Karnataka High Court
Deshpande Publicity vs A.D.Chitralekha on 24 July, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF JULY, 2014
BEFORE
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL No. 2704/2009
BETWEEN:
DESHPANDE PUBLICITY
DHARWAD BY ITS PROPRIETOR
RAVI NARAYAN DESHPANDE, AGE:57 YRS
MAHISHI ROAD, MALAMADDI
DHARWAD
... APPELLANT
(BY SRI. K. L. PATIL, ADV.)
AND:
A.D.CHITRALEKHA
PROPRIETRESS, RANCA CRATIONS,
NO.153, 48TH CROSS,
RAJAJINAGAR, BANGALORE
... RESPONDENT
(BY M/S. SPACE LAW ASSOCIATES, ADVS.)
---
THIS CRIMINAL APPEAL IS FILED
U/S.378(4)CR.P.C BY THE ADVOCATE FOR THE
APPELLANT PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO ALLOW THIS APPEAL & TO
SET-ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL PASSED BY THE I ADDL. CIVIL JUDGE
2
(JR.DN) & JMFC, DHARWAD IN C.C.NO. 634/2006
DATED 6/6/2009 & CONVICT THE RESPONDENT /
ACCUSED FOR THE OFFENCE PUNISHABLE U/SEC
138 OF N.I.ACT & IMPOSE ADEQUATE SENTENCE
OF IMPRISONMENT & FINE ON THE
ACCUSED/RESPONDENT.
THIS CRIMINAL APPEAL HAVING BEEN
RESERVED FOR JUDGMENT ON 02.07.2014 AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant being the aggrieved complainant before the Trial Court has preferred this appeal challenging the judgment of acquittal passed in C.C.No.634/2006 on the file of the I Addl. Civil Judge (Jr.Dn.) and JMFC, Dharwad, for the offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'NI Act', for brevity)..
2. After appearance of the respondent, the matter was heard and case was taken up for final judgment. The appellant has challenged the judgment of the Trial Court on several grounds, 3 mainly on the ground that the Trial Court has wrongly came to the conclusion that Mr. K. Nagaraj, who was examined as PW1 on behalf of the complainant - Company had no legal authority to sign and file the complaint and depose before the Court on behalf of the complainant - Company.
3. It is also contended by the learned Counsel for the appellant that the Trial Court has committed a serious error in acquitting the accused, though the complainant has proved that the accused has issued the disputed cheques in discharge of her legally recoverable debt and failed to hold that the accused had committed such an offence punishable under Section 138 of the NI Act. Further in support of these grounds, the learned Counsel contended that, though there are some discrepancies in the evidence of PW1, the admission on the part of the accused coupled with the proof given by the complainant had not been properly appreciated and considered by the 4 Trial Court. Therefore, he contended that it is incumbent upon this Court to re-appreciate the material on record to find out the truth and also to ascertain whether the Trial Court has committed any serious error in acquitting the accused. He also contends that the judgment of the Trial Court is perverse and illegal and no ordinary prudent man would come to such conclusion and acquit the accused on the basis of the material on record. Therefore, he requested this Court to allow the appeal and consequently convict the accused/respondent for the offences punishable under Section 138 of the NI Act.
4. The learned Counsel for the respondent (accused before the Trial Court) strenuously contended that the Appellate Court in the case of acquittals normally should be very slow in reversing the judgement of the Trial Court, unless the said judgement is so perverse and illegal and shakes the 5 conscience of the Court. He contends that in this particular case, not only the complainant has not proved the guilt of the accused beyond reasonable doubt, but on the other hand, the accused has shown to the Court that the disputed cheques have already been discharged, payment of the amount due under those cheques and the same has been admitted by the complainant - PW1. He has failed to explain how still the said cheques could be presented. Further he contends that though subsequently the authorisation letter has been issued in favour of PW1 during the pendency of the proceedings, it will not date back to the date of filing of the complaint. Further added to that, ample materials have been placed before the Court to show that such authorisation letter issued to PW1 is a fabricated and concocted one. If it is shown to the Court that the complainant is capable of fabricating the documents to suit his convenience, the 6 credibility of such witness should be tested by means of the entire materials on record. He contended that in this particular case, in view of the conduct of the complainant, PW1 and PW2, it is not safe to reverse the judgment of acquittal. Therefore, he pleads for confirming the judgment passed by the Trial Court.
5. On the basis of the above rival contentions, the only point that would arise for the consideration of this Court is:
"Whether the appellant has made out any reasonable or substantial ground to interf ere with the judgement of acquittal recorded by the Trial Court?"
6. My answer to the above said point is in the negative for the following reasons:
7
REASONS
7. Before adverting to the facts and legal aspects involved in this particular case, it is appropriate for this Court to remind itself as to under what circumstances appellate Court can interfere with the judgment of acquittal. It is worth to note a decision of the Hon'ble Apex Court reported in 2013 (4) AKR 289 in the case of S. Govindaraju vs. State of Karnatak a, wherein the Apex Court has held that;
" It is settled legal proposition that in exceptional circumstances, the appellate Court, f or compelling reasons, should not hesitate to reverse a judgment of acquittal passed by the Court below, if the f indings so recorded by the Court below are f ound to be perverse, i.e., if the conclusions arrived at by the Court below are contrary to the evidence on record, or if the Court's entire 8 approach with respect to dealing with the evidence is f ound to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the f acts of the case. While doing so, the appellate Court must bear in mind the presumption of innocence in f avour of the accused, and also that an acquittal by the Court below bolsters such presumption of innocence".
8. It is also a fundamental basic principle of law that normally the Appellate Courts should not interfere with the judgment of acquittals unless the judgement of the Trial Court is ille gal, perverse or capricious and the Trial Court has not at all appreciated the evidence available on record and on the basis of unavailable materials, by virtue of imagination, if the Trial Court has rendered the 9 judgement, such judgements can be interfered with, particularly when the acquittal judgement is recorded by the Trial Court. If the Trial Court on the basis of the material on record appreciated the evidence and given its opinion and if that opinion is also possible, such opinion cannot be disturbed merely because the Appellate Court can come to a different opinion on the basis of the same facts and circumstances of the case.
9. Bearing in mind the above said principles, now this Court has to see whether the Trial Court has committed any error in acquitting the accused persons. Certain facts are necessary before adverting to the legal and factual aspects raised before the Court. The records disclose that the complainant - M/s. Deshpande Publicity lodged a complaint under Section 200 of Cr.P.C. against the accused for the offence punishable under Section 138 of the NI Act. It is the allegations in the complaint that the 10 complainant is an advertisement company dealing with the advertisements in all leading newspapers in India. The accused used to give the adds of his customers through the complainant - Company in different leading newspapers. In this regard, there was a business transaction between the complainant and the accused. The accused used to pay the bills through cheques and cash to the complainant. There was a huge due from the accused in payment of advertising bills. In lieu of discharge of the said debt or liability, it is alleged that the accused had issued in all 20 cheques dated 06.11.2004, 21.11.2004, 24.11.2004, 25.11.2004, 28.11.2004, 05.12.2004, 06.12.2004, 07.12.2004, 06.01.2004 and 08.01.2005 drawn on Canara Bank, Rajajinagar Branch, Bangalore and another cheque dated 24.05.2005 drawn on Karur Vaisya Bank Ltd., Bangalore totally amounting to Rs.12,28,176/-. There is no dispute that these cheques were 11 presented by the complainant on 03.05.2005 and they came to be dishonoured with an endorsement "insufficient funds". It is also not in dispute that a legal notice was issued on 23.06.2005 and is served on the accused and accused also sent a reply on 24.06.2005. However, amount under the cheques was not paid. Therefore, the complainant - Company filed a common complaint before the Court and the same was registered in C.C.No.550/2005. Later, the same was renumbered as C.C.No.634/2006 due to transfer of the said case from one Court to another. There is no dispute insofar as these aspects are concerned.
10. The accused entered appearance before the Trial Court and enlarged on bail. He has taken several defenses during the course of the trial, that is to say the complainant is not properly represented by an authorised person and therefore, the person who filed the complaint and given the evidence 12 before the Court has no authority to file the complaint, and to give evidence, therefore the complaint itself is not maintainable. Secondly, it is contended that there was no liability on the part of the accused and the complainant has not produced sufficient cogent convincing materials to show that there was any previous debt or liability on the part of the accused and in compliance of that the alleged cheques were issued and presented by the complainant to the banks. It is the further contention of the accused that he has paid substantial amount, particularly against all the cheques, which fact is accepted by the complainant and in spite of that disputed cheques were presented. Therefore, the complaint as a whole is not maintainable, as the complainant has failed to prove that there was a debt or liability pertaining to the cheques issued by the accused, is on the date of presentation of these cheques.
13
11. On the basis of the above said rival contentions, the Trial Court has framed the following points for consideration:
i. Whether the complainant proves beyond all reasonable doubt that, totally 20 cheques dated 6.11.2004, 21.11.2004, 24.11.2004, 25.11.2004, 28.11.2004, 5.12.2004, 6.12.2004, 6.12.2004, 7.12.2004, 6.1.2005, 8.1.2005 drawn on Canara Bank, Rajaji nagar Branch, Bangalore and one dated 20.04.2005 drawn on Karur Vaishya B ank Ltd., Bangalore, totally amounting to Rs.12,28,176/- were issued by the accused to complain ant in discharge of her legally recoverable debt?
ii. Whether the complainant f urther proves that the accused has f ailed to pay the amount of all 21 cheques inspite of a 14 legal demand and thereby committed the off ence punishable under Sec.138 of the Negotiable Instruments Act?
iii. Whether the complaint f iled by PW.1- K. Nagar aj is maintainable in law?
iv. What order?
The Trial Court has answered point No.1 in the affirmative, point No.2 in partly affirmative and point No.3 in the negative and ultimately acquitted the accused.
12. As could be seen from the defense taken up by the accused, there is absolutely no dispute with regard to the issuance of the above said cheques, transaction between the complainant and the accused and also discharge of some of the cheque amounts by the accused on several occasions. 15
13. Therefore looking at the above said admitted facts, it goes to without saying that when once the cheques have been issued, signatures on the cheques have been admitted, the presumption under Section 139 of the NI Act is definitely accrued in favour of the complainant. Section 118 of the N.I. Act also comes to the help of the complainant and therefore, coupled with the presumption under Section 118 and 139 of the NI Act, it should be held that the cheques were issued for the repayment of existing debt or liability. Therefore, it is incumbent upon the accused to show to the Court that there was no debt or existing liability on the part of the accused and in spite of discharge of the debt or substantial amount of the debt, the complainant has presented those cheques in order to cause inconvenience and harassment to the accused.
14. It is a fundamental basic principle which has been propounded by different rulings of the 16 Hon'ble Apex Court and the High Courts, that the proof that is required to be placed before the Court by the complainant in order to get the accused convicted must be beyond all reasonable doubts. On the other hand, to rebut the case of the complainant on any presumption under law, the accused need not be called upon to prove his case beyond reasonable doubt. But if he place some materials before the Court, which are sufficient to dislodge the presumption by means of preponderance of probabilities that would suffice the responsibility of the accused in discharging his liability. Therefore, in this particular case, the Court has to see whether the accused has placed sufficient materials to come to a conclusion that, by means of preponderance of probabilities the accused has successfully rebutted the presumption raised under Section 139 of the NI Act.
17
15. In this regard, it is worth to note a decision of the Apex Court reported in AIR 2010 SC 1898 in the case of Rangappa vs. Mohan, whe rein it is held that;
"Section 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act 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. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the 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. In such a scenario, the test of proportionality should guide the construction 18 and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof.
The reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
16. In this background, the Court has to look into the materials placed before the Court. The first 19 contention of the accused is that the complainant is not properly represented and one Mr.K. Nagaraj is the person who has absolutely no authority to file the complaint. The complainant is represented by one Mr.K. Nagaraj aged 53 years as General Power of Attorney holder as shown in the cause title. It is an admitted fact that at the time of filing the complaint or at the time of evidence, no such General Power of Attorney was produced before the Court and admittedly no authority letter was produced before the Court. The complaint bears the signature of one Mr. K. Nagaraj. It is also an admitted fact that the said Mr.K. Nagaraj is not the proprietor of M/s. Deshpande Publicity - the complainant. On the other hand, one Mr.Ravi N. De shpande is the proprietor of the said De shpande Publicity who is also examined before the Court as PW2. The said K. Nagaraj was examined before the Court as PW1. Even at the time of the evidence, he has not 20 produced any authorisation letter or General Power of Attorney in order to show to the Court that he was the authorised person to give evidence before the Court. However, the evidence before the Court shows that on 22.01.2008, the said K. Nagaraj was examined in chief and partially cross-examined and he was fully cross-examined on 10.06.2008. Even during the course of cross-examination no document had been produced. It is not explained in the evidence of K. Nagaraj as to how he is competent to file the complaint and how he is competent to give evidence before the Court. However subsequently after 06.09.2008, the complainant through PW1 requested the Court to permit to lead further evidence of PW1. On permission, Sri.K. Nagaraj - PW1 was further examined on 06.09.2008. On that day, for the first time Ex.P32 was produced before the Court which is a so-called authority letter issued by PW2 Mr. Ravi N.Deshpande, the proprietor of the 21 complainant - firm. It is worth to note hear that this particular document is alleged to have been executed on 02.05.1998. It is the contention of the defence Counsel that this document - Ex.P32 is a concocted document and it is not a genuine document and the same is placed before the Court just to overcome the objections raised by the accused.
17. The Trial Court has in fact very meticulously considered this defense of the accused and ultimately held that the document at Ex.P32 is a concocted document and it cannot be in any manner relied upon. The learned trial Judge also relied upon several rulings of the different Apex Court and High Courts, they are:
i. 2006(2) Acquittal 597 (Prasanta
Kumar Basu vs. Narandra Kumar
Anchalia and another), wherein it is held that;
22
"Complaint is not maintain able as the proprietor himself did not sign the petition of complaint, nor he came forward bef ore the Court to give deposition in support of his claim. The authorisation as allegedly given by the proprietor to a person who f iled the complaint later will not cure the def ect, though the complaint was f iled by an authorised agent, wherein authorisation allegedly was given later."
The learned trial Judge also relied upon ruling of the Apex Court reported in AIR 1998 SC 596 (Associated Cement Company Ltd. vs. Kesavanand) and AIR 2002 SC 181 for the purpose of relying upon the principle that;
"an authorised agent can f ile a petition of complaint on behalf of the company. In 23 those cases, the complainants were the companies who are undoubtedly juristic persons. The Trial Court observed that the Hon'ble Apex Court held that there must be a person to represent such juristic person in the Court of law and as such a person duly authorised by the company can f ile the petition of complaint on behalf of the said company."
It is also observed by the trial Court relying upon the decision reported in 2005 Crl.L.J. 3572, wherein it is observed that;
"The complaint can be presented by a General Power of Attorney holder on behalf of the payee provided certain conditions are observed. That is to say, the person concerned, who f iled the petition of complaint, is not the General Power of Attorney holder of the payee nor it can be 24 said that he is the holder of the cheque in due course. Theref ore, unless the General Power of Attorney or authority is given to a person to prosecute the case, he cannot under any circumstances be called as appropriate person to present the complaint or to give evidence."
18. Relying upon the above said decisions and considering Ex.P32, the Trial Court has held that the said document is a concocted document subsequently produced by PW1 and that cannot be relied upon. Whether this observation of the Trial Court is based on the material on record or not is to be looked into by this Court.
19. Admittedly, this document - Ex.P32 was not available to PW1 at the time of filing of the complaint. Therefore, at the threshold itself the complaint was filed by an incompetent person. Subsequently this document was produced antedated 25 on 02.05.1998. The date of this document play a dominant role in this case. What the learned Counsel for the complainant tried to persuade me is that, Mr. Ravi N. De shpande, whose signature found on this document Ex.P32 is not at all disputed. But the defence Counsel only harped upon that this particular document Ex.P32 is antedated and tried to prove before the Court that this document is a concocted one. Therefore, when the signature of this document is not disputed as that of the proprietor of the firm, it is only an irregularity and not an illegality committed by the complainant in issuing such authorisation letter even subsequently. Though such document in my opinion, cannot be easily accepted in this case because of the reason, if at all the said document was available on 02.05.1998 itself and the complaint was filed in the year 2009, there is no explanation by PW1 or PW2 as to why this document was not produced at the time of 26 presentation of the complaint. Therefore, it is to be presumed that at the date of the complaint, there was absolutely no authorisation to the said K. Nagaraj to file a complaint or to give evidence before the Court.
20. Now let me see what this Ex.P32 exactly says. Ex.P32 bears certain telephone numbers and fax numbers at the bottom. The learned Counsel for the accused brought to my notice that in the year 1998, in which year this document alleged to have been come into existence, there was no telephone numbers with the prefix by digit '2' and it was only after 24.05.2003 that the digit '2' had been added to the existing telephone numbers. In support of this, the accused has also produced before the Trial Court Ex.D8, which was issued by the Bharat Sanchar Nigam Limited, which document shows that the BSNL landline telephone numbers of Hubli-Dharwad have been prefixed by the digit '2' from 24.05.2003. 27 These Exs. P32 and D8 if properly appreciated, makes it clear that in the bottom of the letter head Ex.P32, telephone numbers are pertaining to subsequent to the date 24.05.2003. But the authorisation letter Ex.P32 was shown to be executed on 02.05.1998. Therefore, it goes without saying that these letter heads must have printed subsequent to 24.05.2003 and not earlier. Therefore, if Ex.P32 came into existence after 24.05.2003, any such date cannot be put as 02.05.1998. If such date is mentioned as 02.05.1998, it cannot be said that the said document was executed on 02.05.1998. It should have been executed on or after 24.05.2003. Therefore, execution of Ex.P32 itself is doubtful prior to 24.05.2003. The learned Counsel for the complainant submitted that merely because some discrepancies are there in Ex.P32, that cannot be a ground to discard the evidence of PW1 K. Nagaraj 28 because PW2 himself has been examined before the Court and PW2 has not denied his signature on Ex.P32. There is no question of PW2 denying his signature, but the complainant has to prove that PW2 has executed that document as on 02.05.1998 when discrepancy has been shown to the Court that the said document was concocted subsequent to 24.05.2003 it becomes incumbent upon the complainant at least to explain this discrepancy in the document. But on perusal of the evidence of PW1 and PW2, they never whispered anything about this discrepancy in the document even though it is attributed to them by eliciting the discrepancy.
21. I have also perused the evidence of PW2 who is not at all stated anything about the execution of this document on 02.05.1998. Therefore, it goes without saying that, though the letterhead of Ex.P32 came into existence after 24.05.2003, but the date of execution was mentioned as 02.05.1998. In view of 29 the above said mentioning of the date creates a serious doubt with regard to the conduct of the complainant that, in order to suite their convenience they can even concoct the documents and put the antedates to the documents. If such conduct is shown to the Court it is very difficult to believe such persons for any other purpose also.
22. The learned trial Judge has also relied upon the decision of this Court reported in ILR 2007 Kar 765 in the case of Ranjita and Another Vs. Shanti Group and others, wherein the Court has observed that, when the party relies upon the Power of Attorney that has to be produced before the Court to show the authorisation to file the complaint and depose on behalf of the principal. If that is not so, the Trial Court is right in dismissing the complaint. In a partnership concern and in the companies, the authorisation should be by means of a power of attorney or by means of resolution by the concerned. 30 But in the particular document, there is no mention when actually the decision has been taken to authorise this man PW1 to file the complaint.
23. Looking to the above said circumstances, even if the document is executed, this document was not produced at the time of filing the complaint or at the time of giving the evidence. In the absence of any explanation with regard to the discrepancy in any document, such document cannot be absolutely relied upon by the Court. The Trial Court has also observed that even PW2 is silent about the material defects in his document and he never stated that he has given or executed such authorisation letter as per Ex.P32.
24. The learned Counsel for the appellant tried to persuade me that according to criminal jurisprudence anybody can set the criminal law into motion. Even an oral complaint is also admissible under the Cr.P.C. In this context, he relied upon the 31 decision of the Ho'ble Apex Court reported in LAWS (SC) - 2001 - 11 - 71 in the case of MMTC LTd., Vs. Medchl Chemicals and Pharma Pvt.Ltd. The Apex Court at paragraph 6 has observed that;
"This Court has as f ar back as, in the case of Vish wa Mitter Vs. O. P. Poddar reported in (1983) 4 SCC 701, held that it is clear that anyone can set the criminal law in motion by f iling a complaint of f acts constituting an offence bef ore a Magistrate entitled to take cognizance. It has been held that no Court can decline to take cognizance on the sole ground that the complainant was not competent to f ile the complaint. It has been held that if any special statute prescribes off ences and makes any special provision f or taking cognizance of such off ences under the statute, then the complainant requesting the Magistr ate to 32 take cognizance of the off ence must satisf y the eligibility criterion prescribed under the statute. In the present case, the only eligibility criterion prescribed by Section 142 is that the complaint must be by the payee or the holder in due course. This criterion is satisf ied as the complaint is in the name and on behalf of the appellant-comp any."
The learned Counsel for the appellant submits that, in this case also the complaint is in the name and on behalf of the appellant proprietorship concern and therefore the complaint filed by K. Nagaraj is maintainable.
25. Though the said argument is relevant, but it is not acceptable because the company or the proprietorship has to be represented by a competent person. Mere mentioning the name of a firm or the company without there being any representation and the complaint being signed by an incompetent person 33 is not maintainable. The above said Apex Court's decision can be distinguished by looking into the facts and circumstances of each case. In the above said case before the Hon'ble Apex Court, the complaint was filed by a company signed by one of the Directors of the company. The stand taken by the accused in the said case was that the complaint was barred by Section 142 because the Board of Directors have not authorised one Laxman Goyal, Manager of the Regional Office of the company. In the said case it was the manager of the company who lodged the complaint, who was connected with the company by one way or the other. But in the case on hand, there is no material shown to the Court that the alleged General Power of Attorney holder K. Nagaraj is in any manner connected to the complainant company.
26. The learned Counsel for the appellant has also cited another ruling reported in AIR 2014 SC 34 1926 between M/s. Haryana State Co-op. Supply and Marketing Federation Ltd., Vs. M/s. Jayam Textiles and another, wherein the Apex Court has held that -
"Negotiable Instruments Act, 1881 -
Dishonour of cheque - Locus to f ile complaint - Cheque issued to f ederation, dishonoured - complain ant f iling complaint on behalf of f ederation - Authorisation in f avour of complainant to f ile complaint not produced - complaint being in respect of public money - dismissal of complaint f or mere f ailure to produce authorisation would not be proper - opportunity ought to have been given to f ederation to produce and prove authorisation - More so order dismissing compl aint liable to be set aside as accused had not paid amount due despite award passed against him."
27. The above said ruling is also not aptly applicable to the facts of this case. In the said case, public money was involved, here it is the private transaction between the parties. More over, this 35 court is not only dismissed the complaint on this ground alone, but on merits on other grounds also, this Court is dismissing the appeal on the ground that documents have been created by the accused, discrepancy regarding payment of money against cheques which are disputed in the complaint.
28. Even applying the principles laid down by the Apex Court cited supra, the case has to be remitted to the Magistrate in order to provide an opportunity to the complainant to produce proper authorisation on behalf of the complainant. As I have already narrated, the authorisation letter has already been produced and it is held that the same has been concocted. On the basis of the conduct of the complainant and other circumstances, this court is of the opinion that the complaint is liable to be dismissed. Further, added to that, even if the complaint is remitted, it would serve no purpose because on other grounds also, the complainant has 36 failed to succeed before the trial Court as well as before this Court. Therefore, I do not find any strong reasons to accede to the submission of the learned Counsel for the appellant.
29. Therefore, looking to the above said circumstances, I do not find any strong reasons to differ from the view expressed by the Trial Court. Though this Court may enter into some other view, as I have already narrated that the view of the Trial Court cannot be substituted if it is based on the materials available on record, I concur with the view taken by the Trial Court on this point and hold that the complaint is bad in law.
30. The next point raised by the accused is that, he has substantially made the payments as per Ex.D1, which is an admitted document by the complainant. The learned Counsel for the appellant strenuously contends that the transaction between the complainant and the accused was a continuing 37 transaction and therefore, the cheques were issued by the accused for presentation as and when amount becomes due. Therefore the amount, even if it is paid by the accused person, cannot be in a straight jacket manner said that the payment made was against a particular cheque. The Court has to see, as on the date of presentation of cheques what was the outstanding liability of the accused and whether there was any existing debt or liability in order to present the cheques by the complainant as issued by the accused person. If that is complied, it cannot be said that the cheques were not properly presented or there was no debt or liability on the part of the accused.
31. Further, the learned Counsel for the accused contended that, it is not the case of the complainant that the amounts paid by the accused was not against the particular cheque. It is categorically admitted during the course of evidence 38 of PW1 specifically mentioning the cheque number and payment of the amount against the said cheques. Therefore, when it is shown to the Court that some of the cheques against which the amount has been already paid, were also presented, it cannot be said that any particular amount or debt was due particularly against the cheque which was presented by the complainant. In this background, in order to trash out this anomaly it is just and necessary for this Court to peruse the evidence of PW1.
32. In the cross-examination of PW1, it is suggested that after issuance of 21 che ques, there is no transaction between the complainant firm and the accused. The said suggestion was admitted. Therefore, subsequent to the issuance of cheques if the amounts were paid, that should be calculated or adjusted to the cheques, which were issued earlier. It is further suggested that 90% of the amount of the 21 cheques were paid by the accused and the said 39 suggestion was denied. It is elicited in the further cross examination that PW1 do not know whether the 'Ranca Creations'(accused) paid some amount to the firm through 2 DDs dated 15.02.2005 to the tune of Rs.49,700/- each. It is also admitted that on 15.02.2005, the accused has paid Rs.30,000/-, on 24.05.2005 paid Rs.25,000/-, on 26.05.2005 paid Rs.23,000/- and on 30.05.2005 paid an amount of Rs.20,000/- in cash. It is not described how these amounts have been adjusted towards particular cheques. In the further cross examination, PW1 has elicited that the accused has paid an amount of Rs.90,318/- towards cheque amounts i.e., cheque No.848580 dated 06.11.2004 for Rs.75,678/-, cheque No.850825 dated 6.12.2004 for Rs.14,640/-. It is also admitted that on 16.12.2004, they have sent a DD pertaining to the above said amount and requested for return of the cheques. It is also admitted that an amount of Rs.48,619/- was paid 40 towards cheque No.850815 and an amount of Rs.48,998/- towards cheque No.850814 and also paid an amount towards cheque No.850826 to the total tune of Rs.1,61,255/- through DD No.693004 dated 21.12.2004. Further it is admitted that the accused paid an amount of Rs.2,78,504/- through DD No.693019 dated 02.12.2004 towards total balance payment to the firm as on 02.12.2004, which includes amount of cheques bearing No.850806 dated 06.11.2004, 850813 dated 06.12.2004 and and also other three cheques bearing Nos.850804, 850802, 850803.
33. These particular admissions on the part of the complainant - PW1 clearly discloses that towards some of the cheques marked at Exs.P1 to P21 the amounts have been paid against those cheques. It is also admitted that, no further cheques have been issued after payment of the said money for the 41 purpose of payment of remaining balance in favour of the complainant.
34. In this background, it is worth to note here the document Ex.D1 marked before the Court. Ex.D1 is an admitted document by the complainant. In this document, 23 cheque Nos. and the amount paid has also been mentioned, which shows that almost all the cheques have been paid on specific dates mentioned therein. Insofar as this document is concerned, in the cross examination of PW1 it is suggested that the details of the payment schedule had been mentioned in the Ex.D1 and Ex.D1 depicts the account maintained by the complainant and the same has been admitted by PW1, which clearly goes to show that most of the cheques have been discharged by the accused by making appropriate payments as admitted by PW1.
35. Though the learned Counsel for the appellant has drawn my attention to Ex.P34, Ex.P37 42 and P58 to show the admission on the part of the accused that the accused has admitted his liability of an amount of Rs.6,53,069/- which was due as on 21.09.2005. Ex.P31 is the complaint, which sates that as on 31.05.2005, the balance was 12,52,795/-. Ex.P58 is the Ledger Extract which shows that, as on 31.03.2005 after giving all deductions the accused was liable to pay an amount of Rs.13,23,829.40. Therefore, all the amounts which were paid is reflected in Ex.P58, and adjusted to the amounts paid by accused in his account.
36. But on perusal of the above said documents, though there is some admission on the part of the accused regarding the amount paid and outstanding liability by the accused as on 31.05.2005, but it is not clarified as to whether the admissions made by PW1 that the amounts paid by the accused was with reference to particular cheques. If it is not clarified, it goes without saying 43 that the amount paid by the accused persons were adjusted to those cheques which are specifically mentioned as admitted by PW1. Therefore, in order to discharge his burden, the complainant must come out with a clarity as to whether the cheques which were issued by the accused were issued authorising the complainant to present the said cheques as and when the debt or liability of the accused becomes due. There is no such explanation by PW1 or PW2. On the other hand, the conduct of PW1 and also the documents produced creates a doubt as to whether the cheques which were issue by the accused were already discharged by appropriate payment by the accused. Even at the cost of repetition, it can be said that PW1 has admitted that after making the payments towards the particular cheques, the accused has demanded for returning of those cheques. Therefore, it creates a serious doubt as to whether the cheques were presented by the 44 complainant in order to recover any debt or liability. This anomaly has not been properly explained. Therefore, by means of creating a reasonable doubt the case of the accused had been probabalised.
37. The arguments of the learned Counsel for the complainant that the cheques were presented in order to recover outstanding dues cannot be accepted merely because some cheques were there with the complainant and he can present those cheques as and when he likes. If such an argument is accepted, even the cheques issued by the parties can be kept pending and utilized irrespective of the period for which the cheque should be in force. Even stale cheques can also be presented before the banks for recovery of any amount, which may fell due in future. Even such transactions are admitted that will create a future liability to the accused, which may create a civil liability.
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38. Therefore, in the absence of discharge of such responsibility in clearly explaining the above said discrepancies and doubts, it cannot be said that the complainant has discharged his burden proving that Exs. P1 to P21 - cheques were issued for discharge of a debt or liability, which was in existence prior to issuance of those cheques. On the other hand, the accused has produced sufficient materials to create a serious doubt with regard to the existence of any debt or liability pertaining to the disputed cheques. Therefore, the accused has successfully rebutted the presumptions under Section 139 of the NI Act and 118 of the NI Act.
39. In view of my above said discussion and observations, I do not find any strong reasons to differ from the view expressed by the learned Magistrate with regard to discharge of the burden by the complainant in proving beyond reasonable doubt that there was a debt or liability in existence to the 46 extent claimed by the complainant prior to presentation of the cheques by the accused. Therefore, I hold that the Trial Court has not committed any serious error nor the order of the Trial Court is erroneous or capricious in order to interfere with the same. Hence I answer the point formulated by me in the negative.
In view of the above, the appeal is devoid of merits and the same is liable to be dismissed and accordingly dismissed.
Sd/-
JUDGE gab/-