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2004(2) Bankmann 213
ANDHRA PRADESH HIGH COURT
Elipe Dharma Rao, J.
Eenadu a daily Newspaper — Petitioner
versus
J. Shiva Shankar
and another — Respondents
Crl. A. Nos. 696, 697 and 698 of 1997
Decided on 20.12.2001
Counsel for the Parties:
For the Appellant:Mr. B. Nalini Kumar, Advocate.
For the Respondent No. 1:P. Prabhakara Rao, Advocate.
For the Respondent No. 2: Public Prosecutor.
IMPORTANT POINTS
(1) Court can draw a statutory presumption that cheques issued by accused are towards legally recoverable debt and such presumption is a rebuttable one.
(2) Complaint under Section 138 of the Negotiable Instruments Act can be filed by a payee or holder in due course of cheque.
Headnote:(i) Negotiable Instruments Act, 1881—Sections 138, 139, 141 and 118—Dishonour of cheque—Complaint—Presumption as to discharge of legally recoverable debt—8 cheques were issued in relation to transactions between complainant and accused which were returned with endorsement of “insufficient funds” on presentation—Filing of complaint—Plea of accused, cheques not issued in relation to legally recoverable debt—Proof of debt—Complainant need not prove that cheques issued in discharge of legally recoverable debt—Court can draw statutory presumption to that effect—However, such presumption is rebuttable.
(ii) Negotiable Instruments Act, 1881—Sections 138, 142, 141—Dishonour of cheque—Complaint—Who can file—Complaint must be made by the payee or holder in due course of cheque—Merely because complaint signed and presented by a person who is neither authorised agent nor person empowered under Articles of Association or by any resolution, is no ground to quash complaint.
Facts of the Case:
A)Accused issued 8 cheques for different amounts towards the dues which he incurred on account of his getting published in complainant’s newspaper certain advertisements and when they were presented, dishonou-red. Though complainant got issued a legal notice, the accused neither replied nor paid the amounts. The accused contended that there does not exist any relationship between the complainant and the accused and persons who filed the complaint were not authorised to do so. The trial court dismissed the complaint as complainant failed to prove the existence of debt. Aggrieved by the said decision, complainant preferred the present appeal.
B)The court held that the complainant need not prove that the cheques are issued in discharge of a legally recoverable debt. A statutory presumption can be drawn that the cheques are issued in relation to discharge of legally recoverable debt and such presumption can be rebutted by adducing evidence.
C)The court held that a complaint can be filed by a payee or holder in due course of the cheque. Merely because complaint is signed and presented by a person who is not authorised to do so, is not a ground to quash the complaint.
Result: Appeal allowed.
The complainant and the accused in all these three criminal appeals are one and the same, and as such, they are being disposed of by this common Judgment.
2. The complainant filed these appeals challenging the acquittal of the accused by the VIII Metropolitan Magistrate, Vijayawada, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Negotiable Instruments Act’).
3. Narrowly stated, the facts of the case are- the complainant is a Daily Newspaper, owned by M/s. Ushodaya Publications, and the accused is the proprietor of M/s. Triveni Adver-tisements. The accused got published certain advertisements in the newspaper of the complainant in the months of December, 1992 and January, 1993, and as a result of such transaction, the accused owned a sum of Rs. 2,53,977-85 Ps. to the complainant. The accused issued eight cheques (Cheque Nos. 232869 dated 10-1-1993, 233037, dated 22-1-1993, 232859, dated 3-1-1993, 233027and 233028, dated 9-1-1993, 232263, dated 17-12-1992, 232269, dated 19-12-1992, 232853, dated 26-12-1992) for different amounts, drawn on Indian Bank, Vijayawada. When the complainant presented the cheques for encashment on different dates, they were dishonoured. The complainant informed the accused about the dishonour of cheques. The accused requested the complainant to present the cheques again. Again, when the cheques were presented, they were dishonoured with an en-dorsement ‘insufficient funds’ in the account of the accused. The complainant got issued registered legal notice to the accused complaining about the dishonour of cheques and requested him to arrange payment within 15 days of receipt of the notice. As the accused neither replied to the said notice nor paid the amounts, the accused filed three different complaints against the accused before the trial court.
4. Before the trial Court, the complainant contended that the accused issued eight cheques for different amounts towards the dues, which he incurred on account of his getting published in their newspaper certain advertisements, and that when they were presented, they were dishonoured and that though he got issued legal notice, the accused neither replied nor paid the amount, and therefore, the accused is guilty of an offence punishable under Section 138 of the NI Act. On the other hand, the accused contended that there does not exist any relationship between the complainant and the accused, that the persons who filed the complaints is not authorized to file the complaints, that the complainant did not file any documents in support of his case that the accused owes certain amounts to the complainant.
5. On behalf of the complainant P.Ws. 1 to 4 were examined and certain documents, including cheques said to have been issued by the accused, were marked, whereas, on behalf of the accused none were examined and no exhibit was marked.
6. The learned trial Court upon considering the evidence and the material placed before it dismissed the complaints holding that complainant failed to prove the debt of the accused in relation to the cheques issued by him, and accordingly acquitted the accused of the offence punishable under Section 138 of the Negotiable Instruments Act. Hence, these appeals by the complainant.
7. The learned Counsel appearing on behalf of the appellant- complainant submitted that the accused got published certain advertisements in the newspaper of the complainant in the month of December, 1992 and January, 1993, and in the course of such transaction, the accused owed to the complainant a sum of Rs. 2,53,977-85 ps., and in Order to discharge such debt, the accused issued eight cheques for different amounts, and when presented, they were dishonoured. When the accused neither replied nor paid the amount within 15 days from the date of issue of legal notice by the complainant, the complainant filed complaints, and the learned trial Judge fell in error in acquitting the accused holding that the
