TMI Blog2017 (8) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that the burden is on the complainant in respect of an offence under Section 138 of Negotiable Instruments Act to establish his case against the Respondent / Accused beyond shadow of doubt. But at the same time, it cannot be slightly ignored that the Respondent / Accused is entitled to shake or affect the credibility of the prosecution story by bringing in certain facts / circumstances which point out about his probabilities of the case. In short, an accused in respect of offence under Section 138 of Negotiable Instruments Act is entitled to maintain silent. He need not enter into the box to dislodge the case of a complainant. It is just enough that if he is able to make an inroad into the evidence depositions of witnesses / witnesses of the prosecution side. In view of the qualitative and quantitative discussions as afore stated and also this Court on a careful consideration of the attendant facts and circumstances of the instant case in a cumulative manner is of the earnest view that the Petitioner / Appellant / Complainant has not made out a prima facie case to interfere with the 'Judgment of Acquittal' dated 18.10.2016 passed by the trial court. - Crl.O.P.No.25226 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der this aspect, which had ultimately resulted in 'Miscarriage of Justice'. 7. The Learned Counsel for the Petitioner / Appellant urges before this Court that the trial Court should have considered the evidence of D.W.1, who had admitted that he is bound to pay a sum of ₹ 1,50,000/- to ₹ 2,00,000/- to the Appellant / Complainant. Even D.W.2 in his evidence had stated that the Respondent / Accused is liable to pay around a sum of ₹ 2,00,000/- to ₹ 3,00,000/- to the Appellant / Complainant, but the trial Court had failed to consider the same in a proper manner. 8. The Learned Counsel for the Petitioner / Appellant projects an argument that the Respondent / Accused had not issued any reply to the Ex.P.3, Statutory Legal Notice dated 19.08.2014 and the non issuance of reply to Ex.P.3 is certainly an adverse circumstance, not favourable to the Respondent / Accused. 9. The Learned Counsel for the Petitioner / Appellant contends that the 'Onus of Proof' is on the Respondent / Accused to establish that the Petitioner / Appellant / Complainant was not issued with cheque or in the alternative, the Petitioner / Appellant / Complainant had misus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted that the Petitioner / Appellant / Complainant in his complaint before the trial Court (which was taken on file in S.T.C. No.152 of 2014) had categorically averred that the Respondent / Accused had borrowed a sum of ₹ 15,00,000/- on 01.04.2014 as hand loan from him and agreed to repay the same within two months and that for discharging the Respondent / Accused's liability, towards the same, the Respondent had issued a cheque in his favour for the said sum of ₹ 15,00,000/- vide Cheque No. 453103 dated 02.05.2014 drawn on Indian Bank, Tirumazhisai Branch. 16. It comes to be known that the Petitioner / Appellant / Complainant had deposited the aforesaid cheque based on the instructions of the Respondent / Accused with his Banker, City Union Bank Limited, Maduravoyal Branch for collection on 25.07.2014 and the same got returned with an endorsement 'Exceeds Arrangement' vide Return Memo dated 26.07.2014 by Indian Bank, Tirumazhisai branch, Chennai 602 107. 17. The Petitioner / Appellant had also averred in his complaint that Ex.P.3- Legal Notice dated 19.08.2014 was issued to the Respondent / Accused and the said notice was duly acknowledged as per Ex.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad asked for his signature and when he asked for the reason, P.W.1 had informed him that the amount was a big one and only if you give documents affixing your signature, others would join the chit and therefore, before joining the three chits, he had handed over the blank cheques with his signatures and also the blank documents with his signature to him. 23. Furthermore, it is the evidence of D.W.1 that he had paid the full amount for three auction chits and for 'A' Group chit and in 'B' Group chit, he had paid 60% sum and in 'D' Group, he had paid only a small amount and in the meanwhile, the Petitioner / Appellant / Complainant or his Men had not come for collecting the amount properly and that he was ready to pay the balance amount for the two discontinued chit transaction. 24. It is the evidence of D.W.2 that P.W.1 is running a provision store and also S.R.Y.Chit Agency and he is also paying the chit amount for the chit fund run by the complainant and 'A', 'B' group, the Respondent / Accused is a Member and in 'C' Group he is also a member and that he had paid continuously the chit amount for 18 months and since he met with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of D.W.2 strengthens the defence of the Respondent / Accused as regard to the chit transaction. As a matter of fact, D.W.2 had categorically deposed in his evidence that the Petitioner / Appellant, as P.W.1, was in the habit of obtaining the blank cheques in chit transaction. 29. The Petitioner / Appellant in Crl.O.P.No.25226 of 2016 has sought permission of this Court to grant him 'Special Leave to prefer an Appeal' before this Court as against 'Judgment of Acquittal' dated 18.10.2016 in S.T.C.No.153 of 2014 passed by the trial Court. In this connection, this Court pertinently points out that there is no two opinion of a primordial fact that the High Court possess all the requisite powers to reconsider the whole issue and to reappraise the evidence available on record and to arrive at its own conclusion. In fact, the High Court can substitute its finding replacing the one recorded by the trial Court especially, if the findings of the trial Court are perverse, arbitrary and capricious one. 30. Ordinarily, an 'Order of Acquittal' / 'Judgement of Acquittal' ought not to be interfered with because of the fact that the presumption of the innocenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal Procedure Code (Amendment) Act, 2005 (25 of 2005) Section 32 (with effect from 23.06.2006 vide Notification No.SO 923(E) dated 21.06.2006). 34. In this regard, this Court on perusal of Section 372 of Cr.P.C., is of the earnest view that it speaks of the term 'Victim'. In fact, Section 372 Cr.P.C., Proviso was inserted by Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009) Section 29 (with effect from 30.12.2009) and it is not is not retrospective in operation, as per decision of the Hon'ble Supreme Court reported in National Commission of Women V. State of Delhi, (2010) 12 SCC 599. 35. It is to be borne in mind that merely because a 'Leave' is granted, it would not preclude the Court when real facts are brought to its knowledge from coming into the question whether an 'Appeal' is competent or maintainable in Law. Mere admission of an Appeal or the grant of permission by this Court to prefer an Appeal does not conclude the matter in favour of an individual to whom the Leave is granted. Certainly, 'Maintainability of an Appeal' can be argued at any stage and the accord of permission to file an Appeal earlier by this Court canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture enacting it'. 41. Also in the decision Mohammed Sher V. Raja Seth Swami Daval reported in AIR 1922 Privy Council 17, it is held that one section a statute cannot be used to defeat another section unless it is impossible to effect a reconciliation between them'. 42. That apart, in the decision of Hon'ble Supreme Court in Union of India V. Elohinstone Spinning and Weaving Co. Ltd., and others, AIR 2001 SC at page 724 it is observed as under:- The duty of Judges is to expound and not to legislate is a fundamental rule. There is no doubt a marginal area in which the Courts mould or creatively interpret legislation and they are thus finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further proceeding (See: Corocraft Ltd. V. Pan American Airways Inc. 1968 (3) WLR 714; State of Haryana v. Sampuran Singh, 1975 (20 SCC 810: AIR 1975 Sc 1952). But by no stretch of imagination a Judge is entitled to add something more than what is there in the Statute by way of a supposed intention of the legislature. It is, therefore, a cardinal principle of construction of statute that the true or legal meaning of an enac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Under Section 378 of Cr.P.C., the State or Complainant can file an Appeal against an order of acquittal in terms of the decision Mohammad Daood Qureshi V State, 1993 (1) Crimes at Page 1037 at Page 1039.) 48. It cannot be ignored that the word 'Victim' as per Section 372 Cr.P.C., does not in any way supersede the ingredients of Section 378(4) of Cr.P.C., (relating to filing of an Appeal against the order of acquittal, in any case instituted upon complaint) (especially, in the absence of definition of 'Victim' and 'Complainant' under the Negotiable Instruments Act, 1881). As a matter of fact, the complainant who is a 'Payee' under Section 7 of the Negotiable Instruments Act or a 'Holder in Due Course' under Section 9 of the Act, is entitled to seek 'Leave' under Section 378(4) of Cr.P.C., and bringing a Miscellaneous Petition in this regard seeking a prior permission from the High Court is perfectly maintainable in Law. Looking at from any angle, if the Judgment of Acquittal / Acquittal Order is passed 'in any case instituted upon a complaint', a Petition filed under Section 378(4) of Cr.P.C., seeking 'Grant of Leave& ..... X X X X Extracts X X X X X X X X Extracts X X X X
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