Judgment:
ORDER
Arali Nagaraj, J.
1. The petitioner herein who is accused in C.C.No. 848/03 has challenged the legality and correctness of the impugned judgment and order of conviction and sentence passed in the said case by the learned Addl. Civil Judge (Jr.Dn.) & JMFC, Puttur, Dakshina Kannada (hereinafter referred to as the 'trial Court' for short) convicting this petitioner-accused for the offence punishable under Section 138 of the Negotiable Instruments Act ('N.I.Act' for short) and sentencing him to pay a fine of Rs. 27,000/-. She has also challenged the judgment dated 3.7.2007 passed in CrLA. No. 183/06 on the file of the learned I Addl. Sessions Judge, Dakshina Kannada, Mangalore (hereinafter referred to as the 'Appellate Court' for short) confirming the said judgment and order of conviction and sentence passed by the trial Court.
2. Though this case was listed on 5.9.08 for admission it was taken for final disposal with the consent of the learned Counsel appearing for both sides and their arguments on merits were heard in part and then the case was adjourned to 22.9.2008. Further arguments of the learned Counsel for the petitioner were heard on 22.9.2008. Since the learned Counsel for the respondent-1 was not present his arguments came to be taken as heard and the case is listed today i.e., 25.9.08 for dictating order. Today, arguments of Sri Gangadharaiah, the learned Counsel for respondent-1, are heard. Perused the impugned judgments and also the entire material on record in the said case obtained from the trial Court.
3. Having heard both the sides the point that arises for my determination is,
Whether the trial Court and also the Appellate Court are justified in holding that the petitioner-accused is guilty of the offence punishable under Section 138 of N.I. Act?
4. My finding on the above point is in the 'negative' for the following
REASON
5. The case of the complainant as averred in his complaint filed in the said case under Section 200 Cr. P.C. is as under:
a) The accused is known to the complainant since some time. She approached his shop namely M/s. Souza Electronics. After mutual discussion he sold to the accused electronic items worth Rs. 24,335/- and the accused gave him the cheque bearing No. 831567 dated 4.12.2001 drawn in favour of M/s. Souza Electronics.
b) On being presented to the bank on 4.12.2001 itself the said cheque came to be bounced for want of funds. Therefore the complainant issued statutory notice dated 12.12.2001. Despite receipt of the said notice the accused did not reply to it Therefore the complainant filed the said case.
6. Sri Nishith Kumar Shetty, the learned Counsel for the petitioner strongly contended that both the trial Court and the Appellate Court proceeded to examine the case of the complainant and also that of the accused on the assumption that the presumption under Section 139 of N.I. Act extends not only to the fact that the accused issued cheque in question towards discharge of legally enforceable debt, but also to the factum of existence of such debt as on the date of issue of the cheque. He further submitted placing his reliance on the decision of Madras High Court in the case of B. Adarsh Rao v. Tamil Nadu Electrical rep. by its Manager reported in Cases on Dishonour of Cheques page 341 (year of the citation is not found on the xerox copy of the citation furnished) urged that since the cheque was issued in the name of M/s. Souza Electronics, the complainant, namely Lynal Pinto could not maintain the complaint in his own name and the courts below lost sight of this fact and therefore both the judgments deserve to be set aside.
7. As against the above submission, Sri Gangadhariah, the learned Counsel for respondent-1, submitted that since the presumption has to be drawn in favour of the complainant as provided under Section 139 of the N.I. AU when once the cheque is issued the same is held to be issued towards discharge of legally enforceable debt and therefore, since the issuing of cheque by the accused is not in dispute, both the courts below rightly held the accused guilty of the said offence and as such the judgments impugned in this revision do not call for any interference.
8. On careful reading of the averments in the complaint it is seen that the complainant has filed the said case in the capacity of the proprietor of M/s. Souza Electronics. It is seen from the evidence of P.W.I complainant in the cross-examination made on behalf of the accused that it is clearly suggested to him that the accused issued as many as 10 cheques towards payment of installments. Therefore, the contention of the learned Counsel for the petitioner accused that the complaint filed by the complainant could not be maintained as there is not sustainable.
9. On perusal of the averments of the said complaint it is further seen that the complainant stated therein that he sold to the accused on 4.12.2001 electronic items worth Rs. 24,335/- and therefore the accused gave him the said cheque on that date only. He has not stated the particulars of electronic items said to have been sold to her. Further, besides not producing any documents, he has clearly stated in his cross-examination that he cannot say in certainty as to whether he had any documents for having sold TV and electronic items to the accused on that date as the transaction was old one.
10. The defence of the accused, as stated in her evidence as D.W. 1 is that during the year 1998 she visited the shop of the complainant for purchasing a TV on installment basis and on that day, she issued the complainant as many as 10 blank cheque leaves on the promise made by him that he would supply her TV on installment basis. She has further stated in her evidence that since she wanted to buy Thompson TV and the said TV was not available with the complainant on that day she left the cheque leaves with him and asked him to give her Thomson TV only. She has also stated that thereafter the complainant did not give her Thomson TV nor did he return her the said cheque leaves even after lapse of many months.
11. When a suggestion was put to P.W.I complainant in his cross-examination that the accused had given him 10 cheque leaves as security towards payment of installment, towards purchase of TV he has said that he could not say how many cheque leaves were given to him by the accused. He has further deposed in the cross-examination that he presented some of the cheques issued to him by the accused for encashment to the bank every month, but he does not remember the number of such cheques. Thus it is clear that the complainant received several cheque leaves from the accused, if not 10 cheque leaves as stated by the accused in her evidence and, he presented some of them to the bank and got the same encashed. Despite this being so he has presented the cheque in question for Rs. 24,335/-being the entire cost of TV set which is alleged to have been supplied by him to the accused.
12. On careful reading of both the impugned judgments it is seen that both the trial Court and the Appellate Court proceeded to examine the case of the accused on the assumption that the accused was to prove her case beyond reasonable doubt. The learned Counsel for the petitioner-accused has placed reliance on the decision of the Hon'ble Apex Court in the case of Krishna Janardhan Bhat v. Dattatraya Q. Hegde reported in : 2008CriLJ1172 . The Apex Court observed at para 23 as under:
An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.
Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies.
13. If the facts of the present case are examined in the light of the above observations, it could be seen that if it is the case of the complainant that on that day of alleged purchase of the said electronic items from his shop by the accused, she issued only one cheque for the said amount of Rs. 24,335/- being the full value of the electronic items purchased by her, it is the defence of the accused that she issued as many as 10 blank cheque leaves to the complainant for purchasing Thomson TV as the said TV was not available with the complainant on that date he could not deliver the same to her and promised her to give her the said TV on next day and therefore she left with the complainant all the cheque leaves, aneUctumei. The complainant has admitted in his evidence that he received more than one cheque leaf and he presented to bank one cheque every month from out of the cheque leaves issued to him by the accused. He has not stated in the complaint that after getting some of the cheques issued by the accused encashed, the balance amount of Rs. 24,335/- was left unpaid and therefore he got the balance amount filled in one of the remaining cheque leaf and presented the same. On the other hand, it is his case that the accused issued the said cheque in question for the full price of all the electronic goods said to have been purchased from him. The defence of the accused that she issued more than one cheque to the complainant as security towards payment of installments for the purchase of TV from the complainant appears to be quite probable in view of clear admission of the complainant in his evidence that he received more than one cheque leaf from the accused on that date. Besides this though it is averred in the complaint that he sold to the accused some electronic items it is his case, as deposed in his evidence, that he sold one TV only. Added to this he has not produced any document such as copy of invoice which has to be maintained by such a shop owner towards sale of electronic goods. Therefore, I am of the considered opinion that the accused has been able to place on record legally acceptable evidence by eliciting from the evidence of P.W. 1 himself and also by deposing herself as D.W. 1 in support of her defence and thereby successfully rebutted the presumption that was to be drawn in favour of the complainant by virtue of Section 139 of N.I. Act. Both the Trial Court and the Appellate Court committed serious error in not considering this aspect of the case.
14. In the same judgment referred to supra the Hon'ble Supreme Court has observed as to the presumption to be drawn in favour of the complainant under Section 139 of N.I. Act as under.
At Para 20: 'Section 138 of the Act has three ingredients, viz,:
(i) that there is a legally enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of
any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
At para 21:
The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.
At para 22:
The courts below, as noticed herein before, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.
15. Above observations aptly apply to the facts of the present case inasmuch as though not required as per the above observation, the accused has stepped into the witness box and deposed in support of her defence. Besides this the accused has elicited in the cross-examination of P.W. 1 that she gave him more than one cheque and he got some of them encashed by presenting the same to the bank. But he has not explained in respect of which debt, other than the price of the electronic goods alleged to have been sold to the accused, the said other cheques were issued to him. This being so, the case of the complainant that the said cheque in question was issued by the accused towards discharge of the whole amount of Rs. 24,335/- could not have been accepted by the trial Court as well as the Appellate Court. It is quite apparent from the evidence of P.W. 1 complainant that he did not approach the Court with clean hands. Therefore, I am of the considered view that the accused has successfully established that there did not exist any debt payable by her to the complaint as on the date of issuing of the cheque in question and the successfully rebutted the presumption to be raised under Section 139 of the N.I. Act in favour of the complainant.
16. For the reasons aforesaid I am of the considered opinion that both the trial Court and the Appellate Court committed serious error in recording their findings in their respective Judgments against the accused for the offence punishable under Section 138 of N.I Act As such the revision petition deserves to be allowed and both the said judgments deserve to be set aside.
17. In the result the present revision petition is allowed. The judgment and order of conviction and sentence dated 8.5.2006 passed in C.C. No. 848/03 by the Addl.Civil Judge (Jr. Dn.) & JMFC, Puttur, and also the judgment dated 3.7.2007 passed in CrI.A. No. 183/06 on the file of the 1 Addl. Sessions Judge, Dakshina Kannada, Mangalore, are hereby set aside. The accused is hereby acquitted of the offence punishable under Section 138 of N.I. Act. The bail bonds of the petitioner-accused shall stand cancelled. If any amount of fine is deposited by the petitioner-accused in the trial Court the same shall be returned to her. If any part of the fine amount deposited in the court by the accused has been paid to the complainant, the same shall be recovered from him and refunded to the accused.