the Appellant and in acquitting the Respondent. 5. At the outset it is to be noted that the Respondent/complainant has not got marked the complaint filed by him while giving evidence. This is not only technically erroneous but also from the point of view of law regarding documentary evidence. Complaint or First Information is the basic document which sets the criminal law into motion. A complaint under Section 200 Code of Criminal Procedure is an important document like First Information under Section 154 Code of Criminal Procedure, of course the use of F.I.R. or complaint is limited. It is not a substantive piece of evidence but can be used for corroborating or contradicting the complainant. The proceedings under the Negotiable Instruments Act are practically admixture of civil and criminal nature. As the complaint forms the basis for the Court to take action, in my view getting it marked as exhibit is very essential. If such document is not marked as exhibit the accused may lose a chance to confront the complainant with contents thereof. As such I am of the view that in the cases like the present one, it is essential that the complaint should be not only get marked but also is required under the Evidence Act, its contents to be spoken of by the author/complainant, which will give opportunity to him of corroboration and at the same time opportunity to the accused to elicit contradictions and this is only possible when such complaint is produced and got marked in the evidence of the complainant. 6. Be that as it may, even otherwise, on reading the evidence of the Appellant himself it is clear that he himself is not sure of the exact transaction that took place allegedly on 18.2.1993. Though his case appears to be that on 18.2.1993 the Respondent approached him and requested for a loan of Rs. 60,000/- which was immediately got withdrawn from the account of the Appellant and paid on the same day, so also the issuance of the alleged post- dated cheque, Exhibit P.1, bearing the date 18.8.1993. Though his case appears to be that on 18.2.1993 the Respondent approached him and requested for a loan of Rs. 60,000/- which was immediately got withdrawn from the account of the Appellant and paid on the same day, so also the issuance of the alleged post- dated cheque, Exhibit P.1, bearing the date 18.8.1993. At the outset, in his evidence and in examination-in-chief itself he gives a different story and says that in the first week of February, 1993 the Respondent had requested him a sum of Rs. 60,000/- and as per the request on 18.2.1993 he had sent the money through his son to the house of the Respondent and the Respondent had given the post-dated cheque. Even in paragraph 4 of the cross-examination, he sticks to the statement that on 18.2.1993 the Respondent personally asked for Rs. 60,000/- and this has been mentioned by him in the complaint. But, the very next sentence is that on 18.2.1993 the Respondent was not at Bangalore itself. The Respondent in this regard by way of his defence along with his written statement has produced certain documents like Air Tickets, Hotel Bills, his correspondence with others from New Delhi to show that on 18.2.1993 he (the Respondent) was not in Bangalore, but at Delhi. If these documents along with the admission of the Appellant himself is considered there is definitely a doubt as to whether there was any transaction took place on 18.2.1993 as alleged by the Appellant. Added to this, to overcome this difficulty, later the Appellant has filed his written argument wherein he comes with yet another story, i.e., no doubt the Respondent was at Delhi during the relevant time and he contacted the Appellant on phone to send Rs. 60,000/- to his house and the same was paid to his family member. It is to be noted that even to prove the basic requirement the Appellant has not examined his son who is alleged to have gone to the house of the Respondent and paid the amount either to the Respondent or any of his family member. These three different versions create doubt as to whether any transaction of demand of loan, payment of the same as well as issue of cheque did take place on 18.2.1993. These three different versions create doubt as to whether any transaction of demand of loan, payment of the same as well as issue of cheque did take place on 18.2.1993. The trial Court possibly on these points has doubted the case of the Appellant saying that the Appellant has not mentioned the exact date of transaction in the complaint and non-examination of his son through whom the amount was alleged to have been paid, the Appellant has not made out any case. As such I agree with the reasons of the trial Court, for the reasons mentioned earlier that it is very doubtful whether any transaction of the nature did take place on 18.2.1993 itself. It is contended by the learned Counsel for the Appellant that, when the Respondent has admitted his signature on the cheque, necessary presumption has to be drawn under Section 118 of the Act. The presumption under Section 118 vis-a-vis Section 139 has also been considered by the Apex Court in the case K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, AIR 1999 SC 3762 the Apex Court has observed thus: As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. 7. Even if this admission of the Respondent is considered in the present case at the most the presumption is that the cheque was issued on 18.8.1993 and nothing more. It cannot be by assumption that it was a post-dated cheque for a transaction alleged earlier to it especially when the Appellant has not proved the very transaction taken place on 18.2.1993 itself. No doubt, the object of Section 138 is to inculcate faith and efficacy of Banking operations and credibility in transacting business on negotiable instruments. It cannot be by assumption that it was a post-dated cheque for a transaction alleged earlier to it especially when the Appellant has not proved the very transaction taken place on 18.2.1993 itself. No doubt, the object of Section 138 is to inculcate faith and efficacy of Banking operations and credibility in transacting business on negotiable instruments. Despite civil remedy, Section 138 is intended to prevent dishonesty on the part of the drawer to draw a cheque without sufficient fund and to induce the holder or payee to act upon such cheque was introduced in the Act to which the presumption was also added by way of Section 139 which is to the effect unless contrary proved it is deemed that the holder of cheque has received the cheque of the nature referred to in Section 138 for discharge in whole or in part any debt or any liability. 8. This presumption is of course available for the holder of cheque. But unless the complainant discharges the basic requirements of proof of commission of offence through cogent evidence, such presumption cannot be drawn. In the present case, as I have observed that the Appellant has not only failed to prove the alleged transaction but by his own reply in the evidence shows that any of the three possibilities referred to earlier were there. As such there is certainly a doubt as to whether any transaction did take place between the Respondent and the Appellant as alleged by the Appellant. Since the Respondent by way of reply to the notice as well as filing his written statement contended that as the Appellant and himself were dealing in a particular transaction of ropeway construction the Appellant has requested for a cheque. It is not denied by the Appellant that he is concerned with ropeway construction. What he denies is that there was any partnership on that day. It is for the Appellant to prove the same either by producing necessary records concerning ropeway construction company to show that it was totally owned by him and that the Respondent had nothing to do with it. As long as these pleas of the defence remain unchallenged and in the light of the variance and the doubtful circumstances of the actual transaction, in my view, the trial Court was justified in giving the benefit of doubt to the Respondent. As long as these pleas of the defence remain unchallenged and in the light of the variance and the doubtful circumstances of the actual transaction, in my view, the trial Court was justified in giving the benefit of doubt to the Respondent. I see no reason to interfere with the order of acquittal. It is to be noted that this appeal is against an order of acquittal. Time and again it is held that even if any alternative views are possible, the appellate Court will not interfere with the same unless the findings of the trial Court are so perverse, contrary to the material evidence that pinches the conscience of the Appellate Court. Since I find no such material, in my view, this appeal is devoid of merits and the same is liable to be dismissed. 9. Accordingly, this appeal is dismissed.