Andhra HC (Pre-Telangana)
Gerard Kollian vs M/S.Weis Electronics & Industrial ... on 3 June, 2014
Author: B.Siva Sankara Rao
Bench: B.Siva Sankara Rao
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO CRIMINAL APPEAL No.1255 OF 2008 03-06-2014. Gerard Kollian ..APPELLANT M/s.Weis Electronics & Industrial Services (P) Ltd.,and three others...RESPONDENTs Counsel for the Appellant :Sri T.Sudhakar Reddy Counsel for the Respondents 1 to 3 :Sri V.Veerabhadra Chary Counsel for the respondent No.4 :Addl. Public Prosecutor <Gist: >Head Note: ?CITATIONS: HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO CRIMINAL APPEAL No.1255 OF 2008 JUDGMENT:
The complainant in C.C.No.1306 of 2004 against the accused persons 1 to 3 viz., A1 is private company to which A2 and A3 among others said to be directors, on a private complaint for the offence under Section 138 of Negotiable Instrument Act (for short the Act), after full- fledged trial being ended in acquittal of the accused by judgment dt.21.04.2008 preferred the appeal, with leave since granted under Section 378(4) of Cr.P.C.
2. The contentions in the grounds of appeal are that the trial Court judgment is erroneous and contrary to law and against the evidence on record and based on conjectures and surmises and in a perversive manner arriving at the finding in carving out a new case in favour of the accused with no evidence or material, the learned Magistrate misread the evidence and misinformed himself in overlooking the important and material evidence on record that resulted in miscarriage of justice and thereby to set aside the said finding. It is further contended in the grounds of appeal as well as oral submissions that it is brought in the cross-examination of accused persons 2 and 3 by PW1 for substantiating their role in A1 company where the complainant served as employee and the other directors, besides A2 and A3 were one K.Venkateshwar Rao, M.Subrahmaniam, P.Satyanarayana Murthy and Iqbal, who worked earlier in Avery India Limited. DW1 also deposed that it is one Venkateshwar Rao, one of the said directors of A1 company, came to the house of the complainant and handed over the two cheques given by the accused and thereby complainant could not know who scribed those cheques, and that the trial Court went wrong in holding as if A2 or A3 did not issue the cheques or did not personally handed over to the complainant and also went wrong in saying the cheques were not issued in discharge of any legally enforcible debt by ignoring Exs.P2 and P42=Ex.B7, which establish the accused issued the cheques to the complainant from the letters written by the complainant to the A1 company for issuance of two cheques by intimating that he deposited the said two cheques on 07.08.2004 as requested and also called upon to pay interest due from October 2002 to July 2004 @ 2.5% per month, in the letter issued by the A1 company on 09.08.2004 and admission by A2 and A3 in the cross-examination proves that A1 company received Exs.P21 and P42(D7) on 09.08.2004 and they did not even send any reply to said communication, but curiously they fabricated Ex.D8 letter dt.10.08.2014 as if reply was sent to Ex.P21 and 42(D7), without showing proof of such sending by alleging as if sent by ordinary post by inventing a false story of the theft of the subject matter cheques on 05.08.2004 saying those were intended to be issued to Mr.Naga Mahesh and M/s.Saini Eletro, without proof or any acceptable document in that regard of anything due to them and as to on what count and purpose those cheques were signed in blank and left with, without even writing the names of the payee, if at all meant for them, much less chosen to examine them to probablise that defence and even though it is established the said issuance of cheques by the accused persons in favour of the complainant; the trial Court went wrong in misappreciation of the evidence in coming to the wrong conclusion and in holding as if the loan transaction is a private one between the complainant and A2 and A3. It is also the contention that without considering Exs.P21 and 42 (D7) stated supra, the learned Magistrate went wrong in saying the non-examination of said Venkateshwar Rao, one of the directors, who brought cheques to the house of the complainant and handedover, as if fatal to the case of the complainant, even, A2 clearly admitted about said letter referring to said cheques issued, received and there was no reply if at all cheques were not issued. It is also the contention that the defence of the accused about the alleged theft of two cheques taken as if true by the trial Court, instead drawing the presumption against the accused, though the story of so called coming of the complainant, Subramanyam, etc., to the office to verify accounts or thereafter noticed missing of the cheques not true and even DW2 evidence also is not consistent of the empty cheques kept in her desk, that were missing on 05.08.2004 whereas in Ex.P15 reply stated as if those cheques were stolen on 06.08.2008, that inconsistent versions and belated responding by reply notice after receiving statutory notice for dishonor of cheque could not be the conduct, had there been any truth. It is also the contention that the trial Court went wrong in not appreciating the contrary versions as to the matter of giving police complaint regarding the stolen cheques with versions at one breath no complaint given, at other breath police not received complaint saying it is a civil dispute and at another breath it is a third version as if police interrogated the appellant but let off, and even no proof filed like giving of complaint and receiving and entering or registering a crime for the alleged theft episode introduced with a false version. Apart from this, it is quite unbelievable of the accused did not take action against DW3, if that version is true, much less giving of police complaint immediately for loss of cheques either alleging their misplacement or otherwise of alleged taking away by theft. It is also contended that apart from the fact of the story of misplacing the cheques quite unbelievable being the cash and cheques entrusted to keep locked like preserving cash in a cash box to deny the said story. Further the trial Court should also have seen that Ex.D6 letter said to have been addressed to the Manager of the cheques misplaced, whereas it is the contention of the accused of the cheques were stolen on 05/06.08.2004, and if really those cheques were stolen, it could have been mentioned in Ex.D6 as such and for so called D6 letter is not genuine for no any date under so called signature of bank manager in proof of receipt of letter and said manager not even examined to substantiate as to when they give stop payment letter to the bank manager. It is also the contention that the so called one of director, Subrahmanyam favourable to the complainant in opposing termination of the complainant from service is untrue and not even consistent apart from Ex.D5 so called resolution anywhere show any dissent of said Subrahmanyam for discontinuing service. It is also contended that the so called false claim of accused of alleged discharge of loan amount of Rs.1,80,000/- due to the complainant not properly appreciated by the trial Court for not even cogent or acceptable evidence in proof of such discharge much less to say A1 to A3 and Subramanyam decided to share equally to repay the loan from their own sources for in all Rs.2,00,000/-, though there was no any such resolution of the board meeting of the company much less sending of the same to the Registrar for recording under Section 192 of the Companies Act to believe such version of the accused; apart from the version of accused persons A2 and A3 of said payment of Rs.50,000/- by wife of A3 on 04.10.2002 and cash deposits Rs.20,000/-, Rs.10,000/- and Rs.20,000/- on 16.11.2000, 02.11.2000 and 02.02.2001 respectively and another cash payment of Rs.1,00,000/- by Subramanyam and George Omen that not even reflected in the cash book or account books of the company to believe and thus the trial Court should have denied the above alleged discharge of the loan amount due to the complainant and even the wife of A3 to prove said payment not even examined. It is also contended that the said payment of Rs.50,000/- is in fact towards clearance of the loan obtained by her from the complainant and her non- examination is fatal. So also regarding Rs.20,000/-, Rs.10,000/- and Rs.20,000/- respectively for the advance given to the complainant while on tours to install Avery Weighing Balances in various places of customers of A1 company and when the said Rs.50,000/- and other amounts supra not covered by any liquidation of the amount borrowed and the said Rs.1,00,000/- allegedly paid not proved, much less by examining Subramanyam or George and therefore the oral evidence of DW3 cannot be given credence and it clearly speaks the trial Court went on surmises without proper appreciation, though DW3 is a brought up witness at the instance of the accused persons to cause fill up the gaps and lacunas in their defence. It is also contended that the trial Court ignored Ex.P21 and P42 supra given by accused for the unsecured loan of Rs.80,000/- and Rs.1,00,000/- respectively taken from the complainant, and to escape their loan liability the accused set-up false defence and the trial Court instead of so observing, went wrong in saying the appellant fabricated receipts by manipulating letter head and as if the telephone numbers on the letter head not that of the A1 company, though, from same letter head used by A2 in his so called letter addressed to the bank for stop payment(Ex.D6). It is also the contention that for Ex.P21 and P42 letters of complainant to accused intimating about depositing of the two cheques there was no reply, on the other hand they fabricated Ex.D8 that was not properly appreciated by the Court below. Therefore, the trial Court went wrong in commenting as if Ex.P21 and P42(D7) are fabricated by giving importance to the introduced version of DW3, a witness set up by them to support the false defence, that too, without any whisper about DW2, including the 313 Cr.P.C., examination but after cause reopening at the arguments stage in examining her for not to give any credibility to the said evidence. It is also contended that the trial Court went wrong in not rejecting the defence of the accused of alleged discharge of the loan due to the complainant as detailed supra and for no resolution of A1 company board of directors to share the liability and the alleged payment even not supported by any proof filed much less account and balance sheet and the question of payment of Rs.50,000/- by wife of A3 to the complainant of Rs.50,000/- that too does not arise when she is neither director nor executive or even agent of A1 company and had there been truth, they could have obtained any acknowledgment. It is also contended that the trial Court grossly erred in appreciating the law laid down in JOHN K.JOHN V. TOM VARGHESE and there from in wrong conclusions arrived as if the cheques presented by the complainant were stolen from A1 company but for to say the expression of the Apex Court laid down to say there is no document to support the alleged lending of huge amount without interest to present but earlier failed to discharge the liability in representing the conduct of the complainant there from of not approached with clean hands, when not the case herein from admittedly loan availed from the complainant by accused but contended repayment without cogent or acceptable evidence and come with a false story of cheques stolen and not given voluntarily much less through the other director of one Venkateshwar Rao. It is also contended that the trial Court also went wrong in saying the claim is time barred though the facts of decision placed reliance which entirely different to the present facts. It is also because in the present facts, case of the complainant is accused paid interest up to October 2002 that was not denied by the accused and limitation saves thereby from October 2002 and the complaint filed was on 28.09.2004 within time. It is also contended that the trial Court misinterpreted the Apex Courts expression in SABITHA RAMA MURTHY V. R.B.S.CHANNABASSAVARADHYA in saying by virtue of Section 138 of the Negotiable Instruments Act no case made out against A2 and A3 for vicarious liability on behalf of A1 company and thereby sought for setting aside the trial Courts acquittal judgment and thereby to convict the accused persons i.e., the A1-Company and A2 and A3. The counsel for the appellant reiterated the same in the course of hearing.
3. Whereas it is the contention of the counsel for the accused that the trial Court came to the right conclusion having fresh in mind by recording the evidence and by total appreciation of facts and law and assigned reasons to its conclusions and against the double presumption in favour of the accused, one of the innocence under general principels of criminal law and the other equitable judgment of the trial Court and for this Court while sitting in appeal, there is nothing to interfere even by appreciation of the evidence afresh in the factual matrix with reference to law and sought for dismissal of the appeal. Perused the material on record in addition to the hearing of the arguments of both sides at length supra and the parties for the sake of convenience in appeal are being referred to as complainant and accused respectively, as were before the trial Court.
4. Now the points that arise for consideration are:
(1). Whether the loan amount due to the complainant was discharged by the A1 to A3 or any of them and Ex.P1 and P2 cheques dt.07.08.2004 were not given for the amounts due to the complainant by A1 through A2; and A2 and A3 are not the directors incharge of the management of the company affairs and if so the trial Courts acquittal judgment against A1 to A3 is unsustainable and requires interference by this Court while sitting in appeal and with what observations?
(2). To what result?
Point No.1:
5-(A). Before advert to the merits of the matter, it is beneficial to quote; the provisions incorporated in Chapter XVII of the N.I. Act make a civil transaction to be an offence by fiction of law and with certain (rebuttable) presumptions that shall be drawn. Sections.138 to 142 are incorporated in the Negotiable Instruments Act,1881 as Chapter XVII by the Banking Public Financial Institutions and Negotiable instruments Laws (Amendment) Act,1981 (66 of 1988) which came into force w.e.f.01- 04-1989 and the Negotiable Instruments Act was further amended by Act,2002 (55 of 2002) which came into force w.e.f.06-02-2003 incorporating new sections 143 to 147 in this Chapter XVII and further some of the existing provisions not only of the Chapter XVII but also of other Chapters amended to overcome the defects and drawbacks in dealing with the matters relating to dishonour of cheques. 5-(B). The object and intention of these penal provisions of the Chapter XVII (Sections 138 147), in particular, Sections 138 & 139 (besides civil remedy), are to prevent issuing of cheques in playful manner or with dishonest intention or with no mind to honour or without sufficient funds in the account maintained by the drawer in Bank and induce the Payee/Holder or Holder in due course to act upon it. The remedy available in a Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. Since a cheque that is dishonoured may cause uncountable loss, injury or inconvenience to the Payee due to the latters unexpected disappointment, these provisions incorporated are in order to provide a speedy remedy to avoid inconvenience and injury to the Payee and further to encourage the culture of use of cheques and enhancing credibility of the instruments as a trustworthy substitute for cash payment and to inculcate faith in the efficacy of Banking operations - GOA PLAST (PVT.) LTD. v. CHICO URSULA DSOUZA .
5-(C). To fulfill the objective, the Legislature while amending the Act has made the following procedure:
In the opening words of the Section 138 it is stated: "Where 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, is returned by the bank unpaid,---------, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act (See Sec.143), be punished ----. Provided, nothing contained in this section shall apply unless,-(a), (b); and (c) Explanation---(supra)."
"(i) Under Section 138 a deeming offence is created by fiction of law.
(ii) An explanation is provided to Section 138 to define the words "debt or other liability" to mean a legally enforceable debt or other liability."
(iii) In Section 139, a presumption is ingrained that the holder of the cheque received it in discharge of debt or other liability.
(iv) Disallowing a defence in Section 140 that drawer has no reason to believe that cheque would be dishonoured.
(v) As per Section 146(new section) the production of the Banks slip or Memo with official mark denoting that the cheque has been dishonoured is prima facie evidence for the Court to presume the fact of dishonour of such cheque unless such fact is disproved by the accused.
5-(D). Further the provision for issuing notice within thirty days under section 138 after dishonour is to afford an opportunity to the Drawer of the cheque to rectify his mistakes or negligence or in action and to pay the amount within fifteen days of receipt of notice, failing which the drawer is liable for prosecution and penal consequences. 5-(E). Reasonability of cause for non-payment is not at all a deciding factor. Mensrea is irrelevant. It is a strict liability incorporated in public interest.
5-(F). Availability of alternative remedy is no bar to the prosecution 5-(G). In the words-where any cheque, the word any suggests that for whatever reason if a cheque is drawn on an account maintained by him with a Banker in favour of another person for the discharge of any debt or other liability, the liability cannot be avoided in the event of the cheque stands returned by the Banker unpaid.
6-A. The Apex Court in NARAYAN MENON v. STATE OF KERALA held that once the complainant shown that the cheque was drawn by the accused on the account maintained by him with a banker for payment of any amount in favour of the complainant from out of that account for its discharge and the same when presented returned by the Bank unpaid for insufficiency of funds or exceeds arrangement, such person shall be deemed to have been committed an offence under Section 138 of N.I. Act. What Section 139 of the Act speaks of the presumption against the accused to rebut is the holder of a cheque received the cheque of the nature referred in Section 138 of the Act for discharge of debt. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Accused need not enter into the witness box and examine other witnesses in support of his defence. Accused need not disprove the prosecution case in its entirety. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man".
6-B. The presumption that further applied among clauses (a) to (g) of Section 118 of N.I. Act also, like the presumption under Section 139 of the Act, as per Section 4 of the Evidence Act, is a rebuttable presumption for which the burden is on the accused, however, to rebut the presumption if a case is made out by accused either by pointing out from the case of the complainant including very documents and cross-examination or by examining any person and need not be always by coming to witness box vide decision in KUMAR EXPORTS PVT. LTD. V. SHARMA CARPETS .
6-C. Further, as per the expression of the Apex Court in RANGAPPA vs. MOHAN (3-Judges Bench) paras-9 to 15 referring to Goa Plasts case (supra), KRISHNA JANARDHAN BHAT v. DATTATRAYA G. HEGDE by distinguishing at para-14 saying the observation in KRISHNA JANARDHAN BHAT (supra) of the presumption mandated by Section 139 does not indeed include the existence of a legally enforceable debt or liability is not correct, though in other respects correctness of the decision does not in any way cause doubted; by also referring to HITEN P. DALAL v. BRATINDRANATH BANERJEE holding at paras-22 and 23 therein of the obligation on the part of the Court to raise the presumption under 138, 139 and 118 of the N.I. Act, in every case where the factual basis for raising the presumption has been established since introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused, as a presumption of law distinguished from a presumption of fact as part of rules of evidence and no way in conflict with presumption of innocence and the proof by prosecution against the accused beyond reasonable doubt, but for saying to rebut the accused can discharge the burden showing reasonable probability of non-existence of the presumption of fact and to that proposition, the earlier expression in BHARAT BARREL & DRUM MANUFACTURING COMPANY v. AMIN CHAND PYARELAL para-12 showing the burden on the accused is to bring on record by preponderance of probability either direct evidence or by referring to circumstances upon which he relies, rather than bare denial of the passing of the consideration; apparently that does not appear to be of any defence, to get the benefit in discharge of the onus against, also held referring the M.M.T.C. LTD. AND ANOTHER v. MEDCHL CHEMICALS & PHARMA (P) LTD that where the accused able to show justification of stop payment letter even from funds are there, but no existence of debt or liability at the time of presentation of cheque for encashment to say no offence under Section 138 of the N.I. Act made out in discharge of the burden. It was concluded referring to the above, including of MALLAVARAPU KASIVISWESWARA RAO v. THADIKONDA RAMULU FIRM & ORS paras-14 and 15 that the initial presumption lays in favour of the complainant and Section 139 is an example of a reverse onus clause, which has been included in furtherance of the legitimate objection of improving the credibility of the negotiable instruments. While Section 138 specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. Bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions and the test of proportionality should guide the construction and interpretation of reverse onus clause and the accused cannot be expected to discharge an unduly high standard or proof and in the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden to discharge by preponderance of probabilities by raising creation of doubt about the existence of a legally enforceable debt or liability to fail the prosecution and for that the accused can rely on the material submitted by the complainant also in order to raise such a defence and he may not need to adduce any evidence of his own.
6-D. It was also observed in para-15 that the accused appear to be aware of the fact that the cheque was with the complainant, further-more the very fact that the accused has failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainants version. It was also held by this court way back in Chapale Hanumayya vs. Kavuri Venkateswarlu that having received and acknowledged the statutory legal notice after dishonour of cheque, non-giving of reply to said legal notice, improbablises the defence version, as any prudent person under the said circumstances should have, but for no defence to reply.
7-(A). From above legal position, coming to decide on the facts from oral, circumstantial and documentary evidence, how far it is proved the case of the complainant and from drawing of presumptions and inferences if any, how far rebutted by accused concerned:
7-(B) It is important to note that Ex.P1 cheque for Rs.80,000/-, Ex.P2 cheque for Rs.1,00,000/- admittedly bear the signatures of A2 George Omen, one of the directors of A1 company M/s. Weis Electronics and Industrial Services (P) Limited and the same is on the stamp of the company as of A2 signed as authorized signatory. Undisputedly, even taken the defence of the accused both cheques signed at one time if at all given to DW3, office assistant by A2 at one time. It is important to note that the amount borrowed and due to the complainant by the A1 company represented by its directors, A2 apart from A3 if any, not even in dispute as much as part of the defence of discharge of loan of Rs.1,80,000/-. It is the case of the complainant that the A2 and A3 on behalf of A1 company approached for the loan of Rs.1,80,000/- as directors of the company and not in their individual capacity being persons attending affairs of the company and believing their version, particularly of A2, the complainant lent amount of Rs.1,80,000/- through two cheques Exs.P1 and P2 supra. Both the cheques are drawn from the account of the accused at Andhra Bank, M.G.Road, Secunderabad and the serial number of the cheques is 134573 and 134574. The fact that the complainant paid the amounts once on 30.07.1999 of Rs.1,00,000/- drawn at Andhra Bank, Tarnaka Branch and another on 11.08.2000 of Rs.80,000/- drawn on HDFC Bank, Secunderabad Branch not in dispute.
8) According to the complainant, the accused persons repaid the said amount lent by him by two cheques and passed receipts in token of receipt of the amounts. It is also for the non-payment to the demands as per the complainant they agreed to pay with interest @ 2.5% per month till repayment and paid interest up to October, 2000 and later stopped payment. It is important to note that there is nothing in writing much less acknowledgment of the debt by A1 to A3 within three years, after the said lending covered by acknowledgment dates and even not from the date of cheques to say three years limitation for discharge of the cheque amounts to enforce legal liability is from acknowledgment of the cheque amount by the accused on 02.08.1999 and 12.08.2000 respectively. Where as, Ex.P1 and P2 cheques were dated 05.08.2004 and it is tobe seen in between there is any acknowledgment contemplated by Sections 18 and 19 of the Indian Limitation Act within the three years limitation period to give life for legal enforceability without time bar. Otherwise, there must be an acknowledgment of the time barred debt within the meaning of the Section 25 of the Indian Contract Act to give life to the time barred debt to give legal enforceability. It is also because this Court earlier in decision cited and placed reliance upon by the accused of Y.YESUBABU V. D.APPALASWAMY , held that the transaction of dishonour of the cheque amount under Section 138 of Negotiable Instruments Act is not sustainable once the amount covered by the cheque claim is barred by limitation.
9) The other important document in this regard even taken for argument sake, is the cheques admittedly issued by A2 by acting on behalf of A1 as its director much less from the approach by A2 and A3 together being in charge of management of the company affairs with liability under Section 141 of the N.I. Act. Ex.P21 and P42(D7) concerned, Ex.P21 is the letter addressed by the complainant to A1 company drawing the attention of A2 informing that complainant received two cheques drawn on Andhra Bank vide Nos.134573 for Rs.80,000/- and 134574 for Rs.1,00,000/- both dt.05.08.2004 and as they requested, they were deposited on 07.08.2004 and by virtue of the two cheques they paid the entire amounts and they are still liable for interest on the principle amount from October 2002 to July 2004 @ 2.5% per month as mutually agreed and accepted, hence to arrange for payment of said interest balance within 30 days as promised. Ex.P21 letter enclosed with an acknowledgment dt.07.08.2004 struck off that there is signature of complainant underneath the signature of the person (to whom addressed) and it was struck off and there is signature of A2 and that is also struck off, which shows something suspicious. However, even coming to Ex.P42 which is self same letter with same contents read with Ex.B7 filed by accused with endorsement on Ex.D7 of they received letter on 09.08.2004 as shown the postal stamp and it is letter addressed by the complainant to the address of A1 which clearly speaks the letter received by them and they cannot dispute the contents as along with Ex.D7 letter they filed the postal envelop with postal registration receipt slip affixing on the said registered letter by the postal department of letter registered on 07.08.2004 to the address of the A1 company. No doubt, this letter substantiates from the above that in the two cheques issued by A2 on behalf of A1 with or without consent of A3 leaving about other directors liability otherwise; the A2 for and on behalf of A1 also could have issued reply notice disputing the giving of the cheques. The non giving of reply is an important fact on the conduct of person to draw inference under Section 3 of the Indian Evidence Act, that but for no defence no prudent person could keep quite without giving reply or for the contents are true. As laid down way back by this Court in the decision referred supra of Chapale Hanumayyas case and as also held by the three Judges bench judgment of the Apex Court para 15 of Rangappas case (supra) in this regard that non giving of reply enhances strength to the case of the complainant as true. Here, though it can be taken there from to substantiate the case of the complainant with evidence of PW1 of the accused issued the cheques for the amounts due discussed supra, in discharge of the principal amount of Rs.1,80,000/- and there is no bar for giving two cheques even of same date. However, the non giving of reply is not an admission of the contents of the said Exs.21 and 47 =Ex.D7 much less an acknowledgment of debt to give life to the limitation, in the absence of which there is no need to go into the merits as it is suffice to say even from the above facts proved that the cheques issued by A2 on behalf of and in active charge of the affairs of A1 company for making liable the A1 company as well as A2 and A3 respectively, for penal consequences, for nothing rebutting the burden lies on the accused from above, even from the evidence of DW2, apart from that of DWs.1 and 2, A2 and A3 respectively, with reference to Exs.D1 to D14 for quite artificial to believe the version of DW3 also of so called giving of the complaint with other directors of the company and verification of the accounts and permitted by her as office in charge and even then the question of her keeping the cheques if at all blank apart from the very leaving of blank cheques quite unbelievable much less to say the same rebuts the presumptions available under the reverse onus clause against the accused under Section 139 read with 138 explanation read with 118 of Negotiable Instruments Act of the cheques issued were for the proved legally enforceable debt for its discharge of the debt which borrowed and for the amount there in and in favour of the person named as its payee as that could not be rebutted by the accused even by preponderance of the probability from the evidence. However, the fact remains the cheque amounts are barred by time for having shown no acknowledgment within three years to save limitation after encashment of the amounts lent by the complainant to the accused detailed supra. Once the debt is not legally enforceable, prosecution is unsustainable. Thus, it is suffice to say, though in other respects the trial Court went wrong and the acquittal judgment is not sustainable, from this aspect alone of the claim is barred by limitation, the trial Courts judgment is sustainable and as such for this court while sitting in appeal there is nothing to interfere with the finding of acquittal in this regard. Accordingly, Point No.1 is answered.
POINT No.2
10) Having regard to the above, the appeal is dismissed confirming the trial Court acquittal judgment, mainly and only on the ground that the amount covered by cheque barred by limitation and legally not enforceable. There is no order as to costs.
11) Consequently, miscellaneous petitions pending if any, shall stand closed.
________________________________ Dr. B.SIVA SANKARA RAO J, 03rd June, 2014