This Criminal Appeal by special leave has been preferred under Section 378(4) of Cr.P.C. by the appellant herein on whose complaint under Section 200 Cr.P.C. prosecution was initiated in C.C.No.167 of 2000 on the file of the Judicial Magistrate, Nagapattinam against the judgment of the said court dated 11.09.2002 acquitting the respondent herein/accused for an offence punishable under Section 138 of Negotiable Instruments Act, 1881.
2. The appellant herein preferred a complaint on the file of the learned Judicial Magistrate, Nagapattinam containing the following allegations:-
On 03.04.1999, the respondent herein/accused borrowed a sum of Rs.50,000/- from the appellant herein/complainant and executed a Promissory Note promising to repay the said amount in six months period together with an interest @ 18% per annum. The respondent herein/accused was paying interest as agreed for a period of six months. However, since he had not chosen to repay the principal within the agreed period of six months, the appellant herein/complainant pressurised him for making such repayment. Consequently, the respondent herein/accused issued a post dated cheque bearing the date '09.10.1999' and cheque No.956347 drawn on Canara Bank, Thevur branch for a sum of Rs.50,000/-. A day before the due date i.e. on 08.10.1999, the respondent/accused met the appellant herein/complainant in his residence and requested him not to present the cheque for encashment and to wait for some more time as he had not made arrangements to keep sufficient funds in his account. After having waited till 27.02.2000, the appellant herein/complainant met the respondent/accused on the said date and appraised him of the position that the cheque would become time barred if the same was not presented for encashment within six months from the date of cheque. As a result of the said appraisal, the respondent herein/accused informed the appellant herein/complainant that he could present the cheque on 28.02.2000 and encash the same. When the cheque was presented in Canara Bank, Thevur branch on 28.02.2000, it was dishonoured and returned with a dishonour note "funds insufficient". Thereafter on 11.03.2000, the appellant herein/complainant caused a statutory notice to be issued to the respondent herein/accused, which was received by him on 14.03.2000. Instead of complying with the demand made therein, the respondent herein/accused chose to issue a reply notice denying the borrowal and containing false allegations. After receiving the reply notice, the appellant herein/complainant came to know that the respondent herein/accused had given the cheque without having sufficient funds in his account, failed to make payment of the amount covered by the cheque when the dishonour of cheque was informed to him by a notice within the time stipulated in the statute and thus committed an offence punishable under Section 138 of Negotiable Instruments Act.
3. After recording the sworn statement of the appellant herein/complainant and following the procedure prescribed for taking cognizance of the offence on a private complaint, the learned Judicial Magistrate, Nagapattinam took it on file as C.C.No.167 of 2000 and issued process to the respondent herein/accused. On appearance, the respondent herein/accused was questioned regarding the allegations made against him. He denied having committed the offence alleged in the complaint. Hence the learned Judicial Magistrate, Nagapattinam tried the case.
4. P.Ws.1 to 3 were examined and Exs.P1 to P6 were marked on the side of the complainant in order to substantiate the charge made by him against the respondent herein/accused in the complaint. After the recording of the evidence on the side of the complainant was over, the accused was examined under
Section 313(1)(b) of Cr.P.C. During such examination once again the accused maintained that he had not committed the offence alleged in the complaint. The respondent herein/accused was examined as DW-1 and 10 documents were marked as Ex.D1 to D10 on the side of the accused.
5. Thereafter the learned Judicial Magistrate, Nagapattinam heard the arguments advanced on either side, considered the evidence on record in the light of the arguments advanced and upon such consideration, came to the conclusion that the appellant herein/complainant had not proved that the respondent herein/ accused committed an offence punishable under Section 138 of the Negotiable Instruments Act beyond reasonable doubt and that there were reasonable doubts regarding the complainant's case, which would lead to the acquittal of the respondent herein/accused giving him the benefit of doubt. In line with the said finding, the learned Judicial Magistrate held the respondent herein/accused not guilty of the offence under Section 138 of the Negotiable Instruments Act and acquitted him of the charge of having committed such offence, giving him the benefit of doubt. The said judgment of acquittal pronounced by the learned Judicial Magistrate, Nagapattinam on 11.09.2002 is challenged in this appeal by the appellant herein/ complainant after getting special leave under
Section 378(4) Cr.P.C on various grounds set out in the appeal petition.
6. The point that arises for consideration in this appeal is as follows:-
"Whether there is any defect or infirmity in the judgment of the court below acquitting the appellant herein/accused in respect of the charge for an offence punishable under Section 138 of the Negotiable Instruments Act requiring interference by this court in exercise of its appellate powers?"
7. As against the judgment of acquittal pronounced in a case instituted on private complaint for an offence punishable under Section 138 of the Negotiable Instruments Act, the complainant has preferred the present appeal under
Section 378(4) Cr.P.C. The case of the appellant herein/complainant is that the respondent herein/accused borrowed a sum of Rs.50,000/- from him on 03.04.1999 and executed a Promissory Note promising to repay the said amount along with an interest @ 18% per annum within six months from the date of Promissory Note; that having paid interest regularly for six months, the respondent herein/accused failed to repay the principal and hence on pressure being mounted on him to repay the principal, he gave a post dated cheque on 05.l0.1999 for a sum of Rs.50,000/- bearing cheque No.956347 and dated 09.10.1999; that subsequently on 08.10.1999 itself he requested the appellant herein/complainant not to present the cheque and wait for some more time and that when the cheque was presented on the instruction of the respondent herein/accused for encashment on 28.02.2000, the same was dishonoured and returned with a dishonour note containing the reason for dishonour "funds insufficient".
8. The case of the respondent herein/accused is that he did not borrow any amount from the appellant herein/complainant; that the son of the respondent herein/accused, by name Kalaivanan was running a finance company in the name of "Saroja Finance" in Thevur; that the said Kalaivanan, after obtaining loans from the Pawn Brokers' Association, went abroad; that pursuant to the said act of Kalaivanan, the office bearers of Pawn Brokers' Association namely Abirami and Elamaran along with some other persons ransacked the office of Saroja Finance, took away the articles found there, seized the cheque book and coerced the respondent herein/accused who was there in the office to sign 3 or 4 such cheques and that the present case has been instituted by the said Abirami and Elamaran by filling up one of such cheques in the name of the appellant herein. It is also the contention of the respondent herein/accused that the said occurrence took place on 28.01.2000; that immediately thereafter the respondent herein/accused caused a notice to be issued to 1) Abirami, 2) Elamaran, 3) Sub-Inspector of police, 4) Superintendent of Police and 5) Deputy Inspector General of Police through his lawyer; that the respondent herein/accused also sent a letter to the bank informing the said fact and requesting the bank officials to pass on the information if any one produces any of his cheques for encashment and that the above said office bearers of the Pawn Brokers' Association filled up the cheque in the name of the appellant herein/complainant and preferred the complaint using the appellant herein/complainant. It is also the specific contention raised by the respondent herein/accused that the appellant herein/complainant being a paid employee of a pawn broker did not have the capacity to lend a sum of Rs.50,000/- to the respondent herein/accused.
9. When such defence plea was taken by the respondent herein/ accused, the appellant herein/complainant has chosen to examine himself as PW-1 and two more witnesses as PW-2 and PW-3 to substantiate the allegations found in the complaint. Ex.P1 to P6 were also produced. On the other hand, the respondent herein/accused chose to examine himself as DW-1 and produced Ex.D1 to D10 on his side. The learned counsel for the appellant herein/complainant, advancing arguments on behalf of the appellant, contended that the court below failed to appreciate the evidence adduced on the side of the appellant herein/complainant, both oral and documentary properly and came to an erroneous conclusion that the allegations made in the complaint were not proved beyond reasonable doubt; that the court below failed to consider the fact that the signature found in the dishonoured cheque was admitted to be that of the respondent herein/accused and that the court below should not have accepted the defence theory that the cheque leaves were forcibly taken from the office of the Finance company run by the son of the respondent herein/accused and signatures of the respondent/accused were obtained in 3 or 4 such cheque leaves and that one of such cheque leaves has been filled up in the name of the appellant herein/complainant and the case and that the court below erred in sustaining the defence plea that the case could have been foisted in order to arrive at a conclusion that there had been a reasonable suspicion regarding the appellant's case. It is the further contention of the learned counsel for the appellant that the improbability of the defence theory in the light of the fact that the respondent/accused had not chosen to give any complaint directly to the police immediately after the occurrence alleged to have taken place on 28.01.2000 has not been considered by the court below. The further contention of the learned counsel for the appellant is that the respondent herein/accused had not chosen to issue any stop payment instructions and in fact the cheque itself was dishonoured on the ground that sufficient funds were not there for honouring cheque and that the same would improbablise the defence theory of the respondent herein/accused. The learned counsel for the appellant also contended that proper explanation had been given for the non-production of the Promissory Note or a copy of it and that the source from which the appellant/complainant got the money have also been properly established by adducing evidence through PW-1. According to the submissions made by the learned counsel for the appellant all the above aspects were not properly dealt with by the court below and hence the court below arrived at an erroneous conclusion that the charge against the accused was not proved beyond reasonable doubt.
10. Per contra, the learned counsel for the respondent herein/accused would contend that there is no defect or infirmity either in the procedure adopted or by the finding rendered by the court below; that on a proper appreciation of evidence and correct application of law to the facts of the case, the court below arrived at a correct conclusion that the charge against the respondent herein/accused was not proved beyond reasonable doubt and that hence the judgment of the trial court should be confirmed and the appeal should be dismissed as devoid of merits.
11. This court gave its anxious considerations to the submissions made by the learned counsel on either side. The judgment of the court below and the entire materials on record were also perused.
12. Upon such consideration and after a thorough re-appreciation of evidence brought on record in this case, this court has to necessarily come to the conclusion that there is no defect or infirmity in the judgment of the court below warranting interference with the same in this appeal in exercise of the appellate powers of this court. The reasons are as follows:-
i) It is the case of the appellant herein/complainant that he lent a sum of Rs.50,000/- to the respondent herein/accused on 03.04.1999 on the understanding that the amount would be repaid within six months along with an interest @ 18% per annum and that a Promissory Note was executed by the respondent herein/accused on the said date. Neither the Promissory Note nor a xerox copy of the same has been produced by the appellant herein/complainant to substantiate his contention that the cheque concerned in this case was issued in discharge of the Promissory Note debt.
ii) According to the case of the appellant herein/complainant, the dishonoured cheque dated 09.10.1999 was issued by the respondent/accused for the discharge of the Promissory Note debt after getting back the said Promissory Note. Neither the complaint nor the copy of the statutory notice given after the dishonour of the cheque marked on the side of the appellant/complainant as Ex.P3, contains the date on which the cheque was issued. They simply contain recitals to the effect that the respondent/accused got back the Promissory Note and executed the cheque dated 09.10.1999 in discharge of the Promissory Note debt. However, the appellant herein/complainant who deposed as PW-1 would state in his chief examination that it was on 05.10.1999, the respondent/accused got back the Promissory Note and gave a post dated cheque bearing the date 09.10.1999. When the amount borrowed under the Promissory Note remained undischarged, it is highly improbable that the creditor, namely the appellant herein/complainant would have chosen to part with the Promissory Note without even getting an acknowledgment to the effect that a cheque in lieu of the Promissory Note was obtained.
iii) It is the case of the appellant/complainant that interest as agreed at the rate of 18% per annum was paid for a period of six months without any default. That means upto 03.10.1999 the interest should have been paid regularly. But there is nothing in writing to show that interest was paid by the accused or received by the appellant/complainant. There is no iota of evidence to the effect that all the payments of interest were endorsed on the Promissory Note. It is improbable for a borrower who borrowed on a promissory note to pay interest without assuring that an endorsement is made on the promissory note recording payment of interest. Even the creditor will not omit to have such a payment recorded by an endorsement as the same will give a new start of limitation.
iv). The respondent/accused has also questioned the capacity of the appellant/complainant to lend such a huge amount. Admittedly the appellant/complainant is employed under a Pawn Broker doing business in the name of Lakshmi Finance. He has also admitted the fact that he was not the proprietor of the said Lakshmi Finance. As per his own evidence, he was drawing a monthly salary of Rs.2,500/- only. It is also admitted by him that the said amount would be hardly enough for the maintenance of his family. Under such circumstances alone, the appellant/complainant has chosen to come forward with an explanation that he was having lands in Puthukottai district and that his brother who was cultivating the lands was making payment of Rs.15,000/- annually towards the value of the agricultural produce; that he saved the said amount for five years and used the accumulated amount to lend the respondent herein/accused. However, excepting the ipse dixit of PW-1, there is no other evidence to show that he was having any agricultural land in Puthukottai District and such agricultural land was yielding income to the extent indicated by PW-1 in his deposition. Not even the brother of the appellant who is said to have cultivated the lands on his behalf and paid such amounts as the value of the agricultural produce to the appellant/complainant has been examined on the side of the appellant. No document has been produced to show that the appellant was holding any landed property in Puthukottai district.
v) The clear admission made by PW-1 is that he was employed in Lakshmi Finance and that he would work there daily from 8.00 a.m to 6.00 p.m. There is no whisper in his evidence to the effect that he was doing any cultivation on his own land or lease hold lands. Curiously the appellant/complainant has made an averment in his complaint in paragraph 1 itself that he was cultivating lands belonging to him and also the other lands of which he was lessee. Agriculture alone was shown to be the source of his income in the complaint. He has not even revealed the fact that he was employed as a full time worker in Lakshmi Finance, having the need to work in the said concern between 8.00 a.m to 6.00 p.m. It is crystal clear from his own evidence that he himself was not cultivating any land either owned by him or held by him on lease. Nothing has been averred in the complaint to the effect that the brother of the appellant was cultivating the appellant's lands and he used to pay some amount as the income derived from the land. Therefore, it is quite obvious that the explanation offered by PW-1 in order to disprove the defence plea of the respondent herein/accused that the appellant/complainant did not have the capacity to lend a sum of Rs.50,000/- is nothing but an after-thought and the same is far from being even probable.
vi) The appellant as PW-1, in his evidence in cross-examination has also stated that he was having sufficient savings in his bank account and that his savings in the bank account would amount to Rs.50,000/-. However, he would also come forward with a further plea that his brother-in-law had sent two cheques to the value of Rs.50,000/- and Rs.75,000/- to him; that the said amount was credited to his account and that the said amount was given by his brother-in-law gratuitously. However, the appellant/complainant has not chosen to produce the pass-book or the statement of accounts obtained from the bank to show that he was having such amount to his credit in his bank account. Not even the name of the bank and the account number have been furnished by PW-1. His evidence is not clear as to whether the amount allegedly lent to the respondent/accused was drawn from his bank account or it had been kept in cash. The admission of PW-1 that he was employed under a pawn broker running a concern called "Lakshmi Finance" and was getting a meagre sum of Rs.2,500/- as monthly salary which would be hardly enough for his family maintenance, the failure on the part of the appellant/complainant to clearly state whether he had drawn the amount from his bank account or utilised the cash kept with him as personal savings for lending the same to the respondent/accused, the improbability on his explanation that he got the amount from his brother as the value of the agricultural produce derived from his landed property and the contradiction regarding the source of income of the appellant herein/complainant between the averments found in the complaint and the evidence adduced are enough to countenance the contention of the respondent/accused that the appellant/complainant did not have the capacity to lend such a huge amount.
vii) The above said aspectes are enough at least to prove the said defence stand taken by the respondent/accused on probabilities if not beyond reasonable doubts. Only the prosecution (complainant) is bound by law to prove the case of the prosecution beyond reasonable doubt. On the other hand, the accused facing the charge of committing an offence shall be expected to prove his plea of defence only on probabilities. The degree of proof required from him is of such a nature that it shall be sufficient for him to adduce evidence to make a reasonable doubt regarding the prosecution case. In this case, apart from the clear evidence of DW-1 that the appellant/complainant was having no capacity to lend a sum of Rs.50,000/-, the admissions and contradictions found in the evidence of PW-1 viz-a-viz, the complaint shall be enough to make out a case on probabilities that the appellant/complainant did not have the capacity to lend a sum of Rs.50,000/-.
viii) Yet another aspect to be taken into consideration in this case is that it is highly improbable for the appellant/complainant to be content with receiving a post-dated cheque for the principal amount alone. When the cheque was in fact presented for encashment after four months, the appellant who chos to get a Promissory Note undertaking to repay the principal with an interest at the rate of 18% per annum the petitioner would not have failed to get a further cheque covering the unpaid interest portion till the presentation of the cheque for encashment, namely till 28.02.2000.
ix) PW-1 has admitted that one Abhirami was the treasurer and one Elamaran was the president of Pawn Brokers' Association in Kivalur in the year 1999. It is also admitted by him that the respondent's son by name Kalaivanan was running a finance company by name Saroja Finance. He has not denied the suggestion made to him that the respondent/accused had sent a letter to the Canara bank informing the bank officials that the above said Elamaran and Abhirami along with others had taken his signatures in 3 or 4 cheque leaves after putting him in duress and requesting the bank officials to inform him if anybody would present the cheques for encashment. He has also not denied the stand that a notice was sent by the respondent's advocate to the above said Abhirami, Elamaran and also to the police officials upto the level of Deputy Inspector General of Police. On the other hand he would plead ignorance regarding the said fact. Ex.D2 is the copy of the letter sent to Canara Bank by the respondent herein/accused on 28.01.2000 itself informing the bank officials at to what transpired on 28.01.2000 and requesting them to inform the particulars of the persons who might present those cheques for encashment.
x) The bank official who was examined as PW-2 on the side of the appellant/complainant himself has clearly admitted the fact that such a letter was received by the bank. One may wonder how the cheque was returned with a dishonour note "funds insufficient" if at all such a letter had been issued by the bank. The answer is that in the said letter Ex.D2, no instruction had been given to the bankers to stop payment. The only instruction given to the bankers was to furnish the particulars of the persons who might be presenting the cheques for encashment. The said letter has been produced not for proving that he had countermanded the cheque. On the other hand, it has been produced to show that even a month prior to the date of presentation of the cheque for encashment, without knowing in whose name the cheque would be filled up and presented for encashment, the respondent/accused had given such a letter to the bank informing the bank that his signatures had been obtained in the cheque leaves after causing intimidation. This court does not even find any reason to question the reliability of the testimony of PW-2, a bank official. In fact PW-2 was examined on the side of the appellant/complainant. The acknowledgement in proof of service of such letter by registered post has also been produced and marked as Ex.D3. From Ex.D3 it is obvious that such a letter was received by the bank on 29.01.2000 itself. The respondent/accused did not stop with issuing such a letter to the banker. He has chosen to cause a notice to be sent on 28.01.2000 itself to the above said Elamaran, President of Kivalur Taluk Pawn Brokers' Association, Abirami Bankers, Sub-Inspector of Police, Superintendent of Police and Deputy Inspector General of Police. A copy of the said notice has been marked as Ex.D4. The acknowledgements showing the receipt of the said notice by Elamaran, Abhirami Bankers, Sub-Inspector of Police, Kivalur, Superintendent of Police, Nagapattinam and Deputy Inspector General of Police, Thanjavur have been produced and marked as Ex.D5 to D9. The said notice was received by them on 31.01.2000 itself. Nearly one month after receipt of the said notice by those persons, the cheque in question has been produced in the bank for encashment. It can't be assumed that the respondent/accused anticipated presentation of the cheque for encashment and issued such a letter to the bank and such a notice to the above said persons and the police officials. If at all it is true that the cheque was issued on 05.09.1999 itself post-dating it to 09.10.1999 and the respondent/accused was requesting the appellant from time to time to postpone the presentation of the cheque with the intention of creating evidence in defence of the case that might be instituted by the appellant, he would not have waited till 28.01.2000 to issue such a letter to the banker and the notice to the office bearers of the Taluk Pawn Brokers' Association and the police officials. He would have done it in October '99 itself. It should also be noted that the cheque Ex.P1 was presented for encashment only on 28.02.2000, nearly one month after Ex.P2 letter was given to the bank and Ex.D4-Notice was sent to the above said persons. It is the clear case of the respondent/accused that there was no connection between the appellant/complainant and the respondent/accused; that the office bearers of the Taluk Pawn Brokers' Association had created the cheque in the name of one of their employees, namely the appellant/complainant and that the appellant/complainant has been used as a tool in the hands of the office bearers of the Pawn Brokers' Association for initiating criminal proceedings against the respondent/accused. The cumulative effect of all the aspects pointed out above shall lead to the singular inference that the defence theory of the respondent/accused is probable and that the prosecution story of the appellant/complainant is not free from reasonable suspicion.
xi) First of all the capacity of the appellant to lend such a huge amount has not only been disputed by the respondent/accused, but also substantiated on probabilities. Secondly, it is highly improbable for the appellant/complainant to part with the Promissory Note after getting a cheque when the debt remained undischarged, that too, when he was made to understand that the respondent did not have sufficient amount in the account concerned on the alleged date of issue of the cheque. The fact that the respondent/accused chose to issue Ex.D2-Letter to the bankers and Ex.D4-Notice to the office bearers of Taluk Pawn Brokers' Association, who are said to have set up the appellant/complainant to prefer the complaint against the respondent/accused and to the police officials, a month prior to the presentation of the cheque for encashment will also make the defence theory of the respondent/accused probable. Apart from that, the evidence of PW-3, the alleged attestor of Promissory Note seems to be highly improbable and unreliable. PW-3 is also employed under a pawn broker. He did admit that he was employed under a pawn broker and he was getting a monthly salary of Rs.1,000/-. It is the case of the appellant/complainant that the Promissory Note was attested by PW-3 and one Pari. The said Pari is said to be a person brought by the respondent/accused. But, PW-3 was not able to name the second attestor. He would simply state that a person who came along with the accused attested the Promissory Note as the second attestor. At the same time he would say that he did not witness the said person attesting the Promissory Note. The said Pari has not been examined by the appellant/complainant. Moreover, neither the Pro-note nor a copy of the same has been produced. The improbability of the creditor parting with the Promissory note without the debt being discharged has been pointed out supra. There is an admission on the part of the PW-1 that he deposed as a witness on the side of the plaintiff in O.S.No.56/2000 on the file of Sub-Court, Nagapattinam, a case instituted by one Jayaprakash against the respondent/accused on a Promissory Note.
xii) There is no evidence on the part of the appellant herein/complainant as to who filled up the cheque. The respondent/accused who deposed as DW-1 admitted that the cheque leaf was one pertaining to his bank account and that his signature was found in the said cheque. He would also assert that the date, amount and other particulars found in the cheque were not filled up by him. The court below, after perusing the cheque, has correctly observed that there is a difference in ink between the date, amount and other particulars written in the cheque and the signature of the respondent/accused. The same was also an additional factor supporting the conclusion that the appellant/complainant failed to prove the charge against the accused beyond reasonable doubt and that the defence theory is more probable and capable of at least creating a reasonable doubt regarding the prosecution case.
13. All the reasons stated above will be more than enough to come to a conclusion that the court below on a proper appreciation of evidence and applying correct principles of law, has arrived at a correct conclusion that the appellant/complainant failed to prove the charge against the accused beyond reasonable doubt and that the respondent/accused was entitled to be acquitted holding him not guilty of the offence with which he stood charged giving the benefit of doubt to him. This court also, after going through the entire materials, comes to the conclusion that the judgment of the lower court is neither infirm nor defective and that there is no scope for interference with the same in this appeal.
14. For all the reasons stated above, this court comes to the conclusion that there is no merit in the appeal and the same deserves to be dismissed. Accordingly, this appeal is dismissed.
asr/ To The Judicial Magistrate, Nagapattinam