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2019 DIGILAW 24 (MAD)

Girija (Deceased) v. Perumalsamy

2019-01-02

M.V.MURALIDARAN

body2019
JUDGMENT : This appeal is filed against the order of acquittal passed in C.C.No.284 of 1999 dated 29.04.2003 on the file of the learned Judicial Magistrate No. I, Dharmapuri under section 138 of the Negotiable Instruments Act. 2. The brief case of the appellant : The Respondent/accused received a sum of Rs.43,76,000/- towards Government Transport Business from the appellant/complainant. After so many requests and demands, the respondent/accused issued the cheque for Rs.43,76,000/- bearing No. 106066 dated 17.5.1999 drawn on Indian Bank Dharmapuri Branch dated 26.5.1999. The cheque was presented in the above said Branch for collection by the appellant/complainant and the same was returned with an endorsement of “Insufficient funds”. Hence the appellant/complainant issued a lawyer notice on 29.5.1999 to the respondent and the notice was served. Therefore the appellant/complainant filed this case under section 138 of Negotiable Instrument Act. 3. Before the learned Trial Court the appellant examined her husband as PW1 and Branch Manager of the Bank as PW2 and Exhibits P1 to P4 were marked. No evidence was adduced on the side of the respondent / accused. 4. On careful perusal of records, Exhibit P1 the cheque dated 26.5.1999, seeing that the signature and the letters were on different inks and the appellant has not placed any materials to substantiate his claim of the loan amount of Rs.43,76,000/-, the learned trial Court acquitted the respondent/accused. 5. During the pendency of the appeal before this Court, the appellant died on 16.11.2006 and her son namely sakthivel filed impleading petition before this Court and the same was allowed. 6. The learned counsel for the appellant submits that the learned judge has failed to appreciate that the onus is on the respondent/accused to prove that he has not issued the cheque. 7. The learned counsel for the appellant submits that the Court below has failed to appreciate that the discharge petition filed by the respondent/accused has been dismissed and the Criminal Revision Petition challenging the same before this Court was also dismissed. Hence the trial Court has failed to appreciate that putting the burden of proof of the appellant is improper and therefore the judgment is bad in law. 8. The learned counsel for the appellant submits that the Learned Judge has failed to appreciate that the non examination of the appellant would not vitiate the case. 9. Hence the trial Court has failed to appreciate that putting the burden of proof of the appellant is improper and therefore the judgment is bad in law. 8. The learned counsel for the appellant submits that the Learned Judge has failed to appreciate that the non examination of the appellant would not vitiate the case. 9. The learned counsel for the appellant submits that the learned Judge has failed to appreciate that in as much as the appellant has admitted the signing of the cheque has dismissed the case is highly improper and unjust. 10. The learned counsel for the appellant submits that the learned Judge has committed an error in rejecting the case of the appellant merely on surmises and also has failed to appreciate that in view of factual finding that the cheque belongs to the respondent/accused and it is for the respondent to prove the non - signing of the impugned cheque. 11. The learned counsel for the appellant submits that the learned judge has failed to appreciate that the respondent/accused has not even come to the box to substantiate his case. 12. The learned counsel for the appellant submits that the learned Judge has failed to appreciate that the legal notice given by the Appellant has not been replied by the respondent/accused and the learned judge has committed an error in not considering the evidence produced on behalf of the appellant both oral and documentary. 13. Per Contra, the learned counsel for the respondent submits that the learned trial Court has approached the evidence carefully and the judgment does not warrant any interference. 14. I heard Mr.A.Chari, learned counsel for the appellant and Mr.N.Balasubramanian, learned counsel for the respondent and perused the entire materials available on record. 15. The settled proposition of law laid down by the Hon'ble Supreme Court is that "An order of acquittal should not be lightly interfered with even if the Court believes that there is some evidence pointing out the finger towards the accused." 16. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450 , provided guidelines for the Appellate Court in dealing with the cases in which the trial Courts have acquitted the accused. The following principles emerge from the cases above : 1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial Court. The following principles emerge from the cases above : 1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial Court. The trial Court's acquittal bolsters the presumption that he is innocent. 2. The power of reviewing evidence is wide and the appellate Court can re-appreciate the entire evidence on record. It can review the trial Court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial Court. 3. The appellate Court should always keep in mind that the trial Court had the distinct advantage of watching the demeanour of the witnesses. The trial Court is in a better position to evaluate the credibility of the witnesses. 4. The appellate Court may only overrule or otherwise disturb the trial Court's acquittal if it has "very substantial and compelling reasons" for doing so. 5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts /appellate Courts must rule in favour of the accused. 17. A Careful scrutiny of all the judgments lead to the definite conclusion that the appellate Court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The appellate Court would not be justified in setting aside the trial Court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial Court is either perverse or wholly unsustainable in law. On keeping the above said propositions, I marshal the evidence adduced by the appellant/Complainant. 18. Admittedly the respondent signed the cheque and handed it over to the appellant. But curiously the respondent would contend that the said cheque was issued as a blank cheque and alterations were made by the appellant. The appellant was cross examined by the respondent with the suggestion that he did not have sufficient means to advance such a huge amount, PW-1 was categorically denied it and come forward with an explanation that he had sufficient means to lend the amount and conducting the finance business in the name and style of “Dharmapuri Finance”. 19. The appellant was cross examined by the respondent with the suggestion that he did not have sufficient means to advance such a huge amount, PW-1 was categorically denied it and come forward with an explanation that he had sufficient means to lend the amount and conducting the finance business in the name and style of “Dharmapuri Finance”. 19. It should also be noticed that, the respondent/accused did not care to send a reply setting out the defences raised in this case before the learned trial Court. The legal notice has been marked as Exhibit P-3 and the acknowledgement has marked as Exhibit P-4. Further the husband of the appellant namely Natarajan was crossexamined by the respondent/accused at length and nothing substantially elucidated except minor contradictions. No expert opinion was sought by the respondent/accused in comparing the disputed writing made in the impugned cheque. 20. All the above said points had not been properly adverted to and appreciated by the learned trial Court which leads to erroneous conclusion that the offence under section 138 of the Negotiable Instruments Act had not been established beyond reasonable doubt. 21. It is also settled by the Hon’ble Apex Court that while there is no doubt that Court can compare the disputed handwritings / signature / finger impression with the admitted handwriting signature/finger impression, such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. Mere obtaining contradictions from the PW1 without entering the witness-box cannot shift the onus against the appellant. The respondent/accused failed to substantiate his case before the learned trial Court as per the contradictions elucidated from PW1. 22. The learned trial Court have not analyzed the aforesaid principles in a proper perspective and evidences properly, acquitted the respondent /accused. The learned trial Court without any evidence of expert opinion has come to the conclusion that there was difference in the hand writings. Even if such an assumed difference has not taken place that would not have materially altered the validity of the cheque and once the respondent/accused having admitted the signature in the cheque, the presumption is that the cheque has been issued for legally enforceable debt. 23. Even if such an assumed difference has not taken place that would not have materially altered the validity of the cheque and once the respondent/accused having admitted the signature in the cheque, the presumption is that the cheque has been issued for legally enforceable debt. 23. In the result : (a) This criminal appeal is allowed and the order passed by the learned trial Judge in C.C.No.284 of 1999 dated 29.4.2003 on the file of learned Judicial Magaistrate No.I, Dharmapuri is set aside. (b) Issue bailable warrant for the protection of the respondent/accused regarding the sentence, through the Local Police and produced him before this Court on 08.02.2019.