P. Krishnamoorthy vs S. Sargunavathy

Mr. S. Nagamuthu, J.—The appellant is the complainant in STC No.204 of 2008 on the file of the Judicial Magistrate, No. II, Trichy and the respondent is the sole accused in the case. The appellant filed the said case by way of private complaint alleging that the respondent committed offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ''the Act''). The trial Court, by judgment dated 23.02.2015, has acquitted the respondent. Challenging the same, the appellant is before this Court with this appeal.

This appeal has come up today for admission.

I have heard the learned counsel for the appellant. The appellant is also present in Court. I have heard him also.

The case of the appellant is as follows:

On 01.07.2005, the accused borrowed a sum of Rs.6 lakhs from the appellant (hereinafter referred to as complainant) to meet out her urgent family needs on the promise to repay the said amount with interest at the rate of 24% per annum. The accused also duly executed a promissory note in favour of the complainant on the same day in respect of the said borrowal. But, as promised in the promissory note, the respondent did not repay either the principal amount or the interest amount as demanded. Subsequently, on the sincere efforts taken by the complainant, the accused agreed to pay a sum of Rs. 3,50,000/- towards interest. Thus, as a one time settlement, the respondent agreed to pay Rs.9,50,000/-, i.e. Rs.6 lakhs towards principal and Rs.3,50,000/- towards interest. In discharge of the said liability, it is alleged that the accused issued a cheque drawn on HDFC Bank Limited, Thillai nagar, Trichy for Rs.9,50,000/- on 01.05.2008. The said cheque was presented for collection by the complainant and the same was returned with a remark that the account had already been closed. Due intimation of the Bank was received by the complainant on 21.06.2008. Thereafter, the complainant issued a legal notice on 30.06.2008 to the accused as required under Section 138 of the Act. The said notice was received by the accused on 01.07.2008. But the accused, instead of paying the amount due under the cheque, issued a reply dated 29.07.2008. In the said reply notice, the accused claimed that she did not borrow Rs.6 lakhs as stated by the complainant and she did not execute the promissory note in question at all. It was her further case that she did not sign the promissory note at all. It was her further case that on the earlier occasion, there was money transaction between her and the complainant and for that purpose, a cheque was issued. Even though the amount was discharged, the cheque was not returned by the complainant. Subsequently, when it was demanded, the complainant had stated that he would return the cheque as soon as it was traced, as it had been misplaced.

Before the trial Court, the complainant examined himself as P.W.1 and marked as many as 7 documents. On the side of the accused, she was examined as D.W.2 and one Gomathi was examined as D.W.1 to speak about the signature found in the promissory note. D.W.1 is a handwriting expert, who examined the disputed promissory note with the admitted signature of the accused and gave opinion under Ex.D1. Ex.D3 is the xerox copy of the cheque, which was issued earlier by the accused to the complainant to discharge the entire loan in the previous transaction. Ex.D4 is the xerox copy of the said promissory note, which was returned by the complainant to the accused.

Having considered all the above materials, the trial Court found that the promissory note is a forged document. The trial Court also found that Ex.P7 another undertaking letter said to have been given by the accused is also a forged document. The trial Court found that there was no legal enforceable debt and therefore, the accused is entitled for acquittal under Section 138 of the Act. It is against the said findings, the appellant is before this Court with this appeal.

In this appeal, the learned counsel for the appellant would submit that the evidence of P.W.1 would clearly go to show that the accused had borrowed a sum of Rs. 6 lakhs and that she promised to repay Rs.9,50,000/- as one time settlement. The learned counsel would further submit that the cheque has been signed only by her, which would give rise to a legal presumption under Section 139 of the Act. The learned counsel would further submit that the said presumption, which is drawn under Section 139 of the Act has not been rebutted by the accused at all. Thus, according to the learned counsel, the trial Court was wrong in acquitting the accused. So far as the promissory note is concerned, the learned counsel would submit that the trial Court ought not to have relied on the evidence of D.W.1, as after all, her evidence is only an opinion. The learned counsel would further submit that assuming that the promissory note has not been proved to have been executed by the accused, even then, the accused is liable for conviction, because, the cheque has been issued only by her.

I have heard the said submissions.

The promissory note in question is the foundation for the whole case. If the promissory note is found to be false, then, the whole edifice of the case should fall. The accused has taken the plea that the promissory note was not at all executed by her. When such a dispute was made, the burden is upon the complainant to prove the due execution of the promissory note as required under Section 67 of the Evidence Act. But, unfortunately, in this case, the complainant had not examined any of the attestors or the scribe to prove the execution of the promissory note. The complainant relies only on his oral evidence to prove the execution of the promissory note. But, the disputed promissory note was subjected to examination by the Handwriting expert (D.W.1). The accused has taken up the task to disprove the case of the complainant by examining D.W.2. Ex.D1 is the opinion offered by D.W.1. She has given cogent reasons in the reason sheet as to why she had the opinion that the disputed document would not have been executed by the accused. Though the said witness has been cross examined at length, nothing could be elicited by the complainant so as to make the said witness unbelievable. D.W.1 is an independent witness and she is a scientific expert. Unless there are acceptable reasons stated, there can be no grounds for this Court to disbelieve the evidence of the Handwriting Expert. The lower Court has correctly analysed the evidence of D.W.1 and has come to the conclusion that the said promissory note as well as the undertaking letter Ex.P7 would not have been executed by the accused at all.

Apart from that, the evidence of D.W.2 is to the effect that on an earlier occasion, the accused had borrowed money from the complainant under a promissory note. Ex.D4 is the xerox copy of the promissory note. Ex.D3 is the xerox copy of the cheque issued. From these documents, the accused has also probabalized her case that the cheque in question was issued not in respect of any legally enforceable debt, but in connection with the earlier loan, which was subsequently discharged.

Now in the case, it has been clearly established that the promissory note in question would not have been executed by the accused at all. If that is so, then, as a corollary, it has to be concluded that the cheque in question would not have been issued in discharge of any such liability under the said false promissory note. Therefore, in my view, the lower Court was right in acquitting the accused, as the complainant has failed to prove that the cheque in question was issued in discharge of any legally enforceable debt or liability. Thus, I do not find any reason to interfere with the acquittal of the respondent recorded by the trial Court.

Having come to the said conclusion that the promissory note (Ex.P1) is a forged document, this Court cannot close its eyes and keep its arms tied without proceeding further, when it has been brought to the notice of this Court that the said false document has been used in evidence. Section 195 of the Indian Penal Code is the penal provision to punish a person for having given or fabricating false evidence with an intention to procure conviction of offence punishable with imprisonment for life or imprisonment. Here in this case, only with a view to secure conviction for the respondent, the appellant/complainant had created Ex.P1 - promissory note by committing forgery and with the knowledge that it is a forged document, he has used the same as evidence before the lower Court as well as before this Court. This is not my final conclusion and it is only a prima facie opinion. Having come to the said prima facie opinion that the appellant is liable to be prosecuted for offence under Section 195 IPC, it is necessary for this Court to hold further enquiry by affording an opportunity to the appellant under Section 340 of the Code of Criminal Procedure.

As directed, the appellant is before this Court today. When questioned, the appellant submitted that he is a retired Government official and now he is aged 71 years. He has undergone heart by-pass surgery and his health is bad shape. He apologized to this Court for the above acts and further submitted that this Court may not initiate proceedings under Section 340 Cr.P.C. to hold enquiry. The appellant has further submitted that he would pay a cost of Rs. 2,500/- for having wasted the time of this Court as well as that of the Magistrate. The said submission is also recorded.

Having regard to the said submission made by the appellant, though I am of the view that proceedings may be initiated under Section 340 Cr.P.C., I desist from doing so.

In view of the above, while dismissing this appeal for want of merits, I am inclined to impose a cost of Rs.2,500/- (Rupees two thousand and five hundred only) on the appellant, which he shall pay to Government Girls Higher Secondary School for Visually Challenged, EVR Road, Puthur, Trichy District, within 15 days from the date of receipt of a copy of this order and it is further directed that the Management of the said school shall stitch uniforms and supply the same to the students in need of help. The said amount shall be exhausted in full for the said purpose and after having utilizing the same for the said purpose in full, a report should be submitted to the Registrar (Judicial) of this Court.

With the above direction, this appeal is dismissed with cost, which should be paid, as indicated above. The Registry shall list this matter on 04.06.2015 for recording the compliance.