Prashanth Hegde vs Suresh Salian

P.D. Waingankar, J.—All these appeals arise out of the common judgment and order dated 16.1.07 passed in Crl. A. Nos. 92/2003, 93/2003 and 94/2003 on the file of III Addl. and Sessions Judge, Mangalore, whereby the learned Sessions Judge allowed the appeals and reversed the judgment of acquittal of the accused in C.C. Nos. 1333/2003, 1652 and 1652/2003 on the file of V JMFC, Mangalore.

The brief facts which gave rise to these appeals are as under:--

"At the request of respondent-accused, the appellant/complainant advanced a sum of Rs. 4,40,000/- in cash to the accused as both of them were friends. Though accused promised to repay the loan amount of Rs. 4,40,000/-, difference of opinion cropped up between the complainant and the accused and ultimately both of them have decided that the accused should repay a sum of Rs. 3,50,000/- to the complainant. Towards repayment of Rs. 3,50,000/-, the accused issued two cheques for Rs. 50,000/- each and one cheque for Rs. 5,000/- in favour of the complainant before the police station. The accused agreed to repay the remaining amount in cash. The complainant presented all the three cheques for collection through his banker on different dates. All the three cheques came to be dishonoured for the reason ''insufficient funds''. By issuance of notices, the accused was informed regarding the factum of dishonour of the cheque and was called upon to pay the cheque amount within the stipulated period. The accused failed to pay the cheque amount. Instead, he gave untenable reply to the legal notice issued by the complainant. As such, the complainant filed three different private complaints against the accused for the offence punishable under section 138 of N.I. Act. The accused appeared through his counsel in all the cases. The complainant led his evidence as PW-1 and examined one Prasanth Hegde as PW-2. He relied upon as many as 27 documents which were marked as Exs.-P1-P27. The accused got himself examined as D.W.-1 for his defence. The learned Magistrate on appreciation of evidence recorded a finding that the complainant has been able to establish the offence committed by the accused under Section 138 of N.I. Act, which resulted in his conviction in all the three cases by common judgment and order dated 12.11.2003." 3. Challenging his conviction in all the three cases, the accused preferred Crl. A. Nos. 92/2003, 93/2003 and 94/2003. The appeals were heard on merits by the Sessions Judge. On re-appreciation of evidence, the learned Sessions Judge came to the conclusion that all the three cheques were issued by the accused in the police station under duress. The learned Sessions Judge has also come to the conclusion that the initial burden in a case of this nature is on the complainant. The complainant having failed to produce evidence to show the existence of legal liability and discharge of initial burden cast upon him, the learned Session Judge reversed the judgment of conviction and acquitted the accused by judgment dated 16.1.2007. Aggrieved by the acquittal of the accused in all the three cases by the learned Sessions Judge, these three appeals are preferred.

I have heard the submissions made by the learned counsel appearing for the complainant and the respondent-accused. Perused the records and the judgment and order passed by both the Courts below.

It is the case of the complainant that the accused is his friend. At his request, he advanced an amount of Rs. 4,40,000/- to the accused in Dhirams since both of them were working at Dubai at that time. The accused has categorically denied having approached the complainant for loan or for that matter receipt of loan from the complainant. It is further case of the complainant that when the accused failed to repay the loan amount, disputes arose between both of them and finally both of them have decided that the accused should repay a sum of Rs. 3,50,000/- and in pursuance thereof, the accused issued three cheques for Rs. 50,000/-, Rs. 50,000/- and Rs. 5,000/- each. On presentation of the cheques, they came to be dishonoured for the reason ''insufficient funds''. As required under law, the complainant informed the accused about the dishonour of the cheque by issuance of notice and called upon him to pay the cheque amount. When the accused failed to repay the cheque amount, even after issuance of statutory notice, a complaint came to be filed against the accused. As rightly argued by learned counsel appearing for the accused, in a case of this nature, initial burden to establish the existence of liability is on the complainant. Except the cheques in question, the complainant has not produced any other material to speak about the transactions between the complainant and the accused which made the accused to issue three cheques. Though promissory notice was produced and marked at Ex-P2, the Magistrate as well as Sessions Judge have rightly not placed reliance on the said document for the simple reason that all the three cheques were issued in the police station. No prudent person would issue cheques in the police station on his own. There is no material to show that as on the alleged date of advancement of loan of Rs. 4,40,000/-, the complainant had that much of amount in his bank account or for that matter, he had drawn that much of amount from his bank account and advanced the same to the accused. The complainant has not even produced an acknowledgement for having advanced that much of amount to the accused or for that matter regarding source of his income. In the absence of any documentary evidence, it is rather difficult to hold that the complainant has established the existence of legal liability for the discharge of which, the accused issued three cheques. It is only after discharge of initial burden by the complainant, the accused has to discharge the burden, if any, cast upon him. Since the complainant failed to discharge his burden, question of discharge of burden by the accused in this case does not arise. Since all the cheques were issued in the police station, no presumption can be drawn under Section 139 of the Act in favour of the complainant in this case. Thus the learned Sessions Judge on proper appreciation of evidence and having taken note of the law on the subject has rightly come to the conclusion that the complainant failed to discharge the initial burden of proving the existence of legal liability as on the date of issuance of cheque.

The learned counsel for the appellant-complainant has placed reliance on the decision of the Supreme Court reported in Hiten P. Dalal Vs. Bratindranath Banerjee, , wherein it is held that under Section 139, it shall be presumed that the holder of a cheque 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. In the case on hand, it is not in dispute that the cheque were issued by the accused in the police station in the presence of the police officers. That itself is sufficient to hold that the accused was made to issue the cheque under duress. In such case, it is rather difficult to draw presumption under Section 139 of the N.I. Act. Therefore, the said decision will not come to the help of the complainant having regard to the facts and circumstances of the case. Thus on my re-appreciation of evidence, I do not find any illegality committed by the learned Session Judge in all the three appeals. The appeals are bereft of merit. Hence, the appeals are dismissed.