(Prayer: Criminal Appeal filed to set aside the order dated 27.04.2010 of the Additional District and Sessions Court, Fast Track Court II Coimbatore, in C.A.No.173 of 2009 and to confirm the punishment awarded by the trial court made in C.C.No.697 of 2006 dated 23.11.2009 on the file of the Judicial Magistrate No.II, Coimbatore.)
1. The Criminal Appeal arises against the Judgment of acquittal dated 27.04.2010 passed by the Additional District and Sessions Court, Fast Track Court II Coimbatore, in C.A.No.173 of 2009 and to confirm the judgment of conviction and order of sentence passed by the punishment awarded by the Judicial Magistrate No.II, Coimbatore made in C.C.No.697 of 2006 dated 23.11.2009.
2. The appellant herein was the respondent in the lower appellate court on the file of the Additional District and Sessions Court, Fast Track Court II Coimbatore, in Crl.A.No.173/2009 and complainant in C.C.No.697/2006 on the file of the learned Judicial Magistrate-II, Coimbatore.
3. The facts leading to the filing of the present appeal are as follows:
The first accused is a registered partnership firm. The second accused iis one of the partners of the said partnership firm. On 15.10.2003, he borrowed a sum of Rs.2,00,000/- from the appellant herein as a loan for business expenses of A1. A2 promised to repay the said amount with 15% interest p.a., and has executed a promissory note on the said date in consideration thereof. But, the accused did not pay any amount either towards interest or principal inspite of repeated oral requests and demands made by the complainant for the same. Thereafter on 14.04.2006, A2 as a partner of the first accused had issued a cheque dated 15.04.2006 bearing No.254972 drawn on State Bank of India, SIB Division, Ganapathy Branch, Coimbatore 641 012, for a sum of Rs.2,75,000/- towards accrued interest and the principal due to the complainant. When the complainant has deposited a cheque for encashment through his banker viz., Dhanalakshmi, Gandhipuram Branch, returned with an endorsement exceeds arrangement on 17.04.2006. Hence, the complainant has issued a statutory notice through an advocate on 02.05.2006. Both the accused have received a statutory notice on 03.05.2006 and have neither paid the amount claimed in the notice nor sent any reply. Therefore, the complainant filed a complaint before the jurisdictional Judicial Magistrate-II, Coimbatore against the accused u/s.200 of Cr.P.C., for the offences u/s.138 and 141 of the Negotiable Instruments Act. The complaint who taken on file in C.C.No.697/2006.
4. In order to prove the case of the complaint, on the side of the complainant, he has been examined as PW1 and 6 documents have been marked. On the side of the accused, two witnesses have been examined and marked nine documents. The trial court after considering oral and documentary evidence, came to the conclusion that the complainant has proved the case and the second accused was found guilty u/s.138 of Negotiable Instruments Act and the trial court has convicted the accused and passed sentence to undergo simple imprisonment for one year and to pay a fine of Rs.10,000/- and in default, the second accused has to undergone further period of three months simple imprisonment.
5. Aggrieved with the above said conviction and sentence passed by the learned trial Judge, the accused had preferred the appeal before the District and Sessions Judge, Coimbatore and the same was taken on file in Crl.A.No.173/2009 and made over to the Additional District and Sessions Court, FTC-II, Coimbatore. The First Appellate Court after hearing the appeal, came to the conclusion that the judgment of conviction and sentence passed by the trial court is liable to be set aside. Accordingly, he set aside the order of conviction and sentence passed by the trial court and allowed the appeal. Aggrieved with the said Judgment of acquittal passed by the First Appellate Court in Crl.A.No.173/2009 on the file of the Additional District and Sessions Court, FTC-II, Coimbatore, the appellant/ complainant has preferred the present appeal before this court.
6. The case of the complainant in brief is that admittedly, the first accused is a partnership firm registered under the Partnership Act. The firm is represented by one of its partners, Justin Harris, is the respondent herein. A2 in the capacity of the partners of the A1/Firm, for the business purpose, has borrowed a sum of Rs.2,00,000/- on 15.10.2003 and executed Ex.P6 pronote. Agreeing to repay the said amount together with 15% interest p.a., But the accused did not repay any amount either towards interest or principal even after several repeated demands. Subsequently on 14.04.2006, he had issued a cheque Ex.P1 drawn on State Bank of India, Ganapathy Branch in cheque bearing No.254972. The respondent/complainant had deposited the cheque into his bank on 15.04.2006 and the same got dishonoured on 17.04.2006 and thus, the complainant had issued a statutory notice Ex.P3 dated 02.05.2006. Both the accused had received the notice and the complainant received the acknowledgments Exs.P4 and P5 dated 03.05.2006. Even after receipts of the said notice, the accused had neither arranged to repay the amount claimed in the notice nor replied for Exs.P3, statutory notice. Hence, the appellant/complainant was constrained to file the complaint before the Jurisdictional Magistrate u/s.200 of Cr.P.C., for the offence under Sections 138 and 141 of Negotiable Instruments Act.
7. The learned Trial Judge relied on the admission made by the respondent/accused with the signatures and seals affixed upon Ex.P1 cheque and Ex.P6 pronote are that of the accused and relied on Section 139 of the Negotiable Instruments Act and drawn presumption against the respondent and convicted the accused against which, the aggrieved party/respondent/accused herein filed appeal before the District and Sessions Court. First Appellate Court as a fact finding court held that the judgment passed by the trial court was not proper and the trial court had not appreciated the evidence properly and found that the complainant has proved the execution of promissory note Ex.P6 and cheque Ex.P1. Further the trial court had not considered the facts that respondent/accused herein rebutted the presumption by adducing oral evidence and producing the documentary evidence. The trial court over sighted the evidence let by the respondent/accused herein. Therefore, the conviction and sentence passed by the trial court has been set aside by the first appellate court.
8. On perusal of the complaint filed by the appellant/complainant herein before the learned Judicial Magistrate Court, oral evidence adduced and documents produced before the trial court, the judgment of the trial court, grounds of appeal filed by the respondent/ accused herein before the First Appellate Court, judgment passed by the First Appellate Court in Crl.A.No.173/2009 on the file of the Additional District and Sessions Judge, FTC-II, Coimbatore, on the grounds of appeal raised by the appellant/complainant herein before this court and submissions put forth by both the learned counsel in this appeal. It is seen that since the First Appellate Court is a fact finding court, has discussed the entire facts and evidences and found that the trial court had not appreciated the evidence placed by the respondent/accused herein before the trial court. Further on perusal of the order passed by the trial court, the trial court mainly relied on admission made by the accused during the evidence as DW1 had admitted the signatures and seals found upon Ex.P1 cheque and Ex.P6 pronote belongs to the accused and draw the presumption u/s.139 of Negotiable Instruments Act and convicted the accused. The said conviction was based upon the sole ground of the admission made by the respondent/accused and the said judgment was challenged before the First Appellate court. The First Appellate court after analysing the evidence of both the parties, appreciating the evidence, considering the legal position, has set aside the order of conviction and sentence passed by the trial court.
9. In this regard, it is worthwhile to refer paragraphs 19 and 20 of the judgment of the First Appellate court in Crl.A.No.173/2009 on the file of the learned Additional District and Sessions Court, FTC-II, Coimbatore which reads as follows:
19. If the accused is able to prove that the alleged pronote fabricated and marked under Ex.P6 is time barred on the date of execution of Ex.P1 cheque, the whole case goes. The defendant has examined himself and also examined DW2, the bank official and proved that the blank cheque marked under Ex.P1 was given to Kalichamy on 27.02.1997 by marking its counter foil under Ex.D3. He also marked Ex.D4 which is the counterfoil of another blank cheque given by the accused to Kalichamy along with P1 on 27.02.1997. The counterfoil makred under Ex.D4 is in respect of the cheque No.254973. Had the cheque under P1 bearing No.254972 is given from the counterfoil under D3 on 27.02.1997, the cheque would have been a nudem pactum as Ex.P6 pronote has not born on 27.2.1997 and, it come into picture only on 15.10.2003, admitting for argument sake that P6 pronote has been executed by the accused to the complainant on 15.10.2003. Ex.P6 also not been executed to the complainant by the accused on 15.10.2003 too. It has been so created by the complainant so as to create a lawful debt was existing as on the date of the alleged date of execution of the alleged cheque marked under Ex.P1. Neither Ex.P1 was executed on 15.04.2006 nor did the accused execute Ex.P6 pronote on 15.10.2003. Both were seribed and dated by the accused stands proved.
20. To vouch safe that Ex.P1 cheque has not been issued either to the complainant and Kalichamy during 2006 much less than on 15.04.2006, the counterfoil Ex.D3 proves that it was issued during 1997. D3 apart from proving that it was issued blank during 1997. Ex.D4 proves that the accused has issued blank cheque No.254973 to Kalichamy on 27.2.1997. To vouch safe P1 has been executedduring1900,1991,1992,1993,1994,1995,1996,1997,1998,1999 the cheque has got printed numerals 19.... meant to write the exact year of the cheque by filling the rest of the two numerals after the numerals 10.... Had the cheque under Ex.P1 been issued during the year 2003, the cheque leaves would not have been printed with numerals 19.... All the cheques, printed pronotes that were printed after the December, 1999, particularly in the year 2000 and thereafter, the printed numerals printed in Ex.P1 cheque i.e., 19.... would not have been printed. It is not the case of the complainant that the accused has issued the cheque in the year 1997, no such plea could be taken by the complainant as he has not deposited the cheque within 6 months from the date of its issue on 27.2.1997 as the limitation for the dated cheque to be encashed is 6 months. No prudent person would retain Ex.P1 cheque leaf and the cheque leave of the counter file Ex.D4, i.e., cheque No.254973. As per Ex.D8 particulars produced by the bank official for A/C.No.10922430964 corresponding to old A/C No.9189 operated in the name of Sundaram Engineering work, the cheque No.254972 found in 254972 has not been encashed or paid through Ex.D8 account. Equally the cheque leaf given in 254973, the counterfoil of which marked under Ex.D4 has also not been paid through Ex.D8 account during the year 1997 and till date. It is not the case of the complainant that the said account has been discontinued or operated irregularly. Under Ex.D8 account, the operation of the said account from 2.1.97 to 27.2.1997 is given. As per the evidence of DW2, the bank official and the document marked through him under Ex.D9, the cheque leaves issued from the cheque book anterior to the cheque numbers found in Ex.P1 i.e., 254972 has been encahsed by the payee of the cheque in cheque Nos.254971, 254970 has been respectively paid through the account of the accused on 25.2.1997 and 22.2.1997 respectively is explicitly and indelibly been exposed in Ex.P9. The said payment also reflect in Ex.P.8 ledger. The accused has not only proved that the cheque leaves anterior to No.254972(P1) and other cheque found in (Ex.D2) cheque No.254973 were alone paid through Ex.D8 account on 25.2.1997 and 27.2.1997 he has also proved that the cheques issued by the accused after the cheque leaves No.254973 found in Ex.D4 were also deposited for encashment and they were also paid duly through Ex.D8 account also been evidenced by Ex.D9 statement. The cheque leaf after the disputed cheque No.254972, 254973 has been paid through Ex.D8 account as evidenced by Ex.D9 statement stands proved by the accused, cheque No.254974 has been paid to the payee on 26.02.1997 is evidenced by Ex.D9 statement. This the consistant case of the payee on 26.2.1997 is evidenced by Ex.D9 statement. This the consistent case of the accused that he has subscribed a chit in the chit conducted by one Kalichamy Accused has proved that he has connection with that chit fund which was being run by the said Kalichamy. Ex. D6 cheque No.254828 mentioned under Ex.D6 proves that it has been issued to Sivakrishna chit funds (P) Ltd for a sum of Rs.3750 on 31.12.96. The said amount has been paid by the account through Ex.D8 account and D9 statement. The amount mentioned in Ex.D6 cheque No.254828 has been paid to the chit fund on 3.1.1997 stands proved through Ex.D9 statement. Further the amount paid to the Sivakrishna chit (P) Ltd for a sum of Rs.3750 on 5.4.97 under cheque No.255110 has been paid to Sivakrishna Chit (P) Ltd has been proved through Ex.D5 counterfoil. Since the accused has proved that he has connection with the chit funds (P) Ltd., and also proved several payment to the chit funds, the case of the accused that he has given two signed unfilled pronotes one being Ex.P6 and Ex.P1 signed unfilled cheque and other cheque in cheque No.254973 as evidenced in Ex.D4 counterfoil, as the proof required to tilt the presumption u/s.139 of the negotiable Instruments Act 1981 is only preponderance of probability, the accused have proved their case on preponderance of probability that the disputed cheque leaf marked under Ex.P1 should have been given to the chit fund company when it was blank and unfilled along with another cheque leaf signed and unfilled in No.254973 which is so far not been used either by the chit co., or by the complainant. It has been further proved by the accused that the alleged pronote under Ex.P6 was given in blank and signed, subsequently, conveniently been dated, so as to come within the limitation and after creation and fabrication of Ex.P1 cheque and Ex.P6 pronote, the case is filed by the complainant.
10. Considering the facts and circumstances of the case, now the point for consideration before this court is whether the judgment passed by the First Appellate court in Crl.A.No.173/2009 on the file of the Additional District and Sessions Court, FTC-II, Coimbatore dated 27.04.2010 is liable to be set aside.
11. In this regard, the appellant/respondent/complainant has raised grounds of appeal before this court in which it is stated that the first appellate court has failed to consider the fact that the accused had failed to rebut the presumption and had failed to explain the possession of the cheque by the complainant and that in the absence of any positive evidence from the side of the accused for having handed over the cheque to Kalichamy as alleged as security for prizing a chit that is not open to the accused to contend, otherwise, so as to escape from the liability. Further, he would submit that the first appellate court has wrongly shifted the burden of proof on the complainant which is contrary to the statutory provisions in favour of the complainant especially when the accused had not produced any document to show that the alleged finance availed from the Sivakrisha Chit (P) Ltd., Further, he would submit that it is a well settled proposition that when once the drawer of the cheque and pronote admits their signature in the cheque and pronote, the presumption is that the pronote has been properly executed by the persons signing the cheque and pronote for valid and good consideration, unless the presumption is validly rebutted, otherwise in this case, the accused have not rebutted the said statutory presumption. Therefore, the judgment of the First Appellate court is liable to be set aside and confirmed the judgment of the trial court. In this regard, as already stated that the First Appellate court is a fact finding court which has elaborately discussed the oral and documentary evidence adduced and produced before the trial court and has come to the conclusion from the available evidence that the respondent/accused herein have rebutted the statutory presumption by leading cogent and convincing evidence and proved their case on preponderance of probability. Therefore, the contention of the learned counsel for the appellant is that the accused has not rebutted the statutory presumption is not acceptable one because though the accused during the examination as DW1, has admitted the signatures found in Ex.P1 cheque and P6 pronote that of him and seals are that of the partnership firm. He has categorically denied the alleged transaction with the complainant even in the reply Ex.D1 prior to the filing of the complaint before the trial court and further on careful analysis of the evidence adduced by both the parties, it is the case of the appellant that A2 as a partner of the A1 firm has borrowed a sum of Rs.2,00,000/- on 15.10.2003 for urgent business purpose and executed a pronote on the same day for the said amount. Further, he would state that A2 has not repaid the said amount in spite of repeated demands made by the appellant. Thereafter, A2 issued a cheque bearing No.254972 for a sum of Rs.2,75,000/-. As stated by him, he has not borrowed any separate amount of Rs.2,75,000/- for Ex.P1 cheque. According to the appellant the accused executed the Ex.P1 cheque in pursuance of the Ex.P6 promissory note for principal and interest amount mentioned in the promissory note. When appellant got a cheque from A2, he should have immediately returned a promissory note Ex.P6. But, he has not returned the promissory note either immediately soon after getting Ex.P1 cheque from the accused or note along with Ex.P3 statutory notice or produced before the trial court at the time of filing the complaint. Even during the examination of witness also, he has not produced the same. After examination of the witnesses, he has marked this Ex.P6/promissory note which creates the suspicion about the characters of the complainant. For more than 2 years why he has not sent any demand notice. Further when accused has not repaid the amount even after repeated demand, why the appellant/complainant got cheque from the accused and deposited on next day itself is also not clear which also creates doubt. Further it is a specific case of the respondent/accused herein that the alleged Exs.P1, P6 cheque and pronotes have not been given to the appellant/complainant and he never borrowed the amount from the appellant/complainant. But, he received the amount only from one Kalichamy at the time of bidding the chit during the year 1997. The said cheque was misused by Kalichamy through this complainant. Further on perusal of the cheque Ex.P1 and pronote Ex.P6, it has been stated by the First Appellate court that in para -20 of the judgment, it is seen that the cheque Ex.P1 would have been printed and issued before the year 2000 whereas the complainant has stated that the cheque has been issued on 14.04.2006. Therefore, it creates a suspicion on the appellant/complainant. The accused has examined Branch Manager of the Bank in order to strengthen the case of the accused, he has filed a counterfoil of the chequeEx.P1, it shows that this cheque was given to Kalichamy.
12. In this regard, the counsel for the appellant would submit that the counter foil of the Ex.P1 cheque is in the exclusive possession of the accused and the same is self serving document and he could write any date and name in the document at any point of time as his own whims and fancies. Therefore, that cannot be taken as proof that Ex.P1 was issued only to Kalichamy and not to this complainant.
13. The contention of the appellant is not acceptable one as the reason is in order to rebut the presumption the A2 himself was examined as DW1 and Examined DW2 Bank Manager and produced documents in this regard and proved their case on preponderance of probabilities.
14. Having come to the said conclusion, now the only question is as to whether statutory presumption u/s.139 of Negotiable Instruments Act has been rebutted by the accused/respondent has to be decided by this court.
15. As discussed earlier, the signatures found in the Ex.P1 cheque is admitted. It is a well settled proposition of law that when once the drawer of cheque and pronote admits their signature in the pronote and the cheque, the presumption is that the pronote has been properly executed by the person/persons signing the pronote and the cheque for valid and good consideration unless the presumption is validly tilted otherwise. Sections 114 of Evidence Act permits the court to raise a presumption with regard to consideration. Further presumption under Sections 118 and 139 of the Negotiable Instruments Act also rebutable presumption. Now the question is whether the presumption has been rebutted by the respondents/accused by leading cogent and convincing evidence. As discussed above, the reason stated by the appellant/accused and the evidence of the Dws.1 and 2 from the documents Exs.D3 to D11, the accused have rebutted the presumption. Therefore, this court finds that the judgment passed by the First Appellate court in Appeal Crl.A.No.173/2009 on the file of the District and Sessions Judge, FTC-II, Coimbatore was right in allowing the appeal and acquitting the accused.
16. It is the settled law that even if there are two views which are equally possible, first appellate court as a fact finding court examining the correctness of the judgment of the trial court and acquitting the accused this court cannot substitute its view in the place of the view taken by the first appellate court, unless the view taken by the first appellate court is apparently erroneous and perverse. In this case, this court concur with the view of the first appellate court. In my considered view, though the appellant/complainant has proved the execution of Ex.P1 cheque and second accused has also admitted the signatures found in Ex.P1 is that of him, he has validly rebuted the statutory presumption on preponderance of probabilities. Therefore, it is held that the first appellate court was right in allowing the first appeal and acquitting the accused in which this court do not find any infirmity warranting interference at the hands of this court. Thus, I do not find any merit in the criminal appeal.
In the result, this criminal appeal No.483/2010 is dismissed and acquittal order passed in Crl.A.NO.173/2009 dated 27.04.2010 by the first appellate court is hereby confirmed.