The Appellant / Complainant has preferred the instant Criminal Appeal before this Court (as an aggrieved person) as against the judgment dated 24.01.2014 passed by the Learned Metropolitan Magistrate (FTC III), Saidapet, Chennai.
2. The Learned Metropolitan Magistrate (FTC III), Saidapet, Chennai) while passing the impugned Judgment in C.C.No.3291 of 2012 on 24.01.2014 inter alia observed that the Appellant/Complainant had not established that the Respondent/Accused had issued a cheque for 'Legally Enforceable Debt' and proceeded to observe that the Respondent/Accused had settled the entire mortgage loan in favour of Murugesan, as per Ex.D2 and more over, the Respondent/Accused had paid the principal and interest amount for a sum of Rs.3 lakhs obtained from PW2 (Murugesan) and finally acquitted the Respondent/Accused under
Section 255(1) of Cr.P.C.
3.Questioning the judgment of acquittal, dated 24.01.2014, passed by the trial Court in C.C.No.3291 of 2012, the Appellant/Complainant has filed the instant criminal appeal before this Court by taking a plea that the judgment of the trial Court was based on only presumption, surmises and conjectures and in fact, the conclusion arrived at by the trial Court in acquitting the Respondent/Accused, is contrary to law, weight of evidence and probabilities of the case.
4.Advancing his argument, the learned counsel for the Appellant/Complainant urges before this Court that the mortgage amount in question was Rs.3 lakhs alone and in fact, the question of interest was not raised and further more, the cheque amount of Rs.80,000/- was relating to the 'principal amount' and that the Respondent/Accused had only paid a sum of Rs.2,20,000/- while clearing the mortgage.
5.It is represented on behalf of the Appellant/Complainant that the respondent / accused had informed to the mortgagee that he was ready to pay a sum of Rs.2,20,000/- at present and the remaining sum of Rs.80,000/- would be paid later. But the said proposal was refused by the mortgagee. Thereafter, the mortgagor had approached the Appellant/Complainant [who is working in the same department] to make an arrangement to settle the balance sum of Rs.80,000/-.
6.The learned counsel for the Appellant/Complainant takes a plea that the Appellant/Complainant paid the balance amount to the mortgagee and the mortgage was cleared and in lieu of payment of balance amount of Rs.80,000/- paid by the Appellant/Complainant to the mortgagee, the Respondent/Accused asked the mortgagor to hand over one cheque from two cheques which were already handed over to the Appellant/Complainant at the time of mortgage.
7.Expatiating his submission, the Learned Counsel for the Appellant/Complainant projects an argument that the Appellant/Complainant had denied in his evidence that the Respondent/Accused paid a sum of Rs.3 lakhs with interest and further stated that the cheques given by the Respondent/Accused were not returned because of the reason that the Respondent/Accused has to pay the remaining sum of Rs.80,000/- towards principal amount.
8. The Learned Counsel for the Appellant/Complainant takes an emphatic stand that both the Appellant/Complainant and the Respondent/Accused are serving in the same department, because of that, the Respondent/Accused had approached the Appellant/Complainant to make an arrangement for releasing the mortgage deed on payment of Rs.2,20,000/- for the present and the balance sum of Rs.80,000/- to be paid at subsequent date. In reality, it is represented on behalf of the Appellant/Complainant that the Appellant/Complainant had agreed the said proposal and informed to the mortgagee, but the same was refused by the mortgagee.
9.Apart from that, the case of the Appellant/Complainant is that the Respondent/Accused had requested him to pay the remaining sum of Rs.80,000/- and retain one cheque which was handed over to the mortgagee and the balance sum was paid by the Appellant/Complainant and the mortgage deed was released. However, these vital aspects were not taken into consideration by the trial Court at the time of passing of the impugned judgment.
10.In this connection, this Court, on perusal of the complaint [filed by the Appellant/Complainant in C.C.No.3291 of 2012 on the file of the trial Court] finds that the Appellant/Complainant had categorically averred that the Respondent/Accused is working as Branch Manager at Basin Bridge Depot of Metropolitan Transport Corporation (Chennai) Ltd., and that he approached the Appellant/Complainant to make an arrangement to obtain a loan of Rs.3 lakhs on mortgage and that the said request was accepted by him. Moreover, it is averred in the complaint that the Appellant/Complainant had approached his family friend V.Murugesan, Son of Veerasamy, residing at No.9, Chitra Avenue Anand Block, Choolaimedu High Road, Chennai-600 094 and informed him about the request made by the Respondent/Accused. As a matter of fact, the Appellant/Complainant's family friend, the said Murugesan had also agreed to give loan on mortgage and that the Respondent / Accused had executed a 'Mortgage Deed' and registered the same at Virugambakkam Sub Registrar Office [vide document No.4152 of 2008].
11.The categorical case of the Appellant/Complainant [as seen from his compliant] is that the Appellant/Complainant's friend, later had paid a sum of Rs.3 lakhs in cash on 08.08.2008 and at the time of borrowal, the Respondent/Accused had agreed to repay the said hand loan amount of Rs.3 lakhs, within a period of three months. However, the Respondent/Accused had repaid the borrowed amount belatedly and retained a sum of Rs.80,000/-. Besides this, the money lender frequently asked the Respondent/Accused to pay the balance amount and in spite of repeated reminders, the Respondent/Accused had failed to pay the remaining amount and because of the default, the family friend V.Murugesan had approached the Appellant/Complainant [who was the guarantor to the respondent/accused] to pay the remaining sum to be paid by the Respondent/Accused. In fact, the Appellant/Complainant had paid the said amount in order to clear the debt after obtaining the concurrence from the Respondent/Accused and thereafter, the Respondent/Accused gave an assurance to the Appellant/Complainant to return the sum of Rs.80,000/- [which was already paid by the Appellant/Complainant to his family friend].
12. The clear cut stand of the Appellant/Complainant is that pursuant to the undertaking given by the Respondent/Accused, the Respondent/Accused had issued a post-dated cheque bearing No.598710 dated 06.06.2012 for Rs.80,000/- drawn on Syndicate Bank, K.K.Nagar Branch, No.793, Dr.Ramaswamy Salai, Chennai-600 078 towards the repayment of the aforesaid hand loan, which is due and payable to the Appellant/Complainant. When the cheque in question was presented for collection at the Appellant/Complainant's bank, viz., Canara Bank, Guindy Branch Code No.600015000, MICR Code:600025028, Chennai on 06.06.2012, the same was returned by the Respondent/Accused bank on 07.06.2012 with an endorsement 'Funds Insufficient'. Therefore, the Appellant/Complainant issued a Legal Notice through his Counsel on 16.06.2012 [Ex.P3], which was duly acknowledged as per Ex.P4. However, the Respondent/Accused had not paid the cheque amount within fifteen days on receipt of Ex.P3, lawyers notice.
13.Besides the above, the Appellant/Complainant had once again presented the cheque in question on 24.07.2012 at Canara Bank, Guindy Branch and the same was returned on 25.07.2012 and that he issued a legal notice-Ex.P6 on 01.08.2012 (both to the Residential as well as Office addresses) to the Respondent/Accused and the same was received on 02.08.2012 and 03.08.2012.
14.Since the cheque in question was dishonoured and when the Respondent / Accused had failed to comply with the legal demand to repay the amount in question, the Appellant/Complainant had filed a complaint before the trial Court under Sections 138 and 142 of of Negotiable Instruments Act, 1881 read with
Section 200 Cr.P.C. seeking initiation of action against the Respondent/Accused in accordance with law.
15.In the instant case, the Appellant/Complainant [before the trial Court] was examined as PW1. In his evidence, he had deposed that on 08.08.2008, the Respondent/Accused received a sum of Rs.3 lakhs (through his friend V.Murugesan] and for the said amount, the Respondent/Accused furnished document for mortgage and the said document was registered as 'mortgage deed' at Virugambakkam Sub Registrar Office bearing document No.4152/2008 and in Ex.D1-mortgage deed, he had affixed his signature and further, he denied the suggestion that on 15.03.2012, a sum of Rs.3 lakhs and interest for the said amount were paid.
16.P.W.1 adds in his evidence that he denied the suggestion that the said Murugesan had executed a cancellation of mortgage deed in favour of the Respondent/Accused. However, he went on to depose his evidence that he had affixed his signature in Ex.D2-cancellation of mortgage deed and that he had not signed as a guarantor.
17.Continuing further, it is evidence of PW1 that when the cheque got bounced for the first time, he enquired about the Respondent/Accused about the same and when he asked him to deposit for the second time, the cheque in question for the purpose of collection, was deposited by him.
18.PW2, in his evidence had deposed that the Appellant/Complainant is his family friend and he advanced the money to the Respondent/Accused [who was working at Appellant/Complainant's office] was in requirement of urgent money and therefore, he lent a sum of Rs.3 lakhs and since the Respondent/Accused had remitted the sum of Rs.2,20,000/-, he informed that the balance sum of Rs.80,000/- is to be paid by the Respondent/Accused and in fact, the Appellant/Complainant had agreed to pay the said amount and later when numerous demands were made with the Respondent/Accused, the Respondent/Accused had not paid the amount and later, the Appellant/Complainant had stated that the Respondent/Accused had given a cheque and he had agreed to get back the money from the Respondent/Accused and that the Appellant/Complainant had paid the sum of Rs.80,000/- to him. PW2 (in his cross examination) had stated that he does not know about the aspect of the Appellant/Complainant demanding money from the Respondent/Accused.
19.Ex.D1 is the Equitable Mortgage Deed for Rs.3 lakhs executed by the Respondent/Accused on 08.08.2008 in favour of one Murugesan (PW2). A mere reading of the recitals of Ex.D1-Mortgage deed shows that the Respondent/Accused for improving his business, had demanded money from PW2 (Murugesan) and received a sum of Rs.3 lakhs in cash and executed the deed in question. Further, for the said amount of Rs.3 lakhs, [for Rs.100/- interest per month is mentioned at Rs.1/- to be paid before 10th of every month]. Ex.D2 is the money receipt for that mortgage loan dated 15.03.2012, the glance of the said Ex.D2 receipt unerringly pointed out that the mortgage amount was repaid and based on that, the document was cancelled and the receipt was issued. Further, it is also mentioned that there is no interest due. In Ex.D2, the Appellant/Complainant had affixed his signature. Even the recitals to Ex.D2 in para-2, clearly mentioned about the consent with which the said receipt was issued by him in favour of the Respondent/Accused. It cannot be forgotten that Ex.D2 is the Xerox copy of the mortgage loan money receipt, being duly registered one at the office of Sub Registrar, Virugambakkam.
20.Ordinarily, when the transaction is reduced into writing either by an agreement of the concerned parties or by requirement of law, in law, no evidence shall be adduced to establish the transaction, except the document itself or secondary evidence of its contents where such evidence is admissible. To put it precisely, the contents of certain documents are the best evidence relating to the documents itself and production of a document is required as per
Section 91 of the Indian Evidence Act, 1872, to establish its contents.
21.It is to be remembered that
<act id=OrGxPokB_szha0nWLtNh section=91>Section 91 </act>of the Indian Evidence Act pertains to the evidence of the terms of contracts, grants and other dispositions of property reduced to form of document. The ingredients of
<act id=VrGwPokB_szha0nW78_Q section=92>Section 92 </act>of the Indian Evidence Act would come into operative play soon after the documents are produced to prove or establish its contents/conditions under
<act id=OrGxPokB_szha0nWLtNh section=91>Section 91 </act>of the Act.
<act id=OrGxPokB_szha0nWLtNh section=91>Section 91 </act>of the Act would get defeated without the aid of
<act id=VrGwPokB_szha0nW78_Q section=92>Section 92 </act>and in short,
<act id=VrGwPokB_szha0nW78_Q section=92>Section 92 </act>would have no operation without the help of
<act id=OrGxPokB_szha0nWLtNh section=91>Section 91.</act>
22.
Section 91 of the Indian Evidence Act precludes the oral evidence only in regard to the terms of contract or other evidence, relating to the terms of contract but it does not prohibit the litigant to adduce oral evidence in respect of the nature of the contract as well as the oral agreement entered into between the parties simultaneously together with the document. If there is any simmering doubt in regard to the Law used and recitals thereon, the intention of the parties is to be ascertained by letting in extrinsic evidence.
23.Section 138 of the Negotiable Instruments Act, 1881 provides a 'Strict Liability', however, the presumption under
Section 139 of the Negotiable Instruments Act, is a rebuttable one. The initial burden is on the Appellant/Complainant to show that the Respondent/Accused had issued Ex.P1-Cheque for Rs.80,000/- in respect of 'Legally Enforceable Debt'. In our Constitutional scheme of things, the Respondent/Accused can maintain silence and it is for the Complainant, in a criminal case to establish his case beyond 'Shadow of Doubts'. However, if the Respondent /Accused is able to show certain materials which shakes the case of the Appellant/Complainant [Prosecution] and further, when he is payable make an inroad into the evidence of the Appellant/Complainant's side, then the preponderance of probabilities can be accepted by the Court concerned provided the said materials are worthy of acceptance and they satisfy the subjective conscience of the Court concerned.
24.As per
Section 62 of the Indian Evidence Act, 1872, 'Primary Evidence' means the document itself produced for the inspection of the Court. The primary evidence is the one to be given first as per the Law. When the original document is very much available, marking of a photo copy or xerox copy as a secondary evidence ordinarily cannot be accepted by the Court of law. As per
Section 63 of the Indian Evidence Act, the Secondary Evidence cannot be admitted by Court of Law in a mechanical fashion. Adequate reason should have been shown before the Court concerned as to why the original document was not produced or shown. It is the prime duty of the trial Court Judge to decide at the time of recording the evidence, if any objection was raised in regard to the admissibility of the secondary evidence. But in the instant case before the trial Court, Exs.D1 and D2, Xerox copies were only marked [as secondary evidence]. The photo copy of the documents ought to be accepted as evidence after examining the original records as genuineness of the document. A photostat copy of a document is not admissible as secondary evidence unless the same was established to be a genuine or the signatory accepts his signature. Where the photostat copy of the documents are endorsed by the counsel of the party concerned as a true copy, it was held that it may be received as secondary evidence, as per the decision of British India Steam Navigation Co. Ltd. v.Shanmugha Vilas Cashew Industries, (1974) ILR Ker page 150.
25. As far as the present case is concerned, the documents produced on the side of the Respondent/Accused viz., Ex.D.2, goes a long way in making out a clear cut case that the loan amount was repaid and further no interest amount was due. In fact, Ex.D2 was executed by Murugesan, who lent the money to the Respondent/Accused. As such, the contents of Ex.D2, overrides the stand taken by the Appellant/Complainant in the present case, as opined by this Court. Furthermore, by producing Ex.D2 [registered document] the Respondent had shaken the case of the Appellant/Complainant.
26.Indeed, the presumption under
Section 139 of Negotiable Instruments Act, 1881, is not an automatic one. When the entire loan amount was wiped out as per Ex.D2 Receipt and the said Ex.D.2 pinpointly points out that there was no due relating to 'Interest', it cannot be said that by any stretch of imagination that the Respondent/Accused is due and liable to pay the amount claimed by the Appellant/Complainant, in his Complaint, filed before the trial Court. In short, when the loan in question was repaid by the Respondent/Accused and for the said loan amount in question, when the Appellant/Complainant's friend Murugesan had issued a receipt in question, for settlement of the amount towards principal and also categorically mentioning that no interest amount was due, this Court without any hesitation comes to an irresistible and inevitable conclusion [of course on the basis of available materials on record] that the views taken by the trial Court to the effect that the Respondent/Accused as per Ex.D1 and D2 had proved his case by 'Preponderance of Probabilities' and consequently acquitting him, are free from any legal infirmities.
.
27.In fine, the Judgment of Acquittal dated 24.01.2014 passed by the trial court in C.C. No.3291 of 2012 is affirmed by this Court for the reasons assigned in this Appeal. Accordingly, the Criminal Appeal is dismissed.
19.01.2017 Index : Yes / No Internet : Yes / No kal To
1. The Metropolitan Magistrate, Fast Track Court III , Saidapet, Chennai-600 015
2. The Record Keeper, High Court, Madras M.VENUGOPAL, J.
kal Crl.A.No.141 of 2014 19.01.2017