2017 (8) TMI 1 - HC - Indian Laws

Appeal under Section 378(4) of Cr.P.C., as against the Judgment of Acquittal - Negotiable Instruments Act - Held that - In the present case, it is to be pointed out by this Court that for a large sum of ₹ 5,00,000/- purportedly lent by the Petitioner / Appellant to the Respondent / Accused, no pro-note was taken by the Petitioner / Appellant / Complainant from the Respondent / Accused. Even in the absence of pro-note, except Ex.P.1, Cheque there appears to be no document in the form of receipt or in any other manner to and in favour of the Petitioner / Appellant / Complainant evidencing the payment of loan amount in question. In Law, the Respondent / Accused need not enter into the Witness Box and in fact he can maintain silence. The Onus of Proof to establish a case lies on the Petitioner / Appellant and in fact the Respondent / Accused can pick holes or gather sufficient materials from the evidence of the complainant witnesses and is entitled to shake their evidence. The Respondent / Accused in his evidence, as D.W.1, had stated that the Petitioner / Appellant / Complainant is running a small provision store and the value of items in his shop would be ₹ 25,000/- and it was false to state that he issued cheque for ₹ 5,00,000/- and obtained a loan on 27.09.2014. Moreover, it is the evidence of P.W.1 that presently through Periyasamy, a cheque case was filed against him for ₹ 10,00,000/- on the file of Learned Judicial Magistrate, Bhavani and the same is pending. Apart from that, the Respondent / Accused had raised a plea that through Periyasamy, the Petitioner / Appellant had filed the present case before the trial Court. This Court comes to an irresistible conclusion that the Petitioner / Appellant / Complainant had failed to establish that Ex.P.1, Cheque was issued by the Respondent / Accused for a Legally Enforceable Debt . Per contra, this Court is of the considered opinion that the Respondent / Accused had shaken the evidence of P.W.1 by gathering materials from his evidence. Moreover, P.W.1 had given a contradictory evidence during the trial in regard to the payment of loan amount to the Respondent / Accused. Looking at from any angle, the Judgment of the trial Court dated 24.10.2016 in S.T.C No.32 of 2015 is free from any flaw. Therefore, the Leave sought for by the Petitioner / Appellant / Complainant to prefer an Appeal in present Criminal Original Petition is not acceded to by this Court.

Summary

Issues Involved:

1. Grant of Special Leave to Appeal under Section 378(4) of Cr.P.C.
2. Validity and correctness of the Judgment of Acquittal.
3. Establishment of legally enforceable debt under Section 138 of the Negotiable Instruments Act.
4. Assessment of evidence and documents produced by the complainant.
5. Consideration of respondent’s defense and rebuttal of presumption under Section 139 of the Negotiable Instruments Act.

Issue-wise Detailed Analysis:

1. Grant of Special Leave to Appeal under Section 378(4) of Cr.P.C.:
The petitioner sought permission to appeal against the acquittal judgment dated 24.10.2016 passed by the II Additional District Munsif, Bhavani. The court examined whether there were sufficient grounds to grant special leave for the appeal.

2. Validity and correctness of the Judgment of Acquittal:
The trial court acquitted the respondent under Section 255(1) of Cr.P.C., stating that the complainant failed to produce sufficient documents, such as the chit book and jewelry receipts, to establish the source of income and the legally enforceable debt. The petitioner argued that the trial court overlooked critical aspects like the respondent not denying the signature on the cheque and the ownership of the bank account.

3. Establishment of legally enforceable debt under Section 138 of the Negotiable Instruments Act:
The trial court found that the complainant did not establish that the cheque was issued for a legally enforceable debt. The petitioner argued that the respondent did not deny the cheque's authenticity or ownership of the bank account. However, the court noted that the complainant failed to provide corroborative evidence such as a pro-note or receipt for the alleged loan of ?5,00,000.

4. Assessment of evidence and documents produced by the complainant:
The complainant’s evidence was inconsistent and contradictory. P.W.1 (complainant) could not clearly explain how he managed to raise ?5,00,000, and there were discrepancies in his statements regarding the sources of the money. The court emphasized that the complainant did not produce any supporting documents to substantiate his claim of lending the money.

5. Consideration of respondent’s defense and rebuttal of presumption under Section 139 of the Negotiable Instruments Act:
The respondent denied borrowing money from the complainant and claimed that the cheque was given as security for a different transaction with a third party, Sidhivinayagar. The court noted that the respondent successfully rebutted the presumption under Section 139 by pointing out inconsistencies in the complainant’s evidence and lack of supporting documents.

Conclusion:
The court concluded that the petitioner failed to establish that the cheque was issued for a legally enforceable debt. The respondent effectively rebutted the presumption under Section 139 by highlighting the complainant’s inconsistent evidence. The court found no legal infirmities in the trial court’s judgment of acquittal and dismissed the petition for special leave to appeal.