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2015 DIGILAW 1961 (MAD)

Kannan v. Seshathiri @ Thaivasilai Ramasamy

2015-04-21

S.NAGAMUTHU

body2015
Judgment :- 1. The appellant herein filed C.C.No.5 of 2004 before the learned District Munsif cum Judicial Magistrate, Thiruvadanai, alleging that the respondent had committed offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). The learned Magistrate took cognizance of the said private complaint for the offence under Section 138 of the Act. Ultimately, in culmination of the trial, by judgment dated 04.10.2005, the trial Court acquitted the respondent. Challenging the same, the appellant is before this Court with this appeal. 2. The case of the complainant in brief is as follows: The accused had landed property in R.S.Mangalam Village. He offered to sell the property to the complainant. The price for the same was fixed at Rs.1,60,000/- during the month of June 2000. The complainant paid Rs.1,60,000/- towards the cost of the land to the accused. This was done under an oral agreement for sale. But, subsequently, the accused committed breach of the said sale agreement. Therefore, the complainant demanded him to repay the above said sum of Rs.1,60,000/-. Having agreed to repay the same, the accused issued a cheque for Rs.1,60,000/-, dated 30.06.2003. The said cheque was presented for collection. The same was dis-honoured for want of sufficient funds. The complainant issued a legal notice on 11.07.2003. The accused did not comply with the demand and therefore, the complainant presented the private complaint on time. 2. During trial, on the side of the complainant, he was examined as P.W.1 and the Manager of the Bank, who dis-honoured the cheque, was examined as P.W.2. As many as five documents were exhibited on the side of the complainant, namely, the cheque, the return memo by the bank, the dis-honour memo, the copy of the legal notice issued by the complainant and the postal acknowledgment. When the above incriminating evidences were put to the accused, he denied the same as false. However, he did not choose to lead either oral or documentary evidence. Having considered all the above, the trial Court by judgment, dated 04.10.2005, acquitted the respondent. That is how, the appellant is before this Court with this appeal. 3. I have heard the learned counsel on either side and also perused the materials available on record. 4. However, he did not choose to lead either oral or documentary evidence. Having considered all the above, the trial Court by judgment, dated 04.10.2005, acquitted the respondent. That is how, the appellant is before this Court with this appeal. 3. I have heard the learned counsel on either side and also perused the materials available on record. 4. The learned counsel for the appellant would submit that in the instant case, the trial Court had miserably failed to draw the presumption under Section 139 of the Act, though there is admission by the accused that the cheque was issued only by him. The learned counsel would further submit that the trial Court has fixed reference period on the complainant, instead of expecting the accused to discharge his burden to rebut the presumption under Section 139 of the Act. The learned counsel would further submit that for the legal notice issued, the accused did not even send any reply, which would go to show that all the defences, which are now taken, are only the result of afterthought. The learned counsel would further submit that it is not the burden of the complainant to prove that the accused had land. The learned counsel would further submit that the trial Court has committed serious illegality in making reliance on the documents produced by the accused, which have not been proved in evidence. Thus, according to the learned counsel, the trial Court was in error in acquitting the respondent. 5. The learned counsel for the respondent would vehemently oppose this appeal. According to him, though it is true that the presumption under Section 139 of the Act could be drawn in favour of the complainant, in the instant case, the said presumption has been duly rebutted by the accused. He would submit that such a rebuttal need not be positive evidence by the accused. He would add that it is suffice if the rebuttal is made by preponderance of probabilities by let in any positive evidence or by eliciting certain circumstances from the evidences of the prosecution. In this case, according to the learned counsel, during the cross examination, P.W.1 has tacitly admitted that he does not know about the details of the land, which was sought to be sold such as the survey number, extent, location etc. In this case, according to the learned counsel, during the cross examination, P.W.1 has tacitly admitted that he does not know about the details of the land, which was sought to be sold such as the survey number, extent, location etc. The learned counsel would submit that from this, the accused succeeded in rebutting the presumption under Section 139 of the Act. The learned counsel would further submit that at any rate, the presumption, in any event, of the accused, which is one of the cardinal principle of the criminal jurisprudence, gets further strengthened in this case by the acquittal recorded by the trial Court. Therefore, according to the learned counsel, unless there are very strong circumstances made out, it is not permissible for this Court to reverse the well considered judgment of the trial Court. 6. I have considered the above submissions. 7. As rightly agreed upon by the learned counsel on either side, in the instant case, the presumption under Section 139 of the Act should have been invoked in favour of the complainant. Apart from that the very fact is that the accused had not sent any reply. An adverse presumption against him could be drawn against him under Section 114 of the Act as well. These two presumptions have to be rebutted by the accused. Unfortunately, the accused had not let in either oral or documentary evidence. Though he had produced document to show that he had no land at all in the said village to sell, the said document was not marked in evidence. The accused could succeed in saying that no land at all to sell, then, he may succeed in rebutting the presumption. When this was pointed out, the learned counsel for the accused would submit that the accused prepared to let in further evidence to rebut the said presumption. 8. So far as the appellant is concerned, he has also not let in any evidence to show that there was actually an agreement for sale relating to a particular land. No evidence has been let in by him also to identify the said land. The failure of the complainant in this regard may be a circumstance to rebut the presumption raised in favour of the complainant. When this was pointed out, he submitted that he may also be given opportunity to let in evidence to prove his case beyond reasonable doubt. 9. The failure of the complainant in this regard may be a circumstance to rebut the presumption raised in favour of the complainant. When this was pointed out, he submitted that he may also be given opportunity to let in evidence to prove his case beyond reasonable doubt. 9. Thus, both the counsel submitted that in the event this Court is inclined to interfere with the judgment of the trial Court, the parties may be afforded sufficient opportunities to let in both oral and documentary evidences. 10. Having regard to the above submission made and having regard to the fact that the amount involved is huge and both parties have failed to let in evidence sufficiently either to prove or to disprove the facts and the dispute, I deem it appropriate to set aside the judgment of acquittal and to remand the matter before the trial Court for fresh disposal. 11. Accordingly, the Criminal Appeal is allowed. The judgment of the trial Court is set aside and the case in C.C.No.5 of 2004 is remitted back to the learned District Munsif cum Judicial Magistrate, Thiruvadanai, who shall afford further opportunity to both parties to let in both oral and documentary evidence, if any, and then dispose of the case within a period of three months from the date of receipt of a copy of this judgment.