TaxTMI 
TaxTMI 
2017 (7) TMI 824
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....the complainant that the accused has not offered any explanation as to how the other two cheques did come under the custody of the complainant if really other cheques were lost as mentioned in the public notice Ex.D.1. It is true that the accused has not offered any explanation in this regard but however in view of the discussions made above, it is the duty of the complainant to prove the legally enforceable debt or liability and the alleged loan transaction between the complainant and the accused and since she has failed in her attempt, the non explanation of the accused is not fatal to her defence." and ultimately, came to the consequent conclusion that the Respondent/Complainant (Appellant before this Court) had failed to establish his case and accordingly, set aside the conviction of the Appellant/Accused (Respondent before this Court) and acquitted her in respect of an offence under Section 138 of the Negotiable Instruments Act, 1881. In short, the First Appellate Court had allowed the Appeal in C.A.No.155 of 2015 preferred by the Appellant/Accused (Respondent herein). 4.Earlier, the Learned Judicial Magistrate No.III, Salem, in S.T.C.No.599 of 2009, on 26.10.2015, at pa....
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....he borrowal of loan made by the Respondent/Accused from the Appellant/Complainant. 8.The Learned Counsel for the Appellant takes a primordial stand that in Ex.D1 - Paper Publication dated 02.03.2009, the Respondent/ Accused had not disputed the signatures found in the cheque leaves as "one that does not belong to her". 9.It is represented on behalf of the Appellant that the suit in O.S.No.621 of 2009 was filed by the Respondent and her husband against the Appellant/Complainant on 12.05.2009 wherein a relief was sought to handover the cheques covered by the case in S.T.C. which was dismissed for default and although the Appellant had filed the Written Statement in the said suit, the Respondent/Accused had not taken steps to restore the suit to file. 10.The Learned Counsel for the Appellant brings it to the notice of this Court that if Ex.D5 (Copy of Stop Payment Letter dated 02.03.2009) was really served upon the Respondent's Bank on 02.03.2009, then, Exs.P1 to P3 (Cheques) would not have been returned stating 'Funds Insufficient' but would have been returned as 'Stop Payment'. In this connection, it is the plea of the Appellant/ Complainant that the ver....
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....aint in S.T.C.No.599 of 2009 on the file of the trial Court, the Appellant/Complainant, at paragraph 4, had stated that he presented the Item No.1 to 3 Cheques bearing No.555450 (Rs.2,50,000/-); No.555451 (Rs.2,50,000/-); No.555452 (Rs.2,50,000/-) for collection on 27.05.2009, 28.05.2009, 29.05.2009. However, it was returned with Cheques Return Memo from the Respondent/Accused Bank stating as 'Funds Insufficient'. 17.A cursory perusal of the Complaint in S.T.C.No.599 of 2009 on the file of the trial Court indicates that the Appellant/Complainant had averred that the Respondent/Accused was liable to pay the cheque sums along with interest at the rate of 24% and that there was a 'Legally Enforceable Liability' between the Respondent/Accused and the Appellant/Complainant as per Section 138 of the Negotiable Instruments Act. 18.It is to be noted that the Cheque No.555450 dated 27.07.2009 was for Rs. 2,50,000/- drawn on Canara Bank, Fort Main, Salem; again the Cheque No.555451 dated 28.05.2009 was for Rs. 2,50,000/- drawn on Canara Bank, Fort Main, Salem; the third Cheque bearing No.555452 dated 29.05.2009 drawn on Canara Bank, Fort Main, Salem was for Rs. 2,50,000....
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....ed' and Ex.D2 was the True Copy maintained by the Bank for the return of the cheque. Another Cheque bearing No.555451 was returned for the reason Stop Payment being issued and the concerned document was Ex.D3 and another Cheque bearing No.555452 was also returned because of issuance of Stop Payment vide Ex.D4. 24.D.W.1, in his cross examination, had deposed that the letter issued for effecting Stop Payment in respect of Cheque bearing No.555452 was of the year 2009 and they were not able to trace out the said letter although several years had elapsed. 25.D.W.2 (Senior Manager of Salem Canara Bank), in his evidence, had deposed that it was correct to state that in Ex.D5 the date was mentioned as 02.03.2009 and further, the Canara Bank Seal was affixed as 03.03.2009. Further, D.W.2 had proceeded to add in his evidence in Ex.D5 - Letter, it was mentioned that six cheques were lost. 26.The clear-cut stand of the Appellant/Complainant before this Court is that Ex.P7 - Legal Notice dated 19.06.2009 was addressed to the Respondent/Accused and that Ex.P8 was the acknowledgement for the receipt of the notice. In this connection, this Court, on mere running of the eye over the s....
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....ourable points from the evidence of the prosecution witnesses and can make an endeavour before the Court concerned to shake the case of the Appellant/Complainant. A preponderance of probability can be raised/ shown on his behalf. 31.It cannot be gainsaid that it is the duty of the Complainant to prove his case. But, in so far as the offence under Section 138 of the Negotiable Instruments Act is concerned, it is to be borne in mind that it is a civil liability clothed in a criminal colour. Apart from that, an offence under Section 138 of the Negotiable Instruments Act does not involve any moral turpitude. The purpose of cheque transaction is for ensuring credibility and by indicating Section 138 of the Negotiable Instruments Act, the efficacy of the Bank transactions to operate in healthy atmosphere is the purpose in the considered opinion of this Court. Besides the above, when a cheque is seen in a different ink than that of the signature affixed in a different ink, then the said cheque under Negotiable Instruments Act as per Section 20, it cannot be termed as an 'Inchoate Instrument', as opined by this Court. 32.In fact, the defence of the Respondent/Accused is that ....
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....fact that the cheque was issued by the party and presented in the bank but was dishonoured was proved, presumption would be that the cheque was issued for consideration, as per decision Vasanti Babli Borkar V. Kishore K. Shah, AIR 2007 (NOC) 744 (Bom.) What was permissible in the Indian Evidence Act, 1872 was converted into a statutory obligation in the Negotiable Instruments Act. 36.In reality, the difference between Section 114 and Section 118 of the Negotiable Instruments Act is that the Court has difficult task to make a presumption or not, but, secondly, a Court of Law is to bound to begin with a presumption. However, once the presumption is made, there is no difference between the cases; in the manner of displacing the presumption or disproving the 'presumed' fact. Besides this, any presumption as to the quantum of consideration as distinguished from the mere existence of consideration, has accordingly to be drawn, not by means of Section 118 or even under Section 114 of the Indian Evidence Act, but only from the recitals, if any, that instrument may contain. 37.Moreover, Section 118 of the Negotiable Instruments Act, 1881 enacts a special rule of evidence which....
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....ct that the Respondent/Accused had issued Stop Payment Letters to the concerned Bank after issuing necessary cheques creates an impression in the mind of this Court that she is to explain under what circumstances the Stop Payment Letter was issued to the Bank although she had come out with a Paper Publication Ex.D1 that the Cheques were lost. Moreover, for a heavy sum covered under Exs.P1 to P3, the signature of the Respondent/Accused found therein were not disputed. Therefore, to prove or to bring it to the notice of the Court concerned, the facts which are especially within the knowledge of the Respondent/Accused, this Court opines that the evidence of the Respondent/Accused is very much necessary. Therefore, under the existing circumstances, this Court comes to an irresistible and inescapable conclusion that the Remand of the entire subject matter in issue is a Fair, Equitable and prudent course of action. Ultimately, the truth alone should prime and necessary facts which are within the knowledge of the Respondent/Accused must be brought before the Court in a diligent fashion. Since the Respondent/Accused had not appeared as a witness before the trial Court, the strongest possib....