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2008 DIGILAW 426 (MAD)

P. Benedict Fernandez v. Rajiv Bhatia

2008-02-06

P.R.SHIVAKUMAR

body2008
Judgment :- This Criminal appeal has been preferred against the Judgment of the learned VIII Metropolitan Magistrate, George Town, Chennai dated 8. 2002 made in C.C.No.4889 of 1999. The said case was taken on file, based on the complaint of the appellant herein filed under Section 200 Cr..P.C. alleging that the respondent herein had committed an offence punishable under Section 138 of the Negotiable Instruments Act(hereinafter referred as the Act). .2. The following are brief averments found in the complaint of the appellant herein filed before the learned VIII Metropolitan Magistrate, Chennai : .The respondent/accused issued a cheque bearing No.964196 dated 14. 1999 for a sum of Rs.2,60,000/- drawn on Indian Bank, Kolathur Branch, Chennai towards repayment of part of the loan availed by the respondent/accused from the appellant/complainant. When the said cheque was presented for realisation through the appellants/complainants bankers, viz., State Bank of Mysore, Main Branch, Chennai on 14. 1999, the same was returned dishonoured with an endorsement "funds insufficient" on 24. 1999. The said fact of dishonour of cheque was brought to the notice of the respondent/accused and a demand for payment was made by a lawyers notice dated 5. 1999. Inspite of the fact that the said notice was received by the respondent/accused on 5. 1999, he did not issue any reply; nor did he make payment towards dishonour of cheque within 15 days from the date of receipt of the said statutory notice. Hence the offence punishable under Section 138 of the Act became complete on the expiry of fifteen days from the date on which the respondent/accused received statutory notice. .3. The said complaint was taken on file, after recording sworn statement of the appellant/complainant as C.C.No.4889 of 1999 and process were issued to the respondent/accused. On his appearance, he was questioned regarding the allegations and he pleaded not guilty. Pursuant to the said plea of not guilty made by the respondent/accused, the learned Metropolitan Magistrate concerned conducted trial in which two witnesses were examined and six documents were marked on the side of the prosecution (complainant). On being questioned under Section 313 Cr.P.C., regarding the incriminating circumstances found in the evidence adduced on the side of the prosecution (Complainant), the respondent/accused stated that those evidence were false and once again maintained that he was not guilty of the offence alleged in the complaint. On being questioned under Section 313 Cr.P.C., regarding the incriminating circumstances found in the evidence adduced on the side of the prosecution (Complainant), the respondent/accused stated that those evidence were false and once again maintained that he was not guilty of the offence alleged in the complaint. The respondent/accused neither examined any witness on his side nor marked any document. Excepting the answers given to the questions put to him in the examination of the accused under Section 313 Cr.P.C. to the effect that the evidence adduced on the side the prosecution(Complainant) were not true, no other specific plea of defence has been put forward either orally during such examination or by filing a written statement. Learned Metropolitan Magistrate concerned, after considering the evidence in the light of the arguments advanced on both sides, came to the conclusion that the offence alleged to have been committed by the respondent/accused had not been proved beyond reasonable doubt. Based on the said finding, the Court below pronounced a judgment acquitting the respondent/accused in respect of the above said offence. Therefore, the appellant/complainant has come forward with this present appeal challenging the correctness and legality of the judgment of acquittal pronounced by the learned Metropolitan Magistrate. .4. Advancing arguments on behalf of the appellant/complainant, Mr. T.Arulraj, learned counsel for the appellant contended that the finding of the Court below to the effect that the charge against the accused has not been proved beyond reasonable doubt is erroneous, unsustainable and liable to be reversed by this Court in exercise of its appellate powers. .4. Advancing arguments on behalf of the appellant/complainant, Mr. T.Arulraj, learned counsel for the appellant contended that the finding of the Court below to the effect that the charge against the accused has not been proved beyond reasonable doubt is erroneous, unsustainable and liable to be reversed by this Court in exercise of its appellate powers. Learned counsel for the appellant further contended that disregarding the provisions contained in Section 118A and 139 of Negotiable Instruments Act, the learned Metropolitan Magistrate proceeded on the erroneous assumption that initial burden of proof of the existence of a debt or other liability was on the appellant/complainant; that the learned Metropolitan Magistrate had failed to draw the presumption under the above said sections, in the absence of any evidence on the side of the respondent/accused sufficient enough to rebut the said presumption, the learned Metropolitan Magistrate had unnecessarily embarked upon a scrutiny as to the sufficiency of the evidence adduced on the side of the appellant/complainant to prove the existence of debt or other liability; that the learned Metropolitan Magistrate also committed an error for arriving at a conclusion that the signature found in Ex.P.5, Postal acknowledgment Card was not that of the respondent/accused; that the said conclusion was not at all warranted in the light of the fact that no such defence plea was taken by the respondent/accused either during his examination under Section 313(1) or during the cross-examination of the witnesses examined on the side of the appellant/complainant and that viewed from any angle, the judgment of the learned Metropolitan Magistrate holding the respondent/accused not guilty of the offence with which he stood charged was in fact discrepant, legally unsustainable and liable to be set aside and reversed. 5. On the other hand, Mr. Arasu Ganesan, present counsel for the respondent/accused argued that there was no defect or infirmity in the conclusion arrived at by the learned Metropolitan Magistrate and that stronger ground ought to have been made out for interfering with the judgment of acquittal pronounced by the Court below and that in this case, no stronger ground has been made by the appellant/complainant to warrant interference with the judgment of the Court below. 6. This Court paid its anxious considerations to the respective submissions made by the learned counsel appearing on either side. The materials available on record were also perused. .7. 6. This Court paid its anxious considerations to the respective submissions made by the learned counsel appearing on either side. The materials available on record were also perused. .7. It is true that there is a general presumption in all criminal cases regarding the innocence of the accused. Whenever the statute prescribes that a presumption shall be drawn under given circumstances against the existence of certain fact in favour of the prosecution, such presumptions are only procedural and will not be in conflict with the general presumption of innocence of the accused. However, the said general presumption is not eroded by presumption described under Section 118A and 139 of the Negotiable Instruments Act. Section 118-A of the Act says that there shall be a presumption until the contrary is proved that every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted ,indorsed, negotiated or transferred, was accepted indorsed negotiated or transferred for consideration. Section 139 of the Negotiable Instruments Act says 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 of the Negotiable Instruments Act, for the discharge, in whole or in part, of any debt or other liability. The term "cheque of the nature" referred to in Section 138 of the Negotiable Instruments Act appearing in Section 139 of Negotiable Instruments Act means any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, which is returned unpaid by the bank either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank. A conjoint reading of the three Sections will show that whenever the drawal of the cheque is either admitted or proved, the presumption under Section 118A of the Negotiable Instruments Act will come into picture to say that the cheque is supported by consideration. A conjoint reading of the three Sections will show that whenever the drawal of the cheque is either admitted or proved, the presumption under Section 118A of the Negotiable Instruments Act will come into picture to say that the cheque is supported by consideration. The presumption under Section 139 of the Negotiable Instruments Act is explanatory and supplementary to the presumption under Section 118A of the Act to show that the cheque was received by the holder for the discharge of debt or other liability. Therefore, this Court has to accept the contention of the learned counsel for the appellant that in a case wherein the drawal of the cheque is admitted or proved, then there shall be a presumption regarding the purpose for which the cheque was issued and the burden shall be cast upon the accused to rebut such presumption. In case of such rebuttal, the burden shall be again shifted on the complainant to prove the existence of debt or other liability for discharge of which the cheque was issued. Of course, there are a number of decisions to the effect that the evidence need to be adduced by the accused for rebutting such presumption shall not be comparable with the evidence required to be adduced on the side of the prosecution in so far as the prosecution is expected to prove the prosecution case beyond reasonable doubt whereas the defence case can be proved by preponderance of probabilities. .8. Keeping in mind the above said proposition of law, the facts of the case can be analysed. It is not in dispute that the cheque leaf is that of the respondent/accused and the signature found therein is also that of the respondent/accused. When such is the case, it shall be the duty of the respondent/accused to explain as to how the cheque happened to fall into the hands of the appellant/complainant. According to the submissions made by the learned counsel for the respondent/accused, the cheque was not one issued in favour of the appellant/complainant and that the same was issued as a blank cheque in favour of a third party, which has been filled up in the name of the appellant/complainant. According to the submissions made by the learned counsel for the respondent/accused, the cheque was not one issued in favour of the appellant/complainant and that the same was issued as a blank cheque in favour of a third party, which has been filled up in the name of the appellant/complainant. When the drawer of the cheque admits that he issued the cheque with the signature leaving the other parts of the cheque blank, it tantamounts to giving an authority to the person to whom the same was issued to fill up the blanks to make it a fulfledged Negotiable Instrument. Apart from the said fact that it is an admission on the part of the respondent/accused that the cheque was one pertaining to his account and that the cheque bears his signature, there is no evidence whatsoever forthcoming from the respondent/accused to substantiate his contention that the cheque was issued as a blank cheque to another person. Further more, absolutely there is no evidence capable of rebutting the presumption drawn under Section 139 of the Negotiable Istruments Act to the effect that the cheque was issued for the discharge of a debt or other liability in whole or in part. Necessary averments have been made in the complaint of the appellant/complainant and evidence has also been adduced to that effect. Even then there is no evidence adduced on the side of the accused to show that there as no debt or other liability at all in discharge of which the cheque would have been issued, the complainant has not chosen to lead evidence narrating how he arranged funds for the loan made to the accused. .9. Learned Metropolitan Magistrate seems to have been proceeded on an assumption that a fact has got to be proved only by documentary evidence and oral evidence is of no use. The observation made by the learned Metropolitan Magistrate to the effect that the complainant had not even produced a scrap of paper to show that he had a cash of Rs.70,000/- with him and Rs.1,96,000/-was the amount he got from the Foreman of the Chit under a chit transaction after making payment of the entire subscription. The observation made by the learned Metropolitan Magistrate to the effect that the complainant had not even produced a scrap of paper to show that he had a cash of Rs.70,000/- with him and Rs.1,96,000/-was the amount he got from the Foreman of the Chit under a chit transaction after making payment of the entire subscription. When there is a clear assertion through PW1 who is none other than the complainant and his evidence having not been discredited either by eliciting points contrary to the stand during the cross examination or by adducing contra evidence, the observation made by the learned Metropolitan Magistrate is quite unwarranted. Above all, there was no occasion for the learned Metropolitan magistrate to embark upon a rowing enquiry as to whether existence of debt or other liability has been proved by the appellant/complainant. As pointed supra, there is no evidence adduced on the side of the appellant/accused sufficient enough to make it appear that the cheque could have been issued to a third party and hence the cheque could not have been issued for the discharge of any debt or other liability towards the appellant/complainant. Whenever the accused in a criminal prosecution for an offence punishable under Section 138 of the Negotiable Instruments Act comes forward with a plea that the cheque issued in favour of another person has been misused by the complainant for prosecuting him, either he should have examined the said person in whose favour the cheque, according to him, was issued or adduced evidence to that effect, otherwise he could have elicited answers from the witnesses examined on the side of the prosecution which will make his case probable. In this case, after going through the evidence of PW1, this Court is of the considered view that no such answer has been elicited from the prosecution witnesses by the learned counsel for the accused who appeared in the lower court. The additional fact that goes against the respondent/accused in this case is that the accused has not come forward to say who was that the third party in whose favour the cheque was issued. Under such circumstances, this Court comes to the conclusion that the respondent/accused has not made out even a prima facie case that the cheque was not issued in discharge of debt or other liability. Under such circumstances, this Court comes to the conclusion that the respondent/accused has not made out even a prima facie case that the cheque was not issued in discharge of debt or other liability. Therefore, without any hesitation this Court holds that the respondent/accused has not rebutted the presumption raised under Section 139 of Negotiable Instruments Act, regarding the purpose for which the cheque was issued. That alone is enough to convict the accused for the said offence, provided the other conditions are proved. .10. It is a fact not in dispute that the cheque bears date 14. 1999 and it was presented for encashment during its validity period. It was presented on 20.4.1999 and returned with an endorsement "funds not sufficient". Ex.P1 is the dishonoured cheque. Ex.Pl2 is the dishonour slip. The bankers memo indicating the dishonour to the appellant/complainant is Ex.P.3. It is also obvious that within 15 days from the date of receipt of intimation of dishonour, the statutory notice was issued. Ex.P4 is the copy of the notice. Ex.P.5 is the postal acknowledgment card evidencing the receipt of the said notice by the respondent/accused. Nowhere in the cross-examination of PW1, it was suggested that the said notice was not at all received by the respondent/accused and that the signature found in Ex.P.5 was not that of the respondent/accused. This Court wonders how the learned Metropolitan Magistrate took the job upon himself to test the genuineness of such a document which was not at all disputed by the party in the trial. The finding of the learned Magistrate to the effect that the signature found in the postal acknowledgment card marked as Ex.P.5 was not proved to be that of the accused is perverse. Therefore, the said finding of the learned Magistrate being discrepant has got to be set aside and reversed. 11. It is also not in dispute that the amount covered by the cheque was not settled by the respondent/accused within the time prescribed by sub-clause (c) of Section 138 of Negotiable Instruments Act. Therefore, this Court comes to the conclusion that the learned Magistrate has committed a blatant error in arriving at a conclusion that the offence with which the respondent/accused stood charged was not proved beyond reasonable doubt. Therefore, this Court comes to the conclusion that the learned Magistrate has committed a blatant error in arriving at a conclusion that the offence with which the respondent/accused stood charged was not proved beyond reasonable doubt. The said finding of the Court below is no doubt erroneous and discrepant and this Court has to set it right by setting aside the said finding and reverse the judgment of the acquittal pronounced by the Courts below. 12. Accordingly, this appeal is allowed. The Judgment of the Court below is set aside. The respondent/accused is found guilty of the offence punishable under Section 138 of Negotiable Instruments Act. This Court has also taken into consideration the submission made by the learned counsel for the respondent/accused regarding punishment to be awarded for the said offence. 13. Considering the facts and circumstances of the case, this Court feels that it is a fit case in which imposition of a sentence of one month Simple Imprisonment shall be appropriate. In addition to that, there shall be a direction to the accused under Section 357(3) and (4) of the Code of Criminal Procedure to pay a sum of Rs.2,60,000/-(cheque amount) as compensation to the complainant. This Court grants two months time from this date to the respondent herein to pay the said amount by way of a demand draft drawin in favour of the appellant and payable at Chennai. In default thereof, the respondent shall suffer simple imprisonment for three months. 14. With the above observation, the Criminal Appeal is disposed of.