2018 (5) TMI 725 - HC - Indian Laws

Payment within statutory time - dishonor of cheque - Examination of respondent - Section 313 Cr.P.C. - admissibility of evidence - the documents filed by the respondent for return of jewellery were photocopies. Held that - In the present case, all original documents were produced by the accused and shown to the appellant and returned before exhibiting the photocopies. Thus the documents Ex.CW1/D1 to Ex.CW1/D5 were proved in accordance with law. Even otherwise an objection as to mode of proof can be taken at the stage of trial only as held by the Supreme Court in the decision in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple 2003 (10) TMI 639 - SUPREME COURT . One of the contentions of the Learned Counsel for the appellant was since the statement of the respondent was not recorded under Section 313 Cr.P.C., trial was conducted in an arbitrary manner. This contention deserves to be rejected in view of the decision of Supreme Court in Basavaraj R. Patil v. State of Karnataka 2000 (10) TMI 953 - SUPREME COURT wherein it was observed that Section 313 Cr.P.C. is only for the benefit of the accused and prejudice, if any, can only be caused to the accused for his non-examination under Section 313 Cr.P.C. and not the complainant. The provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion - It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. Appeal dismissed.

Issues Involved:
1. Non-examination of the respondent under Section 313 Cr.P.C.
2. Admissibility of photocopied documents as evidence.
3. Presumption and burden of proof under Section 138 of the NI Act.
4. Respondent's defense of returning jewelry and making partial payments.
5. Appellant's failure to disclose the loan amount in the ITR.

Issue-wise Detailed Analysis:

1. Non-examination of the respondent under Section 313 Cr.P.C.:

The appellant contended that the trial was conducted arbitrarily as the respondent was not examined under Section 313 Cr.P.C. However, this contention was rejected based on the Supreme Court's decision in Basavaraj R. Patil v. State of Karnataka, which clarified that Section 313 Cr.P.C. is primarily for the benefit of the accused, and any prejudice from non-examination under this section would affect the accused, not the complainant.

2. Admissibility of photocopied documents as evidence:

The appellant argued that the documents filed by the respondent were photocopies and inadmissible. However, the court noted that all original documents were produced by the accused, shown to the appellant, and returned before exhibiting the photocopies. This procedure was in accordance with the law. Furthermore, the objection to the mode of proof should have been raised during the trial, as held in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple. Since the appellant did not object at the appropriate time, the documents were deemed admissible.

3. Presumption and burden of proof under Section 138 of the NI Act:

The court discussed the legal framework regarding the presumption and burden of proof under Sections 118(a) and 139 of the NI Act. It was emphasized that these presumptions are rebuttable and that the accused does not need to step into the witness box to discharge the burden of proof. The standard of proof for the prosecution is beyond a reasonable doubt, while for the accused, it is preponderance of probabilities. The Supreme Court's decisions in K. Prakashan v. P.K. Surenderan and Rangappa v. Sri Mohan were cited to elaborate on these principles.

4. Respondent's defense of returning jewelry and making partial payments:

The respondent claimed to have returned jewelry worth ?23,50,000 and made partial payments of ?10,50,000, which was supported by receipts and documents. The appellant admitted to receiving some payments and jewelry but disputed the amounts. The court found that the respondent had successfully probabalised her defense through cross-examination and documentary evidence. The documents Ex.CW1/D1 to Ex.CW1/D5 were proved in accordance with the law.

5. Appellant's failure to disclose the loan amount in the ITR:

The appellant argued that non-disclosure of the loan amount in the ITR was not fatal to the case, relying on Lekh Raj Sharma v. Yash Pal Gupta. However, the court found that the appellant's failure to mention the transactions in the ITR weakened his case. The appellant admitted that no bills or invoices were prepared for the jewelry supplied, and the transactions were not recorded in the books of accounts, further undermining his claims.

Conclusion:

Considering that the respondent had probabalised her defense and the appellant's contentions lacked merit, the court found no error in the trial court's judgment. The appeals were dismissed, and the trial court records were ordered to be sent back.

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