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2017 Supreme(Mad) 791
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.VENUGOPAL, J.
K.Arun Kumar - Appellant
Vs.
R.Moorthy - Respondent
Crl.A.No.190 of 2016
Decided on : 19-04-2017
Advocate Appeared:
For the Appellant : Mr.R.Nalliyappan
For the Respondent: Mr.S.Subbiah
Headnote:
CRIMINAL APPEAL - SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT - PRESUMPTION UNDER SECTION 139 OF NEGOTIABLE INSTRUMENTS ACT - REBUTTAL OF PRESUMPTION - BURDEN OF PROOF - STANDARD OF PROOF - CONSIDERATION FOR CHEQUE - LEGALLY ENFORCEABLE DEBT - INCOME TAX ACT, 1961 - SECTION 269SS - SECONDARY EVIDENCE - ADMISSIBILITY - XEROX COPIES OF DOCUMENTS - RELEVANCE OF EVIDENCE - APPRECIATION OF EVIDENCE - JUDGMENT OF ACQUITTAL - INTERFERENCE BY APPELLATE COURT.
Fact of the Case:
The Appellant/Complainant filed a Criminal Appeal before the High Court, challenging the 'Judgment of Acquittal' passed by the trial Court in S.T.C.No.34 of 2013, acquitting the Respondent/Accused under Section 255(1) of Cr.P.C. The Appellant contended that the trial Court erred in appreciating the evidence and in holding that the presumption under Section 139 of the Negotiable Instruments Act was rebutted. The Respondent/Accused, on the other hand, argued that there was no legally enforceable debt for the cheque in question and that the Appellant had failed to prove the existence of consideration.
Finding of the Court:
The High Court held that the trial court had erred in admitting xerox copies of documents as secondary evidence without establishing the non-availability of the originals. The court also held that the trial court had erred in relying on the Appellant's failure to file a copy of his Income Tax Return as evidence of the non-existence of consideration for the cheque. The court further held that the Respondent/Accused had failed to establish a tangible defence relating to the non-existence of consideration for the cheque. Accordingly, the court dismissed the Criminal Appeal and upheld the 'Judgment of Acquittal' passed by the trial court.
Issues: 1. Whether the trial court erred in admitting xerox copies of documents as secondary evidence without establishing the non-availability of the originals? 2. Whether the trial court erred in relying on the Appellant's failure to file a copy of his Income Tax Return as evidence of the non-existence of consideration for the cheque? 3. Whether the Respondent/Accused had established a tangible defence relating to the non-existence of consideration for the cheque?
Ratio Decidendi: 1. Secondary evidence is admissible only when the original is proved to have existed but was lost or misplaced. A xerox copy of a document can be admitted in evidence only after examining the original record, as the genuineness of the document is a fundamental question. 2. The presumption under Section 139 of the Negotiable Instruments Act can be rebutted by the accused by offering a reasonable and plausible explanation. The burden of proof is on the accused to prove that the cheque in question was not issued in discharge of a legally enforceable debt or liability. 3. The accused can prove the non-existence of consideration by raising a probable defence. If the accused is proved to have discharged the initial burden on showing that the existence of consideration is doubtful or improbable, the burden would shift on the complainant to establish it, as a matter of fact, and upon his failure to prove it, he would be dis-entitled to secure the relief on the basis of a Negotiable Instrument.
Final Decision: The Criminal Appeal was dismissed and the 'Judgment of Acquittal' passed by the trial court was upheld.
The Appellant/Complainant has filed the present Criminal Appeal before this Court, being dis-satisfied with the 'Order/Judgment of Acquittal' dated 28.01.2016 in S.T.C.No.34 of 2013 passed by the Learned Judicial Magistrate, (Fast Track Court at Magisterial Level), Athur.
2. Earlier, the trial Court while passing the impugned 'Judgment of Acquittal' in S.T.C.No.34 of 2013 dated 28.01.2016 on an appreciation of entire oral and documentary evidence available on record came to a resultant conclusion that there were no possibilities for the Respondent/Accused (Respondent) to have handed over the case cheque towards a 'Legally Recoverable Debt' and further the presumption under Section 139 of the Negotiable Instruments Act was repelled and proved on behalf of the Accused (the Respondent) and finally found that the offence against the Respondent/Accused was not proved beyond reasonable doubt and finally acquitted him under Section 255(1) of Cr.P.C.,
3. Assailing the correctness and the legal validity of the Impugned 'Judgment of Acquittal' dated 28.01.2016 in S.T.C.No.34 of 2013 passed by the trial Court, the Appellant/Complainant has filed the instant Criminal Appeal before this Court by taking a plea that the trial Court should have appreciated that the Respondent/Accused borrowed a sum of Rs.2,00,000/- from the Appellant/Complainant, for his urgent family expenses and to discharge the said amount, he issued a post dated cheque dated 11.02.2013 on the same day.
4. It is represented on behalf of the Appellant/Complainant that when the Ex.P.1, Cheque dated 11.02.2013 was presented for collection, the same got returned, as such, the Appellant/Complainant had issued a Ex.P.6, Lawyer's Notice dated 16.04.2013 to the Respondent demanding the cheque amount. However, the Respondent/Accused had refused to claim the Ex.P.6 Lawyer's Notice, but these important aspects were not appreciated by the trial Court in a proper perspective.
5. The Learned Counsel for the Appellant urges before this Court that the Respondent/Accused had not denied the execution of Ex.P.1, Cheque dated 11.02.2013 and therefore, the 'Onus' is on the Respondent/Accused to establish that the Ex.P.1- Cheque was not a 'Legally Enforceable One'
6. The Learned Counsel for the Appellant proceeds to project an argument that the Respondent/Accused had taken a plea before the trial Court that he had not issued the cheque in question to the Appellant, but it was given to one Boopathy, which is not sustainable in the eye of Law.
7. The Learned Counsel for the Appellant submits that the trial Court had committed an error in acquitting the Respondent/Accused on the ground that the Appellant/Complaint had not mentioned the subject matter of cheque loan amount in his Income Tax Returns and therefore the Judgment of the trial Court is to be set aside by this Court to avoid 'Miscarriage of Justice.'
8. Lastly, it is the submission on behalf of the Appellant/Complainant that the trial Court should not have acquitted the Respondent/Accused based on discrepancies on the Complainant's side evidence.
9. The Learned Counsel for the Appellant cites the decision reported in 2015(3) MWN (Cr.) DCC 25 (Mad.) (Ravishankar V. Sasi Kanth and Another at Special Pages 28 and 29 wherein at Paragraph No.9, it is interalia observed as follows:-
“.... It is true that under Section 138 of the Negotiable Instruments Act, for the purpose of drawing a presumption as contemplated under Section 118 read with Section 138 of the said Act, the burden lies on the Complainant to prove the guilt of the Accused. In the present case, to substantiate the Complaint, as mentioned above, the Complainant has produced Ledger Book, which has entries relating to the transaction. The Accused also did not dispute the signature in the Cheque by sending a reply to the Statutory Notice sent by the Complainant. In such circumstances, it has to be held that the Complainant has discharged their initial burden and it is the Accused, who
