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2007(7) Supreme 500
Supreme Court of india
S.B. Sinha & Harjit Singh Bedi, JJ.
K. Prakashan — Petitioner
versus
P.K. Surenderan — Respondent
Appeal (crl.) 1410 of 2007
Decided on : 10-10-2007
(2006) 6 SCC 39 – Relied upon.
(b)Negotiable Instruments Act, 1881 – Sections 118(a) and 139 – Presumptions under these provisions are rebuttable – For rebutting such presumption, what is needed is to raise a probable defence.(Para 16)
(2007) 5 SCC 264 – Relied upon.
(2003) 3 SCC 232 – Distinguished.
(c)Negotiable Instruments Act, 1881 – Section 139 – High Court, laying great emphasis on the burden of proof on the accused – Settled that the accused need not disprove the prosecution case in its entirety – Accused has only to discharge his initial burden. (Para 16)
(2006) 6 SCC 39; (2007) 5 SCC 264 – Relied upon.
(d)Code of Civil Procedure, 1908 – Section 100 – Trial court’s judgment of acquittal after proper appreciation of the evidences cannot be said to be perverse or suffering from any legal infirmity – It cannot be reversed just because another view is possible to be taken, that too without meeting the reasons of the Trial Judge. (Para 20)
2007 (7) SCALE 137 – Relied upon.
Facts of the case:
1.Respondent herein allegedly, on diverse dates, advanced a sum of Rs. 3,16,000/- to the appellant who issued a cheque for the said amount on 18.12.1995. The said cheque was dishonoured on the ground of ‘insufficient fund’. Allegedly, when the matter was brought to the notice of the appellant, he undertook to remit the amount on or before 30.01.1996. The cheque was again presented but the same was not encashed on the ground ‘payment stopped by the drawer’.
2. On the aforementioned premise, a complaint petition was filed by the respondent herein against the appellant under Section 138 of the Negotiable Instruments Act.
3. The Trial judge acquitted the appellant but High Court reversed the said findings holding that the appellant having not examined himself cannot be said to have discharged the burden of proof cast on him in terms of Section 139 of the Act. Impugned judgment set aside.
Findings of the Court:
No infirmity in the well reasoned judgment of the trial court.
Result : Appeal allowed.
judgment
S.B. Sinha, J. —
1. Leave granted.
2.The impugned judgment is one of reversal of a judgment of acquittal passed by the learned Trial Judge in favour of the appellant.
3. Respondent herein allegedly, on diverse dates, advanced a sum of Rs. 3,16,000/- to the appellant who issued a cheque for the said amount on 18.12.1995. The said cheque was dishonoured on the ground of insufficient fund. Allegedly, when the matter was brought to the notice of the appellant, he undertook to remit the amount on or before 30.01.1996. The cheque was again presented but the same was not encashed on the ground “payment stopped by the drawer”.
4. On the aforementioned premise, a complaint petition was filed by the respondent herein against the appellant under Section 138 of the Negotiable Instruments Act (for short “the Act”).
5. The complainant in support of its case led evidence to show that he had advanced various sums on the following terms :
“On 31-1-94 a sum of Rs. One lakh; on 8-6-94, Rs. 86,000/-; on 12-6-94, Rs. 28,000/-; on 23-4-95, Rs. 50,000/- on 18-6-95, Rs. 40,000/- and on 7-8-95, Rs. 12,000/-.”
6. Defence of the appellant, on the other hand, was that he had issued blank cheques for the purpose of purchase of spare parts, tyres, etc. in connection with the business of transport services run in the name of his brother. The blank cheques used to be returned by the sellers of spare parts, etc. when the amounts were paid. According to the appellant, the complainant lifted the impugned cheque book put in the bag and kept in his shop. Appellant in support of his case examined the Bank Manager of the Bank concerned.
7. The learned Trial Judge upon analyzing the materials brought on records inter alia held:
(i)The complainant himself who had not sufficient funds and used to borrow the same from his brothers, father and others failed to show that he had any financial capacity to advance such a huge amount.
(ii)As all the transactions were admittedly recorded by him in a diary which having not been produced, an adverse inference should be drawn.
(iii)The complainant failed to prove before the Court that there had been any commercial or business transaction between himself and the accused. The complainant had not charged even any interest although a huge sum was allegedly advanced on diverse dates.
(iv)From Ext. D1 the counterfoil of the cheque book issued to the appellant from the bank it appeared that whereas cheque No. 782460 was presented before the bank for collection of the dues on 30.12.1993, cheque No. 782451 of the same cheque book reached the bank only on 8.01.1996. It was, therefore, opined that if the last cheque reached the bank for collection on 30.12.1993, in normal and reasonable course cheque No. 782451 must have been issued even prior thereto.
(v)The documentary evidence substantiates the case of the accused that cheque No. 782451 allegedly given by him on 18.12.1995 was not genuine.
(vi)The complainant contradicted himself insofar as whereas in the complaint petition he inter alia alleged that the loan was raised by him from his father as also from others; in his evidence, he did not state that he had borrowed any amount from third parties.
(vii)The cheque dated 18.12.1995 which is said to have been handed over to him on 5.10.1995 should have been encashed immediately after the date of issue as he is said to be in need of money which was not done.
(viii)Although the burden of proof was on the appellant, he, in view of the aforementioned circumstances, must be held to have discharged the same.
8. The High Court, however, by reason of the impugned judgment reversed the said findings of the learned Trial Judge holding inter alia that the appellant having not examined himself cannot be said to have discharged the burden of proof cast on him in terms of Section 139 of the Act stating:
(i)“Virtually, the accused has not adduced any evidence to establish the specific case set up by him that the cheque leaf was placed inside a bag and that
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