TaxTMI 
TaxTMI 
TaxTMI 
2017 (1) TMI 1500
X X X X Extracts X X X X
X X X X Extracts X X X X
....en counter argument was projected to the effect that the present case was filed at the instance of one Palanisamy and when the first notice was sent in the name of Palanisamy, the possibilities of accepting the Accused side was more. Also, at paragraph 10(e), the trial Court had proceeded to observe that when a counter argument was advanced that loan was not obtained from the Complainant (Appellant) and that cheque was not issued in his favour and when the said loan amount was given to the Respondent/Accused to substantiate the fact that at that time his wife was there, no attempt was made to examine the wife of the Complainant and resultantly, came to the conclusion that there was no possibility of relationship between the Complainant and the Accused in regard to the aspect of legally enforceable debt and found the Accused (Respondent) not guilty under Section 138 of the Negotiable Instruments Act and acquitted him under Section255(1) Cr.P.C. 4.Challenging the Judgment of Acquittal passed in S.T.C.No.80/ 2015 dated 17.03.2016 by the trial Court, the Learned Counsel for the Appellant/Complainant that the trial Court had committed an error in acquitting the Respondent/Accused, by n....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the debt, the Respondent/Accused had issued a post dated Syndicate Bank Siruvachiyur Branch Cheque bearing No.094381 drawn in favour of the Appellant (Complainant) dated 02.05.2015 for a sum of Rs. 3,00,000/- and gave an assurance to the Appellant on or after 02.05.2015 to present the cheque before the Bank for collection and to collect the cheque amount from the Bank. 11.It comes to be known that when the cheque was deposited by the Appellant (Complainant) in the Indian Overseas Bank Aragalur Branch on 02.05.2015, the cheque was returned on 18.05.2015 for the reason Account Closed/Refer to Drawer . 12.The stand of the Appellant is that the Return Memo dated 18.05.2015 was received by him on 18.05.2015 itself from the Indian Overseas Bank, Aragalur Branch and after the Appellant/Complainant intimated the same to the Respondent/Accused and asked him as to why he had issued an account closed chque and further, demanded the Respondent/Accused to pay the cheque amount due to him or otherwise he would take action before the concerned Court, the Respondent/Accused had informed him that due to business dull season, he was not unable to repay the cheque amount and within a week, he woul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s closed at the Police Station and that was a true one and that he does not know the date. Besides the above, P.W.1 adds in his evidence that at the time when the Respondent/Accused demanded a loan and when he gave money to the latter, at the time his wife was present and it was correct to state that in Ex.P4 Notice ,it was mentioned as K.C.Palanisamy. 16.Before the trial Court, the categorical plea of the Respondent/ Accused is that when Palanisamy was a Partner and when he was a Managing Director in a Finance, at the time of himself availing the loan, he received three cheques and a stamp paper of Rs. 20/- and when he settled the loan and demanded for the return of documents, he informed that the said cheques were not in force/use and he informed that he would return the same and in the year 2015, when Palanisamy demanded money and created a problem, he informed that the money was already paid and when Palanisamy created a problem by using one of the cheques with the aid of Complaint, the present case was filed. Object of N.I. Act & Onus of Proof: 17.It is to be pointed out that the object of bringing Section 138 of the Negotiable Instruments Act, 1881, is to inculcate faith i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bed period, if a Complainant specifies that the Court that he had sufficient reason for not filing a complaint with such period. 20.It is well settled in Law that when an individual had paid an amount payable by him, he ought to have been discharged his obligation and a creditor is bound to accept the tender. In fact, under Section 138 of the Negotiable Instruments Act, a Court of Law is to presume that a cheque was issued towards a debt or liability and in reality, the said presumption is a rebuttable one, the onus of proving that the cheque was not issued for a debt or liability is on an Accused. A Drawer has to establish the same in the course of trial of a main case by adducing a cogent, coherent and convincing evidence. 21.Dealing with the aspect of Section 139 of the Negotiable Instruments Act, it is to be pointed out that mere proof of consideration would not suffice to succeed in a prosecution under Section 139 of the Negotiable Instruments Act. It cannot be said that a consideration must be of a specific variety. The presumption under Section 139 of the Negotiable Instruments Act is available to a Payee and it cannot be said that only a holder is entitled to the advantag....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me, in the considered opinion of this Court. 25.At this stage, this Court aptly points out that Section 106 is not meant to be used to place upon an Accused the onus of proving his innocence as per decision Narayanan Nambiar V. Executive Officer, Cherukunnu, Panchayat Board, AIR 1965 Kerala 73. 26.If a Court of Law is subjectively satisfied that either direct or circumstantial evidence is trustworthy and acceptable one against an Accused and if the Respondent/Accused take up a plea based on facts which are within its knowledge it is for him to prove those facts under Section 106. The onus of proof by an Accused is not so high as in the case of prosecution as per decision Arjun Tiwari V. State reported in 1977 Cri.L.J. 1751. 27.One cannot brush aside a very significant fact that it is not for the prosecution to eliminate and anticipate all possible defence circumstances which may exonerate an accused. In this regard, this Court relevantly points out that if an Accused had a different intention [a fact especially within his knowledge] then, he must especially the same as per decision Sattiah V. State of Andra Pradesh reported in AIR 1960 A.P. 153. 28.It is true that an Appellate ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rinciple." 33.For 'Dishonour of Cheque' prior to Act 66 of 1998 a Civil action could be resorted to under Section 30 and 117 of the Negotiable Instruments Act. The object of Section 143 of the N.I. Act (with effect from 06.02.2003) was inserted to provide for summary trial of cases under the Negotiable Instruments Act, for speedy disposal of cases. 34.This Court relevantly points out that the Law pertaining to an Act is required to be interpreted in the light of the objects intended to be achieved by it, despite there being deviations from the general law and procedure provided for redressal of grievances. Definitions: 35.Section 2(n) Cr.P.C. defines 'offence' as under: "(n) Offence means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle-trespass Act, 1871 (1 of 1871)." 36.Section 2(d) Cr.P.C. defines 'Complaint' in respect of an ordinary crime any one can set the Law in motion and no specific authorisation is necessary to file the complaint no specified format is prescribed which the Complainant may take. But in respect of an offen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Cr.P.C. places no restriction on the complainant. 41.It is to be borne in mind that Section 4(2) Cr.P.C. enjoins that all offences under any other Law, other than I.P.C. shall also be enquired into or tried and otherwise dealt with the provisions of the Code, subject to any other enactment which contemplates a different mode of trial for such offence. Furthermore, the non-obstante clause in Section 142 of the Negotiable Instruments Act clearly spell out that the three matters mentioned in Section have an overriding effect on the ingredients of Criminal Procedure Code. Apart from that, in an exercise of an Appellate Jurisdiction, the Court has power not only to correct an error in the Judgment under Appeal but to make such disposition of the case, of course according to equity, good conscience, fair play and Justice. 42.The expression any case instituted upon a complaint under Section 378(4) Cr.P.C. means only that class of cases where not merely a Complainant comes to a Court with a petition of complaint but the Magistrate takes cognizance of the offence or offences alleged on the basis of that comlaint as per decision Sannanaik V. M.S.Prakash reported in 2006 Cri.L.J. 1386(DB).....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cannot be read as divorced from their context (Thompson v. Dibdin, 1912 AC 533). If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction." 45.In the decision of the Hon'ble Supreme Court in V.S.Achuthanandan V. R.Balakrishna Pillai and others, 2011 AIR SCW 1400, it is observed and held that 'In view of the importance involved in the Appeal against acquittal by a third party was held to be maintainable'. 46.In the decision Thangaraj v. S.Aruljothi and another, (2008) 2 MLJ (Crl) 339, at special page 342 and 343, whereby and whereunder, at paragraph 11, it is observed as under: "11.In the considered opinion of this Court the phrase ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....espondent/ Accused). Admittedly, except the Appellant/Complainant, who got himself examined as P.W.1, no one was examined on his side as further witnesses. Considering the facts and circumstances of the present case, which float on the surface, this Court, with a view to provide an opportunity to the Appellant/Complainant to establish his case, apart from that, Palanisamy and his wife are necessarily to be examined by the Appellant and therefore, this Court, without expressing any opinion on the merits of the matter, for an effective and efficacious adjudication, to prevent an aberration of Justice, simpliciter, remands the entire subject matter in issue to the trial Court [since based on the existing materials available on record, it is not possible for this Court of pronounce a Judgment] for hearing the matter afresh, by setting aside the Judgment of the trial Court. Consequently, the Appeal succeeds. 51.In fine, the Criminal Appeal is allowed. The Judgment of the trial Court dated 17.03.2016 in S.T.C.No.80 of 2015 is set aside by this Court for the reasons assigned in this Criminal Appeal. The entire subject matter in issue is remanded back to the Learned Judicial Magistrate, F....