2018 (8) TMI 1296 - HC - Indian Laws

Dishonor of Cheque due to insufficiency of funds - Restoration of order of conviction passed by the learned Judicial Magistrate No.II - Trial Magistrate held that since the respondents have not produced any document to show that they have settled the amount payable by the fifth accused to the complainant and upon comparision of the signature in Ex.P17, statement of account with the cheques in question, concluded that the accused are guilty of the offence. Held that - The Trial Court has erroneously convicted the respondents 1 to 4 herein without properly appreciating the evidence on record. It appears that Criminal miscellaneous petition was filed under Section 311 of the Code of Criminal Procedure Code to recall the PW1 for re-examination through whom Ex.P17 was marked to show as if the cheque was given to the appellant/ private complainant towards a legally enforceable debt, at the instance of the fifth accused. It is to be noted that during cross examination, (after marking of Ex.P17) the signature in Ex.P17 was specifically denied by the respondents herein. This Court is of the considered view that the first appellate Court is right in entertaining a suspicion with respect to the coming into existence of Ex.P17, which has not been whispered at the earlier point of time but only at the conclusion of the Trial Court. Thus, taking into consideration of Ex.P17, the first Appellate Court has rightly held that there is no proper explanation with respect to liability between the A1 and A5 alleged therein and for the debt due by A-5, A1 has issued the cheque in question - appeal dismissed.

Summary

Issues:
1. Appeal against acquittal under Section 138 of The Negotiable Instruments Act.
2. Comparison of evidence between Trial Court and Appellate Court.
3. Validity of documents presented as evidence.
4. Nexus between the complainant and the accused firms.
5. Discrepancies in witness testimonies.

Analysis:
1. The Criminal Appeal was filed against the Judgment of acquittal of the respondents by the Appellate Court under Section 138 of The Negotiable Instruments Act. The private complainant/appellant preferred the complaint, and after trial, the accused were found guilty by the Trial Court. However, the First Appellate Court acquitted the accused, leading to the current appeal by the appellant.

2. The Trial Court convicted the accused based on evidence presented by the complainant's authorized representative, while the Appellate Court questioned the validity of the evidence. The Sessions Court concluded that there was no connection between the accused firms and the cheques in question, highlighting discrepancies in the evidence and lack of nexus between the complainant and the respondents.

3. The Trial Court marked several documents as evidence, including cheques and legal notices. The Appellate Court raised concerns about the authenticity and reliability of these documents, especially Ex.P17, which was presented late in the proceedings and not mentioned earlier. The validity of the documents played a crucial role in the decision-making process of both courts.

4. The case revolved around establishing a nexus between the complainant and the accused firms. The appellant claimed that the accused firms issued cheques to settle a debt owed by a sister concern, while the respondents denied any involvement or liability. The Trial Court convicted the accused based on the evidence presented, but the Appellate Court found discrepancies and lack of proper explanation regarding the alleged liability.

5. Discrepancies in witness testimonies, especially regarding the issuance of cheques and partnership details, raised doubts about the credibility of the evidence. The Trial Court's handling of witness examinations and document comparisons came under scrutiny, leading to the Appellate Court's decision to acquit the accused. The judgment highlighted the importance of consistent and reliable evidence in criminal cases under the Negotiable Instruments Act.