IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 28.10.2011 CORAM THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI CRL.A.No.1696 of 2003 A.Krishnasamy ...Appellant/Respondent/Complainant Vs E.Basha ...Respondent/Appellant/Accused Prayer : Appeal is filed under Section 378 of the Code of Criminal Procedure, against the Judgment dated 22.08.2003, made in C.A.No.71 of 2003, on the file of the Additional District and Sessions Judge- cum-Fast Track Court No.I, Coimbatore. For Appellant : Mr.V.Bharathidasan For Respondent : Mrs.Jayashree Bhaskar Amicus Curiae J U D G M E N T The complainant has filed the present appeal against the Judgment of acquittal of the accused/respondent for the offence under Section 138 of the Negotiable Instruments Act. 2. The complaint proceeds as if the accused borrowed a sum of Rs.1,25,000/- on 27.07.1999 and executed a pronote agreeing to repay the same with interest at the rate of 12% per annum and the accused failed to repay the amount despite of repeated demands. But, he issued a post-dated cheque dated 18.10.2000 for Rs.1,00,000/- on 09.09.2000 for satisfaction and when the same was presented for collection, the same was returned dishonoured for want of sufficient funds and the same compelled the complainant to issue a statutory notice to the accused on 20.10.2000, thereby calling upon the accused to discharge his liability and the accused though received the notice, did not either send reply or discharge his liability, thereby committed the act, constituting the offence punishable under Section 138 of Negotiable Instruments Act. https://hcservices.ecourts.gov.in/hcservices/ 3. The complainant in order to prove the guilt of the accused examined the complainant and the Bank Manager as P.W.1 and P.W.2 and produced the pronote, cheque in question, return memo, copy of the statutory notice, postal receipt for due receipt of the notice by the accused and statement of accounts as Exs.P1 to P6. The accused examined two witnesses as D.W.1 and D.W.2 and produced Ex.D1 document on his side. 4. The Trial Court, on the basis of the available records, and on the basis of the admission of the signature in the cheque in question and on the basis of gross failure of the accused to adduce proper rebuttal evidence, accepted the complainant's case and found the accused guilty of the offence under Section 138 of the Negotiable Instruments Act and convicted and sentenced him for the same. Aggrieved against the same, the accused preferred C.A.No.71 of 2003 on the file of the Additional District and Sessions Judge-cum-Fast Track Court No.I, Coimbatore. The lower appellate Court reversed the Judgment of conviction of the accused passed by the trial court on the ground that the complainant failed to establish his prima facie case regarding the existence of legally enforceable liability. Hence, this criminal appeal by the complainant before this Court. 5. The learned counsel for the appellant has seriously questioned the correctness of the order of acquittal passed by the lower appellate court by drawing the attention of this Court to the gross failure of the accused to adduce satisfactory rebuttal evidence to discharge the presumption drawn in favour of the accused. The learned counsel for the appellant has also contended that the finding of the lower appellate court casting the burden on the complainant regarding the existence of legally enforceable liability is contrary to law and is against the well settled legal proposition of law and hence the same cannot be allowed to sustain. 6.Though the respondent was originally represented by the learned counsel on record by name M/s.D.Geetha, R.Srinivasan and C.Anandaramani, he was not duly represented either in person or through his counsel on record. Hence, the Court was compelled to appoint Mrs.Jayashree Baskaran, learned counsel, as Amicus Curiae to defend the case on behalf of the respondent/accused. 7.The learned counsel appointed as amicus curiae has sought to rely on the difference in writing in the ink used in the cheque in question and the pronote and contended that the cheque and the pronote are not duly prepared and filled up in the manner as spoken by the prosecution and the cheque given to D.W.1 for different purpose is misused by the complainant for filing the present case. 8.Heard the rival submissions made on both sides and perused the records. https://hcservices.ecourts.gov.in/hcservices/ 9.Here is the case, wherein the accused admitted his signature in Ex.P2 cheque in question. In that event, the Court is bound to draw the legal presumption under Section 139 of the Negotiable Instruments Act and the same is drawn regarding the date and the amount mentioned in the cheque and the existence of the legally enforceable liability. Such presumption is rebuttable one and the burden is cast on the accused to adduce satisfactory evidence to discharge the presumption drawn in favour of the complainant. 10.In this case, the accused immediately after return of the cheque dishonoured, was issued Ex.P4 statutory notice and the same was duly received under Ex.P5 postal acknowledgment. However, the accused did not think fit to send any reply denying his liability to pay any amount to the complainant and the observation of the Hon'ble Apex Court in the Judgment reported in (2010) 3 MLJ (Crl) 547 (SC) in Rangappa vs. Sri Mohan is to be hence necessarily applied. The Hon'ble Apex Court has taken serious note of the failure of the accused to send any statutory notice. 11.In the course of trial, the defence sought to be raised by the accused is that Ex.P1 Pronote and Ex.P2 cheque in question were issued blank to D.W.1 Logaranjitham by way of security for the due repayment of the amount due under chit transaction and the same was in collusion with D.W.2 Selvaraj, husband of D.W.1 Logaranjitham misused to file the present complaint. Such case as suggested to him is stoutly denied by him in the course of his chief-examination. According to PW1 there was no enmity between the complainant and the accused and the accused is well known to him and they had prior money transaction between them. Though the accused has brought the said Logaranjitham and her husband Selvaraj as D.W.1 and D.W.2 they did not support his case. It is deposed in the course of Chief examination that they are not in the habit of getting any cheques from the customers from the members and the amount will be paid to the members after obtaining pronote and the accused was one of the successful bidders on 03.11.1996 and he was paid a sum of Rs.27,200/- after deducting Rs.22,800/- and he executed a pronote and received the money. D.W.1 in the course of her chief-examination on behalf of the accused after being declared as hostile denied the case suggested to her that the cheque in question was issued to her in blank for the chit transaction and the same was misused. 12.Though both P.W.1 and D.W.1 stoutly denied the suggestion put to them that P.W.1 Krishnasamy and D.W.2 Selvaraj are friends and the blank pronote and the blank cheque are forgedly created by P.W.1 and D.W.2. Curiously the said Selvaraj, who is none other than the husband of D.W.1 Logaranjitham and auditor by profession was summoned as D.W.2 on behalf of the accused and he had definitely deposed in the course of chief-examination that he is not known to the complainant Krishnasamy, but he is known to the accused Basha and he helped him in getting the registered certificate for the Oil Company https://hcservices.ecourts.gov.in/hcservices/ belonging to his friend and his wife. He did not in the course of his further examination admit the forged nature of the documents. Though such statement is not in support of the defence raised by the accused, he was not declared hostile. Thus, the case suggested to P.W.1 is seriously denied by him and the defence side witness did not support the case of the accused, as such there is absolutely no satisfactory rebuttal evidence adduced on the side of the accused to disprove the complainant's case. 13.However, the Trial Court has erroneously relied upon the failure of the complainant to produce any statement of accounts relating to the past and present money transaction between the complainant and the accused. In my considered view, when the admission of the signature in the cheque led to statutory presumption in favour of the complainant regarding the existence of legally enforceable liability, the initial burden is upon the accused to adduce evidence to probablise his defence and only when he successfully discharges his burden, the burden shifts to the complainant to prove his case beyond all reasonable doubt by producing materials to prove the transaction between them and the liability of the accused to pay any amount to the complainant etc., However, on the failure of the accused to discharge his burden the Trial Court ought to have shifted the burden and has committed gross error in casting the burden on the complainant to prove his case, which is contrary to the statutory and legal requirement. The findings rendered by the first appellate Court reversing the finding of the trial Court is in my considered view contrary to evidence and perverse in nature and deserves interference. 14.The learned counsel appointed as amicus curiae at this stage would appeal to this Court that some leniency may be shown to the accused regarding the period of sentence. Considering the family and other circumstances of the accused, this Court is inclined to reduce the period of imprisonment to four months without any modification in respect of payment of compensation. 15.In the result, the criminal appeal is partly allowed by setting aside the Judgment dated 22.08.2003, made in C.A.No.71 of 2003, on the file of the Additional District and Sessions Judge-cum- Fast Track Court No.I, Coimbatore and by restoring the order of conviction and payment of compensation dated 10.03.2003, made in C.C.No.327 of 2000, on the file of the learned Judicial Magistrate No.II, Pollachi and the criminal appeal is partly dismissed by reducing the period of imprisonment to four months. The Trial Court is directed to issue warrant to the accused to secure him and to send him to undergo the remaining period of imprisonment if any. 16.Before parting with the matter, this Court place it on record the commendable services rendered by Mrs.Jayashree Bhaskar, learned counsel appearing as Amicus Curiae. Mrs.Jayashree Bhaskar, learned https://hcservices.ecourts.gov.in/hcservices/ counsel is entitled to get remuneration of Rs.3,000/- (Rupees three thousand only) from the Tamil Nadu State Legal Services Authority, High Court, Chennai. Sd/- Assistant Registrar(CS-V) Dated : 19.03.2014 //True Copy// Sub Assistant Registrar krk To 1. The learned Additional District Sessions Judge, Additional District and Sessions Judge-cum- Fast Track Court No.I, Coimbatore. [Now redesignated as III Additional District and Sessions Court, Coimbatore] 2. The Judicial Magistrate No.II, Pollachi. 3. -Do- Through The Chief Judicial Magistrate, Coimbatore. 4. The Secretary, Tamilnadu State Legal Services Authority, High Court, Chennai. 5. The Public Prosecutor, High Court, Madras. 1 CC to Mr.Jaya Sri Baskar, Advocate, S.R.No. 65295 1 CC to Mr.V.Bharathi Dasan, Advocate, S.R.No. 65361 CRL.A.No.1696 of 2003 UG (CO) PSI (19/03/2014) https://hcservices.ecourts.gov.in/hcservices/