Madras High Court
R.M.Paramasivam vs Govindaraj on 10 December, 2015
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date : 10.12.2015
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
Criminal Appeal(MD) No.280 of 2006
R.M.Paramasivam ... Appellant/
Respondent/Complainant
Vs.
Govindaraj ... Respondent/
Appellant / Complainant
Appeal filed under Section 374(2) of Cr.P.C. against the judgment,
dated 10.04.2006, made in Crl.A.No.3 of 2006 by the learned Additional
District and Sessions Judge (FTC No.II), Tiruchirappalli, reversing the
conviction and sentence, dated 17.11.2005, made in C.C.No.643 of 2002, by the
learned Judicial Magistrate No.I, Tiruchirappalli.
!For Appellant : Mr.R.Sundar
^For Respondent : Mr.P.Saravanakumar,
Legal Aid Counsel
:JUDGMENT
The trial of a criminal case instituted on a private complaint for an alleged offence under Section 138 of the Negotiable Instruments Act, 1881 resulted in conviction of the accused therein by the trial Court and he was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a sum of Rs.75,000/- to the complainant as compensation. On appeal to the lower appellate Court, the said conviction was set aside and he was acquitted of the offence for which he was prosecuted. Hence, the complainant has approached this Court with the present criminal appeal by special leave, challenging the judgment of acquittal passed by the lower appellate Court.
2.The appellant herein preferred a complaint on the file of the learned Judicial Magistrate No.I, Tiruchirappalli against the respondent herein, complaining that the respondent issued two cheques dated 06.05.2002 and 24.06.2002 for a sum of Rs.25,000/- and Rs.50,000/- respectively, drawn on the savings bank account maintained by the respondent with the Post Office, Mannargudi, towards the repayment of the amount borrowed by the respondent; that when the first cheque was presented through the bankers of the appellant viz., Syndicate Bank, for collection, it was dishonoured and returned for the reason ?insufficient fund?; that the said fact was brought to the notice of the respondent by the appellant, pursuant to which the respondent instructed the appellant to re-present the said cheque along with the second cheque dated 24.06.2002 and assured that he would make arrangements for the payment of the above said cheques; that when both the cheques were presented on 24.06.2002, they were dishonoured and returned for the same reason; that a statutory notice calling upon the respondent to make payment of the amount covered by the cheques came to be issued on 25.07.2002 which evoked a reply dated 12.08.2002 containing false and untenable allegations; that hence, the appellant / complainant was constrained to approach the trial Court with complaint and that the respondent should be prosecuted and punished for an offence under Section 138 of the Negotiable Instruments Act, 1881.
3. Following private complaint procedure, the same was taken on file as C.C.No.643 of 2002. The respondent appeared on service of summons and contended that the appellant had received blank and undated signed cheques numbering three as security for the repayment of the loan; that two out of the three cheques were filled up by the appellant himself noting the dates of his convenience; that the respondent had not requested the appellant to re- present the first cheque along with the second cheque; that no assurance for the payment of the cheques, as claimed by the appellant, was given; that the appellant approached the Court with false averments and with unclean hands; that for the statutory notice, a proper reply was given reciting what actually transpired and that therefore, he must be acquitted and the complaint must be dismissed.
4. In the trial that took place before the trial Court viz., the Court of the Judicial Magistrate No.I, Tiruchirappalli, three witnesses were examined as PWs.1 to 3 and 10 documents were marked as Exs.P1 to P10 on the side of the complainant. On the side of the respondent /accused, one Baskaran was examined as DW1 and one document was marked as Ex.D1.
5.The trial Court, on consideration of evidence in the light of the arguments advanced on both sides, pronounced a judgment rendering a finding that the respondent herein / accused was proved to be guilty of the offence under Section 138 of the Negotiable Instruments Act, 1881 and accordingly, convicted and sentenced him and also directed to pay compensation as indicated supra. On appeal, the lower appellate Court reversed the finding of the trial Court, set aside the conviction and acquitted the respondent herein/accused. It is as against the said judgment of acquittal pronounced by the learned lower appellate Judge viz., the Additional District and Sessions Judge (FTC No.II), Tiruchirappalli in an appeal in Crl.A.No.3 of 2006, the present criminal appeal has been filed by the appellant / complainant.
6. The points that arise for consideration are:
(i) Whether the present criminal appeal is maintainable? and
(ii) Whether the acquittal of the respondent by the lower appellate Court is defective and liable to be reversed?.
7.This Court heard the arguments advanced by Mr.R.Sundar, learned counsel on record for the appellant and by Mr.K.Mohana Sundaram, learned Legal Aid Counsel appearing for the respondent and also perused the materials available on record.
8. Section 374 deals with appeal against the conviction. Hence, as rightly contended by the learned counsel for the respondent/accused, the appeal against the acquittal of the respondent by the lower appellate Court has been preferred under a wrong provision of law. The only recourse available to the appellant was to prefer the appeal under Section 378(4) of the Code of Criminal Procedure. Though citation of a wrong provision of law shall not be the sole ground on which the relief can be declined, we have to consider whether the appeal can be maintained under an appropriate provision. The question of filing a criminal appeal against the acquittal of the respondent by the lower appellate Court arose long back before Section 372 of the Code of Criminal Procedure was amended and the proviso to the said section giving a right of appeal to the victim came to be introduced by Act 5 of 2009. Hence, the appeal should have been filed only under the appropriate sub clause of Section 378 of the Code of Criminal Procedure.
9. Of-course the present appeal is purported to have been finally filed under Section 378(2) of Cr.P.C., as it is revealed from Criminal Original Petition No.4916 of 2006 seeking leave of this Court to file an appeal against the order of acquittal passed by the lower appellate Court. Citing Sub clause (2) of Section 378 of Cr.P.C. is also erroneous. Since the order of acquittal came to be passed in a case instituted otherwise than a Police report, in other words, on a private complaint, the appropriate provision dealing with the appeal in such cases is Section 378(4) and not Section 378(2). Section 378(4) prescribes a condition that such appeal can be filed with the special leave of the High Court. For getting special leave of the High Court contemplated in Sub Clause (4) of Section 378 Cr.P.C., an application supported by an affidavit should have been filed within 60 days from the date of order of a acquittal, which is under challenge. Of-course the time taken for getting the certified copy of the judgment shall be excluded. Here, in this case, the judgment was pronounced on 10.04.2006, but copy application was filed only on 12.04.2006. The said two days delay shall not be excluded. After the filing of the copy application, copies were made ready and delivered on 30.05.2006. The appeal before this Court came to be filed on 29.06.2006. It seems that the appellant preferred such application within the time stipulated under Sub clause (5) of Section 378 Cr.P.C. Though the order passed in Crl.O.P.(MD).No.4916 of 2006 simply recites that leave was granted, the same has to be taken as the grant of special leave contemplated under Sub clause (4) of Section 378 Cr.P.C. Hence, there is no infirmity in the appeal being entertained, despite the fact that the appeal memorandum contains a wrong provision as the provision under which appeal has been filed. The appeal has to be construed as an appeal filed under Section 378(4) of Cr.P.C. complying with the condition found in Sub Section (5) of the said Section. Hence, the attempt made to contend that the appeal is not maintainable cannot be sustained. Point No.1 is answered accordingly.
10. Coming to the merits of the case, it is the contention of the learned counsel for the appellant that since not only the debt owed by the respondent was admitted, but also the fact of issuance of postdated cheques were admitted by the respondent, the respondent could not take up a plea that the cheques were issued not in discharge of legal liability. It is the further contention of the learned counsel for the appellant that the statutory notice came to be issued in time and the complaint came be preferred in accordance with the provision found in Sections 138 and 142 of the Negotiable Instruments Act, 1881 and 200 of Cr.P.C. and that the failure to comply with the demand made in the statutory notice and the issuance of a reply denying the liability caused completion of the offence punishable under Section 138 of the Negotiable Instruments Act. 1881. It is also the contention of the learned counsel for the appellant that if any inchoate negotiable instrument, especially a cheque is issued by a person in discharge of a liability, then the person against whom the same has been issued has got every right to fill up the blanks and make it a full-fledged instrument and that even in such cases, the presumption contemplated under Section 139 of the Negotiable Instruments Act, 1881 shall get attracted. It is the further submission of the learned counsel for the appellant that the well considered judgment of the trial Court ought not to have been interfered with by the lower appellate Court and that hence, this Court in exercise of its appellate power under Section 378(4) may set aside the order of acquittal passed by the lower appellate Court and restore the conviction and the punishment imposed and the order of compensation passed by the trial Court.
11. Per contra, the learned counsel for the respondent very much relies on Ex.D1, acknowledgment letter evidencing that the appellant had received three blank cheques as security for the re-payment of loan and two out of the three blank cheques were filled up with the dates to suit the appellant and then, the case came to be instituted. According to the respondent, the same would show lack of bona fide on the part of the appellant. It is the contention of the learned counsel for the respondent that so far as the first cheque dated 06.05.2002 is concerned, once it was dishonoured and returned without payment, the appellant ought to have issued a statutory notice as contemplated under Sub Section (b) of Section 138 of the Negotiable Instruments Act, 1881 and the repeated representation for collection of payment should be viewed as an attempt to defeat the requirement of law requiring the speedy action within the time prescribed by law. It is the further contention of the learned counsel for the respondent that in the absence of anything in writing, the trial Court wrongly believed the oral evidence of PW1 that after the initial dishonour of the cheque dated 06.05.2002, the respondent requested the appellant to present it along with the second cheque and assured that he would see that the cheques were honoured. It is the further contention of the learned counsel for the respondent that there were many discrepancies and contradictions in the complaint and evidence even regarding the relevant dates; that the same will be enough to negative the case of the appellant and uphold the defence case of the respondent and that hence, the well considered judgment of the lower appellate Court acquitting the respondent of the offence for which he was prosecuted does not require any interference and on the other hand, it has got to be confirmed.
12. This Court paid its anxious considerations to the rival contentions made on both sides and perused the materials available on record.
13.The cheque dated 06.05.2002 drawn for a sum of Rs.25,000/- and the other cheque dated 24.06.2002 drawn for a sum of Rs.,50,000/- have been produced and marked as Exs.P1 and P2. Both cheques were drawn on the Post Office, Mannargudi in respect of the savings bank account maintained by the respondent. It is the case of the appellant that the respondent borrowed a sum of Rs.1,00,000/- from the appellant out of which a sum of Rs.25,000/- alone was repaid and for the balance amount of Rs.75,000/- post-dated cheques were issued under Exs.P1 and P2. Though the respondent in 313(1)(b) examination denied the evidence of PW1 in this regard as false, the sole witness examined on his side as DW1 has made a clear admission that there was a loan transaction between the appellant and the respondent and in respect of the loan transaction, a sum of Rs.25,000/- was repaid by the respondent on 03.12.2001 and the balance amount of Rs.75,000/- was due and that the respondent assured to pay the same within 15 days thereafter. In this regard, Ex.D1 has been produced on the side of the respondent herein /accused. The appellant also does not dispute the execution of Ex.D1, acknowledgment letter, acknowledging the fact that he received three cheques as security for the repayment of the balance amount of Rs.75,000/-. DW1 has also signed as an attestor in Ex.D1. While cross examining DW1, the counsel for the appellant/complainant put a suggestion to the effect that the respondent did not issue three cheques as deposed by DW1 in his chief examination, but on the other hand he handed over only one cheque. If at all only one cheque had been issued, this Court does not understand as to how the appellant chose to take two cheques in the form of Exs.P1 and P2. If the said suggestion can be interpreted in a way that one cheque referred to in the suggestion means the third cheque, then the appellant should have come forward with an explanation as to what happened to the third cheque. In fact, the said details have not been furnished either in the statutory notice, a copy of which has been produced as Ex.P3 or in the complaint. On the other hand, the full facts have been set forth in the reply notice sent by the respondent, which has been marked as Ex.P5. The evidence of DW1 gets corroborated by the contents of Ex.P5 - reply notice and also Ex.D1 ? acknowledgement letter.
14.The presumption that the cheques were issued in discharge of the legal liability can be rebutted by the accused by preponderance of probabilities. The above said facts will be enough to rebut the presumption by preponderance of probabilities and prove in the same manner that the said cheques were issued as blank cheques without mentioning the date and amount, but containing the signature of the respondent alone. If they are post-dated cheques and the dates were written by the respondent himself, the respondent cannot contend that the appellant could not fill up the blanks. On the other hand, when the cheque is issued as a blank cheque without writing anything but with signature alone, then the proof of the same may amount to rebuttal of the presumption by preponderance of probabilities.
15. Apart from the above, there are other discrepancies in the complaint and in the evidence adduced on the side of the prosecution, which will probabilize the defence case of the respondent and thus, make the case of the appellant not proved beyond reasonable doubt. According to the averments found in the complaint, Exs.P1 and P2 - cheques were presented through the bankers of the appellant viz., Syndicate Bank Main Branch, Tiruchirappalli for collection. Ex.P1 was presented on 06.05.2002 through the said bank and the dishonour memo containing the reason ?insufficient fund? came to be issued on 15.05.2002. But, the said dishonour memo dated 15.05.2002 has not been produced by the appellant. When the said cheque was dishonoured, immediately within 15 days after receiving the notice of dishonour, the appellant ought to have issued the statutory notice as per the unamended provision of Section 138(b) of the Negotiable Instruments Act, 1881 applicable to the relevant period (the amendment prescribing a period of 30 days notice by Act 55 of 2002 was brought into force with effect from 06.02.2003 alone). Unfortunately, the appellant did not issue such notice within 15 days after receipt of the notice of dishonour. On the other hand, he has come forward with a story that the respondent requested the appellant to present Ex.P1 along with Ex.P2 on the date of which written on Ex.P2 viz., on 24.06.2002.
16. However, it seems the second cheque Ex.P2 was presented through the very same bank for collection on 24.06.2002 along with Ex.P1 and both the cheques were returned dishonoured for the reason ?insufficient fund?. The dishonour memo dated 12.07.2002 alone has been produced as Ex.P6. Of-course, within 15 days after the receipt of the said memo, the appellant issued the statutory notice under Ex.P3. But, in the sworn statement recorded before the complaint was taken on file and numbered as C.C.No.643 of 2002, the appellant stated the re-presentation of Ex.P1 along with Ex.P2 for collection was made on 24.05.2002. He has not referred to 24.06.2002, the date on which actually the cheques were presented for collection. But, while deposing as PW1, he corrected the mistake and stated that the cheques were presented on 24.06.2002 for collection. It has also been admitted by him during cross examination that Ex.P1 was presented for collection on 06.05.2002 through Syndicate Bank, but the dishonour memo was not produced by him. PW2, an official from the postal department, would say that Ex.P1 cheque came through Indian Bank, Mannargudi Branch for collection on 09.05.2002 and it was dishonoured for the reason ?insufficient fund? on 11.05.2002. However, he gave a wrong statement in his chief examination as if Ex.P2 - cheque came for collection through the Indian Bank, Mannargudi Branch on 09.05.2002 itself. The intimation in this regard has been marked as Ex.P7 dated 10.07.2002. It refers to Ex.P1 and P2 cheques. But, PW2 gives a wrong statement in the chief examination, which is so confusing. Hence, as rightly contended by the learned counsel for the appellant, PW2 ventured to depose without verifying the particulars and without having any knowledge of the transaction. Though PW3 was examined as the Manager of the Bank through which the cheques were presented for collection, he simply stated that he was working as Manager of the Bank, without naming the bank in which he was employed as Manager. According to his statement, Ex.P1 at the first instance alone was sent through Indian Bank, Mannargudi Branch for clearance, whereas both Exs.P1 and P2 were sent directly to the Post Office, Mannargudi on 24.06.2002 for collection.
17.No doubt, we can discard the said discrepancy to be a minor discrepancy not affecting the case of the appellant, but not the fact that the appellant himself has admitted his signature in Ex.D1 and a suggestion was put to DW1 to the effect that only one cheque was received by the appellant, the implication of which came to be indicated supra. It is quite obvious that the cheques were undated and blank and they were used for creation in the form of Exs.P1 and P2. In the said circumstances, as rightly contended by the learned counsel for the respondent, the appellant did not approach the Court with clean hands and there is lack of bona fide. The appellant has not stated anything about the third cheque even after a reply was sent under Ex.P5. He has also failed to return the third cheque. Such a practice of the moneylenders in getting blank undated cheques to be filled up later to suit their convenience should not be encouraged. Though the law is meant for protecting the persons receiving the cheques in discharge of legally enforceable liabilities of the drawer, the payee should not be allowed to take undue advantage It should be viewed from the point of the borrower also. If the borrower issues a postdated cheque, then he cannot escape from the liability. On the other hand, if a blank undated cheque is received by the creditor and a case is instituted after filling it up, on proof of the same by the debtor, the relief claimed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 should be negatived.
18. Considering all the aspects involved in this case, the learned lower appellate Court Judge arrived at a correct conclusion that the charge of an offence under Section 138 of the Negotiable Instruments Act, 1881 by the respondent herein / accused was not proved beyond reasonable doubt and that hence he was entitled to be acquitted. The well considered judgment of the lower appellate Court cannot be interfered with and any interference will not be justified. The appeal is bound to be dismissed confirming the judgment of acquittal pronounced by the lower appellate Court. The second point is answered accordingly.
19. In the result, this criminal appeal is dismissed. The judgment of the lower appellate Court in C.A.No.3 of 2006 is confirmed.
To
1.The Additional District and Sessions Judge (FTC No.II), Tiruchirappalli.
2.The learned Judicial Magistrate No.I, Tiruchirappalli..