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TMI Blog2020 (1) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... se. So also various persons are involved in the said process. So, why complainant has not examined and produced any documentary evidence - Any explanation has not been offered before the trial Court and before this Court also. Such kind of evidence is not important when the accused pleads that signature on the cheque was taken by applying force. This is not the defence which usually the Court come across - there are no reason to discard with the inferences drawn by the trial Court. Not producing documents - HELD THAT:- Neither accused nor the complainant produces documents. Accused justifies their act of non-production due to admission given during cross-examination. Whereas, complainant pleads that the accused believe on those documents, they shall produce it. When none of them have produced documents, Court can only draw inferences about existence of notice, visit and agreement. Court will be handicapped in reading contents of documents. So, issue is merely by admitting those facts, whether any onus shifts on the complainant. To certain extent, it is true. But, onus on complainant to produce those documents on one hand and onus on accused to produce them, if compared together ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in similar type of business of dealing in steel and other material. The complainant was a trader, whereas accused No.1 - company is a manufacturer. The issuance of a cheque has arisen out of the transaction of sale of the steel material of different kinds by the complainant to accused No.1 company. There are two instances of sale dated 13/05/2003 and 14/05/2003. The value of this sale amounts to ₹ 5.00 lakhs. The cheque in question was issued on Punjab National Bank, Gandhibagh Branch, Nagpur for ₹ 5.00 lakhs. It was dated 15/05/2003. 03] The complainant on one hand contends about voluntarily issuance of that cheque for genuine transaction of sale of steel material. Whereas, the accused contends about issuance of a cheque not freely, but by applying the force. Accused Nos.2 3 are the Directors of accused No.1 - company. Accused No.3 signed the cheque. Accused No.2 expired after filing of a complaint and earlier to its disposal. On one hand, complainant contends about dishonour of cheque due to insufficient funds, issuance of a demand notice dated 21/06/2003 and its receipt by direct and by constructing way and consequent failure to pay the amount of the cheque. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of the accused, particularly, when they have not produced the documents (referred by them during cross-examination) and which are though admitted by the complainant during cross-examination? IV. In what manner, the accused needs to be dealt with, if this Court finds proof of commission of the offence? INTERFERENCE BY THE APPELLATE COURT 08] It is true that during pendency of the trial, the presumption of innocence is in operation. It get confirmed when there is a verdict of acquittal in favour of the accused. It is said that the appellate Court should not interfere in the judgment of acquittal normally. It is also true that the offences of the Indian Penal Code and the offences under the Negotiable Instruments Act stand on the different footing. In a first category, the accused generally takes a defence of denial. Rarely, these cases involved documentary evidence. Whereas, in a latter category, the cases mainly rest on a documentary evidence. So, the scope of interference by the appellate Court is more (if the evidence suggests otherwise) than the scope for interference in the Indian Penal Code offences. PRESUMPTION UNDER THE NEGOTIABLE INSTRUMENTS ACT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque in question was crossed and account payee cheque. It means, it was payable to order. In that contingency, two persons are described as the holders in due course, one category is payee and another category is indorsee. We are not dealing the case of indorsement. So the payee is the holder in due course. In the cheque, if name of the person is mentioned, who is entitled to recover the amount is called as a payee under Section 7 of the N.I. Act. FACTS 13] In this case, the name of the complainant is mentioned in the cheque. So, he becomes the payee and holder in due course. Whether the cheque was issued voluntarily or not will be decided later on. PROVISO 14] Proviso to clause (g) lays down a rule, wherein the initial presumption in favour of the holder in due course is not applicable. Following are the ingredients of the proviso :- i] Instrument has been obtained from lawful owner or from lawful custody by means of (a) an offence (b) by fraud. ii] Instrument has been obtained from the maker or acceptor by means of (a) an offence (b) fraud or (c) unlawful consideration. So, if one of the categories is shown then the holder in due c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied upon by both the sides, what is the extent of a burden on accused to rebut the presumption has been laid down in the case of Mohammad Murtuza Mohamad Yusuf vs. Gulam Nabi Abdul Rehman and Anr., reported in 2011(4) Crimes 362 (Bom.) . The cheque was issued for repayment of the hand-loan. In the facts and circumstances of the case, it was held that mere denial of the existence of debt and passing of consideration is not sufficient to rebut the presumption. The test of proof beyond reasonable doubt is certainly not applicable. On facts, the High Court held that accused could not rebut the presumption. 18] Accused can succeed in rebutting the presumption, if he can make his defence probable. The test to be applied is that of preponderance of probability. There was a variance in between the cross-examination and the answers given in 313 statement. So, on facts, it was held that accused could not rebut the presumption. This Court was pleased to convict the accused in the case of Datta Sonaji Doiphode vs. Deepak Walmik Meshram, reported in 2018(2) Crimes 6 (Bom.). 19] The judgments relied upon by the complainant is in the case of Lalji s/o Bansanarayan Choubey vs. Ji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a difference in between the signatures appearing on delivery challans at Exh.18 Exh.19 on one hand and admitted signature of accused No.3 on the cheque at Exh.22 on the other hand. II. Signatures appearing on Vakalatnama, Bail Bond, certain interim applications on one hand and the disputed signatures on delivery challans at Exh.18 and Exh.19 differ. III. There is overwriting in the rate and amount mentioned on the bill at Exh.20, dated 13/05/2003. IV. No justification for carrying out overwriting and the basis for reducing the rate from ₹ 12,500/- to ₹ 12,019/- per metric tonne. V. Date was changed from 13/05/2003 to 14/05/2003 on the bill at Exh.21. VI. Loading charges were added in the bill at Exh.21, but they were not added in the bill at Exh.20. VII. Bombay Sales Tax charges at 4% were added in the bills at Exh.20 Exh.21, but during cross-examination, the complainant s witness admits that entry of sale in Excise Register is not taken (he offered explanation that it is not applicable to them). VIII. Weight receipt is issued only when goods are weighed on weighbridge. IX. Complainant s witness clarified that if the goods ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused (though not three notices). iii. The date of notice received is 20/05/2003 and from Advocate Masurke. iv. Arranging press-conference by the accused and news flashed on television. v. Arrest of the witness on 29/05/2003 by Lakadganj Police Station. vi. Charge-sheet was filed for the offences under Sections 452, 294, 506(ii) of the Indian Penal Code. vii. Visiting the factory of Milkiyatsingh on 15/05/2003 at Kamptee Road. viii. Admitting execution of an agreement for purchase of agricultural land of accused. ix. Witness acted on it and published a paper publication on 25/05/2003. PROOF OF THE ABOVE THEORY 25] Both the sides have got different version. Accused contends that when the witnesses admitted certain facts, they are discharged from the burden of proving those facts. It is further pleaded that there is no need for them to produce the documents about the facts admitted during cross-examination. He further contends that the burden shifts on the complainant to produce those documents. On the other hand, the complainant contends that merely giving certain admissions does not relieve the accused from producing the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence of complainant. First part of defence is not accepted. But, accused certainly succeeds in bringing on record the lacunae. It includes - (a) not producing materials in support of sale transaction (e.g. account book, tax paid receipts etc.); (b) not examining any witness, supporting the evidence of complainant's witness. 29] These kinds of evidence are not necessary in a case involving issuance of cheque voluntarily. But, considering the defence put forth, above kind of evidence gets importance. Hence, I agree with the conclusion of the trial Court that the accused is successful in rebutting the presumption. REASONS FOR DISHONOUR OF CHEQUE 30] Cheque return memo at Exh.23 mentions insufficient fund as a reason for dishonour of cheque, whereas accused contends that cheque in question was not complete because as per the internal procedure of the company, at least two signatures are required, whereas, cheque in question only contains one signature. To prove this requirement, the company has examined Bhaudas Raut from Punjab National Bank. 31] It is true that through witness Raut accused has brought on record necessity of signing the cheque by two pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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