Criminal Appeal No.1243 of 2002

21st February, 2007

Petitioner Counsel: R. K. SURI
Respondent Counsel: T. NAGARJUNA REDDY

Cases Cited:
K. N. Beena Vs. Muniyappan, 2002(1) ALL MR 277 (S.C.)=AIR 2001 SC 2895 [Para 9]
G. B. Lingam Vs. Vitta Murali Krishna Murthy, 1997(2) ALT (Crl.) 100 [Para PARA10]

JUDGMENT

-Challenging the judgment of acquittal dated 18.7.2002 passed in C.C. No.60 of 2001 on the file of the Judicial Magistrate of First Class, Special Mobile Court, Srikakulam whereunder the first respondent/accused was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, the present criminal appeal is preferred under Section 378(4), Cr.P.C. by the appellant/complainant.

2. The case of the complainant, in brief, may be stated as follows :

The accused is a civil and mechanical contractor and he is Managing Partner of M/s. Jaimenee Engineers. In pursuance of an oral agreement entered into by the accused with the complainant for supplying construction building material at Nalco, Damanjodi, the complainant supplied 40 and 20 mm chips, boulders and bricks and raised bill for Rs.11,08,110/- and the same was passed by one S. P. Patnaik, site in-charge. The accused gave a cheque bearing No.782768 dated 22.11.1999 for Rs.10,50,000/- of State Bank of India, Damanjodi Branch and the same was presented on 14.12.1999, but it was returned with endorsement 'payment stopped by the drawer'. The complainant got issued the statutory notice on 22.12.1995 to accused, who received the same and sent reply on 29.12.1999 and did not pay the amount. Hence, the complaint.

3. To substantiate the case of complainant, two witnesses P.Ws.1 and 2 were examined and 515 documents Exs.P1 to P515 were marked. On behalf of accused, no oral evidence was examined, but 5 documents Exs.D1 to D5 were marked.

4. The trial Court while observing that signature on the cheque was not disputed by the accused, acquitted the accused holding that the complainant failed to prove that he supplied the construction material and the cheque was not given for discharge of legally enforceable liability. Challenging the same, the present appeal is preferred by the complainant.

5. The learned Counsel for the appellant contended that issuance of Ex.P2-cheque is not denied or disputed by the accused; that the site in-charge of the accused signed on Exs.P10 to P514, trip sheets of different dates and therefore presumption under Section 139 of the Negotiable Instruments Act, 1881 can be drawn; that under total misconception of law, the trial Court placed burden on the complainant though the initial burden of the complainant was discharged by adducing necessary evidence. Hence, he prayed to set aside the impugned judgment.

6. None appeared for the first respondent. Perused the evidence on record.

7. P.W.1 who is complainant, stated that he supplied building material of sand, 20 and 40 mm chips, boulders and bricks during June, 1998 to October, 1998 and therefore the accused is found liable to a tune of Rs.11,08,110/- and Ex.P1 is copy of document of the bill for supply of construction materials, which was signed by S. P. Patnaik; for that amount, the accused issued Ex.P2-cheque for Rs.11,50,000/- of State Bank of India, Dhamnjodi Branch, Orissa; when the cheque was presented on 14.12.1999, it was returned with Ex.P3-memo dated 14.12.1999; he sent a notice under Ex.P4-postal receipt for which Ex.P5-reply was given on 29.12.1999.

It is not denied or disputed before this Court that the accused belongs to Gujarat State and he is a contractor in Nalco, Damanjodi. It is also an admitted fact that the accused used to pay bill amounts monthly for some time, and several cheques issued by the accused in the year 1998 were honoured. He also stated that on S. P. Patnaik is the site in-charge of the accused. The said fact is not denied or disputed. Except suggesting that the complainant has not supplied construction material and the accused did not give Ex.P2-cheque and that P.W.1 committed theft of Ex.P2-cheque in his absence, nothing has been elicited to discredit testimony of P.W.1. So, from the evidence of P.W.1 and Exs.P10 to P514, it is established beyond doubt that he supplied building materials like chips, sand and boulders to the accused. On the ground that none of the persons relating to Nalco was examined, the trial Court disbelieved Ex.P10 to P514. Admittedly, these documents do not contain seal of office of Nalco. But, at the same time, it contains signature of S. P. Patnaik who is admittedly Site in-charge of the accused. Even the accused did not deny or dispute about the issuance of Ex.P2-cheque when he was examined under Section 313, Cr.P.C.

8. Further, to prove that certain material was supplied under Exs.P10 to P514, P.W.2 who is driver of lorry in which the material was supplied, is examined. Though he admitted that Nalco authorities would not allow the vehicles without affixing seal on the trip sheets, at the same time, Exs.P10 to P514 would clearly go to show that certain materials were supplied to the accused which were received by its Site in-charge, and to discharge that amount, according to P.W.1, Ex.P2-cheque was issued. The trial Court gave a finding that it is the accused who issued Ex.P2-cheque and the signature on Ex.P2 is not denied. Under Section 139 of the Negotiable Instruments Act, it shall be presumed, unless contrary was proved, 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. Therefore, once issuance of a cheque is admitted, burden shifts on to the accused to rebut the said presumption. No doubt, the accused need not examine himself to rebut the said presumption. He can also rebut the presumption in cross-examination of the complainant. But, he did not discharge that burden. The trial Court, under misconception, placed burden on the complainant. But, in view of the fact that initial burden has been discharged by the complainant, it is for the accused to rebut the said presumption to show that Ex.P2-cheque was not given for discharge of a legally enforceable debt or liability. The accused has not examined himself to rebut the said presumption or elicited any material in cross-examination of P.W.1 to show that Ex.P2-cheque was not issued for any legally enforceable debt or liability. On the other hand, the evidence of P.W.1 would go to show that the complainant was having business transactions with the accused for supply of certain materials. It is elicited in cross-examination of P.W.1 that the accused used to pay bills to complainant monthly by issuing cheques. Therefore, from his evidence also, it is clear that he supplied building materials to the accused and the site in-charge of the accused signed on the trip sheets.

9. The learned Counsel for the appellant relied on a decision in K. N. Beena Vs. Muniyappan and another, AIR 2001 SC 2895 : [2002(1) ALL MR 277 (S.C.)], wherein it is held as follows : (Para 6)

"In our view the impugned judgment cannot be sustained at all. The judgment erroneously proceeds on the basis that the burden of proving consideration for a dishonoured cheque is on the complainant. It appears that the learned Judge had lost sight of Sections 118 and 139 of the Negotiable Instruments Act. Under Section 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part of a debt or liability. Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal Vs. Brotindranath Banerjee, (2001)6 SCC 16, has also taken an identical view."

10. In the case on hand also, the burden placed on the accused has not been discharged. Therefore, presumption under Section 139 of the Act can be drawn. The accused having not let in any evidence, can not be said to have discharged the burden cast on him. The decision relied on by the trial Court in G. B. Lingam Vs. Vitta Murali Krishna Murthy and another, 1997(2) ALT (Crl.) 100, has no application to the facts of the present case. It is a case where the accused therein takes a plea that the cheque was not issued. In view of the foregoing discussion, the impugned judgment of acquittal is liable to be set aside and is accordingly set aside. The first respondent/accused is found guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and is accordingly convicted therefor.

11. As regards sentence, the supply of material was in the year 1998-99. The cheque was given on 22.11.1999. So, a lenient view can be taken with regard to sentence and it is not desirable to impose any substantive sentence of imprisonment on the accused at this stage. Therefore, the accused is sentenced to pay a fine of Rs.5,000/- (Rupees five thousand) in default to suffer simple imprisonment for three months. The accused shall also pay twice the cheque amount as compensation to the appellant/complainant under Section 357, Cr.P.C. within two months from today, failing which he has to undergo simple imprisonment for one year.

12. The criminal appeal is, accordingly, allowed.

Appeal allowed.