THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA
G. Ramakrishna Reddy - Appellant
Vs.
MD. Faizuddin And another - Respondent
Criminal Appeals Nos. 1521 of 2000 & 1631 of 2001
Decided on : 18-11-2008
Counsel for Appellant: Sri G.Ramakrishna Reddy
Counsel for Respondents: Sri V.Venkata Ramana
Headnote:a) INDIAN PENAL CODE, 1860, Section 498•A - Evidence Act, 1872, Section 3:- The general rules of criminal jurisprudence that the burden of proof always lies on the complainant to prove the guilt of the accused and the standard of proof is beyond reasonable doubt is not applicable. Section 139 lays down that the presumption that a cheque issued is for a legally enforceable doubt which may be rebutted by the accused and the standard of proof is preponderance of evidence or probability of balance.
b) INDIAN PENAL CODE, 1860, Section 498•A - Evidence Act, 1872, Section 3:- Where the Magistrate while discharged the accused in a complaint for dishonour of the cheque under the Act merely stating that the accused had not committed any offence without stating that the cheque is not for enforceable debt is not a justified and proper and hence the case remanded back for deciding the issue afresh on the basis of the law stated therein in the provision.
As the point involved in all these appeals and the parties are one and the same, they are being disposed of by this common judgment.
2. Facts, in brief, are: Appellant-complainant is the owner of a land in an extent of Acs.6-20 guntas, situated in the property bearing No.19-3-528, Jahanuma, Hyderabad, which was divided into plots of various sizes in pursuance of G.O.Ms.No.762, Revenue (UC.III) Department dated 30-08-1991. The respondent-accused, who is a dealer in real estates, purchased some plots from the appellant and agreed to register the same in the name of his nominees and accordingly issued 35 cheques in the name of the appellant as Managing Director of M/s. Southern Movietone Limited and in the name of the appellant for different amounts on behalf of his nominees, in all amounting to Rs.17,33,960/- towards sale consideration and development charges to an extent of 5376 square yards. Subsequently, on presentation of the cheques bearing Nos.275284, 275288, 275286, 275284 and 275282, dated 23-09-1993, for Rs.2,50,000/-, Rs.2,50,000/-, Rs.2,25,000/-, Rs.2,50,000/- and Rs.3,20,000/- respectively drawn on State Bank of India, Idibar branch through his banker, Vysya Bank Limited, Uppal for collection on 07-03-1994, the same were dishonoured with an endorsement "insufficient funds" and the same was informed to the appellant orally on 08-03-1994 and in writing on 09-03-1994. Thereupon, the appellant prepared notices on 08-03-1994 and sent the same to the respondent by registered post with acknowledgment due on 10-03-1994 demanding payment. But, the respondent having received the notices on 15-03-1994 has failed to comply with the demand. In those circumstances, the appellant filed private complainants being C.C.No.369 of 1994, C.C.No.770 of 1995, C.C.No.768 of 1995, C.C.No.769 of 1995 and C.C.No.371 of 1994 against the respondent-accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act').
3. Separate trials were conducted in all the cases, wherein the appellant was examined as PW-1 and the respective documents i.e. the cheque, Memo issued by the Vysya Bank, Memo issued by State Bank of India, office copy of the legal notice got issued by the appellant to the respondent, postal receipt and postal acknowledgment were marked as Exs.P1 to P6 respectively. On appreciation of both oral and documentary evidence, the learned Magistrate found the respondent not guilty of the offence and accordingly acquitted him of the offence for which he was tried, vide separate judgments dated 06-06-2000. Assailing the said judgments, these appeals have been preferred by the appellant-complainant.
4. Heard learned counsel for the appellant and learned counsel for the respondent.
5. Learned counsel appearing on behalf of the appellant, while drawing the attention of this Court to the provisions of Sections 138 and 139 of the Act contended that when once the appellant came forward and filed cases after complying with the mandatory requirements as contemplated under the provisions of section 138 of the Act, on the ground that the cheques issued by the respondent were bounced on account of insufficiency of funds, the burden is on the respondent-accused to rebut the presumption envisaged under Section 139 of the Act. It is further contended that as the respondent has not denied the issuance of the cheques in question, which were bounced due to insufficient funds, the presumption envisaged under Section 139 of the Act would automatically come into play and as such the burden is on the respondent to rebut the said presumption. According to the learned counsel for the appellant, the trial Court, except extracting the contentions advanced by the appellant and referring to the judgments cited by him, has not discussed as to how the cheques were not issued in discharge of the legally enforceable debt and thus committed a grave error in dismissing complaints.
6. Per contra, learned counsel appea