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2009 DIGILAW 2409 (MAD)

C. Chandrasekaran v. A. Sivasubramaniam

2009-07-16

G.RAJASURIA

body2009
Judgment :- Challenging and impugning the judgments dated 111. 2006 passed by the First Additional Sessions Judge, Erode, in C.A.Nos.85 and 86 of 2004 confirming the judgments dated 14. 2004 passed by the Judicial Magistrate No.3, Erode, in C.C.Nos.380 and 381 of 2002, these criminal revision cases are focussed. 2. Broadly but briefly, narratively but precisely, the facts which are absolutely necessary and germane for the disposal of this criminal revision case would run thus:- The respondent in both the revisions filed complaints under Section 138 of the Negotiable Instruments Act as against the revision petitioner/accused. Inasmuch as the revision petitioner herein pleaded not guilty, the trial was conducted. (b) During trial, the complainant examined himself as P.W.1 along with one Tangavel as P.W.2 and Exs.P1 to P8 were marked. On the accuseds side no oral or documentary evidence was adduced. (c) Ultimately, in both the matters, the trial Court recorded the convictions and imposed the sentence as under: TABLE .(d) Being aggrieved by and disconcerted with the judgments of the lower Court, the appeals in C.A.Nos.34 and 35 of 2004 were preferred before the I Additional Sessions Judge, Erode, for nothing but to be dismissed by the appellate Court, confirming the judgments of the trial Court. .3. Animadverting upon the judgments of both the Courts below, these revisions have been filed on various grounds, the gist and kernal of them would run thus: .Without taking into consideration the basic principle of evidence that the complainant should prove the case, both the Courts held as though the burden was on the accused to prove his innocence. The pre-existing debt was not proved. The preponderance of probabilities are in favour of the plea of the accused that during the pendency of the civil proceedings, such impugned cheques could not have emerged. Accordingly, the revision petitioner prayed for setting aside the judgments of both the Courts below and for dismissing the complaints. 4. Heard both sides. 5. The point for consideration is as to whether there is any perversity or non-application of law in convicting the accused and imposing the sentence. .6. Accordingly, the revision petitioner prayed for setting aside the judgments of both the Courts below and for dismissing the complaints. 4. Heard both sides. 5. The point for consideration is as to whether there is any perversity or non-application of law in convicting the accused and imposing the sentence. .6. The learned counsel for the revision petitioner, by inviting the attention of this Court to the various portions of the evidence, would set forth and put forth his argument to the effect that the preponderance of probabilities have not been considered by both the Courts below; indubitably and indisputably, unarguably and unassailably one civil suit in O.S.No.383 of 2000 is pending in the Sub Court, Erode, for recovery of the same alleged debt involved in these two criminal revision cases; over and above that one IP also was filed by the complainant as against the revision petitioner herein; the impugned cheques were issued in connection with some unauthorised chit transaction between the parties to the lis and mis-using those cheques, the complaints were filed. 7. However, the learned counsel for the respondent/complainant would submit that absolutely there is nothing wrong in the judgments passed by the Courts below. 8. The learned counsel for the revision petitioner would cite the following decision of the Honourable Apex Court reported in – KRISHNA JANARDHAN BHAT VS. DATTATRAYA G.HEGDE, certain excerpts from it would run thus: 25.Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies. 26. A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. 27. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. 27. In M.S.Narayana Menon Alias Mani v. State of Kerala and Another ((2008) 6 SCC 39), it was held that once the accused is found to discharge his initial burden, it shifts to the complainant. 28. Four cheques, according to the accused, appear to have been drawn on the same day. The counterfoil of the cheque book, according to the appellant, was in the handwriting of R.G.Bhat wherein it was shown that apart from other payments, a sum of Rs.1500/- was withdrawn on a self-drawn cheque. The courts below proceeded to hold that the defence raised by the appellant has not been proved, which, in our opinion, is not correct. He did not know that the said cheaque had not been encashed. He replied to the notice thinking that one of the cheque has been misused. There is nothing on record to show that he knew that one of the cheques was still with R.G.Bhat. 29. Disputes and differences between him and R.G.Bhat stood established by admission of the respondent himself. Similarh industry was being run by R.G.Bhat although he was acting as the constituted attorney of the appellant. According to the appellant, R.G.Bhat had cheated him. The counterfoil showed that not more than Rs.20,000/- had ever been withdrawn from that bank at a time. The courts were required to draw an inference as to the probability of the complainants advancing a sum of Rs.1.5 lakhs on mere asking and that too without keeping any documentary proof. Even there was no witness. The purported story that the appellant would himself come forward to return the amount by a cheque knowing fully well that he did not have sufficient funds is difficult to believe." 9. At this juncture, I recollect and call up the following decision of the Honourable Apex Court: 2009) 1 Supreme Court Cases (Cri) 823 – KUMAR EXPORTS VS. SHARMA CARPETS, certain excerpts from it would run thus: "12. At this juncture, I recollect and call up the following decision of the Honourable Apex Court: 2009) 1 Supreme Court Cases (Cri) 823 – KUMAR EXPORTS VS. SHARMA CARPETS, certain excerpts from it would run thus: "12. Section 138 of the Act is made out against the appellant, it will be necessary to examine the scope and ambit of presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. In a suit to enforce a simple contract, the plaintiff has to aver in his pleading that it was made for good consideration and must substantiate it by evidence. But to this rule, the negotiable instruments are an exception. .13. In a significant departure from the general rule applicable to contracts, Section 118 of the Act provides certain presumptions to be raised. This section lays down some special rules of evidence relating to presumptions. The reason for these presumptions is that, negotiable instrument passes from hand to hand on endorsement and it would make trading very difficult and negotiability of the instrument impossible, unless certain presumptions are made. The presumption, therefore, is a matter of principle to facilitate negotiability as well as trade. Section 118 of the Act provides presumptions to be raised until the contrary is proved (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp, and (vii) as to holder being a holder in due course. 14. Section 139 of the Act 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. 17. Section 118 of the Act, inter alia, directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of whole or part of any debt or liability. 19. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of whole or part of any debt or liability. 19. The use of the phrase “until the contrary is proved” in Section 118 of the Act and use of the words “unless the contrary is proved” in Section 139 of the Act read with definitions of “may presume” and “shall presume” as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. .20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. 21. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant’s rescue." 10. A plain reading of the above excerpts including the entire judgments would clearly highlight and spotlight as to what is the current law governing this type of matters. 11. Presumption as contemplated under Section 139 of the Negotiable Instruments Act cannot be taken as evidence by itself. However, it is a presumption in favour of the complainant. On the complainant examining himself as P.W.1 in this case and also marking the documents, certainly he attracted the presumption under Sections 118 and 139 of the N.I.Act. 11. Presumption as contemplated under Section 139 of the Negotiable Instruments Act cannot be taken as evidence by itself. However, it is a presumption in favour of the complainant. On the complainant examining himself as P.W.1 in this case and also marking the documents, certainly he attracted the presumption under Sections 118 and 139 of the N.I.Act. Whereupon the burden got shifted on the accused. It has to be seen as to whether such burden to rebut the presumption was discharged by the accused . .12. The learned counsel for the revision petitioner by reiterating the grounds of revision would expect this Court to hold that even though the accused has not examined himself as R.W.1 or marked any document, by considering preponderance of probabilities, the burden cast on the accused might be held to have been got fobbed off from the accuseds side to the complainants side. 13. With great ingenuity, the learned counsel for the revision petitioner tried his level best to enable the accused to wriggle out of his criminal liability. However, the alleged preponderance of probabilities, which the accused relied on are all boomeranged as against him. .14. At the first instance, it has to be noted that the accused has not even chosen to reply to the pre-litigation notice and for which, absolutely there is no reason much less valid reason. Had he really been not liable under those impugned cheques, he should have swung into action and replied to it, but he did not choose to do so. By way of adding fuel to the fire, there is no consistency in his plea also. I am fully aware of the fact that the accused is not expected to utter out anything or prove anything. The following maxim could also be pressed into service in his favour. Nemo Tenetur Seipsum Accusare-which means no man can be compelled to criminate himself. 15. However, Section 139 of the special enactment, namely, Negotiable Instruments Act, contemplates that the burden of proof is ambulatory and in that process, when burden of proof gets fobbed off on the accused, he cannot simply highlight his own prevaricative versions as probabilities capable of throwing back the burden on the complainant. 15. However, Section 139 of the special enactment, namely, Negotiable Instruments Act, contemplates that the burden of proof is ambulatory and in that process, when burden of proof gets fobbed off on the accused, he cannot simply highlight his own prevaricative versions as probabilities capable of throwing back the burden on the complainant. In the petition filed by him for discharge, he would plead as though the impugned cheques were forged cheques, however, he had a volte face and turned turtle at the time of cross-examining P.W.1, and suggested that those cheques were issued by the accused for the purpose of securing the prompt repayment of subscription amounts in connection with some chit transaction, which emerged between the complainant and himself. As such, the probabilities are not in his favour. Even during examination under Section 313 of Cr.P.C., the accused has not chosen to file any statement explaining his position and he has not examined himself on oath to discharge the burden cast on him. .16. Again, to the risk of repetition without being tautalogous, I would like to point out that the accused is not enjoined to examine himself as a witness, because he happened to be accused in this case. Even then, for the purpose of discharging the burden, not even his sworn statement is available or his statement under Section 313 is available. Wherefore, I am of the considered view that both the Courts below were right in arriving at the factual finding that there was pre-existing debt and only in connection with that, those impugned cheques emerged. 17. At this juncture, my mind is reminiscent and redolent of the following decisions of the Honourable Apex Court: (i) 2002 Supreme court cases (crl) 1448 -Bindeshwari Prasad Singh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand) and another; an excerpt from it would run thus: "13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. 14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. (ii) 2005 Supreme Court Cases (cri) 276 – Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus: "22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice." 18. A bare perusal of those decisions would exemplify and demonstrate that the High Court, while exercising its revisional jurisdiction is not expected to interfere with the finding of fact arrived at by both the Courts below simply because one other view is possible or a different view could be taken. 19. In the light of the above decisions, the matter has been analysed and found that the revisional jurisdiction of this Court cannot be invoked in favour of the accused, so as to give a different factual finding than the one arrived at by the Courts below. 20. 19. In the light of the above decisions, the matter has been analysed and found that the revisional jurisdiction of this Court cannot be invoked in favour of the accused, so as to give a different factual finding than the one arrived at by the Courts below. 20. However, regarding the sentence is concerned, six months simple imprisonment and fine were imposed by the Courts below. In the facts and circumstances of this case, I am of the considered opinion that six months simple imprisonment is too harsh a punishment and it may be reduced to two months simple imprisonment. Accordingly, the sentence shall stand reduced from six months to two months simple imprisonment in each of the cases and those sentences shall run concurrently. 21. In the result, the criminal revision cases are partly allowed. The lower Court is directed to issue warrant to the revision petitioner on receipt of a copy of this order, so as to secure his presence and commit him to jail so as to make him to undergo the sentence imposed in these revisions, if he has not already undergone.