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2004 DIGILAW 54 (MAD)

Seevathathai v. Rajkumar

2004-01-28

A.K.RAJAN

body2004
Judgment :- This is an appeal against the acquittal for an offence under Section 138 of the Negotiable Instruments Act. The case of the appellant is that the respondent gave a cheque for Rs.1,50,000/- and when that was presented it was dishonoured and subsequently notice was issued in accordance with the Negotiable Instruments Act, and thereafter a complaint was filed. The trial Court, after considering the evidence on record, held that the offence has not been proved and consequently acquitted the respondent herein. Against the order of acquittal, the present appeal has been filed. 2. Mr. A.K.Kumaraswamy, learned counsel for the appellant, submitted that as per the judgment of the Supreme court, to prove a case under Section 138 of the Negotiable Instruments Act, the only requisitions are that, there must be issuance of cheque, subsequent dishonour and failure to pay the amount. If these are proved, it shall be presumed that an offence under Section 138 of the Negotiable Instruments Act has been committed. The learned counsel relied upon the judgment of the Supreme Court in HITEN P. DALAL v.. BRATINDRANATH BANERJEE [2001(3) CTC 243] in support of his argument. Placing reliance on this judgment, especially to paragraphs 20 and 21, the learned counsel for the appellant submitted that the appellant has proved the case and the trial Court has erred in acquitting the respondent. 3. Mr. Sairam, learned counsel for the respondent, submitted that the respondent has adduced evidence to rebut the presumption under Section 138 of the Negotiable Instruments Act. The trial Court, accepting the evidence adduced by the accused, found that there is no existing liability and therefore acquitted the accused and this judgment is legally sustainable and there is no infirmity, which requires this Court to interfere with the judgment. 4. This is an appeal against the acquittal. It is a well settled law that in an appeal against acquittal, if two different views possible drawn from the evidence adduced and the trial Court takes one view, merely because other view is also possible, the appellate Court shall not interfere and reverse the judgment. Bearing this principle, the evidence on record is perused. It is seen that initial presumption has been raised by the witness on the side of the appellant. Thereafter, two witnesses were, D.W.1/Branch Manager and D.W.2, who gave the cheques were examined. Bearing this principle, the evidence on record is perused. It is seen that initial presumption has been raised by the witness on the side of the appellant. Thereafter, two witnesses were, D.W.1/Branch Manager and D.W.2, who gave the cheques were examined. In his statement DW2 has stated that two blank cheques were given to Jaganathan, who was acting as mediator; that there was dispute between the appellant and the respondent with respect to construction of building and while resolving the dispute, Mr. Jaganathan, obtained blank cheques from both the parties and thereafter the said blank cheques given to Jaganathan had been made used to file this complaint. 5. This aspect is sufficient to rebut the presumption raised under Section 138 of the Negotiable Instruments Act. So far as this evidence is concerned, there is, absolutely, no cross-examination by the appellant. Further, it is seen that even in the re-examination, D.W.2 reiterates that the complaint is filed based on the blank cheques given to Jaganathan. Taking the totality of the evidence of D.Ws.1 and 2, it is quite clear that in connection with the dispute, blank cheques have been given to one Jaganathan to resolve a pending dispute between the appellant and the respondent. Thus, the respondent has rebutted the presumption raised under Section 138 of the Negotiable Instruments Act. Even in the judgment referred to by the learned counsel for the appellant in para 21 it is stated as follows - " The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. This section provides that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability". The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability. ...... Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the letter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. ...... Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the letter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact." 6. Thus, from the above extract, it is clear that unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact, the prosecution would succeed. In this case, the accused has adduced evidence showing the reasonable possibility of non-existence of the presumed fact. Therefore, the conclusion of the trial Court that the offence has not been proved is germane from the evidence. This Court cannot take a different view other than the one taken by the trial Court in this appeal against acquittal. The finding of the trial Court is accepted and the appeal fails and the same is dismissed.