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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Britto N.A., J.
P. V. Constructions... Appellant
Versus
K.J. Augusty ... Respondent
Criminal Appeal No. 10 of 2006,
Decided on 31-8-2006.
Advocates appeared:
N.K. Sawaikar, for appellant.
J.P. Mulgaonkar, for respondent.
Negotiable Instruments Act, 1881 - Sections 138 and 139 - Evidence Act, 1872, Section 73 - Dishonour of cheque - Comparing signature - Trial Court accepted contention that forged signature on cheque - Acquitted accused - Appeal against presumption - To be displaced by accused - Magistrate erred in com- paring signature from Xerox copy - Order acquitting accused set aside - Accused convicted under Section 138 of NI Act. - Once the complainant had asserted that the cheque was given to him by the accused, duly signed, there was a presumption in favour of the complainant both in terms of Section 116 as well as 139 of the Act and it was for the accused to lead evidence to the contrary to displace the presumption and in such a situation it was improper on the part of the Judicial Magistrate to have done the exercise by himself, of comparing the signatures and that too from a Xerox copy.
Negotiable Instruments Act, 1881 - Sections 138 and 139 - Evidence Act, 1872, Section 114 - Adverse inference. - When Magistrate compared the signature by Xerox Copies and acquitted the accused, in absence of presumption, acquittal order is set aside.
Criminal Procedure Code, 1973 - Section 389 Appeal against acquittal Offence under Section 138 of N.I. Act Complainant and accused both civil contractors Complainant executed some works for accused owed to complainant an amount of Rs. 84,775/Accused issued two cheques to complainant Cheque dishonoured Demand notice issued by complainant Accused denied issuance of cheque Com plaint Evidence led by complainant Accused not led any evidence Contended that cheques lost and his signature on cheques forged Contention not tenable Presumption under Section 139 of N.I. Act available in favour of complainant Accused not displaced said presumption Magistrate erred in comparing signature himself from a Xerox copy Appeal succeed Judgment/Order acquitting accused set aside Accused convicted under Section 138 of N.I. Act.
Key Points:- The complainant bears the burden to prove there was a debt/liability and that the cheque was given for that debt, not shifted to the complainant by misapplied replies (!) (!) .- The court clarifies that comparing signatures should not be done by the magistrate on a xerox copy; the presumption under Sections 118/139 NI Act arises in favour of the complainant and the accused must rebut it with cogent evidence (!) (!) (!) .- There is a presumption of liability for the drawer under Sections 138/139 NI Act, and the absence of rebuttal by the accused can sustain conviction; improper adverse inferences against the complainant are not supported (!) (!) (!) .- The appeal succeeds; the acquittal is set aside and the accused is convicted under Section 138 NI Act with sentence and compensation (!) (!) .- The Hon’ble court emphasizes that the burden and presumptions are law-based and not dependent on the content of the replies alone; cogent evidence is required to rebut presumptions (!) (!) (!) .
2. The parties hereto are being referred to in their names as they appear in the cause title of the complaint.
3. The complainant is the proprietor of M/s. P.V. Constructions and the accused is the proprietor of M/s. Ayswarya Constructions.
4. The case of the complainant was that the complainant was undertaking execution of civil works directly or under other contractors and the complainant executed some works for the accused who is also a Civil Contractor towards which the accused owed to the complainant an amount of Rs. 84,775/- As per the complainant, through the intervention of mutual friends namely, (1) Mr. Balagopalan, Contractor, (2) Shri Caetano Colaco, Contractor, (3) Shri Luis, Contractor and (4) Joaquim Lobo, Junior Engineer in the Office of the Works Division XIII, P.W.D., Mapusa, it was agreed between the accused and the complainant that the accused would pay a sum of Rs.81,000/- in full and final settlement and accordingly the accused issued two cheques in favour of the complainant, one for Rs.40,000/-, post dated 25-3-2002 and the other for Rs. 41,000/-, also post dated 25-4-2002 in the presence of S/Shri Balagopalan, Luis and Justin.
5. The complaint in this case pertained to cheque No. 804287 dated 25-3-2005. As per the complainant he deposited the said cheque for collection in his South Indian Bank Limited, Panaji Branch, which sent it to Federal Bank Ltd., Panaji Branch and the same was returned dishonoured with remark "payment stopped by the drawer" which was communicated to the complainants bankers vide Memo dated 25-3-2002.
6. Further, the case of the complainant was that the complainant sent a demand notice, through his Advocate calling upon the accused to pay the said sum of Rs. 40,000/- and the accused replied the said notice alleging that the said cheques were lost on 232-2002 and denied the issuance of the said cheques thus casting aspersions on the complainant and also denied his liability to pay the amount due. The complainant stated that the issue of cheques from the cheque book complained to be lost, reported to the Police was a fraudulent act on the part of the accused. The complainant therefore filed the complaint on 30-4-2002 and in support of the complaint examined himself and Vinu Kuriakose/ PW2 who was working at the relevant time with the Fed~ eral Bank Ltd., Panaji.
7. The complainant in his affidavit in evidence reproduced the averments of the complaint and in cross-examination he stated that he knew the accused for the last 10 years and had become his friend for the last about 2 to 3 years and that both of them were from Kerala. The complainant denied that the accused had not issued any cheques to him or that the accused did not owe the complainant any amount but admitted that the accused in his reply to the statutory notice had in fact stated that the cheque book was lost on 23-2-2002 and that in the said reply it was also mentioned that the accused had lodged the complaint as regards the said cheque book along with other items on 23-22002. The complainant also admitted that in the said reply sent by the accused, the accused did mention that the accused had informed the Bank on 25-2-2002 that the cheque book of the accused was lost and that the payment for any cheque from the said cheque book should not be entertained. Vinu Kuriakose/ PW2 confirmed that the suit cheque was of their branch and that when the cheque is presented to the Bank for realisation, they identify the signature on the cheque with the specimen signature of the person available with the Bank and it is passed for payment if there is balance in the account. A copy of the card containing the specimen signature of the accused was produced by Kuriakose/ PW2, with no objection from the accused. Kuriakose/ PW2 also stated that on 25-3-2002 the accused was not having suff
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