2017 (1) TMI 1500 - HC - Indian Laws

Judgment of Acquittal - case of appellant is that the trial Court had committed an error in acquitting the Respondent/Accused, by not taking into a very vital fact that the Respondent had borrowed a sum of ₹ 3,00,000/- from the Appellant/Complainant towards his urgent family expenses and to discharge the said amount, the latter issued a cheque on the same day - Appellant urges before this Court that the onus is on the Respondent/Accused to prove that Ex.P1 Cheque dated 02.05.2015 was not legally enforceable one. Held that - It is well settled in Law that when an individual had paid an amount payable by him, he ought to have been discharged his obligation and a creditor is bound to accept the tender. In fact, under Section 138 of the Negotiable Instruments Act, a Court of Law is to presume that a cheque was issued towards a debt or liability and in reality, the said presumption is a rebuttable one, the onus of proving that the cheque was not issued for a debt or liability is on an Accused. A Drawer has to establish the same in the course of trial of a main case by adducing a cogent, coherent and convincing evidence. One cannot brush aside a very significant fact that it is not for the prosecution to eliminate and anticipate all possible defence circumstances which may exonerate an accused - It is true that an Appellate Court is not meant to fill up the gaps/lacunae in a prosecution case. However, when it is the duty of a concerned Court of Law to ascertain the factual aspect/truth in a given case, then, an Appellate Court can re-appreciate the evidence available on record and to come to its independent conclusion. Maintainability of Appeal - Held that - Just because a Leave was granted it does not fetter the Court when real facts were brought before it from going into the issue whether an Appeal is maintainable. Where an acquittal in Appeal was recorded by the Sessions Judge, an application for Leave to have under sub-section (4) of Section 378 Cr.P.C. by the Complainant is maintainable. In fact, Section 378(4) Cr.P.C. applies as much to cases instituted upon complaints for the offences under I.P.C. as it does to complaints involving any other offence under any special enactment - Section 378(4) Cr.P.C. places no restriction on the complainant. Section 4(2) Cr.P.C. enjoins that all offences under any other Law, other than I.P.C. shall also be enquired into or tried and otherwise dealt with the provisions of the Code, subject to any other enactment which contemplates a different mode of trial for such offence. Furthermore, the non-obstante clause in Section 142 of the Negotiable Instruments Act clearly spell out that the three matters mentioned in Section have an overriding effect on the ingredients of Criminal Procedure Code. Apart from that, in an exercise of an Appellate Jurisdiction, the Court has power not only to correct an error in the Judgment under Appeal but to make such disposition of the case, of course according to equity, good conscience, fair play and Justice. This Court is of the considered opinion that an opportunity is to be provided to the Appellant/Complainant to examine Palanisamy on his side to repel/repudiate the stand of the Respondent/Accused. Also that, when it is a case of the Appellant/Complainant that at the time of loan amount being paid to the Respondent/Accused, his wife was present, then, this Court is of the cocksure view that the Appellant/ Complainant is to examine his wife to speak about the transaction in issue (especially when it was disputed on the side of Respondent/ Accused). The entire subject matter in issue is remanded back to the Learned Judicial Magistrate, Fast Track Court (Magisterial Level), Attur for fresh consideration in the manner known to Law and in accordance with Law.

Summary

Issues Involved:
1. Whether the trial court erred in acquitting the Respondent/Accused under Section 138 of the Negotiable Instruments Act.
2. The onus of proof regarding the legality of the cheque.
3. The procedural and evidentiary aspects under the Negotiable Instruments Act.
4. The maintainability of the appeal against the acquittal.
5. The necessity of examining additional witnesses to substantiate the Appellant's case.

Issue-wise Detailed Analysis:

1. Whether the trial court erred in acquitting the Respondent/Accused under Section 138 of the Negotiable Instruments Act:
The trial court observed that the Appellant/Complainant did not make an effort to examine a crucial witness, Palanisamy. It also noted that the Respondent/Accused argued that the case was filed at Palanisamy's instance and the cheque was given to Palanisamy, not the Appellant. The trial court concluded that the relationship between the Complainant and the Accused regarding the legally enforceable debt was unsubstantiated, leading to the Accused's acquittal under Section 138 of the Negotiable Instruments Act.

2. The onus of proof regarding the legality of the cheque:
The Appellant contended that the onus was on the Respondent/Accused to prove that the cheque was not legally enforceable. The Appellant argued that the Respondent had not denied executing the cheque but claimed it was given to Palanisamy. The Respondent did not provide any documents or witnesses to support his claim. The Appellant presented the cheque for collection, which was returned, leading to a demand notice and subsequent complaint under Sections 138 and 142 of the Negotiable Instruments Act.

3. The procedural and evidentiary aspects under the Negotiable Instruments Act:
The court emphasized that Section 138 of the Negotiable Instruments Act aims to ensure faith in banking operations and credibility in transacting business on negotiable instruments. The presumption under Section 138 is not automatic and is a rebuttable one. The onus of proving that the cheque was not issued for a debt or liability lies with the Accused. The court also discussed the significance of Sections 139 and 106 of the Indian Evidence Act, highlighting that the burden of proof is not static and can shift based on the circumstances.

4. The maintainability of the appeal against the acquittal:
The court noted that objections regarding the maintainability of an appeal could be raised at any stage. The grant of leave to appeal does not bar the court from examining the issue of maintainability. The court referenced several legal precedents to support the view that appeals against acquittal are maintainable under specific conditions, including the involvement of glaring defects or manifest errors in the trial court's judgment.

5. The necessity of examining additional witnesses to substantiate the Appellant's case:
The court found that the Appellant/Complainant should be given an opportunity to examine Palanisamy and his wife to substantiate the claim that the loan transaction occurred in their presence. The court directed the trial court to allow the Appellant to present these witnesses and any additional evidence. The Respondent/Accused was also directed to examine himself and any other witnesses to support his defense.

Result:
The High Court set aside the trial court's judgment and remanded the case for fresh consideration. The trial court was instructed to provide adequate opportunities for both parties to present further oral and documentary evidence. The trial court was directed to dispose of the matter within four months, ensuring a fair and unbiased adjudication.