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TMI Blog2018 (9) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution against the company. The said dictum does not cover proprietary concern. Does mere denial of facts regarding transaction, sufficient to hold the accused has rebutted the statutory presumption under Section 139 of N.I. Act? - Held that:- When the complainant has proved the agreement Ex.P.2 through attesting witnesses and the claim of alibi not proved by the accused, the lower appellate Court has erroneously held that Ex.P.2 is titled as Agreement, it is not written in stamp papers, the agreement required stamp duty, so Without getting stamp duty penalty, the trial Court has wrongly admitted the same in evidence and marked as exhibit - It is very unfortunate that the lower appellate Court has failed to appreciate the document Ex.P.2 in proper perspective. It is always the content of the document decides the nature of the document, but not the title it carries. Ex.P.2 is recording of the compromise of the panchayat held on 12.07.2002. It is not relied to enforce the content of the document, which disclosed existence of a liability. For collateral purpose to show the cheques in dispute were issued pursuant to the panchayat, it is marked. The accused in this case, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailed in the name of Sudha Gas Agency furnishing the property of his wife as security. Power of attorney was given by the accused in favour of the complainant to run the day to day affairs of the agency. The accused in the year 2002 during the month of March wrote to HPCL to record the name of the complainant as partner of Sudha Gas Agency. However, when dispute arose within the family members of the complainant, the accused took side with his in-laws and tried to thrown him out from the affairs of Sudha Gas Agency. Therefore, to settle the issue amicable between them, panchayat was held in the presence of elders on 12.07.2002. Compromise arrived between them. The complainant agreed to relinquish his right and claim in the business of Sudha Gas Agency in lieu of ₹ 31,00,000/- and on repayment of ₹ 9,00,000/- he has invested in the business, totally ₹ 40,00,000/-. The accused paid ₹ 1,00,000/- in cash on 14.07.2002 and issued the following seven cheques all dated 01.04.2003 for the balance of ₹ 39,00,000/-. Sl. No. Cheque No. Amount Bank 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties: (i)The complainant to prove his case has deposed as P.W.1 and examined 5 witnesses as P.W.2 to P.W.6. In support of his contention that the cheques Ex.P.3 to Ex.P.9 were issued to discharge a legally enforceable debt besides ocular evidence, he has relied upon 48 exhibits. Athinarayanan (P.W.2) and Ganesan (P.W.3) were the witnesses to the panchayat and agreement Ex.P.2 dated 14.07.2002. Subramaniam (P.W.4) Assistant Manager, State Bank of Travancore and Dhamodaran (P.W.5), Manager, Canara Bank, were examined to prove that on the date of presentation of cheques the respective accounts were closed on the instruction of the accused. Jagadeeswar, Senior Manager, HPCL (P.W.6) examined to prove that the complainant was managing the affairs of Sudha Gas Agency and signed in the stock verification register on behalf of Sudha Gas Agency. This witness has identified Ex.P.36 and Ex.P.46, the letters of the accused addressed to the Regional Manager, HPCL expressing his intention to induct the complainant as partner of Sudha Gas Agency. (ii)In defence, the accused has examined two witnesses. Marked 12 exhibits. (The Trial Court has marked the defence documents under 'A' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct the complainant as partner in Sudha Gas Agency, all proves the subject cheques were issued in discharge the debt. Having issued the cheques for discharge of debt as found in Ex.P.2, the accused is liable to pay it. The attempt to rebut the presumption failed in view of falsity and contradictions. 5.On appeal, the first appellate Court on re-appriciation of evidence reversed the finding of the Trial Court on the ground that the complainant is not consistent in his case about the actual amount he invested in the business. The contradiction about the amount he invested falsifies his case. No document produced by the complainant to prove he invested ₹ 10 lakhs for establishing Sudha Gas Agency. The reason to pay additional sum of ₹ 30 lakhs to relinquish from the business, sounds improbable, since the income tax return filed on behalf of the Sudha Gas Agency does not indicate its income worth to pay ₹ 30 lakhs for the partner, who relinquishes his right. Without proper account, the amount arrived at settlement is unbelievable. Ex.P.2 has not been drawn in a stamp paper. On comparison of the signatures of the attesting witness P.W.3 found in Ex.P.2 and Ex.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to take note of this fact, while reversing the well considered judgment of the trial court. 9.The accused initially gave letter to HPCL admitting the fact that the complainant is his partner and helpful in establishing the business both financially and physically, so the partnership has to be recognized by HPCL. He gave paper advertisement through his lawyer Mr.D.Thomson on 23.04.2002 that Tmt.Kanagamani has no right in Sudha Gas Agency. She has no right to remove Dennis Raja from the service of Sudha Gas Agency, who is still the Manager of the said Agency. Later in the Public notice made on 05.04.2003 given through his Advocate Mr.A.W.D.Tilak, he claims that Sudha Gas Agency is owned by him and Tmt.Kanagamani. While these inconsistency in the accused version improbabilises his defence, the lower appellate Court has erroneously reversed the trial Court's finding. Hence, it has to be set aside. 10.Per contra, the learned Senior counsel appearing for the respondent/accused would submit that, the judgement of the lower appellate court needs no interference. The complainant failed to prove any debt enforceable against the accused. The alleged agreement Ex.P.2 is a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not impleading Sudha Gas Agency for which the cheques were issued, is fatal to the case of the complainant. Though it is a fresh plea, it being a question of law, he is entitled to raise this plea at the appellate stage. 12.Heard the learned counsels appearing for the parties. Records perused. 13.The following two points arise in this appeal, which need consideration. (i)Does the complaint not maintainable for its omission to array the Proprietary concern Sudha Gas Agency as accused ? (ii)Does mere denial of facts regarding transaction, sufficient to hold the accused has rebutted the statutory presumption under Section 139 of N.I. Act ? 14.Point (i): This plea is liable to be rejected outright for the simple reason that Section 141 of N.I. Act contemplates procedure in case of offence committed by company. Proprietor concern cannot be equated to a company. The concept of vicarious liability is alien to criminal jurisprudence with few exceptions. N.I. Act is one such exception. Company is a legal entity by itself. Being a juristic body it can sue or be sued. Though company being a juristic body and can sue and be sued, it cannot operate itself. Some human agency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due course for such amount: provided that no person other than a holder in due course shall recover from the person delivering the instrument any thing in excess of the amount intended by him to be paid thereunder . The lower appellate Court without adverting to the statutory presumption found in Section 20 had arrived at a wrong conclusion without any basis. In this case, the contention of the complainant is that post dated cheques were issued on 14.07.2002 with specific instruction to be presented on 01.04.2003. It is proven fact that the accused has closed the accounts maintained by him in the name of Sudha Gas Agency much before the cheques were presented for collection. For the first time, only on 05.04.2003 through a public notice in the newspaper through his Advocate Mr.A.W.D.Tilak, the accused has alleged that the cheques were suspected to be stolen by the complainant. This paper publication is marked as Ex.P.45. This public notice is issued in the name of Advocate Mr.A.W.D.Tilak on behalf of M.Kanagamani, wife of Mukkandi Nadar and T.Subbaiah. In this public notice, it is informed to the public that few signed cheques of Sudha Gas Agency maintained at Karur Vaisiya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss examination that he was in Chennai staying at Imperial Hotel on 14.07.2002 , no evidence to substantiate the plea adduced. 20.Section 139 of the N.I. Act, reads as under: 139.Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability . 21.In Kumar Exports v. Sharma Carpets reported in 2009(2) SCC 513 , the Hon'ble Supreme Court had considered the provisions of NI Act as well as the Evidence Act regarding presumption and rebuttal of the presumption. It is observed in paragraph 20 of the Judgment as under: 20. ....... The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he was residing at 49, Kamachiamman Koil Street, till Sudha Gas Agency show room was established. Thereafter, he shifted his house to the upstairs and later to a different location. 24.Further, the wife of the complainant Tmt.Navaneethi has stood as guarantor/co-obedient for the working capital loan of ₹ 10 lakhs availed by Sudha Gas Agency from Karur Vaisya Bank, Tuticorin. From Ex.P.32, it could be seen that land and building worth about ₹ 32 lakhs owned by Navaneethi has been charged under equitable mortgage for loan extended to Sudha Gas Agency. Further the accused has given letters Ex.P.36 and Ex.P.46 to HPCL to treat the complainant as partner of Sudha Gas Agency. However, as per the letter of offer in clause 1.2, there is a specific bar to induct any partner in case of individuals. Therefore, obviously HPCL has not acted upon the request of the accused to induct the complainant as partner of Sudha Gas Agency. From Ex.P.36 and Ex.P.46, it is clearly proved by the complainant that the accused attempted to formalise the induction of the complainant into the business. 25.The documents such as Ex.D.1 series and Ex.D.2, the power of attorney executed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused himself in his letters to HPCL just few months before the trouble started. The stock verification records and the power of attorney also lend support to the case of the complainant. Whereas, the accused has denied the issuance of the cheques through public notice in a newspaper alleging theft of the cheques by the complainant one year back. This notice is clearly an afterthought. It miserably fails to clear the test of prudence since, no document to show he informed about the theft/missing of those cheques either to the bank or to the police, immediately. His conduct of closing the accounts after issuing the cheques and not intimating the bank about the cheques held by him, does not lend any support to probabilise his defence. 28.Apart from his public notice and reply notice, yet another document he relies to rebut the presumption, is the complaint to police Ex.D.8. The extract of the complaint as found in the general dairy indicates the accused accepts that he knowingly handed over the cheques to the complainant for presenting it in the bank, but he has retained it and trying to misuse it. This complaint has been closed to work out the remedy in the Court of law. If w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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