2023 (7) TMI 37 - HC - Indian Laws

Dishonour of Cheque - insufficient funds - legally enforceable debt - rebuttal of presumption - onus to prove - HELD THAT - The complainant P.S. Deivaraj in his cross examination had admitted that, he is a financier and also doing real estate business. He is an income tax assessee and he pay tax disclosing his income. However, he is not able to recollect his annual income and tax paid. He is not sure whether he had disclosed the loan transaction of Rs. 2,00,000/- with the accused. He admits that as a financier he used to advance money after getting pro-note. According to his testimony, the transaction with the accused is concerned, the accused borrowed money on promise to repay the loan amount with 18% interest within 5 months, but had paid interest only for two months and stopped paying the interest. He admits that he has not stated in his complaint or his statutory notice about execution of pro-note or promise to repay the money with interest. If the evidence of the accused, who was examined as DW-1 is scrutinised, we find he had reiterated that the cheque was obtained from him under force with the help of the police and he has lodged the complaint to the police, Chief Minister Cell and Human Rights Commission about the crime of extortion. He has specifically admitted that he had money transaction with the finance company by name 'Subalakshmi' and 'Yogalakshmi' and he owe the money due and payable under the Hire Purchase Agreement - When the complainant was cross examined about the two finance companies, he had denied knowledge about the existence of those two finances company till he received the reply notice from the accused. The complainant has also denied about knowledge regarding the complaints made by the accused before the police, Chief Minister Cell and Human Rights Commission. Having admitted the signature found in the cheque marked as Ex.P1, whether the accused had discharged his onus of rebutting the presumption? - HELD THAT - The accused has failed to prima faciely show that he had transaction with the finance company by name 'Subalakshmi' 'Yogalakshmi'. He had failed to prove that the signature in the cheque was obtained under threat and force. The self serving documents Ex.D1 to Ex.D5 does not probabilise the case of the accused regarding the Hire Purchase loan with some other third party and in connection with the said dealing the subject cheque was obtained with the help of police - This Court take also note of the fact that the accused has alleged in the reply notice that the signature found in the cheque are forged and fabricated, but later sent the complaint to police authorities that he was forced to sign in the blank cheque under threat. For neither of his defence, he has let evidence to probabilise. A belated complaint much after issuance of the cheque alleging that it was obtained under force cannot be taken as an evidence probabilising the case of the accused. The Criminal Revision Case, which is taken as an appeal exercising inherent power, after giving due consideration to the points raised by the learned counsels for the accused and the complainant, holds that the complainant has proved his case against the accused. The offence under Section 138 of the Negotiable Instruments Act, 1881 is made out. Appeal dismissed.

Summary

Issues Involved:
1. Jurisdictional Court for appeal against acquittal in a private complaint.
2. Procedural aspects of transposing parties in criminal cases.
3. Evaluation of evidence and findings of the trial and Sessions Courts regarding the offence under Section 138 of the Negotiable Instruments Act, 1881.

Summary:

Issue 1: Jurisdictional Court for Appeal Against Acquittal in a Private Complaint

The primary legal issue addressed was whether the victim of a crime prosecuted via a private complaint has a statutory right of appeal against acquittal under the proviso to Section 372 of the Code of Criminal Procedure (Cr.P.C.), or must seek leave to appeal under Section 378(4) of Cr.P.C. The Hon'ble Full Bench in G.Ganapathy v. N.Senthilvel [(2016) 4 CTC 119] initially held that such an appeal should be filed before the Sessions Court under the proviso to Section 372 of Cr.P.C. However, this was later declared per-incuriam by another Full Bench in Rajalingam v. Suganthalakshmi [2020 SCC Online Mad 1052], which concluded that the appeal should lie only before the High Court under Section 378(4) of Cr.P.C., with special leave under Section 378(5) of Cr.P.C.

Issue 2: Procedural Aspects of Transposing Parties in Criminal Cases

The Court discussed the procedural aspects of transposing parties, concluding that transposing the complainant as the appellant and the accused as the respondent is not in tune with the Code of Criminal Procedure. The Court emphasized that any order passed by a lower court with jurisdiction at the time of its decision should be tested judicially in an appeal or revision, not simply disregarded. The Court exercised its inherent power under Section 482 Cr.P.C. and supervisory power under Article 227 of the Constitution to treat the grounds of revision filed by the accused as grounds of appeal, thus avoiding unnecessary procedural complexities.

Issue 3: Evaluation of Evidence and Findings of the Trial and Sessions Courts

The trial Court had dismissed the complaint and acquitted the accused, noting the complainant's failure to establish the foundational fact of passing of consideration and issuance of the cheque for a legally enforceable debt. The Sessions Court reversed this decision, accepting the complainant's case that the accused had issued a cheque for Rs. 2,00,000/- which was dishonored due to insufficient funds. The High Court, upon reviewing the evidence, including the complainant's admissions and the accused's defense, concluded that the accused had failed to rebut the presumption under Sections 118 and 139 of the Negotiable Instruments Act, 1881. The High Court confirmed the Sessions Court's judgment, holding the accused guilty under Section 138 of the Negotiable Instruments Act, 1881, and dismissed the Criminal Revision Case.

Conclusion:

The Criminal Revision Case, treated as an appeal, was dismissed, and the judgment of the Principal Sessions Judge, Namakkal, in C.A.No.30 of 2017, dated 04.11.2019, was confirmed. The accused was ordered to be secured and remanded to judicial custody to undergo the remaining period of the sentence.