Y.S. Kumar vs Ananth

Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the learned counsel for the respondent.

The petitioner was the accused before the court below, in respect of the complaint for an offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act" for brevity). It was the case of the complainant that the petitioner had issued two cheques bearing No. 150501 dated 14.1.2004 for a sum of Rs. 96,000/- and cheque bearing No. 150502 dated 18.10.2004 for a sum of Rs. 83,000/-. Both drawn on Cauvery Grameena Bank, Alanganchi Branch, Nanjangud Taluk. This was in purported repayment of a loan from the complainant. The complainant is said to have presented the cheques for encashment and the same were returned with the banker''s endorsement that the funds were insufficient, as per endorsement dated 11.3.2005. Thereafter, the complainant having issued a notice in terms of Section 138 of the NI Act and when the demand was not met, he had followed up with a complaint. The Court having taken cognizance and having issued summons, the petitioner had entered appearance and set up a defence that he had repaid the entire amount. The complainant who had retained the cheques, which were offered as security for due repayment, misused the same. In support of the same, he had produced Exs. D1 to D4. Ex. D1 and Ex. D4 were the receipts which acknowledged receipts of certain money. However, the same were found to be photo copies and the complainant when confronted with the said documents, had admitted the signatures. It transpires that the complainant when confronted with Ex. D1, had admitted that the signature appeared to be his, but, he denied the contents and it was also observed by the Court below that the document was photo copy and not an original and the explanation offered by the petitioner for having not produced the original was that it had been misplaced and therefore, photo copy duly attested by a Notary to the effect that it has been verified against the original, was sought to be produced. The court below has negated the said documents and has also rejected the explanation that the document was produced as secondary evidence, as original was lost. Accordingly, it convicted the petitioner and sentenced him to undergo imprisonment for a period of three months and imposed fine of Rs. 1,79,000/-. The same having been challenged in an appeal, the Appellate Court had affirmed the judgment of the Trial Court. It is that which is under challenge in the present petition.

During the course of proceedings, the petitioner has deposited total fine of Rs. 1,34,750/-. The learned counsel for the petitioner would contend that the respondent having admitted his signature on Ex. D1 which is photo copy duly attested by a Notary that it is compared with the original and found to be in order, could not have been negated by the Trial Court. Similarly he would submit that Ex. D4 also contains the very same signature of the respondent. However, the same had not been confronted to the witness in the course of his evidence and even that document cannot be denied as not having been executed by the respondent and therefore, there is a miscarriage of justice in the Court, overlooking the evidence that was on record, while holding in favour of the respondent and denying the benefit of the document which the petitioner would have had in accordance with law. It is pointed out by the learned counsel that the production of original documents as is required in civil law cannot be extended to a criminal proceeding and that the Evidence Act itself provides that secondary evidence could be produced in cases where the original document was lost in terms of Section 54 of the Evidence Act, 1872. Therefore, the court below was not justified in negating Exs. D1 and D4, offhand, even though there was an explanation offered by the petitioner that the original was lost. Hence he recourse to producing the photo copy of the same and hence, the learned counsel would submit that the petitioner be acquitted and the judgments of the court below be set aside.

While the learned counsel for the respondent -complainant would vehemently oppose the petition and would submit that the present petition is preferred in respect of the judgments which have arrived at concurrent findings on conviction and therefore scope of the revision petition is limited to questions of law, if any, or of jurisdiction which can be addressed and the primary contention that the documents which were sought to be produced in defence not having been accepted by the Trial Court, was illegal. However, it is pointed out that the Criminal Rules of Practice though do not specify that the original documents should be produced, it is always in the discretion of the Court and depending on the facts and circumstances in a criminal case, for a document to be marked as an exhibit and to be even considered in particular circumstance. The question whether the document relied upon by the petitioner in the present case on hand, was required to be produced in the original, cannot be in doubt for the reason that the proceedings are in the nature of quasi criminal proceedings and primarily relating to proof of its legal liability or otherwise. If it was the case of the petitioner that there was no legal liability outstanding by virtue of acknowledgments being issued on receipt of money by the respondent, it was incumbent on the petitioner to have produce the original document. Therefore, this would be so, if it was a suit for recovery and the document was sought to be relied upon in defence by the same analogy. Notwithstanding that the present proceeding is before a Criminal Court, the requirement of producing the document in original having been insisted upon by the court below and that the contention that the original was lost, not having been accepted cannot be found fault with and therefore would submit that there is no merit in the petition and the same be dismissed with costs.

Given the facts and circumstances of the case, the primary circumstance that the respondent has not denied his signature on the document at Ex. D1, which is a receipt in respect of a sum of Rs. 1 lakh and since the document is indeed attested by a Notary to state that it has been verified against the original, would be sufficient compliance required under Section 65 of the Evidence Act, where the secondary evidence could be tendered in place of primary evidence. Given that circumstance, atleast to the extent of the amount that is reflected in Ex. D1, the petitioner ought to have been given the benefit of doubt. Since there is also substance in the contention of the respondent that original ought to have been produced at least of Ex. D1, which is also a receipt in respect of a substantial amount of money, it would be in the fitness of things, while affirming the judgments of the Trial Court in holding that the offence under Section 138 is established. It would however be appropriate if the sentence imposed is modified. Accordingly, the punishment of imprisonment is set aside. Insofar as the fine amount is concerned, it would be in the interest of justice, if it is reasonably modified to balance equities and accordingly the fine amount is reduced to Rs. 80,000/-. Since the petitioner has already deposited a sum of Rs. 1,34,750/-, he shall be entitled to a refund of Rs. 54,750/-. With that modification, the petition is allowed in part. The respondent is permitted to withdraw the deposit in a sum of Rs. 80,000/-, in terms as above.