2024 (2) TMI 1244 - HC - Indian Laws

Dishonour of Cheque - Rule of evidence - acquittal of accused - Proof of liability - service of demand notice - complainant company has proved their representative C.W. No. 1 was authorised by them to give evidence before the court or not - trial court has committed wrong in discarding the oral and documentary evidence or not - HELD THAT - It is a rule of evidence that a document has to be proved by producing the original that is primary evidence. It is also true that a document can be proved by way of secondary evidence. There are rules for producing a secondary evidence. It is laid down in Section 65 of the Indian Evidence Act. If the conditions therein are fulfilled the party can rely upon secondary evidence. So can it be said that the complainant was justified in relying upon certified true copy of board resolution instead of producing the original minutes book? When the complainant has averred in the affidavit about production of the original and prayed for return of document, I think the complainant has fulfilled its responsibilities of proving the same - it was necessary for the accused at least to point out during the cross-examination that their originals are not produced. He need not call upon the complainant s witness to produce their original, he could have certainly asked the complainant s witness that the original minutes book is not produced. This was not put during the cross-examination. So that was the best opportunity for the accused to point out that lacuna. In fact, he allowed the complainant to go on with the case on the basis of the line of cross-examination he has adopted. Ultimately, the trial is conducted on the basis of what case you are putting. When it comes to the accused it is by way of cross-examination. When these questions were not put to complainant at a subsequent stage, you cannot put him to surprise by raising that plea subsequently at the time or arguments. This objection is not of such a kind which goes to the root of the matter. This objection is about mode of proof of the document. By way of his conduct, the Respondent Accused was not justified in raising this plea at subsequent stage. Certainly, the findings can be considered as perverse. Because the trial court has unnecessarily observed about non-production of the original minutes book while writing the judgment. The observation is erroneous and unwarranted in the set of facts and circumstances mentioned above. When the witness has produced the original at some point of time, it was not objected throughout the trial, then the learned trial judge was wrong in discarding the true copy of the resolution simply for the reason that original minutes book is not produced. This is hyper-technical view and needs to be corrected. Thus, it is held that the complainant has proved that the Respondent Accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act. Hence, judgment of acquittal needs to be set aside and Respondent Accused needs to be convicted for offence under Section 138 of the Negotiable Instruments Act - Respondent Accused is sentenced to pay a fine of Rs. 1,00,00,000/-. Appeal allowed.

Summary

Issues Involved:
1. Whether the complainant company proved that their representative was authorized to give evidence before the court.
2. Whether the trial court erred in discarding the oral and documentary evidence.

Summary:

Issue 1: Authorization of Representative
The main contention was whether the complainant company had adequately proven that their representative, C.W. No. 1, was authorized to give evidence. The trial Magistrate had previously acquitted the accused due to the complainant's failure to prove this authorization.

The complainant's counsel argued that the authorization was sufficiently proven through various documents, including an affidavit by the Chairman and Authorized Representative, Mr. Hashim Abdul Razak, and certified copies of the Board Resolution and minutes book. These documents were marked as exhibits by the trial court, which indicated that the court was satisfied with their authenticity at the time.

The defense argued that the originals of these documents were never produced in court, which was a necessary step for verification. However, the appellate court noted that the defense did not challenge the authenticity of these documents during cross-examination or through their own evidence, thus waiving their right to object later.

The appellate court concluded that the trial court's findings were perverse and hyper-technical, and the complainant had indeed fulfilled the burden of proving the documents. The trial court's decision to discard the true copies of the resolution was deemed erroneous.

Issue 2: Error in Discarding Evidence
The appellate court reviewed the trial court's handling of the documentary evidence. The trial court had refused to accept the certified copies of the Board Resolution and minutes book on the grounds that the originals were not produced. The appellate court found this to be an unnecessary and incorrect application of the law, especially since the complainant had indicated the originals were available for verification.

The appellate court emphasized that objections regarding the mode of proof should be raised at the time of evidence recording, not subsequently. The defense's failure to challenge the documents during cross-examination meant they could not later argue about the non-production of originals.

Conclusion:
The appellate court held that the complainant had proven the authorization of their representative and that the trial court had erred in discarding the evidence. The judgment of acquittal was set aside, and the respondent was convicted under Section 138 of the Negotiable Instruments Act.

Order:
1. The appeal is allowed.
2. The acquittal judgment dated 9th August 2019 is set aside.
3. The respondent is found guilty under Section 138 of the Negotiable Instruments Act.
4. The respondent is sentenced to pay a fine of Rs. 1,00,00,000.
5. The fine amount must be deposited within two months.
6. Rs. 99,90,000 of the fine will be paid to the complainant, and Rs. 10,000 will be appropriated to the State Government.
7. If the respondent fails to pay the fine, he will undergo six months of simple imprisonment.
8. A copy of the order will be provided to the respondent free of cost.