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Madhya Pradesh High Court · body

2009 DIGILAW 1094 (MP)

Mohd. Salim v. Manilal Vyas

2009-09-04

N.K.MODY

body2009
ORDER N.K. Mody, J. 1. Being aggrieved by the judgment dated 7.8.2008 passed by J.M.F.C., Indore in Cri. Case No. 24241/2007, whereby the complaint filed by the appellant under Section 138 of Negotiable Instruments Act was dismissed and the respondent was acquitted, the present appeal has been filed. 2. Short facts of the case are that appellant filed a private complaint under Section 138 of Negotiable Instruments Act (which shall be hereinafter called as the N.I. Act) alleging that appellant is the owner of house No. 125, Jawahar Marg, Indore. It was alleged that respondent is the tenant in the shop situated at ground floor @ Rs. 3,000/- per month. It was alleged that rent of Rs. 39,000/- was outstanding against the respondent. Further case of the appellant was that against the aforesaid liability cheque of Rs. 39,000/- of Indore Premier Co-operative Bank Ltd., Rajwada, Indore, bearing No. 216702 payable on 21.6.2007 was issued by the respondent with an assurance that upon presentation the cheque will be encashed. It was alleged that the said cheque was presented by the appellant through its Banker but the said cheque was returned with a memorandum "exceeds arrangements". Thereafter appellant issued a notice on 27.6.2007 but the same was not received by the respondent, therefore, it was returned with an endorsement "intimation given". It was alleged that the act of the respondent is amounting to an offence punishable under Section 138 of N.I. Act. After taking cognizance and issuance of notice and also after framing of charges and recording of evidence respondent was acquitted, hence the present appeal has been filed. 3. Learned Counsel for the appellant argued at length and submits that the impugned judgment passed by the learned Trial Court is illegal and deserves to be set aside. It is submitted that to prove the offence sufficient evidence was on record. It is submitted that the findings of the learned Court below in presence of the evidence available on record is perverse and deserves to be set aside. It is submitted that the appeal filed by the appellant be allowed and the impugned judgment passed by the learned Trial Court be set aside and the respondent be convicted. 4. Learned Counsel submits that the respondent submitted a document Ex. It is submitted that the appeal filed by the appellant be allowed and the impugned judgment passed by the learned Trial Court be set aside and the respondent be convicted. 4. Learned Counsel submits that the respondent submitted a document Ex. D/1, wherein it was shown that the cheque was issued against the receipt, which was issued by the appellant and that was on account of rent from 1.6.2006 to 20.7.2007 amounting to Rs. 2,600/-. Learned Counsel submits that in fact the respondent was the tenant @ Rs. 3,000/- per month in two parts and two receipts were issued by the appellant and his brother in favour of respondent and against aggregate amount of Rs. 39,000/- the cheque was issued by the respondent. It is submitted that to bring all the facts to the notice of the Court appellant moved an application under Section 311, Cr.P.C. on 9.5.2008, wherein it was prayed that appellant be permitted to produce the relevant documents and also be permitted to lead further evidence. The application was opposed by the respondent. Learned Counsel submits that the learned Trial Court committed error in dismissing the application and the same was dismissed illegally. Reliance is placed on a decision of this Court in the matter of Narain Singh v. State of M.P. 2001 Cri.LJ. 1098, wherein this Court has held that recalling of witnesses of identification parade for further examination and cross-examination, not improper. Reliance is also placed on a decision of this Court in the matter of Arun v. State of M.P. 2007(4) MPLJ 90, wherein this Court has held that power of Court to recall a witness is discretionary and must be exercised judicially. Reliance is also placed on a decision of Hon'ble the Apex Court in the matter of Jddar v. Aabida AIR 2007 SC 3029 , wherein the Apex Court has held that "the section is manifestly in two parts. Whereas the word used in the first part is 'may', the second part uses 'shall'. In consequence, the first part gives purely discretionary authority to a criminal Court and enables it at any stage of an inquiry trial or proceeding under the Code : (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. In consequence, the first part gives purely discretionary authority to a criminal Court and enables it at any stage of an inquiry trial or proceeding under the Code : (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witnesses, who would not be otherwise brought before it." 5. Learned Counsel further submits that the appellant was holder of the cheque. Appellant proved the fact that the cheque was issued by the respondent, which was also not disputed by the respondent, therefore, the burden was on the respondent to disprove that the cheque was not for Rs. 39,000/- but was for Rs. 2,600/-. It is submitted that to prove this fact the learned Trial Court committed error in dismissing the application filed by the appellant. It is submitted that appeal filed by the appellant be allowed and the impugned judgment, whereby the respondent was acquitted be quashed. 6. Mr. S.N. Joshi, learned Counsel for the respondent submits that after due appreciation of evidence, learned Trial Court has dismissed the complaint filed by the appellant, which requires no interference. It is submitted that the document Ex. D/1 is the important document filed by the respondent which is issued by the appellant in his own handwriting which is a receipt of Rs. 2,600/- and the defence of the respondent that it was only the amount which was outstanding for which the cheque was given, which has been filled in by the appellant for Rs. 39,000/-. It is submitted that in the facts and circumstances of the case the learned Trial Court has committed no error, which can be corrected by this Court while exercising the appellate jurisdiction. 39,000/-. It is submitted that in the facts and circumstances of the case the learned Trial Court has committed no error, which can be corrected by this Court while exercising the appellate jurisdiction. For this contention reliance is placed on a decision of the Apex Court in the matter of C. Antony v. K.G. Raghavan Nair IV (2006) BC 295 (SC) : (2003) 1 SCC 1 , wherein a complaint filed under Section 138 of Negotiable Instruments Act, where the accused was acquitted, the Hon'ble Apex Court has taken into consideration the power of High Court on re-appreciation of evidence in appeal and held that unless the findings of the Trial Court are perverse or contrary to the material on record, High Court cannot, in appeal, substitute its finding merely because another contrary opinion was possible on the basis of the material on record. Further reliance is placed on a decision of the Apex Court in the matter of K. Prakashan v. P.K. Surenderan 2008(1) MPJR 282, wherein the Hon'ble Apex Court has held that presumption under Sections 139 and 118(a) both are rebuttable in nature, accused need not step into witness box to discharge his burden. Burden of proof lying on accused can be discharged by preponderance of probability while that on prosecution to be discharged by proof beyond reasonable doubt. 7. So far as dismissal of the application under Section 311, Cr.P.C. is concerned, learned Counsel for the respondent submits that after completion of the evidence of the prosecution and also after the statement of the respondent under Section 313, Cr.P.C. the application was filed, which was delayed for which there was no explanation, therefore, no illegality has been committed by the learned Court below in dismissing the application. It is prayed that appeal filed by the appellant be dismissed. 8. From perusal of the record it appears that to prove the case appellant has filed the document Ex. P/l, which is the cheque bearing the same number which is mentioned in the receipt Ex. D/1. Ex. P/2 is the receipt, whereby the cheque Ex.P/1 was deposited. Ex. P/3 is the memorandum, which bears the remark "exceed arrangements". Ex. P/4 is the copy of the notice. Ex. P/5 is the registered notice, which returned bearing the remark that "intimation given". D/1. Ex. P/2 is the receipt, whereby the cheque Ex.P/1 was deposited. Ex. P/3 is the memorandum, which bears the remark "exceed arrangements". Ex. P/4 is the copy of the notice. Ex. P/5 is the registered notice, which returned bearing the remark that "intimation given". Apart from documentary evidence appellant has examined himself and statement of respondent was recorded under Section 313, Cr.P.C. in which the respondent has stated that he has given the cheque to Saeed, brother of the appellant for a sum of Rs. 2,600/- and no cheque of Rs. 39,000/- was given by the respondent to the appellant. Apart from this the receipt Ex. D/1 has been filed by the respondent, wherein the name of the landlord is shown as Saeed and it is also mentioned that the rent was paid for the period from 1.6.2006 to 20.6.2007 through cheque and the amount of the rent was shown as Rs. 2,600/- for the entire period. Apart from this respondent has also produced Ex. D/2, which is the Bank passbook, which shows that the balance amount was more than Rs. 2,600/- for the payment of the cheque amount at the relevant time. Respondent has also examined Branch Manager Vijay Sharma as DW-1. 9. The statement of the respondent under Section 313, Cr.P.C. was recorded on 25.4.2008. Prior to it the statement of appellant was recorded on 28.7.2008. Before recording of the statement of defence witnesses the application was filed by the petitioner on 9.5.2008 along with certain documents. In the application it was alleged that a sum of Rs. 36,400/- was outstanding against the respondent towards rent, which was due to the petitioner and a sum of Rs. 2,600/- was due towards rent, which was payable to Mohd. Saeed, brother of the appellant. Thus, the total amount outstanding was Rs. 39,000/- for which the cheque was given. It was also alleged that on the receipt itself there is an endorsement of issuance of cheque No. 216702, which also bears the signature of respondent. 2,600/- was due towards rent, which was payable to Mohd. Saeed, brother of the appellant. Thus, the total amount outstanding was Rs. 39,000/- for which the cheque was given. It was also alleged that on the receipt itself there is an endorsement of issuance of cheque No. 216702, which also bears the signature of respondent. The respondent had not filed any written reply, however, the same was dismissed by the learned Trial Court on that very date on the ground that since the documents were in the possession of the appellant prior to filing of the complaint, therefore, without giving any explanation why the documents could not be filed by the appellant along with the complaint, appellant cannot be allowed to re-examine or adduce further evidence. In view of that the application was dismissed. 10. From perusal of the facts it is evident that it is no more in dispute between the parties that the respondent is the tenant of the appellant. Respondent was in arrears of rent. Respondent has issued the cheque and the same was dishonoured. The only dispute between the parties is whether the cheque was for Rs. 2,600/- or Rs. 39,000/-. For issuance of cheque of Rs. 2,600/- respondent is placing reliance on document Ex. D/1, while to prove that the cheque was issued for Rs. 39,000/- appellant is placing reliance on certain documents, which were not placed on record at the relevant time and were filed at later stage. Section 311, Cr.P.C. reads as under: 311. Power to summon material witness, or examine person present-Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 11. It is the fact that the documents were not filed by the appellant at the appropriate stage. On the contrary on 9.1.2008 application was filed by the respondent, wherein it was prayed that appellant be directed to submit the rent note but in spite of that no document was filed by the appellant and the application was dismissed by the Court below. On the contrary on 9.1.2008 application was filed by the respondent, wherein it was prayed that appellant be directed to submit the rent note but in spite of that no document was filed by the appellant and the application was dismissed by the Court below. However, since in the cross-examination of the appellant when the respondent produced Ex. D/1 at that time appellant moved application under Section 311, Cr.P.C. along with the document. In fact the document, which was filed by the appellant along with the applicant is in rebuttal to the defence taken by the respondent. In the facts and circumstances of the case this Court is of the view that learned Court below committed error in dismissing the application filed by the appellant. In fact the application ought to have been allowed by the learned Court below as there is ample opportunity to the respondent to cross-examine the appellant. Since there was a delay in filing the application, therefore, in the facts and circumstances of the case appeal filed by the appellant is allowed and the impugned judgment passed by the learned Court below is set aside and the case is remanded back to the Trial Court by allowing the application filed by the appellant under Section 311, Cr.P.C. subject to cost of Rs. 3,000/- with a direction that the Court below shall after giving an opportunity to both the parties to adduce the evidence, decide the case in accordance with law. Parties shall appear before the learned Court below on 12.10.2009. CC as per rules.