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TMI Blog2020 (11) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... ivas and also the accused has paid the amount to Srinivas - the Trial Judge has not committed any error in acquitting the accused considering the material available on record i.e., the admission of P.W.1 and no defence evidence has been adduced. The accused has made out the case that there was no material to disclose that there was a legally recoverable debt from the accused. The Trial Court comes to the conclusion that the said amount is not legally recoverable debt between the complainant and the accused on the date of the issuance of the cheque. The observation that the same is recoverable within three years, is not correct. However, the definite conclusion that there is no privity of contract between the complainant and the accused in respect of this transaction of issuance of cheque in coming to the conclusion that there was no legally recoverable debt. This Court cannot find fault with the reasoning assigned by the Trial Court. The complainant has not made out a case and the presumption was rebutted by the accused in effectively cross-examining P.W.1 and plausible evidence has been placed before the Court that there was no liability on the part of the accused in issuanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sement dated 22.07.2007. Immediately the complainant approached the accused, but the accused expressed his financial difficulties. Hence, the complainant got issued the legal notice to the accused on 27.07.2007 and the notice issued against him was duly served and the accused did not pay the amount. Hence, the complaint was filed against the accused for the offence punishable under Section 138 of the Act. 4. The complainant in order to substantiate his contentions examined himself as P.W.1 and got marked the documents at Exs.P.1 to 9. The accused did not choose to lead any evidence. The Trial Court acquitted the accused. Hence, the present appeal is filed before this Court. 5. It is the contention of the complainant before this Court that at the first instance the accused was convicted for the offence punishable under Section 138 of the Act and against the said judgment of conviction, the accused preferred Criminal Appeal No.545/2009. After hearing the parties, the Appellate Court allowed the criminal appeal on 27.07.2010 by setting aside the order of conviction and remitted back the matter to the Trial Court with a direction to provide an opportunity to the accused to lead h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the judgment of the Hon'ble Apex Court in the case of M/S. KUMAR EXPORTS v. M/S. SHARMA CARPETS reported in AIR 2009 SC 1518. Referring paragraph No.9 of the judgment the learned counsel would contend that in order to determine the question whether offence punishable under Section 138 of the Act is made out against the accused, it will be necessary to examine the scope and ambit of presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. The learned counsel would also submit that the accused has not denied the signatures available on the respective cheques and it is also not the contention that the cheques does not belongs to him and not disputed the very cheques which are marked. Hence, the Trial Court ought to have invoked the presumption against the accused and the same has not been done, as held in the said judgment. 10. The learned counsel for the respondent in his reply argument has vehemently contended that Ex.D.1, which was confronted to the complainant was admitted and he also admits with regard to the cancellation of the document of Ex.D1 - sale agreement. P.W.1 was cross-examined in detail and the answers elicited from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a rebuttal evidence and mere plausible explanation is not sufficient and proof of explanation is necessary. 14. Having heard the arguments of learned counsel for the complainant and learned counsel for the accused, the points that arise for the consideration of this Court are: (i) Whether the Trial Court has committed an error in acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act? (ii) What order? 15. Having heard the arguments of learned counsel for the complainant/appellant and learned counsel for the accused/respondent and also on perusal of the oral and documentary evidence, this Court has to re-appreciate the material available on record, particularly, the evidence of P.W.1. 16. On perusal of the records, the accused has not led any evidence and only the witness examined is P.W.1/ complainant. The complainant relies upon the documents at Exs.P1 to P9. No doubt, on perusal of the records, notice which was issued in terms of Ex.P5 was served on the accused in terms of Exs.P8 and P9 and no reply was given. However, the defence taken in the cross-examination is that the cheques are stolen. The complainant/appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex.D1. In terms of endorsement, an amount of ₹ 9,75,000/- was paid. But P.W.1 claims that when the said agreement was cancelled, Srinivas has not paid any amount to him. The same was not mentioned in the notice or in the complaint or in the affidavit and also not mentioned that he has not received any such amount when the agreement was cancelled. However, he admits that he has signed the said document, when the agreement was cancelled. He also admits that while canceling the said agreement, cheque details of Srinivas was mentioned. But he claims that the said cheque was not honoured. However, in the cross-examination, he categorically admits that in view of the private complaint filed against the accused and Srinivas, Srinivas gave two cheques. Out of two cheques, one cheque was honoured and another cheque was dis-honoured. Hence, he filed the case against him and he categorically admits that those two cheques were given to him in the Police Station by the said Srinivas. He admits that for filing of the complaint against Srinivas, he has not mentioned the same in the notice or in the complaint or in the affidavit. He also categorically admits that he gave the amount of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t disputed the cheque and also not given the reply to the notice issued by the complainant. This Court also has to examine whether the accused has rebutted the evidence of the complainant. It has to be noted that the learned counsel for the complainant filed a memo with the order passed in the criminal appeal and in the criminal appeal, the appeal was allowed and the judgment of conviction of the Trial Court was set aside and the Trial Court was directed to give an opportunity to the accused to lead the evidence. Admittedly, the accused has not led the evidence before the Trial Court. But this Court has to examine whether the presumption of Section 139 of the Act has been rebutted by the accused. 22. It has to be noted that the presumption has to be rebutted in two modes, one is by leading cogent and plausible evidence before the Trial Court; the other mode is to rebut the evidence based on the evidence of the complainant, who has been subjected to cross-examination. The accused did not choose to lead any rebuttal evidence by stepping into the witness box. The second mode which he adopted is effectively cross-examining P.W.1. This Court would like to mention the admission elicit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments about the result of the said case, he did not produce the same before the Court. Hence, this Court listed the matter for further arguments and during the course of further arguments, the learned counsel for the complainant would submit that the said case was withdrawn. Hence, it is clear that only on account of settlement arrived between the parties, the said case was withdrawn. 25. Having taken note of the admissions elicited from the mouth of P.W.1, P.W.1 categorically admits that except this transaction, no other transaction had taken place between them. P.W.1 categorically admits that he has signed Ex.D.1 when the agreement was cancelled. Further, he categorically admits that when the said agreement was cancelled, the cheque details of Srinivas was mentioned in the said endorsement. Hence, it is clear that the complainant has not made out a case for legally recoverable debt payable by the accused. It is also important to note that in the cross-examination he categorically admitted that while filing the complaint, he did not mention anything about the transaction between him and Srinivas at the instance of the accused and the same was suppressed. Only during the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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