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2007(7) Supreme 316
Supreme Court of india
(From Kerala High Court)
S.B. Sinha & Harjit Singh Bedi, JJ.
John K. John — Respondent
versus
Tom Varghese & Anr. — Respondents
Appeal (crl.) 1433-1434 of 2007
[Arising out of SLP (Crl.) No. 6038-6039 of 2005]
Decided on : 12-10-2007
(b)Negotiable Instruments Act, 1881 – Section 139 – On a question of presumption u/s 139 conduct of the parties is a relevant actor – High Court was therefore entitled to take notice of the conduct of the parties – High Court has found that conduct of the complainant was not that of a prudent man – Payment of a huge sum of money without any instrument or any interest was a relevant factor and it was open to the High Court to draw its own conclusion therein – The plea that despite knowing that the respondent even was not in a position to discharge his burden to pay instalments in respect of the prized amount, an advance was made to him and that too even after institution of three civil suits cannot be accepted – If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken. (Para 10)
(c)Constitution of India – Article 136 – Well-settled that Supreme Court, in exercise of its jurisdiction under Article 136, would ordinarily not interfere with the judgment of acquittal, if two views are possible. (Para 11)
(2006) 6 SCC 39; 2007 (7) SCALE 137 – Relied upon.
Facts of the case:
Respondent allegedly issued two cheques in favour of the appellant. The said cheques when presented were dishonoured for want of sufficient funds. As despite service of notice the respondent did not make any payment, two complaint petitions were filed against him.
The question which arose for consideration before the learned Trial Judge and consequently before the Court of Appeal as also the Revisional Court was as to whether the said cheques had been issued towards discharge of any existing debt.
Appellant admittedly was conducting chitty transactions in the name of a firm known as ‘Karappara Chitty Funds’. He is a partner of the said firm. The suits were instituted by him representing the said firm. Appellant contended that despite the fact that the respondent herein was a defaulted subscriber of two prized chitties, he took personal loan from him in his personal capacity.
The learned Trial Judge, in its judgment, took notice of the pendency of the several civil litigations by and between the parties hereto. It, however, proceeded on the basis that as admittedly cheques have been issued by the respondent which on presentation were not honoured, he committed an offence under Section 138 of the Negotiable Instruments Act. The said findings of the learned Trial Judge was upheld in appeal by the learned Additional Sessions Judge by a judgment and order dated 17.03.2004.
The High Court, however, in the revision application filed by the respondent herein opined that the learned Trial Judge as also the Appellate Court could not have rejected the evidence adduced by the respondent and in particular those of DWs 1 and 2 in view of the fact that admitted and proved facts strengthened their versions or at least probabilised the same. Holding that the respondent herein has successfully rebutted the presumption arising under Section 139 of the Act, it was held that the appellant did not succeed in proving that the respondent had borrowed any sum for which the said cheques were issued.
Findings of the Court:
In the fact situation of the case, High Court’s judgment cannot be said to be perverse warranting interference.
Result : Appeals dismissed.
judgment
S.B. SINHA, J. —
1.Leave granted.
2.The complainant is before us being aggrieved by and dissatisfied with a judgment and order dated 24.08.2005 passed by a learned Single Judge of the High Court of Kerala in Crl. R.P. Nos. 2255 and 2256 of 2004 whereby and whereunder the judgment of conviction and sentence passed by the learned Trial Judge and affirmed by the Appellate Court, was set aside.
3. Respondent allegedly issued two cheques in favour of the appellant herein. The said cheques when presented were dishonoured for want of insufficient funds. As despite service of notice, the respondent did not make any payment, two complaint petitions were filed against him.
4. The question which arose for consideration before the learned Trial Judge and consequently before the Court of Appeal as also the Revisional Court was as to whether the said cheques had been issued towards discharge of any existing debt.
5. Relationship between the parties is not in dispute. The complainant used to run chitties. Respondent was a subscriber to three chitties conducted by the firm of the appellant. In respect of one of the chitties, the bid was held on 7.10.1997 for a sum of Rs. 1,00,000/-. The amount was paid on 3.11.1997. Bid was again made by the respondent in relation to another chitty on 7.04.1998, for a sum of Rs. 1,00,000/-. The amount was paid on 25.06.1998. Allegedly, Respondent committed defaults in payment of the instalments in relation thereto with effect from 7.04.1998.
5.Indisputably, a suit for realization of the said amount was filed by the appellant against the respondent in the Court of the Subordinate Court, Kottayam which was marked as O.S. No. 1 of 2000. Another suit being O.S. No. 168 of 2000 was instituted before the Munsiff Court, Changancherry claiming a sum of Rs. 55,900/-. Respondent, apart from the aforementioned two chitties, was a subscriber to another chitty for a sum of Rs. 50,000/-. It was not prized by the respondent. On an allegation that the respondent along with three others had borrowed a sum of Rs. 1,00,000/- from him on 26.03.1998 wherefor he executed a demand promissory note and as despite demand, the said amount was not paid to him, the appellant instituted another suit being O.S. No. 362 of 1999 in the Subordinate Court, Kottayam for recovery of a sum of Rs. 1,00,000/- with interest.
6. Appellant herein admittedly was conducting chitty transactions in the name of a firm known as Karappara Chitty Funds. He is a partner of the said firm. The suits were instituted by him representing the said firm. Appellant contended that despite the fact that the respondent herein was a defaulted subscriber of two prized chitties, he took personal loan from him in his personal capacity.
7. Before the learned Trial Judge, the respondent examined two witnesses who proved the aforementioned fact. The learned Trial Judge, in its judgment, took notice of the pendency of the several civil litigations by and between the parties hereto. It, however, proceeded on the basis that as admittedly cheques have been issued by the respondent which on presentation were not honoured, he committed an offence under Section 138 of the Negotiable Instruments Act (for short the Act). The said findings of the learned Trial Judge was upheld in appeal by Shri K. Ramakrishnan, learned Additional Sessions Judge by a judgment and order dated 17.03.2004.
8. The High Court, however, in the revision application filed by the respondent herein opined that the learned Trial Judge as also the Appellate Court could not have rejected the evidence adduced by the respondent and in particular those of DWs 1 and 2 in view of the fact that admitted and proved facts strengthened their versions or at least probabilised the same. Holding that the respondent herein has successfully rebutted the presumption arising under Section 139 of the Act, it was held that the appellant did not succeed in proving that the respondent had borrowed any sum for which the said cheques we
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