Agarwal Tube Distribution, Rep. ... vs Sony Engineering Works, Rep. By ...

on 8
November, 2004
Cites 10 docs - [View All]
Section 139 in The Negotiable Instruments Act, 1881
Section 138 in The Negotiable Instruments Act, 1881
C. Antony vs K.G. Raghavan Nair on 1 November, 2002
Section 118 in The Negotiable Instruments Act, 1881
The Indian Evidence Act, 1872
Loading... Andhra High Court
Bench: P Narayana
Agarwal Tube Distribution, Rep. By K.K. Agarwal vs Sony Engineering Works, Rep.
By Ram Ratan Kansal @ Lillu And Two Ors. on 8/11/2004
JUDGMENT
P.S. Narayana, J.
1. Heard Smt. Manjula, representing Sri Hanumantha Rao, counsel for the appellan
t and Sri Mahadeva, representing Sri Krishna Murthy, counsel representing the re
spondent and the learned Additional Public Prosecutor.
2. The complainant in C.C. No. 812 of 1995 on the file of the XI Metropolitan Ma
gistrate, Secunderabad preferred the present criminal appeal as against the orde
r of acquittal recorded by the learned Magistrate in the said C.C. No. 812 of 19
95 by the Judgment dated 09.7.1998.
3. The case of the complainant is that the complainant supplied G.I. Indian Gold
tubes to the respondents 1 and 2 worth Rs. 3,10,571/- and against the said outs
tanding amount of Rs. 3,10,571/-, A2 made cash payments and accused No. 1 issued
! three cheques for Rs. 50,000/- each dated 13.4.1995, 20.4.1995 and 24.4.1995 a
nd A1 had honoured cheque No. 1133253 dated 13.4.1995, but other two cheques dat
ed 19.4.1995 and 22.4.1995 bearing Nos. 1133254 and 1133257 were dishonoured. Th
en the accused paid Rs. 1,35,571/- to the complainant on various dates. The comp
lainant presented the said two cheques bearing Nos. 1133254 and 1133257 dated 19
.4.1995 and 22.4.1995 for Rs. 50,000/- each and the same were returned with endo
rsement 'insufficient funds'. Then the complainant issued a legal notice dated 0
8.9.1995 and the same had been acknowledged by the accused, but failed to pay th
e amount. Hence, the accused are liable to be punished under Section 138 of Nego
tiable Instruments Act, 1881 (hereinafter in short referred to as 'the Act'). Th
e complainant examined himself as P.W.1 and Exs. P1 to P-15 were marked. On appr
eciation of evidence, an order of acquittal had been recorded, hence the crimina
l appeal.
4. Smt. Manjula, representing the appellant had drawn the attention of this Cour
t to different provisions of the Act and pointed out to the presumption availabl
e under Section 139 of the Act and would contend that in the absence of any rebu
ttal evidence placed on behalf of the accused, the accused are liable to be conv
icted under Section 138 of the Act and acquittal recorded is bad in law. The lea
rned counsel also placed strong reliance on K. BHASKARAN v. SANKARAN VAIDHYAN BA
LAN AND ANR., and HITEN P. DALAL v. BRATINDRANATH BANERJEE, , 2001(2) ALD [Crl.]
234 [SC].
5. The learned counsel had taken this court through the evidence of P.W.1 and wo
uld submit that the reasons recorded by the learned Magistrate on the ground tha
t P.W.1 admitted in cross-examination that the ink used for signatures in Exs. P
1 and P2 cheques is different with the ink used to fill the contents therein and
drawing inference therefrom that Exs. P1 and P2 were blank cheques, cannot be s
ustained in the absence of any evidence adduced on behalf of accused, especially
in the light of Section 139 of the Act.
6. Per contra, Sri Mahadeva, learned counsel representing R1, R2-accused would c
ontend that this is an appeal against acquittal and unless the reasons recorded
by the learned Magistrate are shown to be either perverse or unreasonable, norma
lly, such findings need not be disturbed in an appeal. The learned counsel place
d strong reliance in C.ANTONY v. K.G. RAGHAVAN NAIR and ATLURI USHA SWAMY v. VIJ
AY PRESGTESSED PRODUCTS (P) LIMITED AND ORS, . The
learned counsel also had taken this court through the other findings recorded to
the effect that P.W.1 is not having any record to show that M/s. Sony Engineeri
ng Works, represented by A1 and M/s. Sony Tubes Syndicate, represented by A2 are
sister concerns. The learned counsel also had drawn the attention of this court
to the findings recorded in relation to Exs. P1 and P2-cheques, the signatures
thereon and the ink in filling up the contents and the other relevant aspects at
paras 16, 17, 18 and 19 of the Judgment and would contend that in view of the f
act that the prosecution was unable to establish legally enforceable debt, there
is no question of drawing any presumption under Section 139 of the Act and henc
e the acquittal recorded may have to be confirmed.
7. Heard both the counsel.
8. The complainant examined himself as P.W.1 and Exs. P1 to P15 were marked. Ex.
P1 is the cheque for Rs. 50,000/- dated 19.4.1995 and Ex. P2 is the cheque for
Rs. 50,000/- dated 22.4.1995. The case of the complainant is that the accused ar
e his customers and at their request, he supplied G.I. pipes worth Rs. 3,10,571/
- and in that connection accused issued three cheques for Rs. 50,000/- each, out
of which one cheque was honoured and other two cheques i.e., Exs. P1 and P2 for
Rs. 50,000/- dated 19.4.1995 and 22.4.1995 were dishonoured for insufficient fu
nds. Hence, the complainant got issued Ex. P4 legal notice dated 09.8.1995, whic
h was served on accused for which A1 sent reply notice dated 22.8.1995 under Ex.
P5.
9. The stand taken by the defence is Exs. P1 and P2 cheques were blank cheques a
nd Sony Tubes took them from A1 as security and taking advantage of blank cheque
s, the contents were filled in and the case was filed. As per the averments made
in the complaint, A2 approached the complainant through her son and placed orde
r for supply of G.I. Indian Gold Tubes against outstanding amount; of Rs. 3,10,5
71/-. A2 made cash payment and A1 issued three cheques for Rs. 50,000/- each on
13.4.1995, 20.4.1995 and 24.4.1995 out of which Exs. P1 and P2 were dishonoured
with an endorsement 'insufficient funds'. Exs. P1 and P2 cheques were signed by
A1. A2 was not the signatory of Exs. P1 and P2 cheques. According to P.W.1, Accu
sed No. 2 approached the complainant through her son and placed order for supply
of G.I. Indian Gold Tubes. It is averred in the complaint that A2 placed orders
and accordingly the material was given. It is also averred in the complaint tha
t A1 had issued Exs. P1 and P2 cheques in discharge of legally enforceable debt
of his mother A2. The case of P.W.1 as per the averments made in the complaint i
s that A2 placed order through her son and A1 issued Exs. P1 and P2 cheques on b
ehalf of A2 in discharge of legally enforceable liability of his mother. As far
as these aspects are concerned, except the evidence of P.W.1, there is no other
evidence available on record. Inasmuch as signatures in Exs. P1 and P2 are admit
ted, the stand taken by the counsel for complainant is that the presumption unde
r Section 139 of the Act is available and hence the findings recorded by the lea
rned Magistrate cannot be sustained.
10. In the Division Bench while dealing with Section 118 of the Act held that:
"When the execution of promissory note is admitted, there arises a presumption o
f consideration for the same and the burden lies on the executant of the promiss
ory note to rebut the presumption and the mere fact that cash was not paid under
the promissory note as stated in it does not shift the burden of proof placed o
n the executant to prove consideration."
Strong reliance was placed on a decision in HITEN P.DALAL v. BRATINDRANATH BANER
JEE wherein the Apex Court held that:
" Because both Sections 138 and 139 requires that the Court " shall presume" the
liability of the drawer of the cheques for the amounts for which the cheques ar
e drawn, it is obligatory on the court to raise this presumption in every case w
here the factual basis for the raising of the presumption had been established.
It introduces an exception to the general rule as to the burden of proof in crim
inal cases and sifts the onus on to the accused. Such a presumption is a presump
tion of law, as distinguished from a presumption of fact which describes provisi
ons by which the court "may presume" a certain state of affairs. Presumptions ar
e rules of evidence and do not conflict with the presumption of innocence, becau
se by the latter all that is meant is that the prosecution is obliged to prove t
he case against the accused beyond reasonable doubt. The obligation on the prose
cution may be discharged with the help of presumptions of law or fact unless the
accused adduces evidence showing the reasonable possibility of the non-existenc
e of the presumed fact.
In other words, provided the facts required to form the basis of a presumption o
f law exists, no discretion is left with the Court but to draw that statutory co
nclusion, but this does not preclude the person against whom the presumption is
drawn from rebutting it and proving the contrary. A fact is said to be proved wh
en, "after considering the matters before it, the Court either believes it to ex
ist, or considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it exists
" Section 3 Evidence Act. Therefore, the rebuttal does not have to be conclusive
ly established but such evidence must be adduced before the Court in support of
the defence that the Court must either believe the defence to exist or consider
its existence to be reasonably probable, the standard of reasonability being tha
t of the 'prudent man'."
11. There cannot be any doubt or controversy or any quarrel to the proposition,
which had been laid down in these decisions. The presumption under Section 118 o
f the Act and also the presumption under Section 139 of the Act would be availab
le. In the present case, except the evidence of P.W.1 there is no other evidence
available on record in support of the several averments made in the complaint.
P.W.1 in cross-examination admitted that the ink used for signature in Exs. P1 a
nd P2 cheques is different with the ink, which had been used for filling up the
contents of Exs. P1 and P2. It is pertinent to note that the defence version is
that Exs. P1 and P2 cheques were blank cheques, which had been taken under certa
in circumstances. It is no doubt true that none had been examined on behalf of d
efence. P.W.1 also further admitted that he is not having any record to show tha
t Sony Engineering Works, represented by A1 and Sony Tubes Syndicates, represent
ed by A2 are sister concerns. P.W.1 further admitted that brother of A1 signed u
nder Ex. P6 delivery challan and Ex. P7 delivery challan bears the signature of
A1. The signatures in Exs. P1 and P2 cheques are different to the signature made
in Ex. P7 delivery challan and these were the findings recorded by the learned
Magistrate on examination of all these documents. It was further recorded that t
he evidence of P.W.1 discloses that delivery challan was signed by brother of A1
. Hence, a finding was recorded that the evidence on record does not prove that
A1 received goods on behalf of A2 so as to fasten the liability and in that view
of the matter complainant-P.W.1 failed to prove that the cheques had been issue
d to discharge in whole or in part of any debt or any other liability.
12. The counsel representing respondents 1 and 2 placed strong reliance on a dec
ision of Division Bench in B. MOHAN KRISHNA AND ORS. v. UNION OF INDIA AND ORS.,
 and also relied upon A.BHOOSANRAO v. PURUSHOTHAMDAS AND ANR., 1997(1) ALT (Crl.
) 956 (AP). In C. ANTONY v. V.K.G. RAGHAVAN NAIR, , while dealing with an order
of acquittal in relation to 138 of the Act and the power of High court to interf
ere with and re-appreciation of evidence in appeal it was held thus:
"Unless the findings of trial Court are perverse or contrary to the material on
record, High Court cannot, in appeal, substitute its finding merely because anot
her contrary opinion was possible on the basis of material on record."
13. The main ground of attack of the learned counsel for appellant is that thoug
h the presumption under Section 139 of the Act is available, recording acquittal
in the absence of any evidence let in on behalf of the defence cannot be said t
o be justified. It is pertinent to note that the evidence of P.W.1 itself suffer
s from several infirmities and the stand taken by the complainant-P.W.1, as per
the averments of the complaint, had not been proved by placing acceptable eviden
ce. Hence, the learned Magistrate recorded findings and also recorded an acquitt
al.
14. On appreciation of the whole material, this Court is satisfied that the said
findings cannot be said to be either perverse or based on any mis-appreciation
of the evidence available on record and hence the said acquittal recorded by the
learned Magistrate need not be disturbed by this Court.
15. Accordingly, the findings of the learned Magistrate are hereby confirmed and
the appeal shall stand dismissed.