TMI Blog2017 (1) TMI 1500X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and convincing evidence. 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 - It is true that an Appellate Court is not meant to fill up the gaps/lacunae in a prosecution case. However, when it is the duty of a concerned Court of Law to ascertain the factual aspect/truth in a given case, then, an Appellate Court can re-appreciate the evidence available on record and to come to its independent conclusion. Maintainability of Appeal - Held that: - Just because a Leave was granted it does not fetter the Court when real facts were brought before it from going into the issue whether an Appeal is maintainable. Where an acquittal in Appeal was recorded by the Sessions Judge, an application for Leave to have under sub-section (4) of Section 378 Cr.P.C. by the Complainant is maintainable. In fact, Section 378(4) Cr.P.C. applies as much to cases instituted upon complaints for the offences under I.P.C. as it does to complaints involving any other offence under any special enactment - Section 378(4) Cr.P.C. places no restriction on the complainant. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, inter alia, observed that '... no endeavour was made on the side of the Appellant/Complainant to examine the aforesaid Palanisamy' and at paragraph 10(d) had opined that '... when 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased on acquaintance, he borrowed a sum of ₹ 3,00,000/- from him on 03.04.2015 to meet out his urgent business and family expenses and assured to repay the same within one month. As a matter of fact, to discharge 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused and Palanisamy and on one occasion, he spoke to them to settle the problem and on 28.04.2015 in regard to the problem between the Respondent/Accused and Palanisamy at Thalaivasal Police Station in his presence, the petition was 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 ₹ 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of expiry of the grace time of 15 days before a Metropolitan Magistrate or not below the rank of a Judicial Magistrate of the I class. Indeed, the cognizance of a complaint may be taken by the Competent Court concerned, after the prescribed 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 Negotiab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut it precisely, the ingredients of Section 106 of the Indian Evidence Act, 1872 ought to be confined to those cases where a fact is specially within the knowledge of any person if a matter is within the knowledge of the Defendant he is to establish the same, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: 12.We approve the said principle and hold that the question whether an offence would involve moral turpitude has to be decided on the facts of each case. All offences do not necessarily involve moral turpitude. Section 138 of the Act is no exception to the said principle. 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as much to cases instituted upon complaints for the offences under I.P.C. as it does to complaints involving any other offence under any special enactment, as per Parvati Devi V. State reported in 2005 CrLJ 1615 (1617) (Delhi-DB). Sub-section (3) speaks of 'Leave of the High Court'. Section 378(4) 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. Words are dependent on the principal enacting words to which they are tacked as a proviso. They 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 inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Also that, when it is a case of the Appellant/Complainant that at the time of loan amount being paid to the Respondent/Accused, his wife was present, then, this Court is of the cocksure view that the Appellant/ Complainant is to examine his wife to speak about the transaction in issue (especially when it was disputed on the side of Respondent/ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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