P.Gnanambigai vs S.Krishnasamy on 23 December, 2010
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Madras High Court
THE HONOURABLE MS. JUSTICE K.B.K.VASUKI
Crl.R.C.No.1307 of 2005
P.Gnanambigai .. Petitioner
2.The State of Tamil Nadu
rep. by the Public Prosecutor,
Erode District. .. Respondents
Prayer:- Criminal Revision Petition filed under Section 397 r/w 401 of Cr.P.C. against the order made on 12.05.2005 in C.A.No.176 of 2003 on the file of Additional District Judge-cum-Fast Track Court, Erode confirming the judgment dated 27.10.2003 made in CC.No.541 of 2002 on the file of Judicial Magistrate No.I, Erode.
For Petitioner : M/s.V.S.Kesavan
For Respondents : M/s.C.S.Saravanan for R1
M/s.I.Paul Noble Devakumar
G.A.(Crl. Side) for R2.
The accused is the petitioner herein. The revision is filed against the judgment of conviction made in C.A.No.176 of 2003 on the file of Additional District Judge-cum-Fast Track Court, Erode confirming the judgment made in CC.No.541 of 2002 on the file of Judicial Magistrate No.I, Erode.
2. The case of the first respondent against the petitioner in his private complaint is that the petitioner on 14.07.2002 borrowed a sum of Rs.2,50,000/- as loan and paid interest of Rs.5,000/- and for the due repayment of the principle amount issued Ex.P1 cheque dated 12.08.2002, and when the same was presented for encashment on 13.08.2002, the same is returned for want of sufficient funds and the same was intimated to the petitioner by notice dated 23.08.2002 and the petitioner did neither respond to the notice nor pay the amount. The first respondent/complainant has in order to prove his case before the trial court examined himself as PW1 and has also produced Ex.P1 to Ex.P6 documents. The trial court has on the basis of the available records accepted the case of the complainant that Ex.A1 cheque is issued for the due repayment of loan amount of Rs.2,50,000/- and found the accused guilty of the offence under section 138 of the Negotiable Instruments Act (herein after referred to as "N.I. Act") and sentenced him to undergo imprisonment and to pay fine. Aggrieved against the same, the petitioner preferred C.A.176 of 2003 and the lower appellate court has also confirmed the findings and the judgment of conviction based on such finding passed by the trial court. Hence, this criminal revision by the accused before this court.
3. The learned counsel for the revision petitioner has argued that, though the petitioner admits his signature in the cheque and the issuance of cheque, the petitioner stoutly denies the circumstances in which the cheque is issued. According to the petitioner, the cheque is issued in blank for payment of chit arrears due from the petitioner to the respondent/complainant who conducted the chit transaction.
4. It is further argued by the learned counsel for the petitioner, though the petitioner has sufficiently made out before the court below that there was no such money transaction between the petitioner and the respondent and the respondent has no where withal to pay such huge amount as loan, both the courts below have without considering the such plea raised on the side of the accused found the accused guilty, mainly by invoking the presumption under section 139 of the N.I. Act and on the ground that the petitioner failed to rebut the same. It is also argued by the learned counsel for the petitioner, that the standard of proof required to be adduced by the petitioner to discharge the burden cast upon him is not beyond reasonable doubt but only preponderance of probability and it is sufficient discharge if he is able to create reasonable doubt in the mind of the court about the truthfulness of the transaction between the parties and as the petitioner has successfully made out one such case that the nature of the transaction is not the one as claimed by the complainant the courts below ought to have absolved the petitioner from liability to adduce further evidence and ought to have shifted the burden upon the complainant to prove his case and on his failure to do so rejected his case and acquitted the accused and the failure of the court below to adopt such course has resulted in totally erroneous finding.
5. Per contra, the learned counsel for the respondent/complainant would strenuously contend that though the presumption raised under section 139 of the N.I. Act is rebuttable the burden is upon the accused/petitioner to adduce sufficient material to rebut the same and mere raising some vague and bald defence in the course of trial is not sufficient enough to discharge the burden and the failure of the petitioner to issue reply notice and to enter into the witness box are the factors to be viewed against the petitioner and the minor discrepancies in the testimony of PW1 cannot be highlighted to reject the case of the complainant in toto.
6. The learned counsel for the petitioner and respondents have also cited authorities of the Supreme Court and our High Court in support of their respective contentions.
7. I have heard the rival submissions made on both sides and perused the records and authorities cited on both sides.
8. For the purpose of convenience the parties are referred to as per their rank in the trial court.
9. In the instance case, the signature and the issuance of cheque in question to the respondent is not denied. That being so, the trial court has rightly drawn the presumption under section 139 of the N.I. Act, that the same is issued for legally enforceable liability existing on the date of issuance of the cheque and has rightly cast the burden upon the accused to rebut such presumption.
10. The well settled legal position, which is reiterated in the recent larger bench judgment of Supreme Court reported in 2010 (4) CTC 118 in Rangappa V. Sri Mohan is 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 and if the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. It is further observed in the same judgment that the accused can rely on the materials submitted by the complainant in order to raise such a defence. It is also observed by the Supreme Court in the earlier judgment reported in 2008 (1) CTC 433 in Krishna Janardhan Bhat V. Dattatraya G. Hedge that the court must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the N.I. Act, the same may not lead to injustice or mistaken conviction and the accused for discharging the burden of proof placed upon him under the statute need not examine himself and he can discharge his burden on the basis of the materials already brought on records and the accused has a constitutional right to maintain silence and standard of proof on the part of the accused and that of the prosecution in a criminal case is different. It is also observed by the Supreme Court that the presumption of innocence as a human right and the doctrine of Reserve Burden introduced under section 139 should be delicately balanced and such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to the legal principles governing the same. The test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused cannot be expected to dishcarge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden.
11. Only in this legal matrix the facts of the present case is to be necessarily appreciated. It is true that the petitioner raised the defence to the effect that the cheque in question is issued not in the circumstances as alleged in the complaint but under different circumstances only after the proceedings under section 138 is initiated such defence is for the first time raised by way of suggestion to PW1 in the course of his cross examination. The petitioner has neither sent any reply to that effect to the statutory notice issued by the complainant nor he entered into the witness box and deposed so. As far as his failure to reply the statutory notice, the same is sought to be highlighted on the side of the complainant by relying upon the judgment of our Supreme Court reported in 2010 (4) CTC 118 and judgment of our High Court reported in 2006 (1) L.W. (Crl.) 433 in K.P. Chinnasamy V. T.B.Kennedy. It is true that in both the cases, the Supreme Court and our High Court have in the given circumstances attached serious importance to the failure on the part of the accused to reply to the statutory notice and drew adverse inference against the accused. However, whether despite of such failure in the instant case the accused is able to rebut the presumption invoked in this case or not is to be necessarily considered only in the light of the other materials already brought on record as pointed out by the accused in support of his defence.
12. The learned counsel for the petitioner pointed out the following aspects in support of his contention (i) there was no money transactions on earlier occasion between the complainant and the petitioner (ii)different ink and different hand writing are used in the cheque in question (iii) the date on which the cheque is issued by the petitioner presented for clearance and the purpose for which the amount is said to be borrowed and the shorter period within which the amount is allegedly agreed to be repaid (iv) the absence of knowledge of PW1 about the contents of the cheque in question and about the time at and the manner in which the contents are filled (v) financial incapacity of the complainant to pay such a huge amount as loan (vi)non examination of one Munusamy who is according to the complainant fully aware of not only the money transaction but also the contents of the cheque and the manner in which it is filled up.
13. The cursory glance at the cheque in question would leave no doubt that the same is undisputedly filled up in three different hand writing and three inks and in three different ink. The complainant has as PW1 deposed in the witness box that the cheque bearing No.645152 dated 12.08.2002 for Rs.2,50,000/- is drawn on Indian Bank, Main Branch at Erode and the same is signed and issued to the complainant for the repayment of Rs.2,50,000/- borrowed on 14.07.2002 and PW1 has further stated in his cross examination stated that the accused brought the filled up cheque and singed it in his presence and handed over the same to the petitioner. However, he has in the later part of his cross examination denied any knowledge about the different inks and different handwriting used to fill up the contents of the cheque and he would categorically admit that he did not know to whose name the cheque was issued and the quantum of amount mentioned in the same and the person in whose presence it is issued.
14. It is only stated by him one Munusamy was present through out the transaction and it is the said Munusamy who is only aware of all the particulars including the contents of the cheque and he will be able to furnish the particulars in this regard. PW1 has but denied the suggestions put to him that the blank cheque was issued for payment of chit arrears and though the chit arrears was already paid the cheque was not returned but later on filled up to file the present case.
15. As rightly pointed out by the learned counsel for the petitioner the fact that different inks and different pens used to fill up the contents of the cheque is if viewed in the light of the denial of knowledge by the complainant about the contents of the same would lead to a reasonable doubt as to whether the cheque was issued in the circumstances as narrated in the complaint. Further though the specific case raised in the complaint is that the accused borrowed Rs.2,50,000/- on 14.07.2002 agreeing to repay the amount on 12.08.2002 and issued the cheque dated 12.08.2002 it is not stated in the complainant. It is not specifically stated as to whether the cheque bearing post date was issued on the same date of borrowal on 14.07.2002 or the borrowal was on 14.07.2002 and cheque was issued on 12.08.2002. Further neither the statutory notice, nor the complaint would whisper the reason for which the amount is borrowed. The same is for the first time put forth by PW1 as if the amount is borrowed for house construction expenses in the course of cross examination of PW1. As rightly argued on the side of the accused had it been true that huge sum of Rs.2,50,000/- was borrowed for building construction expenses the same would not have been agreed to be repaid within one month by issuing cheque dated 12.08.2002. In my considered view the allegations that the loan transaction was effected on 14.07.2202 for such shorter duration appears to be doubtful.
16. Next aspect to be considered is the financial condition of the complainant. It is his case that he is running travels by renting out mini buses, tourist car and taxis and he is not professional financier. He would further say that the accused was introduced to him through one Munusamy and the accused had money transaction with the complainant on two or three earlier occasions and the complainant had also similar money transaction tut[ bryt[ with two or three more other persons. Curiously enough the so called Munusamy is not at all brought into the witness box. It is also note worthy to mention at this juncture, that PW1 is in the course of his cross examination suggested on behalf of the accused that PW1 has no capacity to pay such huge amount as hand loan. Considering the nature of the business being carried on by the complainant, the contention so raised on the side of the accused deserves some merits and acceptance.
17. In that event, the combined appreciation of the factors discussed above would throw serious doubt about the nature of transaction effected between the parties and the same relieves the accused of burden cast upon him and shifts the burden upon PW1 and PW1 ought to have produced satisfactory materials such as accounts etc., to prove his capacity to pay Rs.2,50,000/- as loan amount to the accused and that he had money transaction with two or three persons. But no such material is produced by PW1, it is also not stated by PW1 as to whether the money was paid by cash or cheque, no such particulars are available to ascertain the financial capacity of the petitioner to lend such huge amount. As rightly argued by the learned counsel for the accused, when PW1 has categorically admitted that it is Munusamy who knows the contents of the cheque in question non examination of the said Munusamy who introduced the accused to PW1 and who was fully aware of the previous money transactions between the complainant and the accused and who was fully aware and was present through out the transaction in question assumes greater significance and importance in this case.
18. Thus the failure of the complainant to give possible explanation for all the material discrepancies found in the evidence and for the non examination of one Munusamy would only compel this court to hold that the prosecution fails to prove the case as pleaded in the complainant. As such the mere failure of the accused to reply the statutory notice and to enter the witness box will in no way affect the merit of the defence raised on the side of the petitioner/accused.
19. However, both the courts below have totally on erroneous approach to the facts of the case arrived at erroneous conclusion that the accused fails to discharge the burden of rebutting the legal presumption raised in favour of the complainant and both the courts below thus passed the order of conviction solely by applying the presumption clause and the same deserves interference on the grounds discussed above.
20. In the result, the criminal revision is allowed by setting aside the judgment dated 12.05.2005 made in C.A.No.176 of 2003 on the file of Additional District Judge-cum-Fast Track Court, Erode and the judgment dated 27.10.2003 made in CC.No.541 of 2002 on the file of Judicial Magistrate No.I, Erode. The fine amount, if any, paid by the petitioner is directed to be refunded to him. The bail bonds executed by the accused stands cancelled. tsh
1.The Additional District Judge-cum-Fast Track Court, Erode.
2.The Judicial Magistrate No.I,