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MADRAS HIGH COURT
M. Venugopal, J.
A.R. Chellappan —Appellant
versus
A.R.E. Thirugnanam —Respondent
Crl.A. No.383 of 2016
Decided on 17.7.2017
(B) Negotiable Instruments Act, 1881—Section 138 read with Sections 118 and 139—Dishonour of cheque—If an instrument appears to be altered, it is incumbent on Complainant to exhibit that alteration in question was not improperly made—As long as there is legally enforceable liability either on date of issuance of cheque or on date of encashment of cheque, Complainant is entitled to encash cheque issued by accused—It is not obligatory on part of accused to let in evidence by entering into witness box—However, it would suffice that if accused can demonstrate from examination/cross examination of Complainant and from materials collected to take advantage of same to his aid and to demolish case of Complainant in regard to pre-existence of a debt or liability for discharge of which cheque was issued—In Law, accused is entitled to do like this—Offence under Negotiable Instruments Act, 1881 does not involve any moral turpitude. (Paras 33, 34 and 35)
(C) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Section 138 of Negotiable Instruments Act gets attracted only when cheque was issued in respect of either past or current liabilities—A cheque issued in regard to uncertain and future liabilities would not come within ambit of Section 138 of Negotiable Instruments Act—Proceedings under Section 138 of Negotiable Instruments Act are in ‘Personam’ and principle of ‘vicarious liability’ cannot be extended in Law—A person will be a ‘Holder in Due Course’ if he is in possession of a negotiable instrument from the ‘Payee’ by means of a valid endorsement and delivery of same—‘Payee’ and ‘Endorsee’ of an order of cheque is a ‘Holder in Due Course’ too within meaning of definition. (Paras 37 and 41)
(D) Indian Evidence Act, 1881—Section 17—Admission—‘Admission’ is a statement of fact which dispenses with production of evidence by conceding that fact asserted by opposite side is true—An ‘Admission’ should be clear-cut and accurate specific statement of an individual in his own words—Admission made in Court of Law is a valid and relevant piece of evidence to be used either legal proceedings—An Admission would constitute a substantive piece of evidence in the case and reliance can be placed upon same for proving truth of facts contained therein. (Paras 38 and 40)
Result: Appeal dismissed.
M. Venugopal, J.—The Appellant/Complainant has focused the present Criminal Appeal before this Court as against the Judgment of Acquittal dated 04.02.2016 in S.T.C.No.133 of 2015 passed by the Learned Judicial Magistrate, (Fast Track Court), Tiruchengode.
2. The trial Court, while passing the Judgment in S.T.C.No.133 of 2015 dated 04.02.2016, after analysing the available material on record, came to the resultant conclusion that the Appellant/ Complainant had not established that the case cheque was executed by the Respondent/Accused etc. and ultimately, found the Respondent/ Accused not guilty in respect of an offence under Section 138 of the Negotiable Instruments Act, 1881 and acquitted him under Section 255(1) Cr.P.C.
Appellant’s Submissions:
3. Questioning the Validity, Legality and Correctness of the Judgment of Acquittal dated 04.02.2016 in S.T.C.No.133 of 2015 passed by the Learned Judicial Magistrate, Fast Track Court, Tiruchengode, the Appellant/Complainant has filed the instant Appeal, by taking a prime plea that the execution of Ex.P1 Cheque was not denied and therefore, the burden is on the side of the Respondent/ Accused to rebut the presumption arising under Sections 118 and 139 of the Negotiable Instruments Act, 1881.
4. The Learned Counsel for the Appellant submits that ‘Holder of a Cheque’ is legally entitled to fill up an instrument to the value as per Section 20 of the Negotiable Instruments Act and therefore, the aspect of who filled up Ex.P1 Cheque is of no significance to disbelieve the Complainant’s case.
5. The Learned Counsel for the Appellant takes a stand that the evidence of D.W.2 in regard to the similarity in signature seen in Ex.P1 and Ex.D4 would no way dislodge the legal presumption and further, a reading of the evidence of D.W.2 would go to show that the trial Court has considered irrelevant materials to justify its conclusion.
6. It is represented on behalf of the Appellant that the trial Court had failed to appreciate that the testimony of P.W.1 was quite clear, cogent and unshaken one. As a matter of fact, the trial Court had committed an error in disbelieving the evidence of P.W.1 merely based on some suggestion put in cross examination.
7. The Learned Counsel for the Appellant emphatically projects an argument that the words ‘shall presume’ require the Court to take in account that the liability of the ‘Drawer’ of the cheque for the amount for which the cheques were drawn on accepting the consideration.
8. The Learned Counsel for the Appellant brings it to the notice of this Court that on behalf of the Respondent/Accused, no evidence was let in to rebut the presumption under Section 139 of the Negotiable Instruments Act except some ipsi dixit oral evidence. In this regard, the trial Court had not borne in mind the ingredients of Section 139 of the Negotiable Instruments Act.
9. The Learned Counsel for the Appellant contends that the words ‘unless the contrary is proved’ occurring in Section 118 and 139 of the Negotiable Instruments Act would make it clear that the presumption was to be rebutted by ‘Proof’ and not by a mere explanation, which was barely plausible unless the explanation was supported by proof, the mandatory presumption created by Law could not be said to be rebutted.
10. It is the version of the Appellant that in any event Ex.D1 to D8 (Respondent/Accused side documents) would not in any manner lend support to the plea of ‘Acquittal’.
11. Lastly, it is the submission of the Learned Counsel for the Appellant that the trial Court had committed an error in discussing the case beyond the records and dissected the merits and demerits of the rival claims notwithstanding the fact that the case was confined to Ex.P1 Cheque.
Respondent’s Contentions:
12. In response, the Learned Counsel for the Respondent/ Accused contends that the trial Court, at paragraph 8 of its Judgment, had clearly observed that the Appellant/Complainant’s wife had written the word ‘A.R.Chellappan’ in the case cheq
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