Maya D. Bhat vs H.P. Rathna

Budihal R.B., J.—The judgment and order of acquittal dated 3rd July 2009 passed by the I Additional JMFC, Bagalkot, in C.C. No. 1013/2006 is called in question in this appeal by the appellant/complainant.

The brief facts of the case are that the complainant presented before the Trial Court a complaint under Sections 138 and 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ''the Act'', for short) read with Section 200 of the Code of Criminal Procedure, 1973, wherein it is stated that the complainant had contributed towards the chit fund which was run by the accused in her residence at Bangalore from 10th October 2003 up to May 10, 2005 for an amount of Rs. 10,000/- which was sent to the accused through MT (money transfer) from her SB Account No. 13002 of Vijaya Bank, Bagalkot Branch. The complainant was to get the entire amount of the said chit fund by 10th May 2005 and to that effect the accused had issued a postdated cheque for Rs. 1,88,150/-, bearing No. 017970 of Vijaya Bank branch Bangalore, in favour of the complainant and the accused had issued the said cheque to discharge her liability. After the receipt of the said cheque the complainant presented the cheque to Vijaya Bank, Bagalkot Branch, for encashment but the said cheque was returned dishonoured by Vijaya Bank Branch, Bangalore on the ground of ''stop payment''. After the receipt of the said endorsement, the complainant issued the statutory notice on 1.07.2015 calling upon the accused to pay the cheque amount. The said notice was served on the accused on 16.07.2005, and the reply through an advocate for the accused was sent on 18.07.2005. The contents of the reply notice are imaginary and created one. The accused committed offence under Section 138 of the Act and is liable to be punished as provided under the law.

After taking cognizance of the offence, the Trial Court proceeded with the trial of the matter. On the side of the complainant, complainant herself was examined as P.W. 1 and one more witness as P.W. 2 and the complainant produced the documents-Exs. P.1 to P.9. On the side of the accused, the accused was examined as D.W. 1, the notice was got marked as Ex. D.1 and the statement of account as Ex. D.2.

After considering the pleadings as well as the other materials placed on record, ultimately, the Trial Court dismissed the complaint holding that the complainant had failed to prove the case beyond all reasonable doubts. Being aggrieved by the same, the appellant/complainant is before this Court.

Heard the arguments of the learned counsel appearing for the appellant and also the arguments of the learned counsel appearing for the respondent/accused.

Counsel for the appellant submitted that though the chit fund was fixed at Rs. 10,000/-, as the complainant was not able to pay the entire sum of Rs. 10,000/-, she used to pay fraction of the amount to the accused by money transfer through her bank account into the account of the respondent/accused. He also made the submission that the total amount that was paid during the period i.e., from 10.05.2003 to 10.05.2005 amounted to Rs. 1,88,150/- for which the respondent/accused issued a cheque as at Ex. P.1, and when the said cheque was presented for encashment, though there was sufficient balance for passing the cheque, as the respondent/accused gave ''stop payment'' to the Bank Manager, the cheque was dishonoured. Learned counsel further made the submission that the issuance of cheque and the signature on the cheque is not in dispute even according to the accused and when that is so, the initial presumption is in favour of the complainant and the trial Judge without considering all these important material aspects and evidence placed on record wrongly dismissed the complaint holding that the complainant has not proved her case beyond reasonable doubts. Hence, he submitted to allow the appeal and to set aside the judgment and order of acquittal passed by the Trial Court and convict the respondent/accused for the offence under Section 138 of the Act.

Per contra, learned counsel appearing for the respondent/accused submitted that the complainant and the respondent are known to each other and they are friends having trust and confidence in each other. The respondent/accused was not at all running the chit business at any time, but was carrying on the saree business. The complainant used to collect the sarees from the respondent/accused, sell the same and whatever the amount she was fetching by sale of sarees, was sent to the account of the respondent/accused. The learned counsel further submitted that on one occasion, because of the trust and confidence in the complainant, the respondent/accused gave a cheque i.e., Ex. P.1 to the complainant requesting her to go to the bank and collect money on her behalf, but without doing so, taking undue advantage of the said cheque, the complainant issued a legal notice to the accused stating that the cheque has been dishonoured for ''stop payment'' by the accused and thereby committed the offence and hence, the complainant filed the false case making false allegations against the respondent/accused. Hence the learned counsel submitted that when the complainant approached the Trial Court with a specific contention, the burden is upon the complainant to establish her case beyond all reasonable doubt which was not done by the complainant in this case. Hence, he supported the judgment and order of acquittal passed by the Trial Court and submitted that there is no merit in the appeal and the same may be dismissed.

I have perused the grounds urged in the appeal memorandum, the judgment and order of acquittal passed by the Trial Court and the oral and documentary evidence adduced by the parties on both the sides.

Looking to the materials on record, it is an admitted fact, even according to the contention of the appellant and the evidence of respondent/accused that the accused and the complainant were good friends having trust and confidence in each other. It is the contention of the accused that she was carrying on the saree business and that the complainant used to collect sarees from the accused on her behalf, sell the same, collect the money and send the amount to the account of the respondent/accused. Looking to the oral evidence of respondent/accused, it is not her case that the complainant committed theft of cheque-Ex. P.1, but it is an admitted case of the respondent/accused that she gave a cheque into the custody of the complainant for the different purpose i.e. to go to the bank and to collect the money on her behalf and not for discharging any existing and legally enforceable debt. But when the giving of the cheque and the signature on the said cheque has been admitted by the accused, the initial presumption as per Section 118(a) and Section 139 of the Act is in favour of the complainant. However, the said presumption is rebuttable presumption. The accused, who is said to have issued the cheque-Ex. P.1, has to rebut the said initial presumption by placing cogent evidence. It is no doubt true that, the degree of proof so far as the complainant is concerned, it is to be proved beyond all reasonable doubt and insofar as proof of defence of the accused is concerned preponderance of probabilities is sufficient for the accused.

Looking to the oral evidence and the documentary evidence produced in the case, they go to show that in the account of the accused there was sufficient balance i.e. Rs. 1,90,000/- so as to meet the requirement of Ex. P.1 but in the oral evidence of accused, it has come on record that when the cheque-Ex. P.1 was presented for encashment, the bank authorities had brought to the notice of the accused that such a cheque was being presented and what they have to do, then the accused informed the bank authorities to ''stop payment''. This goes to show that the cheque was issued by the accused to the complainant.

It is no doubt true that the contention of the accused that the cheque was issued not in connection with the chit fund business but it was in connection with the saree business, but in the cross-examination, respondent admitted that she was carrying on the saree business and that there was transaction between herself and the complainant in connection with the saree business and she has not produced any documents. During the course of cross-examination, the respondent/accused even admitted that she was having accounts with regard to the saree business but she has not produced the same before the Court. When that is so, when the relevant documents in respect of the saree business were in the custody of the accused person, accused ought to have produced those documents before the trial Court and for withholding such relevant documentary evidence, adverse inference will have to be drawn against the accused person. These important materials were completely ignored by the trial court while appreciating the case of the parties. Looking to the judgment and order of acquittal passed by the trial Court, the trial Court concentrated only on the evidence of the complainant-P.W. 1 and ultimately has come to the conclusion dismissing the complaint. The trial Court has not at all looked into the cross-examination portion of the respondent/accused and what is the evidence given by the respondent/accused during the course of cross-examination. Therefore, looking to all these aspects of the matter, I feel it necessary to remand the matter to the Trial Court for fresh consideration. The Trial Court has to consider each and every aspect of the matter, the evidence adduced and the documents produced in the case and ultimately to dispose off the matter in accordance with law.

Hence, the appeal preferred by the appellant is allowed. The judgment and order of acquittal dated 3rd July 2009 passed by the I Additional JMFC, Bagalkot, in C.C. No. 1013/2006 is hereby set aside and the matter is remitted back to the trial Court to consider the matter afresh. If the parties want to adduce additional evidence, opportunity be given to both the sides and then the Court shall dispose of the case in accordance with law.

Since the matter is of the year 2009, the Trial Court shall take up the matter on priority basis and dispose of the same within four months from the date of receipt of the records of the case and a copy of the judgment passed in this appeal. The parties i.e., the complainant and the accused shall appear before the I Additional JMFC, Bagalkot, on 16th November 2015 so as to proceed with the matter and the issuance of fresh notice is not necessary.

Whatever observations made in the judgment is for the purpose of disposal of this appeal and the Trial Court shall not be influenced by said observation and shall dispose of the matter independently in accordance with law.

The High Court Registry is directed to send the records and a copy of this judgment immediately to the Court of I Additional JMFC, Bagalkot.