TMI Blog2015 (1) TMI 1365X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 378(4) Cr.P.C. or proviso to Section 372 amended Cr.P.C. The reversal and acquittal judgments of the lower revisional Court by sitting against the conviction judgments of the trial Court are unsustainable and outcome of ill appreciation of facts and law that resulted grave injustice to the complainant-bank and the same is prone to the jurisdiction of this Court by way of appeal under Section 378(4) read with Section 378(1)(b) and (3) and otherwise under Section 372 and its proviso read with Section 2(w)(a) and otherwise within inherent power of this Court saved by the Section 482 Cr.P.C., for this Court to set aside the said revision Court reversal judgments to secure ends of justice being necessary. The two appeals taken under Section 482 Cr.P.C. from otherwise if not maintainable either under Section 378(4) or under Section 372 amended Cr.P.C. and the lower revision Court's acquittal judgments are set aside by restoring the trial Court's conviction judgments - appeal disposed off. - Criminal Appeal Nos. 1686 and 1687 of 2009 - - - Dated:- 30-1-2015 - HON'BLE Dr. JUSTICE B.SIVA SANKARA RAO For the Appellant: Sri Paturu Madhusudhan For the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant introduced the existence of promissory note and revival letter at the time of trial, that the learned Magistrate erred in holding inefficiency in drafting the complaint is not a ground to reject the case of the complainant. After hearing both sides and after perusal of the revision grounds with other material on record, the learned IV Additional District and Sessions Judge, Visakhapatnam allowed the two revisions by setting aside the conviction Judgments of the trial Court dated 18.09.2007 in C.C. Nos. 41 and 42 of 2005. 5. Against the said two revision reversal judgments the complainant presented the appeals contending that the revision Court below failed to note that the accused having borrowed secured over daft from the appellant bank by depositing title deeds of the house property and agreed to repay the loan amount with interest and executed necessary loan documents in favour of the complainant issued the cheques that were when presented dishonoured with a reason 'funds insufficient' for which the complainant issued legal notice, that the accused wantonly not claimed to receive the legal notice addressed to him which is evident from the postal returned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is nothing to interfere and thereby sought for dismissal of both the matters. 7. Now the points that arise for consideration in the appeal are: 1. Whether the two appeals against the lower revisional Court's acquittal and reversal judgments are not maintainable and this Court cannot sit otherwise against the impugned acquittal revision Judgments, under Section 482 Cr.P.C. and otherwise on merits and with what observations and conclusions? 2. To what result? POINT No. 1: 8-(A). Before advert to the merits of the matter, it is beneficial to quote; the provisions incorporated in Chapter XVII of the N.I. Act make a civil transaction to be an offence by fiction of law and with certain (rebuttable) presumptions that shall be drawn. Sections. 138 to 142 are incorporated in the N.I. Act, 1881 as Chapter XVII by the Banking Public Financial Institutions and Negotiable instruments Laws (Amendment) Act, 1981 (66 of 1988) which came into force w.e.f. 01-04-1989 and the N.I. Act was further amended by Act, 2002 (55 of 2002) which came into force w.e.f. 06-02-2003 incorporating new sections 143 to 147 in this Chapter XVII and further some of the existing provisions no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 that drawer has no reason to believe that cheque would be dishonoured. (v) As per Section 146 (new section) the production of the Bank's slip or Memo with official mark denoting that the cheque has been dishonoured is prima facie evidence for the Court to presume the fact of dishonour of such cheque unless such fact is disproved by the accused. 8-(D). Further the provision for issuing notice within thirty days under section 138 after dishonour is to afford an opportunity to the Drawer of the cheque to rectify his mistakes or negligence or in action and to pay the amount within fifteen days of receipt of notice, failing which the drawer is liable for prosecution and penal consequences. 8-(E). Reasonability of cause for non-payment is not at all a deciding factor. Mens rea is irrelevant. It is a strict liability incorporated in public interest. 8-(F). Availability of alternative remedy is no bar to the prosecution. 8-(G). In the words-where any cheque, the word any suggests that for whatever reason if a cheque is drawn on an account maintained by him with a Banker in favour of another person for the discharge of any debt or other liability, the liability cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude the existence of a legally enforceable debt or liability is not correct, though in other respects correctness of the decision does not in any way cause doubted; by also referring to HITEN P. DALAL v. BRATINDRANATH BANERJEE AIR 2001 SC 3897 holding at paras-22 and 23 therein of the obligation on the part of the Court to raise the presumption under 138, 139 and 118 of the N.I. Act, in every case where the factual basis for raising the presumption has been established since introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused, as a presumption of law distinguished from a presumption of fact as part of rules of evidence and no way in conflict with presumption of innocence and the proof by prosecution against the accused beyond reasonable doubt, but for saying to rebut the accused can discharge the burden showing reasonable probability of non-existence of the presumption of fact and to that proposition, the earlier expression in BHARAT BARREL DRUM MANUFACTURING COMPANY v. AMIN CHAND PYARELAL AIR 1999 SC 1008 para-12 showing the burden on the accused is to bring on record by preponderance of probability eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapala Hanumaiah Vs. Kavuri Venkateshwarlu 1971 (1) An.W.R. 65 that having received and acknowledged the statutory legal notice after dishonour of cheque, non-giving of reply to said legal notice, improbablises the defence version, as any prudent person under the said circumstances should have, but for no defence to reply. 10. Before going into the correctness of the impugned lower revisional Court's acquittal judgment by reversing the trial Court conviction judgments, coming to the main issue on maintainability of the two appeals on hand for common disposal and otherwise power of the Court to take the proceeding under Section 482 Cr.P.C. for appeal or revision not maintainable otherwise with no other specific provision concerned; as per the detailed order of this Court in Crl. A. No. 1043 of 2005 referring to earlier two single Judge expression of this Court in the same line as to the complainant of a private complaint case of dishonor of cheque is within the meaning of victim under the amended Cr.P.C. 10-A. Section 2(w)(a) read with proviso to Section 372 Cr.P.C. enables the victim to maintain an appeal against the acquittal judgment or on insufficiency of sentence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not exceeding ₹ 200/- or both. Here the learned II Additional Chief Metropolitan Magistrate, Visakhapatnam, conviction Judgments in C.C. No. 41 and 42 of 2005 were with sentence of simple imprisonment for three months and compensation of ₹ 5,000/- with default sentence of simple imprisonment for one month. Had the trial Court imposed above said ₹ 5,000/- as fine, there could be an appeal remedy for the bar under Section 376 Cr.P.C. has no application, but for with three months simple imprisonment and only compensation (without fine) with default sentence for compensation. It is there from and rightly the convicted accused in both C.C. No. 41 and 42 of 2005 maintained the two revisions (for no appeal remedy) in Crl. Revision Petition Nos. 90 and 91 of 2007 respectively before the Court of Session. 10-D. In this regard, it is also relevant to refer chapter XXX Cr.P.C. relating to reference or revision covered by Sections 395 to 405 Cr.P.C. of which, as per Section 401(4) Cr.P.C., on the powers of the High Court in revision, where under this Code if appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was with leave of Court under Section 378(4) Cr.P.C. 11-B. In this background, coming to Section 378 Cr.P.C. further:- sub-section (3) of Section 378 Cr.P.C. amended by Cr.P.C. amended Act 25 of 2005 speaks that no appeal lie to High Court under Section (1) or (2) of Section 378 except with leave of the High Court. Now, by virtue of Section 372 Cr.P.C. amended proviso by Act 5 of 2009 with Section 2(w)(a) of Cr.P.C. definition of victim, this part of Section 378(3) read with Section 378(1) and (2) has to be read with Section 378(1)(b). It speaks, save as otherwise provided in sub-section (2) and subject to sub-section (3) and (5), the State Government may, in any case, direct the public prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than High Court not being an order of acquittal passed by Magistrate in respect of a cognizable and non-bailable offence under clause (a), or an order of acquittal passed by the Court of Session in revision. Thus, against an order of acquittal passed by the Court of Session in revision, an appeal can be presented to the High Court by the State Government through Publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eversing the trial Magistrate Court's conviction judgments, the appeal lies. It is also important to note in this context that, the expressions of the several High Courts including of the Mysore in Chairman Village Panchayat V. Thimmanasetty AIR 1956 Mysore 62 by interpreting Section 417 old Cr.P.C. equal to present Section 378 Cr.P.C. and following the same, by Gujarat High Court in Mohd. Miya Khalumiya V. Majeedkhan 1972 Crl. J. 1409 and of the Karnataka High Court in K.H. Ganesh Rao v. H. Gopal 2010 Crl. J. 2687 referring to the wording of Section 378 Cr.P.C. held that to file an appeal against the acquittal judgment, it need not be against the acquittal judgment of the trial Magistrate but even against the reversal acquittal judgment of the Court of Session in sitting against conviction judgment of trial Magistrate, to entertain the second appeal by High Court including in private complaint case with leave under Section 378(4) Cr.P.C., same is also held by this Court including in the Criminal Revision Case Nos. 1522 and 1523 of 2014, vide common order dated 26.08.2014 in S. Chandra Prabhavathi V. State of Telangana. 12-B. Thus, from the combined reading of these provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a bar have no application and no way coming in the way for the High Court to decide the lie by sitting against the order of the Sessions Judge. It was observed particularly at para No. 9 of the judgment in Krishnan (supra) on the inherent power of the High Court under Section 482 Cr.P.C. referring to the said maxim that this power is not conferred by the Code but inherent in the High Court that is preserved by the Code. It was also observed by referring to the four Judges bench expression in V.C. Shukla V. State through C.B.I. 1980 Supp. SCC 92 that refers the three Judge Bench expression in Madhulimaye v. State of Maharashtra: (1977) 4 SCC 551 that even the bar under Section 397(2) Cr.P.C. to maintain a revision not coming in the way to decide the matter before the High Court under Section 482 Cr.P.C. as nothing in the provisions of the Code shall be deemed to limit or affect the inherent powers of the High Court. 13-B. Thus, the power of revision to entertain by High Court, even taken away under any of the provisions of Cr.P.C. that can be exercised under Section 482 Cr.P.C. The Apex Court also referred for that several expressions including Rajan Kumar Machananda V. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to pass necessary orders and is a provision independent of Section 397 Cr.P.C. A plain reading of Section 482 Cr.P.C. follow that, nothing in the Code (which include Section 397(2) Cr.P.C. also), shall be deemed to limit or affect the inherent powers of the High Court but for to say the order brings about a situation which is an abuse of process of the Court or for the purpose of securing the ends of justice or interference by the High Court is absolutely necessary for exercise of the inherent power in such a situation. It is also observed that the High Court alone can pass such orders ex debito justitiae to do real and substantial justice in the lie. It was also observed referring to Section 151 C.P.C. and the earlier expressions of the Apex Court in Padamsen Vs. State of Uttar Pradesh AIR 1961 SC 218 Manoharlal Chopra Vs. Rai Bahadur AIR 1962 SC 527 that it is well recognized that the High Court is vested with inherent power, however, said inherent power is not to be exercised contrary to any express provision that being the intention of legislature in enacting the civil criminal procedure codes vis-a-vis the law laid down by the Apex Court. 13-E. It was also held by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere such an order is necessary to secure the end of justice or to prevent abuse of process of Court as this power is always preserved to the High Court under the Code. It was also observed that the inherent power of the High Court is not conferred by Cr.P.C. but for to say the power which inheres in the High Court no way limited or effected for its exercise by High Court by the provisions of Cr.P.C. 13-H. Thus, from the above settled propositions of law, even revision or appeal is a bar by virtue of any of the specific provisions of Cr.P.C. the High Court's inherent power can be exercised in deciding the matter before it under Section 482 Cr.P.C. within its scope; that is not a bar from what is discussed supra from several and settled expressions of the Apex Court to decide the two appeals on merits by taking the same under Section 482 Cr.P.C. for otherwise not maintainable under Section 378(4) Cr.P.C. or proviso to Section 372 amended Cr.P.C. 14. The other contention of the learned counsel for the accused/2nd respondent to these two matters is that, the subject under Section 482 Cr.P.C. not entrusted in allotment of work to this Court in distribution by the Honourable th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d only during trial with no whisper in the Ex. P-3 statutory notice under Section 138(b) of the Act. In fact as per Section 138(b) and (c) of the Act, the statutory notice is mainly meant within one month after dishonor of the cheque and receiving of intimation of dishonor to intimate to the accused, said factum so as to enable the accused to pay the amount within 15 days of receipt of the notice and not otherwise. Thereby the intimation of dishonor of cheque and demand to pay is suffice for the statutory compliance to pay within 15 days of receipt of notice and the non-payment gives cause of action to accrue and exist for one month there from to file complaint case as also laid down by the Apex Court in Indian Bank Association V. Union of India (2014) 5 SCC 590. Even the Three Judge Bench expression of the Apex Court in M.S.R. Leathers v. S. Pallaniappan (2013) 1 SCC 177 speaks that, for every dishonor and statutory notice intimating dishonor to pay, there is a cause of action accrual to avail and even after giving of notice a second presentation of the cheque and on dishonor again giving of fresh statutory notice commences fresh cause of action from subsequent presentation and se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the cheque issued duly and for consideration and for the legally enforceable debt or other liability are lying in favour of the complainant, once routed from the account of the accused, said cheque and the burden is on the accused under reverse onus clause to rebut the same. Thus, even to say the cheque issued for any debt is not legally enforceable and barred by time, the burden is on the accused. There is nothing from cross-examination of P.W.-1 by accused in this regard and none of the accused came to witness box even particularly A-2 representing A-1 entity in discharge of the burden even by preponderance of probabilities. The only thing the accused want to rely is at the time of availing the loan, there is a suggestion to P.W.-1 by possibility of obtaining signatures. There from, there is no such admission by P.W.-1 in his cross-examination, so to say apart from the settled law that the evidence has to be read as a whole and not by pick and choose of a stray sentence to construe whether there is any admission of any fact or not. It is in fact brought in the cross-examination of P.W.-1 that, he is deposing from records and not the manager at the time of sanction of the loan a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused and the accused even did not choose to give to witness box and there is no oath against oath, besides nothing to rebut the presumptions available in favour of the complainant strengthened from the oral and documentary evidence of complainant supra. The lower Revisional Court mainly there from and also in saying the non-mention of the pronote and revival letters Exs. P-6 and P-7 are fatal to the case of the complainant ignoring the factum of the cheque issued by the accused not in dispute routed from his account with his signature and it is even as per Rangappa supra burden on accused to show how the debt or other liability is not legally enforceable and what is the evidence favourable to the accused from the material on record even to say there is discharge of the burden lies on the accused. A-3 not signatory to the cheque nor concern with proprietary concern but for if at all stood as guarantor, the loan availed by her husband, A-2 whose proprietary concern is A-1; as laid down by the Apex Court in Anil Gupta V. Star India Private Limited (2014) 10 SCC 373, A-3 cannot be made liable but for A-2, the proprietor of the self-same proprietary concern for no two entities to give ..... X X X X Extracts X X X X X X X X Extracts X X X X
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