Sri. J.S. Mohammed vs Sri. K. Mohammed. Beary

A.S. Pachhapure

The acquittal of the respondent for the charge u/s 138 of the Negotiable Instruments Act (hereinafter called as ''the Act'' for short) in challenged by the appellant in this appeal.

The facts relevant for the purpose of this appeal are as under:

The parties are referred to as per their rank before the Trial Court for the purpose of convenience.

The appellant herein is the complainant, whereas the respondent is the accused, before the Trial Court. The accused is said to be due for an amount of Rs. 1,50,000/- during the month of May 2001 and towards the payment of the said amount, issued a cheque dated 5.5.2001 for Rs.1,50,000/- in favour of the complainant and the cheque was presented for encashment. It returned with an endorsement of insufficient funds. The complainant issued a notice and as the demand in the notice was not complied, filed a complaint before the Trial Court to initiate action against the accused for the aforesaid offences.

During the trial, the complainant was examined as PW.1 and he got marked the documents Exs.P.1 to P.7. The statement of the accused was recorded u/s 313 Cr.P.C. He has taken the defense of total denial. The accused is examined as DW.1 and in his evidence, the documents Exs.D.1 to D.3 have been marked. The Trial Court after hearing the counsel for the parties and on appreciation of the material on record, acquitted the respondent and aggrieved by the order, the present appeal has been filed.

I have heard the learned counsel for the appellant and also the respondent. The point that arises for my consideration is:

Whether the appellant has made out any grounds to warrant interference in the order of acquittal of the respondent for the charge u/s 138 of the Act?

The complainant has produced cheque Ex.P.2 and as could be seen from the signature, the accused appears to be semi literate person. The contents of the cheque are in different: hand writing with different ink as compared to the signature on the cheque. There is no explanation as to why the signature and the contents are in different ink. When the complainant in his complaint, states that in respect of the amount due, the accused issued a cheque for Rs. 1,50,000/- on 5.5.2001, an inference could be drawn that the cheque was brought by the accused by filing in the contents and putting the signature. If that, is so, then there need not be different ink for the contents and the signature.

The averments in the complaint particularly in para 1 reads:

That the accused was due to the complainant to the tune of Rs. 1,50,000/- during the month of May 2001 in respect of the amount, borrowed from the complainant earlier, for which amount the accused had issued a cheque for Rs. 1,50,000/- in favour of the complainant bearing cheque No.007441 dated 5.5.2001...,

Nowhere the date, the month and year in which, the loan transaction took place has been made clear in the complaint. An amount of Rs. 1,50,000/- is not a small amount. Even the complainant has not maintained any account or a diary for making an entry of the amount paid with the date, month and year and the question arises as to whether a sum of Rs. 1,50,000/- could have been given to the accused without taking any document, or a receipt atleast. The complainant is a literate person and in the ordinary course, if he was to advance an amount of Rs. 1,50,000/- to the accused, he could have taken a document in this regard or atleast could have made some note in a register or a note book etc., having paid this amount to the accused. Considering the amount that is said to have been advanced, it is difficult to accept the contention of the complainant that it was an oral transaction.

Admittedly, the complainant is an agriculturist and also a businessman. A business man generally maintains accounts in respect of the transactions. The complainant states in the evidence that he purchases the betel nuts from the accused and in the month of April 2001, the accused took an amount of Rs. 1,50,000/- and said to have assured the complainant that he will repay the amount by selling the betel nuts. So, when there used to be a transactions between the complainant and the accused, there could have been an entry atleast for advancement of Rs. 1,50,000/- to the accused. But the complainant; has not produced any document in support of his claim.

A businessman generally keeps account in the Bank and whatever earnings are there, he credits it into the Bank account. Further, the business people do not generally retain the cash in hand, except for a small amount and the allegation of the complainant that he paid a cash amount of Rs. 1,50,000/- to the accused also is an abnormal conduct. Atleast to show that he had a cash of Rs. 1,50,000/- on the date, when he advanced the loan to the accused, he could have produced the documents. So, there is no answer to any of these questions referred to supra, except stating that the complainant had a faith in the accused.

It is the defense of the accused that he had lost two cheque leaves alongwith two signed stamp papers worth Rs.50/-and Rs.10/-, while he was traveling in a Bus from Puttur towards Panaji. The accused has produced Exs.D.1, D.2 and D.3, different newspapers in which he has made a publication that he has lost two cheque leaves and signed stamp papers while travelling in a Bus and any person who gets them was requested to produce it before the accused. This publication was made in the newspapers "Karavali Ale" (Ex.D.1), "Janantharanga" (Ex.D.2) and "Canara Times" (Ex.D.3). A contention is raised by the counsel that there is no mention of the loss of signed cheques, though it is mentioned specifically in respect of the promissory notes. Therefore, it is his contention that the accused must have got back the cheques which he had lost and thereafter, could have offered the same to the complainant after signing the cheques. When the defense of the accused is made clear in the reply notice, Ex.P.7, the complainant could have elicited in the cross-examination this contention and atleast could have made a suggestion to that effect. It is true that the accused could have informed the Bank for stop payment of the cheques lost and also could have filed a complaint to the Police. But as the accused was a village man, a semi literate person may not be aware of the consequences of the loss of cheque leaves and the fact that he has published the information in three newspapers strengthens his defense and if his intention was to cheat the complainant, he could have published the information in only one newspaper. So, considering these all circumstances, I am of the opinion that the complainant, has not discharged his initial burden and a probable defense has been raised by the accused to rebut, the presumption raised u/s 139 of the Act.

This is an appeal against acquittal and the Appellate Court will be slow in interfering with the orders of acquittal. Even if a second view is possible, the one accepted by the Trial Court cannot be disturbed. There is evidence on behalf of the complainant having obtained a signed cheque from the accused which leads to the presumption u/s 139 of the Act and at the same time, there are many suspicious circumstances to discard the evidence of the complainant as suspicious. Therefore, it is not proper for the Appellate Court to interfere with the order impugned. In that view of the matter, I answer the point in negative and proceed to pass the following.

ORDER

The appeal is dismissed. No costs.