9911796707
TMI Blog2021 (6) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... of a plausible and satisfactory explanation, the trial court ought to have drawn the presumptions under Sections 118 and 139 of the Act. The court went wrong in taking the statement given by first respondent under Section 313 of the Cr.P.C. as gospel truth and acquitting him from liability. That finding requires interference in appeal. The first respondent is found guilty and convicted under Section 138 of the N.I. Act and sentenced to pay a fine of ₹ 2,50,000/- in default to undergo simple imprisonment for six months. When realised, the amount shall be paid as compensation to the appellant - Appeal allowed - decided in favor of appellant. - Crl. A. No. 627 of 2013 - - - Dated:- 11-6-2021 - K. Haripal , J. For the Appellant : R. Bindu and Prasanth M.P., Advs. For the Respondents : Sabu Francis, Adv. and M.S. Breez, Senior Public Prosecutor JUDGMENT K. Haripal, J. 1. The appellant is the complainant in a prosecution initiated under Section 142 of the Negotiable Instruments Act, hereinafter referred to as the Act, who suffered defeat from the trial court. His grievance is that in spite of the fact that the first respondent/accused did not even take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding. He also relied on the decision reported in Basheer v. Usman Koya [2021 (2) KLT 567]. 5. On the other hand, the learned counsel for the first respondent defended the judgment of the trial court. According to him, execution of the cheque is not proved, merely by admitting signature on the document, no adverse inference can be drawn against the first respondent. Regarding the absence of details in the complaint also, he said, it is fatal for which he placed reliance on the decision in Vijay v. Laxman and Another [2013(3) SCC 86]. 6. After considering the materials on record, I am afraid, the learned Magistrate was completely mis-guided by the first respondent and such a finding cannot stand judicial scrutiny. It is true that the complaint does not contain details as to when the amount was lent, the time and place of the transaction, the conditions under which such an amount was paid, the previous relationship between the complainant and the accused etc. But in a prosecution under Section 142 of the Act, alleging offence punishable under Section 138, it is the consistent stand of the courts that such materials are not warranted, either in the complaint or in the notice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque was issued. It is not understood as to how the learned Magistrate could jump into such conclusions, especially when the first respondent had chosen not to cross examine the complainant. 9. Even otherwise, the accused cannot insist to give entire details of the transaction leading to the issuance of the cheque, either in the complaint or in the notice. Such details need be stated only if the complainant is falling back on the original transaction. A complaint alleging offence under Section 138 of the Act need not be based on the original transaction. When a similar plea was taken, this Court held in Joseph Jose v. J. Baby and others [2002 (2) KLJ 332] that there is absolutely no justification for discarding the complainant's case on the ground of improbability of the original transaction or want of pleading in that regard. 10. In Uttam Ram v. Devinder Singh Hudan and another [2019 (10) SCC 287] the Hon'ble Supreme Court held thus:- The Trial Court and the High Court proceeded as if, the appellant is to prove a debt before Civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que 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. Presumptions are devises by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Indian Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1) may presume (rebuttable), (2) shall presume (rebuttable) and (3) conclusive presumptions (irrebuttable). The term 'presumption' is used to designate an inference, affirmative or disaffirmative of the existence a fact, conveniently called the presumed fact drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means taking as true without examination or proof . Section 4 of the Evidence Act inter alia defines the words 'may presume' and 'shall presume' as follows:- (a) 'may presume'-Whenever it is provided by this Act that the Court m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garding the transaction, which was given at the earliest possible opportunity afforded to him. 13. Moreover, the learned Magistrate was carried away by a statement given by the first respondent under Section 313 of the Cr.P.C. of course examination of an accused under Section 313 of the Cr.P.C., not only provides an opportunity to explain the incriminating pieces of evidence appearing against him and also permits him to put forward his own version with regard to the circumstances in which he was dragged to a criminal proceedings. Here, before the trial court, there is the evidence tendered by the appellant as PW1 which is a statement given under oath, pitted against the statement of the first respondent under Section 313(1)(b) of the Cr.P.C. It is the settled proposition of law that statement given under Section 313 of the Cr.P.C. cannot be treated as a substantive piece of evidence. Similarly, testimony given on oath by a witness cannot be rejected merely on the ground that it was contradicted by the statement of the accused made under Section 313 of the Cr.P.C. 14. The answers given by the accused in reply to questions under Section 313 of the Cr.P.C., are not per se eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
