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Judgment
A.S. Pachhapupe, J.—The Appellant in both the appeals has challenged the judgment and Order of acquittal of the Respondents for the charge u/s 138 of the Negotiable Instruments Act (hereafter referred to as ''the Act'' for short) on a trial held by the Additional C.M.M., Bangalore.
As there are common questions of law and facts involved between the same parties, both the appeals are taken together for consideration.
The facts relevant for the purpose of these appeals are as under:
The Appellant in both these appeals is the complainant in C.C. Nos. 15101 and 15100/2005 before the Court below and accused No. 1 is the Company, whereas accused No. 2 is the husband of accused No. 3. It is averred by the complainant that the 3rd accused got constructed a residential house and towards the cost of the construction, accused No. 2 gave a cheque for Rs. 12, 00,000-00 dated 19.11.2004 and another cheque Rs. 10,00,000-00 dated 05.12.2004. When the complainant presented both the cheques for encashment have returned with endorsement of nonperformance account. Hence, the complainant issued the notice under certificate of posting and also by registered post to the accused, but, instead of paying the amount, issued a reply denying the allegations made and in the circumstances, the Appellant was compelled to file a complaint before the trial court for the offence u/s 138 of the Act,
The trial Court after taking cognizance, issued the process to the accused, who appeared and after recording the plea, the complainant in C.C. No. 15100/05 (Crl.A. No. 1141/2007) examined himself as P.W.1 and got marked the documents Exs.P1 to 14. The statements of the accused were recorded u/s 313 Code of Criminal Procedure The accused took a defence of total denial and got marked Exs.D1 and 2 in the evidence of the complainant, whereas in the other case, the complainant was examined as P.W.1 and in the evidence, documents Exs.P1 to 14 were marked. The statement of the accused were recorded u/s 313 Code of Criminal Procedure They have taken the defence of total denial and they have not led any defence evidence.
The trial court after hearing the learned Counsel for the parties and on appreciation of the material on record, passed the impugned judgment and order acquitting the accused for the charge u/s 138 of the Act. Aggrieved by the same, these 2 appeals have been filed During the pendency of these appeals, the Appellant has filed an application u/s 386 Code of Criminal Procedure in both the cases requesting for permission to produce the Sale Agreement dated 27.04.2001 between the complainant and the 3rd accused with regard to the sale of the house property for a total sale consideration of Rs. 71,00,000-00. The learned Counsel for the Respondents has filed objections for production of the said documents.
I have heard the learned Counsel for the Appellant and also the Respondents.
The points that arise for my consideration are:
1) Whether the trial Court was justified in granting an Order of acquittal, in favour of che accused?
2) The application filed by the Appellant u/s 386 Code of Criminal Procedure is deserves to be allowed?
It is the contention of the learned Counsel for the Appellant that the cheques were issued which have been admitted in the evidence and they have been signed by the 2nd accused, who is the director of the company. When the signature is not in dispute, the trial Court could have raised a presumption in favour of the complainant and thereby in the absence of the defence evidence, it could have awarded conviction and it committed an error in granting an Order of acquittal. It is his further submission that the evidence placed on record is sufficient to convict the accused for the offence u/s 138 of the Act. He also requested to allow his application for permission to lead additional evidence.
Per contra, the learned Counsel for the Respondents supported the judgment and Order of acquittal and claims that the evidence of P.W.1 cannot be believed and that there is fabrication of the documents by the complainant and no notice was issued to the company. In the circumstances, he submits that the trial Court was justified in granting an Order of acquittal. He has filed his objections to the application filed u/s 386 Code of Criminal Procedure contending that the Appellant has had an opportunity to produce the Sale Agreement before the trial Court and having failed to do so cannot be permitted now to produce the same by way of additional evidence.
I have perused the evidence lead by the parties in both the cases. The trial Court has taken into consideration the evidence of the complainant, wherein, in the cross-examination, the complainant states that he is not able to stats as to how much amount was payable in respect of construction of the building. So also, there was no material placed on record inclusive of accounts to prove that totally an amount of Rs. 22,00,000-00 due by accused No. 2, who is said to have issued the cheque to the complainant So, because of this reason and the inconsistency in the evidence on record, the trial Court has granted an Order of acquittal.
It was the defence of the accused (sic) there is a Sale Agreement between the complainant and accused No. 3 in respect of the house property, for a total consideration of Rs. 71,00,000-00 and that there was part payment. In this regard, the complainant has filed a complaint before Vyalikaval Police and the original Sale Agreement is said to have been produced by the complainant in the said case. The accused have produced Ex.D1, the reply notice, wherein there is a reference that out of Rs. 71, 00,000-00, the sale consideration, which was agreed upon by the parties, the aggregate amount of advance of Rs. 47,50,000-00 only was paid and the accused claims that the complainant owes on amount of Rs. 50,85,000-00 and in these circumstances, a notice was issued to the complainant calling upon him to produce the same or otherwise, an action would be taken against him for cheating.
It is true that a presumption arises u/s 139 of the Act in case if the signature on the cheque is admitted and the liability is proved. But, the Court below did not accept the evidence of P.W.1. So far as the liability is concerned, as seen in the cross-examination, the complainant did not say as to what was the amount due in respect of the construction work carried out in the year 1994-95. So also, he did not produce any document in support of this liability and taking into consideration the fact that the accused have produced Ex.D1-notice and the Court below came to the conclusion that there is no material for the offence u/s 138 of the Act.
The trial Court while appreciating the evidence, in para 5 of the judgment has discussed about the non-production of the Sale Agreement by the complainant. In respect of it, he is said to have filed a complaint to the Vyalikaval Police in Crime No. 66/2005. The trial Court was of the opinion that as the original Sale Agreement was not: produced and as P.W.1 stated in the evidence that it has been produced before the Investigating Authority in Crime No. 66/2005, it was of the opinion that the certified copy of that document ought to have been produced by the complainant to over-come the defence of the accused. Ultimately, the trial Court for non-production of the Agreement dated 27.04.2001 held that an adverse inference has to be drawn against the complainant u/s 114(g) of the Indian Evidence Act and it also took into consideration Ex.P12, wherein accused No. 2 has written a letter dated 05.03.2001 to the complainant stating that he had enclosed 4 cheques of the year 2001, drawn on State bank of Hyderabad, towards payment of construction work of the house, situated at No. 2916/E, IV Main Road Vijayanagar, II Stage, Bangalore. So, in case, if really, any amount is due by the complainant to the 3rd accused under the Sale Agreement, there, could not be any question of liability of the accused towards cost of construction. The cost of construction could have been deducted in the amount payable to him by accused No. 3 and ulcimately, there was no necessity for the complainant to obtain cheques from the accused. So, the absence of the Agreement before the Court below, has resulted in an Order of acquittal as the Court below has drawn adverse inference for non-production of this document. In the absence of this document, it appears that the trial Court was justified in granting the acquittal.
The learned Counsel for the Appellant has relied upon the decision of the Appellate Court, reported in 2001 SCC 229 Rajneesh Aggarwal v. Amit J. Bhalla, wherein it has been held that notice to the director amounts due notice to the Company as well. So also, ha relied upon Volume No. 83 of the Company cases at Page 882 and the perusal of the decision reveals that it has no relevance with the facts of these cases. Furthermore, he also relied upon the decision reported in AIR 2010 SCW 2946 Rangappa v. Mohan, wherein the Apex Court held that the dishonour of cheque on account of stop payment in respect of a post dated cheque attracts Section 138 of the Act. Furthermore, he relied upon the decision of this Court, reported in AIR 2007 Kar. 801 Ganesh Enterprises v. D.R. Sarala, wherein the accused had admitted the transaction and it was held by this Court that an Order of acquittal is illegal and the accused was convicted. It is no doubt true that there is a transaction between the parties, but, that was in the year 1994-95 and there is a Sale Agreement between the parties dated 27.04.2001. In the circumstances, an adverse inference drawn was also a strong circumstances in favour of the accused resulting in their acquittal.
The learned Counsel for the Respondent contended that the dispute between the parties is of civil nature and initiation of criminal proceedings is an abuse of the process of the Court. On this aspect of the matter, he has relied upon the decision of this Court reported in AIR 2007 SCW 6679 Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors., wherein the Apex Court when there was a question about cancellation of an Agreement to Sell the property, it was held that the institution of criminal proceedings under Sections 420, 120B, 467 IPC against the vendor is an abuse of process of Court. He further relied upon the decision of this Court reported in 2009(3) PCR 2188 Matheson Bonsanquet Enterprises Limited, Bangalore v. K.V. Manjunatha, wherein the cheques were given for security for the work entrusted to the accused and this fact was not disclosed by the complainant and this Court held that dismissal of the complaint was juscified. So also, he relied upon another decision reported in AIR 2010 Kar. 304 Venkatesh Bhat A.V. Rohidas Shenoy, wherein this Court took into consideration the facts wherein a cheque was issued in pursuance of an agreement between them and there was violation of terms of the Agreement by the accused and i.e. was held that the comedy open to the complainant is to approach the Civil Court and not the Criminal Court. No-doubt, there is a Sale Agreement between the parties, but the same has not been produced to know as to whether there is any material to know the total sale consideration, payment of part of sale consideration if any and in the absence of this document, it is difficult to make any assessment of the material placed on record by way of Exs.D1 and 2.
The Appellant in his affidavit filed in support of the application filed u/s 386(a) and 386(3) Code of Criminal Procedure, has stated that the Sale Agreement dated 27.04.2001 was not in his possession at the time when the case was being conducted and it was produced before the Investigating Officer, in Crime No. 66/2005 and bonafidely he was prevented from production of the said document. He states that the non-production was unintentional and that no prejudice would be caused in case if he is permitted to produce the said documenc as the trial Court has drawn an adverse inference u/s 114(g) of the Indian Evidence Act. Therefore, he has sought for an opportunity to produce the document and lead additional evidence. Though the learned Counsel for the Respondents seriously objected the production at this stage, it is relevant to note that there are 2 cheques for a total sum of Rs. 22,00, 000-00 and admittedly, the original Agreement was produced by the complainant before the Investigating Officer and it may be that as there is a complaint u/s 138 of the Act, the complainant might have thought that the bouncing of the cheques itself is sufficient to get conviction and the amount of fine and influenced by che presumption to be raised u/s 139 of the Act had not thought of producing the original sale Agreement. So, in the circumstances, I am of the opinion that though the learned Counsel for the Respondents has opposed production of these documents, the permission to produce the same has to be granted in the interest of justice.
In the circumstances, as the production of the document is permitted, it is necessary to remit the matters to the Court below, permitting the Appellant/complainant to produce the document and to lead further evidence, if any. In that view of the matter, so far as point No. 1 is concerned, it does not arise for consideration at this stage and point No. 2 is answered in affirmative.
Hence, by allowing the appeals, the judgment and Orders in C.C. Nos. 15100 and 15101/2005 dated 22.05.2007 passed by the Chief Metropolitan Magistrate, Bangalore are set aside. The appeals are allowed and both the matters are remitted back to the trial Court and the Appellant shall pay the costs of Rs. 2,500-00 in each of the cases to the 3rd accused as the remittal is at his instance.
The trial Court shall give preference in disposal of these cases as they are of the year 2005.