TMI Blog2022 (1) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case. This Criminal Appeal is allowed. - Criminal Appeal No.16 of 2015 - - - Dated:- 15-12-2021 - Honourable Ms.Justice R.N.Manjula For the Appellant : Mr.R.Sankarasubbu For the Respondent : Mr.C.K.M.Appaji JUDGMENT This Criminal Appeal has been preferred by the appellant/complainant, challenging the judgement of the learned First Additional District and Sessions Judge, Salem dated 24.06.2014 in C.A.No.119 of 2009. 2. The facts of the case in brief are as follows: This case has arisen out of a private complaint given by the appellant on the allegation that the respondent had borrowed a sum of ₹ 2,50,000/- from him and promised to repay the same within a period of 3 months. On 30.05.2002, the respondent issued a cheque for ₹ 2,50,000/- for discharging the above loan; the cheque was drawn on Salem Central District Cooperative Bank, Fairlands. When the cheque was presented for collection on 31.05.2002 with the appellant/complainant's bank viz, The Central Bank of India, Shevapet Branch, the same was returned on 01.06.2002 for the reason that there was 'Insufficient funds' . After issuing a statutory lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishonoured for insufficient fund. Thereafter the statutory legal notice has also been duly sent to the respondent/accused. There is no disagreement on the legal position that once the executant of the cheque admits its execution an initial presumption has to be taken under Sec.139 of the Negotiable Instruments Act that the cheque has been issued for a legally enforceable debt. Once the complainant gets into the box and substantiates his allegation with oral and documentary evidence that would become the conclusive proof against the accused unless the accused proves the contrary. 8. The defence of the respondent/accused is that he knew only the father of the complainant namely Periysamy. It is further submitted that the accused was in the habit of having money transaction with the father of the complainant, Periyasamy from the year 1996. It is further submitted that Periyasamy was running a Finance company by name 'Royal Finance' and hence he himself has opened an account in the name of the accused and credited a loan of ₹ 25,000/- on 15.2.1999 in his account and the same was settled with interest. The respondent/ accused produced Ex.D2 series of the receipts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake use of his position as the partner of Royal Finance, nothing could have prevented him or any other person in charge of Royal Finance from filling the cheque in favour of Royal Finance itself. 12 . During the cross examination of P.W.1, it was suggested on behalf of the respondent/accused that he availed the loan of ₹ 1,00,000/- from Royal Finance and gave a cheque as security for the said amount. When the accused was examined as D.W.1, he has stated about the three loans and the total of which comes only to ₹ 60,000/-. During Sec.313 Cr.P.C, questioning, the accused completely denied the execution of cheque. The learned trial Judge had appreciated those inconsistencies in the defence statements and rejected the same. 13 . The consistency of a statement has got more probative value than an inconsistent statement. If the respondent / accused prefers to take a stand that his transactions with Royal Finance had occasioned him to issue the impugned cheque and that was misused for the purpose of this case, his contention about the same should be consistent. This is especially so, when his alleged transactions with Royal Finance and the case transactions ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r liability. To that extent, the impugned observations in Krishna Janardhan Bhat, (2008) 4 SCC 54 may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. 20. Elaborating further, this Court held that Section 139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant- accused cannot be expected to discharge an unduly high standard of proof. In paragraph Nos. 27 and 28, following was laid down:- 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. 22 . Elaborating further, this Court held that Section 139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant- accused cannot be expected to discharge an unduly high standard of proof. In paragraph Nos. 27 and 28, following was laid down:- 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
