Madras High Court
Spenser David vs Virjin Mary on 6 April, 2010
Equivalent citations: AIR 2011 (NOC) 432 (MAD.) (MADURAI BENCH), 2011 ACD 1001 (MAD)
Author: T.Mathivanan
Bench: T.Mathivanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/04/2010 CORAM THE HONOURABLE MR. JUSTICE T.MATHIVANAN Criminal Appeal (MD) No.196 of 2009 Spenser David .. Appellant vs Virjin Mary .. Respondent Appeal is filed under Section 378 of Cr.P.C. against the judgment dated 17.06.2009, and made in S.T.C.No.149 of 2006, on the file of the learned Chief Judicial Magistrate, Kanyakumari District, Nagercoil, acquitting the respondent/accused. !For appellant ... M/s.M.Ajmal Khan ^For respondent ... M/s.V.Kathirvelu (Amicus curiae) :JUDGMENT
This memorandum of Criminal Appeal under Section 378 of Cr.P.C. is directed against the judgment dated 17.06.2009 and made in S.T.C. No.149 of 2006, on the file of the learned Chief Judicial Magistrate, Kanyakumari District at Nagercoil, acquitting the accused on the ground that the offence under Section 138 of the Negotiable Instruments Act, 1881, has not been proved against him. Being aggrieved by the impugned judgment, the appellant who is the complainant therein has approached this Court by way of this memorandum of criminal appeal.
2. For easy reference, the appellant herein may hereinafter be referred to as complainant and the respondent herein may hereinafter be referred to as the accused.
3. The related facts and circumstances which giving rise to the memorandum of criminal appeal may be summarised briefly as follows:-
3.1. That in the month of May 2004, the accused had borrowed a sum of Rs.2,50,000/- from the complainant. When the amount was demanded to be repaid, the accused had issued a cheque (Ex.P1) bearing No.1865037, dated 30.10.2004 for the value of Rs.2,50,000/- drawn on The South India Bank Ltd., Plamoottukada Branch in favour of the complainant. When the cheque was presented on 04.02.2005 for encashment before the Indian Overseas Bank, Vetturnimadam Branch, Nagercoil, it was returned on 18.02.2005, by the bank of the accused on the ground "funds insufficient". The memorandum of the South Indian Bank Ltd., dated 18.02.2005 was marked as Ex.P2. Thereafter the complainant had issued a statutory notice (Ex.P3) dated 01.03.2005 to the accused and thereby put the accused under the notice to repay the amount covered by the cheque Ex.P1. After the receipt of the notice on 02.03.2005 the accused had issued a reply on 16.03.2005. The postal acknowledgement for the receipt of the statutory notice and the reply notice were marked as Exs.P4 and P5 respectively. Since the accused had not chosen to repay the amount the complainant had presented the complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881.
3.2. After taking cognizance of the offence under Section 138 of the Negotiable Instruments Act, the ingredients of the charge were explained and questioned to the accused. For that, he had pleaded innocent and claimed to be tried. In order prove his case, the complainant had examined himself as P.W.1.
During the course of his examination Exs.P1 to P5 were marked. On the other hand, neither oral nor documentary evidence was adduced on behalf of the accused. When the incriminating circumstances arising from the testimony of P.W.1 and the documentary evidences were read over and explained, the accused had replied that he never borrowed the amount from the complainant.
3.3. On appreciation of the oral and documentary evidences which are available on record, the learned Chief Judicial Magistrate, Kanyakumari District at Nagercoil had proceeded to pronounce the judgment on 17.06.2009 acquitting the accused on the ground that the offence under Section 138 of the Negotiable Instruments Act has not been satisfactorily established against him. Challenging the impugned judgment, the present memorandum of criminal appeal is brought before this Court.
4. When the appeal came up for hearing, the respondent had not chosen to make her presence either in person or through her counsel despite the services of summons on him. After adjourning for several hearings, the learned counsel Thiru. V.Kathirvelu was appointed as Amicus Curiae to assist the court on behalf of the accused.
5. Heard the learned counsel for the complainant as well as the amicus curiae.
6. The learned counsel appearing for the complainant would submit that all the ingredients contemplated under Section 138 of the Negotiable Instruments Act have been complied with by the complainant and that the presumption as required under Section 139 of the Act is definitely in favour of the complainant and even in spite of that the trial Court has negatived the prayer of the complainant by dismissing the complaint. The learned counsel appearing for the complainant has also laid emphasis under the proviso to Section 138, 139 and 146 of the Negotiable Instruments Act. Section 138 reads as follows:
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.- 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, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence.
6.1. Sub clause (a) to Section 138 put a condition that the cheque so issued shall be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
6.2. Sub clause (b) says that the payee or the holder in due course of the cheque, as the case may be, shall make a demand for the repayment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of the information by him from the bank regarding the return of cheque as unpaid.
6.3. Sub clause (c) also says if the drawer of such cheque fails to make the payment of the amount covered by the cheque to the payee or to the holder in due course as the case may be, within 15 days of the receipt of the said notice, then the payee or the holder in due course shall make a complaint under Section 138 of the Negotiable Instruments Act after following the conditions stipulated under Section 142 of the Negotiable Instruments Act.
7. On coming to the instant case on hand, as revealed from the complaint, in the month of May 2004, the accused had issued a cheque Ex.P1 and when the cheque was presented for encashment on 04.02.2005, before the Indian Overseas Bank, Vetturnimadam in Nagercoil, in which the complainant had been maintaining his account, it was bounced back on 18.02.2005, by the banker of the accused viz., the South Indian Bank Limited, Udiyankulangara, under Ex.P2 on the ground "funds insufficient". Thereafter, the complainant was constrained to issue legal notice under Ex.P3. For which, the accused had issued a reply notice under Ex.P5. The postal acknowledgement for the receipt of the notice of the accused was marked as Ex.P4.
8. It is obvious to note here that the accused had not chosen to enter into the witness box to disprove the contention of the complainant. When the complainant was in box, a question was put to him by the learned counsel appearing for the accused during the time of trial stating that the signature found a place in Ex.P1 disputed cheque was not that of the accused. Another question was put to the complainant by the learned counsel appearing for the accused saying that in order to extract money from the accused, the cheque under Ex.P1 was fabricated and on that basis a false case was filed against the accused. Yet another question was also put to the complainant saying that he had foisted the case against the accused only on the evil instigation of one Mahaboobkhan. On careful appreciation of the evidence of P.W.1 both in Chief and in cross examination, this Court is of view that the accused has miserably failed to rebut the presumption.
9. As argued by the learned counsel appearing for the complainant, the proviso to Section 146 of the Negotiable Instruments Act reads as follows:
"146.Bank's slip prima facie evidence to certain facts.- The Court shall, in respect of every proceeding under this chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved".
10. On turning to the given case on hand, in Ex.P2, memorandum issued by the South Indian Bank Limited, Udiyankulangara on which the disputed cheque was drawn by the accused, it is stated that the cheque bearing No.186707 returned unpaid for the reason "funds insufficient". It appears that the cheque was bounced back on 18.02.2005.
11. As contemplated under Section 146 of the Negotiable Instruments Act, the complainant has produced the bank's slip under Ex.P2 to show that the disputed cheque bearing No.186707 was bounced back on 18.02.2005 on the ground "funds insufficient". It is also pertinent to note here that the rebuttal contention advanced on behalf of the accused has not been proved. Hence, unless and until the contention of the complainant is disproved the presumption is that the disputed cheque under Ex.P1 was bounced back on the ground "funds insufficient".
12. Another circumstance is that in Ex.P5 reply notice dated 16.03.2005 given on the instruction of the accused by the lawyer it is stated that the alleged cheque was fraudulantly obtained by your client. The very word employed by the learned counsel appearing for the accused would indicate that the issuance of the cheque was true but it was fraudulently obtained. The language "fraudulently obtained" has not been satisfactorily substantiated by the accused. Therefore, as contemplated under Section 139 of the Negotiable Instruments Act, it shall be presumed that the complainant who is the holder of the cheque Ex.P1 had received the cheque from the accused for the discharge of his liability since the contrary is not proved by the accused. In order to substantiate his argument, the learned counsel appearing for the accused has also placed reliance upon the decision reported in
(i) Joseph Jose v. J.Baby, Puthuval Puravidom Poothoppu and another (2002 Cri L.J. 4392).
(ii) M/s.Steel Tubes of India v. M/s. Steel Authority of India (2006 Cri. L.J.1988).
13. In Joseph Jose v. J.Baby, Puthuval Puravidom Poothoppu and another (2002 Cri L.J. 4392) it is observed by the Kerala High Court that the purpose behind the incorporation of Section 138 of the Negotiable Instruments Act is to lend credibility for cheque transactions. For establishing the requirements in Section 138, there is no burden on the part of the complainant to prove before Court the entire details of the transaction resulting in issuance of cheque.
14. In Goa Plast (P) Ltd., v. Chico Ursula D'Souza (2004 Supreme Court Cases (Cri) 499) a Division Bench of the Honourable Supreme Court has held as follows:
"To fulfil the objective, the legislature while amending the Act has made the following procedure:
1. Under Section 138 a deeming offence is created.
2. In Section 139, a presumption is ingrained that the holder of the cheque received it in discharge of liability.
3. Disallowing a defence in Section 140 that the drawer has no reason to believe that cheque would be dishonoured.
4. An explanation is provided to Section 138 to define the words 'debt or other liability' to mean a legally enforceable debt or other liability."
15. While referring the proviso to Section 139, it is held that it has to be presumed that a cheque is issued in discahrge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. While referring the decision in M.M.T.C Ltd., v. medchl Chemicals and Pharma (P) Ltd., (2002) 1 SCC 234 it is observed that "There is therefore no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the respondents. This they have to discharge in the trial.
16. Countering the argument advanced on behalf of the complainant, the amicus curiae appearing for the accused would submit that since the appeal is preferred against the acquittal it must be entertained only when there is any factual and legal error otherwise the appeal against acquittal ought not to have been entertained. In order to support his argument, he has placed reliance upon the decision reported in Pandurang Chandrakant Mhatre and others v. State of Maharashtra (2010) 1 Supreme Court Cases (Cri) 413) (2009) 10 Supreme Court Cases 773). In this case, it is observed that where whole approach of trial Court in appreciating evidence of eye-witness was faulty and flawed and judgment acquitting accused suffered from factual and legal errors, High Court was justified in interfering therewith within permissible limits. This portion of argument advanced by the learned counsel appearing for the accused is not able to be countenanced. The judgment of the Trial Court is really suffered from factual and legal errors.
17. In State of M.P. v. Dharkole alias Govind Singh and others (2005 Supreme Court Cases (Cri) 225) it is observed that in case acquittal has been recorded the appellate Court should not lightly interfere with the same. But, where the evidence has not been properly analysed or the Court has acted on surmises or conjectures, it is the duty of the appellate Court to set right the wrong. In Rajendra Rai and others v. The State of Bihar and another (AIR 1974 Supreme Court 2145 it is observed that in an appeal against acquittal, the High Court has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. In Sham Kant v. State of Maharashtra (AIR 1992 Supreme Court 1879) it is observed that "it is now well-settled that where the view taken by the trial Court in acquitting the accused is extremely perverse and is not reasonably sustainable on the evidence on record, then the appellate Court can interfere with such an order of acquittal and set at naught the injustice done to the parties concerned.
18. On coming to the given case on hand, it is obvious to note here that the oral evidence of P.W.1 and the documentary evidences especially Ex.P2 Bank memorandum dated 18.02.2005 and Ex.P5 reply notice have not been properly appreciated and analysed by the trial Court. Therefore, it is imperative on the part of this Court to interfere with the judgment of the Trial Court.
19. In the result, the appeal is allowed. The impugned judgment is set aside. The accused is found guilty under Section 138 of the Negotiable Instruments Act and convicted thereunder.
20. Merely punishing the accused by sending her to the prison or directing to pay certain fine amount will not in any way helpful to the complainant to recover the money from the accused. As rightly observed in Goa Plast (P) Ltd., v. Chico Ursula D'Souza (2004 Supreme Court Cases (Cri) 499) the filing of suit for recovery of amount from the accused is a long-drawn process and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. Therefore, it has become necessary to follow the decision of this Court in R.Sridher v. T.K.Rajendra Sha (2008) 2 MLJ (Crl) 526. Accordingly, this Court is of considered view that awarding the cheque amount viz., Rs.2,50,000/- as compensation to be paid by the accused to the complainant would meet the ends of justice apart from sentencing of till rising of the Court. Accordingly, the accused is directed to pay a sum of Rs.2,50,000/- being the value of the cheque by way of Demand Draft drawn in favour of the complainant as compensation under Section 357 (3) of the Code of Criminal Procedure within a period of three months from the date of receipt of a copy of this judgment. The accused is directed to produce the Demand Draft as detailed above before the trial Court within the time stipulated. On such production of the Demand Draft, the complainant is directed to receive the same on proper acknowledgement. The accused is directed to appear before the Trial Court viz., learned Chief Judicial Magistrate, Kanyakumari at Nagercoil, to comply with the sentence of till rising of the Court on 30.05.2010 at 10.30 a.m. It is also made clear that in the event of default of payment of compensation amount of Rs.2,50,000/-, the accused is directed to suffer Simple Imprisonment of six months. It is also open to the complainant to take steps to recover the compensation amount as contemplated under Section 421 of the Code of Criminal Procedure.
srm To The Chief Judicial Magistrate, Kanyakumari District at Nagercoil.