9911796707
TMI Blog2008 (2) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough the appellant's/complainant's bankers, viz.,State Bank of Mysore, Main Branch, Chennai on 19.4.1999, the same was returned dishonoured with an endorsement funds insufficient on 21.4.1999. The said fact of dishonour of cheque was brought to the notice of the respondent/accused and a demand for payment was made by a lawyer's notice dated 4.5.1999. Inspite of the fact that the said notice was received by the respondent/accused on 5.5.1999, he did not issue any reply; nor did he make payment towards dishonour of cheque within 15 days from the date of receipt of the said statutory notice. Hence the offence punishable under Section 138 of the Act became complete on the expiry of fifteen days from the date on which the respondent/accused received statutory notice. 3. The said complaint was taken on file, after recording sworn statement of the appellant/complainant as C.C.No.4889 of 1999 and process were issued to the respondent/accused. On his appearance, he was questioned regarding the allegations and he pleaded not guilty. Pursuant to the said plea of not guilty made by the respondent/accused, the learned Metropolitan Magistrate concerned conducted trial in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate had unnecessarily embarked upon a scrutiny as to the sufficiency of the evidence adduced on the side of the appellant/complainant to prove the existence of debt or other liability; that the learned Metropolitan Magistrate also committed an error for arriving at a conclusion that the signature found in Ex.P.5, Postal acknowledgment Card was not that of the respondent/accused; that the said conclusion was not at all warranted in the light of the fact that no such defence plea was taken by the respondent/accused either during his examination under Section 313(1) or during the cross-examination of the witnesses examined on the side of the appellant/complainant and that viewed from any angle, the judgment of the learned Metropolitan Magistrate holding the respondent/accused not guilty of the offence with which he stood charged was in fact discrepant, legally unsustainable and liable to be set aside and reversed. 5. On the other hand, Mr..Arasu Ganesan, present counsel for the respondent/accused argued that there was no defect or infirmity in the conclusion arrived at by the learned Metropolitan Magistrate and that stronger ground ought to have been made out for interfering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... picture to say that the cheque is supported by consideration. The presumption under Section 139 of the Negotiable Instruments Act is explanatory and supplementary to the presumption under Section 118A of the Act to show that the cheque was received by the holder for the discharge of debt or other liability. Therefore, this Court has to accept the contention of the learned counsel for the appellant that in a case wherein the drawal of the cheque is admitted or proved, then there shall be a presumption regarding the purpose for which the cheque was issued and the burden shall be cast upon the accused to rebut such presumption. In case of such rebuttal, the burden shall be again shifted on the complainant to prove the existence of debt or other liability for discharge of which the cheque was issued. Of course, there are a number of decisions to the effect that the evidence need to be adduced by the accused for rebutting such presumption shall not be comparable with the evidence required to be adduced on the side of the prosecution in so far as the prosecution is expected to prove the prosecution case beyond reasonable doubt whereas the defence case can be proved by preponderence of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount he got from the Foreman of the Chit under a chit transaction after making payment of the entire subscription. When there is a clear assertion through PW1 who is none other than the complainant and his evidence having not been discredited either by eliciting points contrary to the stand during the cross examination or by adducing contra evidence, the observation made by the learned Metropolitan Magistrate is quite unwarranted. Above all, there was no occasion for the learned Metropolitan magistrate to embark upon a rowing enquiry as to whether existence of debt or other liability has been proved by the appellant/complainant. As pointed supra, there is no evidence adduced on the side of the appellant/accused sufficient enough to make it appear that the cheque could have been issued to a third party and hence the cheque could not have been issued for the discharge of any debt or other liability towards the appellant/complainant. Whenever the accused in a criminal prosecution for an offence punishable under Section 138 of the Negotiable Instruments Act comes forward with a plea that the cheque issued in favour of another person has been misused by the complainant for prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not proved to be that of the accused is perverse. Therefore, the said finding of the learned Magistrate being discrepant has got to to be set aside and reversed. 11. It is also not in dispute that the amount covered by the cheque was not settled by the respondent/accused within the time prescribed by sub-clause (c) of Section 138 of Negotiable Instruments Act. Therefore, this Court comes to the conclusion that the learned Magistrate has committed a blatant error in arriving at a conclusion that the offence with which the respondent/accused stood charged was not proved beyond reasonable doubt. The said finding of the Court below is no doubt erroneous and discrepant and this Court has to set it right by setting aside the said finding and reverse the judgment of the acquittal pronounced by the Courts below. 12. Accordingly, this appeal is allowed. The Judgment of the Court below is set aside. The respondent/accused is found guilty of the offence punishable under Section 138 of Negtiable Instruments Act. This Court has also taken into consideration the submission made by the learned counsel for the respondent/accused regarding punishment to be awarded for the said offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
