1. The appellant original complainant has filed this Apppeal under section 378 of Criminal Procedure Code 1973, and challenged the judgment and order of acquittal passed by learned Judicial Magistrate, First Class at Surat on 13th September 2007 in Criminal case No. 4627 of 1992 acquitting the respondent accused for the offence under section 138 of the Negotiable Instruments Act (in short the “Act”).
2. According to the complainant Grasim Industries Ltd, a public Limited company is the proprietor of M/s Vikram Cement and is engaged in manufacturing and selling of cement in the name of Vikram Super Cement through Depots and dealers. He is working as incharge depot Officer of Vikram Super Cement at Surat, since last five years and is selling cement of his company at Surat and in the adjoining areas. The accused came to his office in April 1992 and introduced them as proprietors of “Shakti Cement” situated at Bilimora. The accused placed orders for supply of 500 tonnes of Vikram Super Cement between 25th April 1992 and 30th April 1992. The cement worth Rs 11,10,000/ lakhs was supplied to the accused who paid Rs 5 lakhs by three cheques. The accused gave cheque for Rs 6,10,000/ for the remaining outstanding amount but the same returned unpaid. The accused were informed about dishonour of the cheque, therefore, the accused gave cheque No. 7654546 dated 22nd July 1992 for Rs 2,00,000/ drawn on State Bank of Saurashtra, Bilimora branch drawn in favour of “Grasim Industries Ltd A/c Vikram Cement”. The said cheque returned unpaid with endorsement of “insufficient funds”, therefore, a notice was served through advocate to the firm of the accused “Shakti Cement” but the amount was not paid, therefore, the complaint under section 138 of the Act and Section 420, 114 of IPC was filed in the Court of learned Judicial Magistrate, First Class at Surat and it was registered as Criminal Case No. 4627/92. Learned Magistrate issued summons against the accused who appeared in the Court pursuant to the summons and denied having committed the offence and claimed to be tried, therefore, the prosecution adduced evidence. On completion of recording of evidence the incriminating circumstances appearing in the evidence against the accused were explained to them. The accused in their further statement recorded under section 313 of Criminal Procedure Code stated that they have not purchased any goods from the complainant nor have given any cheque against price of the goods purchased as alleged and false complaint is filed. After hearing learned advocate for the parties the trial court by impugned judgment acquitted the accused. Being aggrieved by the said decision the complainant has preferred this Appeal.
3. I have heard learned advocate for the parties and learned Additional Public Prosecutor at length and in great detail. I have also perused the impugned judgment and, record and proceedings of the trial court.
4. Learned advocate for the appellant submitted that the Court is required to read the complaint as a whole and the person who filed the complaint had filed the complaint on behalf of the payee but the Court committed error in recording that the complaint is not filed by the authorised person. It was also submitted that notice of dishonour of cheque was given to the accused and vakil patra was also signed by the accused as proprietor of “Shakti Cement”, the drawer of the cheque and therefore the notice was duly served to the accused. Learned advocate also submitted that the bank officer examined by the prosecution also proved that the accused No. 2 was sole proprietor of “Shakti Cement” and therefore, the prosecution was able to connect the accused with the offence. It was also submitted that the conduct of the accused is also required to be considered as the accused in their further statement did not give proper reply to the questions put to them and the cheque was given towards price of the goods, therefore, the trial court committed error in recording the finding that the complainant failed to prove the debt. It was further submitted that the evidence adduced by the prosecution in the form of affidavit of Mr Sunil Podder also proved that he had authority to give evidence, therefore, the impugned judgment is required to be set aside and the appeal is required to be allowed. Learned advocate for the appellant relied upon the authorities in the case of A. Krishnan Vs S.P. Kumar reported in 2001 (Vol. 106 Company Cases pg 694 and in the case of Gopalakrishna Trading Co. Vs. D, Baskaran reported in 1994 Vol.86 Company Cases pg. 53, and in the case of K.N. Beena Vs Muniyappan and anr reported in AIR 2001 Supreme Court 2895.
5. Learned advocate for the respondent accused submitted that the complaint is filed in the individual capacity and not as an authorised person of payee and therefore no cognisance could have been taken by the Court. Learned advocate also submitted that the notice was not addressed to the accused and therefore there was no compliance of Section 138(b) of the Act. It was also submitted that the complainant failed to prove legally recoverable debt, and that the cheque was issued towards discharge of part of the liability therefore, the trial court was justified in recording the acquittal and hence, no interference is warranted in the impugned judgment and the Appeal is required to be dismissed.
6. It was stated by learned advocate for the parties that criminal case No. 4624/92 and Criminal case No. 4625/92 were filed against the accused. The trial court after recording evidence acquitted the accused in the said cases, therefore, the complainant preferred Criminal Appeal No. 315/09 and 316/09.
As all the appeals were in respect of transactions between the same parties said appeals were heard with this Appeal.
7. Section 142(a) of the Act provides that no Court shall take cognisance of any offence under section 138 of the Act except upon a complaint in writing made by the payee or the holder in due course of the cheque as the case may be. In order to prove service of notice.
8. It appears from the allegations made in the complaint that the cheque Exh. 41 was drawn in favour of “Grasim Industries Ltd A/c Vikram Cement” Except the averment that the complainant was working as a depot incharge officer of Vikram super cement at Surat, there is no averment that the complaint is filed on behalf of payee of the cheque. Even the title of the complaint does not indicate that it was filed on behalf of the payee of the cheque. It also emerges that learned magistrate examined the complainant as required under section 200 of Criminal Procedure Code, 1973 and in the examination also the complainant did not state that the complaint was filed on behalf of the payee of the cheque, Therefore, the complaint is not filed by the payee of the cheque. Hence, the complaint was not filed in accordance with the provisions of the Act. Learned advocate for the appellant emphasised that the complaint as a whole is required to be considered. In view of the fact that there is no averment in the complaint that it is filed on behalf of payee of the cheque, it is difficult to accept that the complainant had filed the complaint on behalf of the payee. Therefore, this submissions cannot be accepted.
9. It emerges from the record that the complainant Mr. Vishwambhar Ramchandra Podar did not appear in the Court at the time of recording of evidence to prove the allegations made in the complaint. Therefore, the prosecution examined PW1 Sumil Mohanlal Podar at Exh. 28 and PW4 Mr. A. V Kulkarni at Exh.
59 to prove the prosecution case. PW1 Sunil in his affidavit stated that complaint is filed by Mr Vishvambhar Ram Podar on behalf of Vikram Cement of Grasim Industries Ltd but said Mr Podar is relieved by the company and power of attorney is given to him by Mr. A. V Kulkarni, Senior Manager on behalf of Director of “Grasim Industries Ltd” to conduct the cases and therefore, he has filed the affidavit in that capacity in favour of complainant company and the affidavit is filed in that capacity. PW4 Mr A.V Kulkarni in his affidavit stated that he is authorised by “Grasim Industries Ltd” to conduct cases Mr. Vishwambhai Podar had filed the complaint for and at the instance of the company and on behalf of the company and the affidavit is filed in that capacity. The evidence of these two witnesses indicates that PW4 Mr. Kulkarni was authorised by “Grasim Industries Ltd” to conduct cases of “Grasim Industries Ltd” and Mr Kulkarni gave authority to PW1 Mr. Sunil Podar to conduct the cases of “Grasim Industries Ltd”. There is no evidence that the complainant gave authority to these witnesses to conduct the case and to give evidence on his behalf in the matter. Therefore, in view of the fact that the complaint is not filed by or on behalf of the payee and there is no evidence that the complainant Mr Vishwambhai Podar gave them the authority to conduct the case, on his behalf, the evidence of these witnesses cannot be relied upon to connect the accused with the offence. Hence, it cannot be said that the complaint was filed by payee of the cheque and the witnesses had authority to give evidence in the case on behalf of the complainant.
10. Under section 138 of the Act where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank such person shall be deemed to have committed an offence.
Section 138(b) of the Act further provides that nothing contains in the section shall apply unless the payee or the holder in due course of the cheque as the case may be makes a demand for the payment of the cheque amount by giving a notice in writing to the drawer of cheque within 15 days (as applicable at the relevant time) of the receipt of information by him from the bank regarding return of cheque as unpaid.
Section 138(c) further provides that the drawer of such cheque shall be deemed to have committed offence if he fails to make payment of the cheque amount within 15 days of the receipt of the said notice.
11. In order to prove that notice as required under section 138(b) was served to the accused, the prosecution has produced the notice at Exh. 44 and the acknowledgment due at Ex. 45. Both these documents indicate that they were addressed to “the proprietor “Shakti cement”. It does not mention the name of the accused as proprietors. It is also significant that the complaint has been filed against two accused alleging them to be proprietors of the firm. There could not be two proprietors of a firm. Therefore in my view the complainant failed to prove that notice as required under Section 138(b) was served to the accused and hence, the trial court was justified in recording acquittal.
11. According to complaint, the accused gave the cheque towards part payment of the price of the goods purchased by them. It emerges from the record that no evidence was produced to show that the goods were supplied to the accused. It is settled proposition that presumption under section 139 of the Act is rebuttable and the accused is not expected to rebut the statutory presumption by proving his defence beyond reasonable doubt. It is enough if the accused is able to establish that circumstances existed which enables a prudent man to suppose that no debt existed. The burden of proof lying on the accused is required to be discharged by preponderance of probabilities and not beyond reasonable doubt as required by prosecution to prove its case. It is also not necessary that accused should step into witness box or lead evidence to prove his defence but can rely on the material produced on the record by the complainant. In the present case the accused has denied having placed the order for supply of the goods and receipt of the same. The accused was able to rebut the presumption and raise probable defence by crossexamining the prosecution witnesses. Therefore, burden shifted on the prosecution to prove that the goods were sold and delivered to the accused and the cheque was given towards discharge of liability in part in respect of price of goods purchased by them. The prosecution failed to prove that there was existence of legally recoverable debt or liability and the accused made part payment in respect of the debt and gave cheque Exh. 41 towards discharge of remaining part of debt or liability and hence, the trial court was justified in recording that complainant failed to prove the debt.
12. In view of above it emerges that the complaint was not filed by the payee of the cheque and no notice as required under section 138(b) of the Act was served to the accused making demand of unpaid cheque amount. It was also not proved that the cheque was given by the accused towards discharge of legally recoverable debt or liability.
13. Learned advocate for the appellant relied upon the decision of Madras High Court in the case of A. Krishnan Vs. S.P Kumar (supra) and in the case of Gopalakrishna Trading Co. Vs D. Bhaskaran (supra) in respect of authority to file complaint. In the facts of this case both these decisions have no application.
14. In the decision of K.N Beena Vs. Muniyappan and anr. (supra) Hon'ble Supreme Court has laid down law with regard to the presumption under section 139 and 114 of the Act. In the facts of present case, this decision does not help the appellant.
15. In view above, the trial court was justified in acquitting the accused. Learned advocate for the appellant failed to point out any infirmity in the impugned judgment, therefore, the appeal fails and stands dismissed.
(Bankim.N.Mehta,J.) mary//