2010 ALL MR (Cri) 1446
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.P. BHANGALE, J.
Sheshrao S/O. Krishnarao Umredkar Vs. Shri. H. K. Pande & Anr.
Criminal Appeal No.627 of 2006
10th March, 2010
Petitioner Counsel: Mr. S. M. BHANGDE
Respondent Counsel: Mr. ALOK UPASANI,Mr. K. S. DHOTE
(A) Negotiable Instruments Act (1881) S.138 - Dishonour of cheque - Ingredients of offence - Important ingredient is that the complainant must prove that cheques in question were issued towards discharge of legally enforceable debt or liability. 2008 ALL MR (Cri) 1164 (S.C.) - Ref. to. (Para 6)
(B) Criminal P.C. (1973), S.378 - Negotiable Instruments Act (1881) S.138 - Appeal against acquittal - High Court would stay off its hands in disturbing judgment and order of acquittal for the simple reason that there is always a presumption of innocence in favour of accused which is basically a human right - Judgment and order of acquittal bolsters up further the presumption of innocence. (Para 7)
JUDGMENT :- By means of this appeal, the appellant original complainant is challenging the validity and legality of the judgment and order passed by learned Judicial Magistrate, First Class, Special Court under section 138 of the Negotiable Instruments Act, Nagpur (hereinafter referred to as "N.I. Act" for the purposes of brevity) who, by order dated 29th June, 2006 passed in Summary Criminal Case No.2560/2006 found the respondent/accused not guilty for offence punishable under section 138 of the N.I. Act and acquit the accused.
2. The facts in brief are that : According to complainant M/s. Rakesh Enterprises, the accused Mr. H. K. Pande for M/s. Hari Industries at Nagpur had transactions that the complainant had purchased certain goods, such as, silk yarn, raw material, Banaras silk etc. during the year 1999. It is the case of the complainant that the accused had issued two cheques one cheque bearing No.368017 dated 17.8.1999 for a sum of Rs.73,810/- and another cheque bearing No.368027 dated 5.9.1959 for a sum of Rs.40,000/-. Both the cheques were drawn upon State Bank of India, Nagpur which were presented by the complainant through Nagpur Nagarik Sahakari Bank, Nagpur Branch, on 16.10.1999; but those cheques were returned on 18.10.1999 with remarks "insufficient funds". Thereafter by demand notice in writing dated 29.10.1999, the complainant called upon the accused through the Advocate to pay outstanding credit purchase amount failing which criminal case would be filed. The demand notice was received by the accused on 2nd November, 1999 to which the accused gave reply dated 10.11.1999 and disputed the liability on the ground that cash payment was already made; but the complainant did not return the cheques. According to accused, complainant had accepted cash amount for supplying China and Korea thread but the goods were not supplied nor cash money was returned back to the accused. Under these circumstances, the accused had demanded a sum of Rs.40,687.65/- paise along with interest at the rate of 24 per annum, on the amount due along with 50 per cent surcharge amount payable towards in Sales Tax. The reply was received by the Advocate Shri. Suryakant Jaiswal (Exh.51) on 20.11.1999.
4. The complainant in support of the complaint, filed an affidavit stating that the accused Proprietor of M/s. Hari Industries conducting business of manufacturing tusser silk and tusser yarn garments at Nagpur, is a regular customer of M/s. Rakesh Enterprises, a proprietory firm belonging to complainant and he had purchased raw material on credit on 7.7.1999. The accused had also purchased tusser china yarn for a total sum of Rs.86,792.50/- paise and thereafter also bought Banaras silk. It is pertinent to note that the transactions in respect of purchase of goods dated 7.7.1999; 17.7.1999; 24.7.1999; 14.8.1999 and 29.9.1999 were averred in the complaint as various dealings between the complainant and the accused. The dealings were referred to in paragraph 4 of the affidavit in support of the complaint. Thus, according to the complainant, the cheques in question referred above, were issued from the accused which were dishonoured for want of sufficient funds in the account of the accused.
5. It appears that the complainant was cross-examined at length with reference to the affidavit filed in support of the complaint and the documents on record. It is pertinent to note that the complainant is admittedly having business since last 15 years; but was not having any CST or BST numbers. The complainant disputed his signature on Exh.84 which appears vouchers addressed to M/s. Rakesh Enterprises from Hari Industries which, according to the accused, is signed by the complainant for having received sum of Rs.1,40,000/- while complainant has admitted his signature on vakalatnama (Exh.2) and complaint (Exh.1). At the same time he admitted that signature appearing in complaint (Exh.1) and signature appearing in Article No.A (Exh.84) are similar. It is also suggested that cheques - Exhs.41 and 42 were given to the complainant as security. According to learned Advocate for the respondent/accused, the amount of Rs.1,40,000/- was paid under voucher on 11.9.1999 which was acknowledged by the complainant, but he failed to return the cheques given by way of security. It is submitted by the learned Advocate for the accused that the complainant has courage to deny the fact of reply to his notice from the accused, which was given as Exh.49. When confronted with Exh.49, he admitted that it was legal reply sent by the accused and received by his counsel, who has signed acknowledgment Exh.50. The complainant also examined Shri. Vijay Deshpande, Deputy Manager, State Bank of India, in order to prove the fact of dishonour of the cheques on the ground that funds were insufficient. The accused in defence examined Handwriting Expert Shri. Ulhas Shriniwas Athale, who examined disputed document Article A (Exh.84), which is debit/credit voucher dated 11.9.1999 along with admitted signatures of the complainant and expressed his opinion Exh.80 that the disputed signature Exh.77 and signature marked by him as S-1 to S-5 (signature of the complainant) are of the one and the same person. He deposed about his own exhibit 80. He was cross-examined at length. It is true that he may not have obtained degree in the subject of Forensic Science but it cannot be overlooked that he is holding Degree in Law from Nagpur University and is a trained Handwriting Examiner, with experience of training under the eye of late Shri. C. T. Bhange, a Government Consultant and possesses experience of about 20 years examining disputed documents and giving expert opinion in various Court matters. He compared admitted signature of the complainant appearing in compliant Exh.1 vakalatnama signed by the complainant, affidavit in support of the complaint signed by him along with signature appearing in the disputed document and expressed his opinion that disputed signature D-1 is made by the same person who made the comparative signature marked S-1 to S-5. Thus, documentary evidence as also testimony of Handwriting Expert, apart from affidavit of the accused in support of his defence vide Exh.83, is put forward as a defence that accused had paid Rs.1,40,000/- in cash on 11.9.1999 towards cheque amounts as well as for an advance of Korea and China threads, promised to be supplied by the complainant which was acknowledged by the complainant as per Exh.84 (which was initially marked as Article A). It is deposed by the accused that Exh.84 is a receipt for a sum of Rs.1,40,000/- which bears the signature of the complainant-Sheshrao and contents of receipt are correct. Under these circumstances, it is contended on behalf of the accused that the accused had led ample evidence which can satisfy test of any prudent person so as to disprove the accusation made against him. In the course of cross-examination on behalf of the complainant, accused also confirmed that he had taken entry of payment of Rs.1,40,000/- in his account book, which was paid to the complainant towards advance payment of thread also; but goods were not received in lieu of the advance paid which was in excess of the amount of the cheques. It appears that the learned trial Magistrate has considered the evidence of the complainant as well as defence evidence led by the accused in the form of his testimony as well as the evidence of the Handwriting Expert. Under these circumstances, it appears that the learned trial Magistrate evaluated the evidence led by the rival parties, also considered acceptability as well as probative value of the documents.
6. The important ingredient of the offence under section 138 of the N.I. Act is that the complainant must prove that the cheques in question were issued towards discharge of legally enforceable debt or liability. In the facts and circumstances of the present case, it is found that there were many transactions between the complainant's firm and the firm of the accused from time to time and it is specific defence of the accused that the amount which was due from the accused to the complainant was paid as also the amount was advanced to the complainant in excess of the amount of cheques which were given by way of security so that cheques were to be returned back by the complainant. The documentary evidence (Exh.84) is brought on record with the help of Expert's opinion of the Handwriting examiner with long experience of deposing in the Court matters, a well-trained Law graduate for to rebut the statutory presumptions which were available to the complainant under sections 118 and 139 of the N.I. Act. The accused by his own evidence as well as evidence of Handwriting Expert succeeded to prove to the contrary while defending to the accusations under section 138 of the N.I. Act and brought on record the evidence on the basis of which it can be positively said that the burden shifted back upon the complainant to produce the evidence fairly and reasonably to establish positively that the cheques were issued towards discharge of legally enforceable debt or liability. The complainant could have produced books of accounts in order to show various dealings which his firm had with the firm of the accused and the exact outstanding dues. The accused had succeeded, at least, on preponderance of probability that the amount of Rs.1,40,000/- was paid under voucher Exh.84 to the complainant. Thus, contrary fact was proved by the accused that the cheques were not issued for legally enforceable debt or liability. The complainant failed to adduce necessary evidence beyond reasonable doubt to establish that the goods were delivered to the accused from time to time for certain sum of money in respect of which the price was paid on the basis of cheques. As the burden shifted back to the complainant after the accused succeeded to establish that sum of Rs.1,40,000/- was paid to the complainant acknowledged by the complainant in writing as per Exh.84 (Article "A"). Under these circumstances the ruling in Krishna Janardhan Bhat Vs. Dattatraya G. Hegde reported in AIR 2008 SC 1325 : [2008 ALL MR (Cri) 1164 (S.C.)] is attracted because existence of legally recoverable debt is not a matter of presumption u/s.139. It merely raises a presumption in favour of the holder that cheque was issued for discharge of debt or liability and, as such, the complainant was liable to prove or establish the fact that there existed legally recoverable debt payable by the accused to the complainant as on the date of the cheque in question. For this reason the learned trial Magistrate was justified to dismiss the complaint and acquit the accused of offence punishable under section 138 of the N.I. Act.
7. This Court would stay off its hands in disturbing the judgment and order of acquittal for the simple reason that there is always a presumption of innocence in favour of the accused which is basically a human right. The judgment and order of acquittal bolsters up further the presumption of innocence and when it appears that the learned trial Magistrate evaluated the evidence properly in order to conclude the acquittal, this Court cannot be justified in disturbing the order of acquittal unless there is a specific and compelling reason to overturn the acquittal or unless grave miscarriage of justice has resulted from the impugned order of acquittal. In my opinion, the learned trial Magistrate appears to have applied his mind to the entire evidence on record led by the complainant as well as the accused and arrived at a finding which appears based on reasonable and probable view of the matter. However, in such case, the parties may be left to resort to agitate the civil dispute as permissible according to law before appropriate forum if they so desire. I am not inclined to interfere with the impugned judgment and order of acquittal as no ground is made out for interference. Appeal is dismissed.