TMI Blog2021 (3) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... that though execution of P1 cheque is proved the accused has successfully rebutted the presumption and it has been established that there was no valid consideration for issuance of the cheque. The accused having succeeded in rebutting the presumption, the burden shifts to the complainant to prove the consideration. In the case at hand apart from producing Ext. P1 cheque, complainant did not produce any document or other evidence to prove consideration. Source of fund though alleged to be his nephew and brother in law of his wife, they were not examined. There is no material produced to prove the alleged business transaction between himself and the accused in Riyad or the business of accused for which he asserted to have advanced loan - this is a case in which the accused rebutted the presumption available under Section 139 of the Act and the complainant miserably failed to prove the consideration for Ext. P1 cheque. The learned Addl. Sessions Judge rightly acquitted the accused. Non disclosure of the nature of the transaction between the parties in the notice is fatal and that the suppression of the particulars of the transaction in the complaint is sufficient to order acquit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found, there is no requirement under Sec. 138 of the Act that the complainant must specifically allege the nature of the debt or liability and a demand as specified in clause (b) of Section 138 would suffice. 5. Noticing the conflict of opinion in the decisions and doubting Divakaran, the issue referred was as to whether without full disclosure of the details of the transaction in the notice of demand; i.e.: of what constitutes valid consideration, the statutory notice would be rendered invalid or not. At the outset we notice a Division Bench decision of this Court in Kallara Sukumaran v. Union of India (1987 (1) KLT 226) which held that a single Judge is not empowered to refer a question of law alone and the entire case has to be referred. We would hence attempt to resolve the conflict first and then look at the merits of the appeal. 6. According to the complainant, the dictum laid down in Divakaran is against the settled position of law laid down by the Apex Court in various decisions and also of this Court and hence ought to be reversed. The respondent argues for reversing Surendra Das, so as to sustain the order of acquittal. 7. Chapter XVII was inserted in the Act, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint by the payee or the holder in due course, within a month of the date on which the cause of action arose. It starts with a non obstante clause which excludes the procedure under the Code of Criminal Procedure. Sec. 143 of the Act further empowers the Court to try the cases summarily. Sec. 143A inserted by Amendment Act, 2018 with effect from 1.9.2018 also confers power on the Courts to direct payment of compensation. Sec. 145 empowers the Magistrate to take evidence on affidavits. The provisions above referred clearly indicate the intention of the Parliament to have a speedy procedure for taking cognizance, conduct of trial and imposition of penalties. In other words, the procedure prescribed under the Cr.P.C. has been expressly excluded by the Parliament by insertion of Chapter XVII. 12. Harihara Krishnan N. v. J. Thomas (2017 (4) KHC 699) arose in the context of an application for impleading being allowed during the course of trial which was upheld by the High Court. The accused took up the matter before the Apex Court wherein the scope and ambit of prosecution under Sec. 138 of the Act as distinctly opposed to that of the Crl.P.C. was discussed. Paragraph No. 23 is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to attract the offence under Sec. 138 is that in spite of the demand of notice, the drawer of the cheque failed to make payment within 15 days from the date of receipt of the demand. 14. The legislative intention is to overcome the cumbersome procedure of filing police report or complaint and subsequent enquiry or investigation etc., in matters of cheque dishonour. It also seeks to avoid the filing of a civil suit and a further execution for realisation of the decretal amount. This is the reason why Proviso (b) to Sec. 138 provides that once the cheque is returned on presentation for reason of insufficiency of funds or for exceeding the arrangement, the payee or the holder in due course may make a demand for payment of money by giving a notice in writing to the drawer of the cheque, but within 30 days of the receipt of information of dishonour from the Bank. Time frame prescribed under the proviso further is an indication to ensure the bonafides of the drawee. 15. We may also place reliance on Central Bank of India Anr. v. M/s. Saxons Farms Ors. [AIR 1999 SC 3607 : 1999 KHC 622], wherein it has been categorically held that no form of notice is prescribed under Clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on it. It was in the said circumstances that the omission to mention the date on which the loan was advanced was found to be fatal to the complainant's case. We cannot discern a dictum laid down by the Apex Court that in every complaint the nature of the transaction has to be disclosed in the notice of demand for initiating a prosecution under Section 138 to enable the accused to effectively defend himself and suppression of such particulars is sufficient to order acquittal. 17. In Harihara Krishnan Apex Court noticed the scheme of prosecution under Sec. 138 of the Act to be different from that in the Cr.P.C. No procedure for investigation of an offence is contemplated and a complaint must contain the factual allegations constituting each of the ingredients of the offence under Sec. 138. The ingredients have already been referred to in the preceding paragraphs. At best these are the bare facts that should find a place in the statutory notice of demand. 18. Surendra Das actually arose in a petition filed under Sec. 482 Cr.P.C. to quash the proceedings instituted upon a complaint filed under Sec. 142 of the Act. While disposing that matter, the learned Single Judge quoted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuance of cheque has been proved, the presumption under Sec. 139 and 118(a) of the Act would come to the rescue of the complainant. The Appellate Court dismissed the complaint without a proper appreciation of facts and law involved in the case. The learned counsel for the accused on the other hand, would contend that complainant did not have any consistent case and the cheque is not issued for valid consideration and hence the presumption under Sec. 118(a) and 139 stands rebutted. 22. The learned counsel for the accused drew our attention to Basalingappa v. Mudibasappa (: 2019 (2) KHC 451), Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008 (1) KHC 410), John K. Abraham v. Simon C. Abraham and Another (2013 (4) KHC 853), APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers and Others ( 2020 (1) KHC 957) and ANSS Rajashekar v. Augustus Jeba Ananth (2019 (2) KHC 155) to stress on the aspect of presumption to be drawn by the Court under Secs. 118(a) and 139 of the Act and burden of proof on rebuttal of the presumption. 23. To ascertain the rival contentions, it would be necessary to ascertain the dictum of the precedents and analyze the complaint as also the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation is that the complainant and accused had several business transaction between them and the accused owes an amount of ₹ 30,00,000/- to the complainant as a result of those transactions. Towards repayment of that, accused issued Ext. P1 cheque. 27. In chief-examination itself the complainant shifted his stand and stated that accused availed a loan of ₹ 30,00,000/- from the complainant. The complainant would state that the money was advanced to the accused for conducting his business and that the money advanced belonged to himself and three other persons. He shifted his stance in cross-examination too. 28. Accused on the other hand, stoutly denied any business transaction as also any loan availed. It was asserted that the execution of the cheque was not in discharge of any liability due from him to the complainant. It is his specific case as brought out during cross-examination of the complainant and also his evidence as Dw1 that while accused and himself were in Riyad, accused requested financial assistance in connection with the construction of his house. The accused gave a blank cheque as Ext. P1 so as to enable the complainant to withdraw the amount require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 1993 he requested money from the accused while coming down to India. This runs contrary to the claim that the complainant advanced an amount of 1 lakhs Riyal to the accused in the year 1993. Even if his entire salary during this period till 1993 at the rate of 650 is calculated, it would only come to 54,600 Riyal ! It has come out in evidence that after five years he has taken his wife also abroad, who was not employed. So it is quite unbelievable that such a person could advance an amount of 1.25 lakhs Riyal to the accused in the year 1993. During cross-examination the complainant again gave a different version that the money advanced to the accused was sourced from his sister-in-law's husband and also from his nephew and he has no document to prove the advance of the amount by those persons. He was particularly insistent that 1.25 lakhs Riyal advanced in 1993 belongs to himself; which we find to be highly improbable. 32. Further, during cross-examination, complainant admitted that in the year 1993 he started construction of a new house at Ramanattukara which was completed only in the year 1998. The complainant also admits that he requested money from the accused in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that evidence of DW2 is in conflict with Ext. D4 which would show that cheque No. 623381 has been drawn by the accused in the month of August, 1986 and cheque No. 623382 has been drawn by him in September 1994. It appears that DW2's evidence that cheque book Nos. 623381 to 623400 had been issued on 28.9.1995 is an inadvertent mistake. Ext. D6 is for the period starting from 4.8.1999 upto 28.8.1999. That would probabilise the defence case that Ext. P1 cheque bearing number 623387 was issued to the complainant in the year 1993 while he requested financial help from the accused while coming to India. DW1 categorically deposed that though he demanded the cheque back, complainant did not return it stating that it went missing. He also categorically stated that the complainant returned from Gulf in the year 1997 abandoning his job. DW1 also came down to India for a visit in June 1997 and then the complainant again demanded money. But he did not advance any amount and asked for the return of the cheque and there was a wordy altercation. Then accused threatened to misuse the old cheque. It is hence stop payment to the Bank was issued on 3.7.1997. That is proved by Ext. D7 dtd. 3.7.1997 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37. Facts, circumstances and evidence adduced probabilise the version of the defence that in the year 1993 the accused issued cheque as a financial assistance. We have no hesitation to find that though execution of P1 cheque is proved the accused has successfully rebutted the presumption and it has been established that there was no valid consideration for issuance of the cheque. 38. The accused having succeeded in rebutting the presumption, the burden shifts to the complainant to prove the consideration. In the case at hand apart from producing Ext. P1 cheque, complainant did not produce any document or other evidence to prove consideration. Source of fund though alleged to be his nephew and brother in law of his wife, they were not examined. There is no material produced to prove the alleged business transaction between himself and the accused in Riyad or the business of accused for which he asserted to have advanced loan. In short this is a case in which the accused rebutted the presumption available under Section 139 of the Act and the complainant miserably failed to prove the consideration for Ext. P1 cheque. The learned Addl. Sessions Judge rightly acquitted the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
