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Judgment
Subrata Talukdar, J. - This criminal appeal is directed against the judgment and order dated 13th April, 2015 passed by the learned Additional Judicial Magistrate (First Class) at Port Blair in CR No.187 of 2012 being a proceeding under section 138 of the Negotiable Instruments Act, 1881 (for short the NI Act).
The appellant is the complainant before the learned Trial Court. The respondent is the accused.
In a complaint filed before the learned Trial Court under Sections 138/141 read with Section 142 of the NI Act, the appellant stated that he is doing business at Port Blair for several years and developed friendly relations with the respondent. That in the month of June, 2008, the respondent approached the appellant for a loan of Rs.8.00 lakhs since the respondent held out that he was in financial difficulties.
Having regard to the friendly relations with the respondent, the appellant extended an amount of Rs.8.00 lakhs to the former by cash towards loan and, on the same day the respondent issued a blank cheque bearing No.125545 at Axis Bank, Port Blair in favour of the complainant.
It is further alleged in the complaint that in spite of repeated approaches to the respondent by the complainant, the former refused to return the said amount of Rs.8.00 lakhs and, ultimately on 5th January, 2010, the respondent signed an agreement on non-judicial stamp paper undertaking to refund the amount of Rs.8.00 lakhs to the complainant by and within June, 2012. However, since the respondent failed to return the amount within June, 2012, the appellant, upon making repeated approaches to the respondent, was instructed by the latter to present the said blank cheque No.125545 to his Bank for clearance in the last week of October, 2012.
Following the above noted instructions of the respondent, on 29th October, 2012, the appellant deposited the cheque No.125545 with the date of 01st August, 2012 and for the said amount of Rs.8.00 lakhs in his account at United Bank of India (for short UBI), Junglighat Branch. However, the said cheque returned with the endorsement ''Funds Insufficient''.
Therefore, the present complaint in issue was filed before the learned Magistrate praying for taking cognizance of the offence committed by the respondent and to pass appropriate order sentencing the respondent under Section 138 of the NI Act.
In the trial, the appellant submitted his evidence on affidavit wherein he reiterated the self-same facts as disclosed in his above noted complaint. It is relevant that the appellant deposed that upon return of the cheque with the endorsement ''Funds Insufficient'', on the 01st of November, 2012, the appellant sent a legal notice as mandated by the NI Act to the respondent for payment of the cheque amount within a period of fifteen days from the date of receipt of the said legal notice. The said legal notice was received at the address of the respondent on 2nd November, 2012 but, no steps were taken by the respondent to pay back the cheque amount. Accordingly, the presumption of dishonor under the relevant provisions of the NI Act stood unrebutted against the respondent.
The learned Trial Court by its impugned judgment and order dated 13th April, 2015 was pleased to dismiss the complaint by, inter alia, holding as follows:-
(a) That qua the stand of the appellant that the cheque was deposited on 29th October, 2012 and returned by the Bank with the endorsement ''Funds Insufficient'', no cross-examination was placed by the defence to the appellant, who examined himself as PW-1. Therefore, the learned Trial Court concluded that the fact of presentation of the cheque within the period of its validity prescribed under the NI Act and its dishonor stood unrebutted by the defence.
(b) That the appellant -PW-1 deposed with regard to the legal notice sent on 1st November, 2012. PW-1 was not subjected to any cross-examination by the defence with regard to such legal notice dated 1st November, 2012. Accordingly, the learned Trial Court held that the said notice dated 1st November, 2012 under the NI Act stood unchallenged.
(c) The learned Trial Court further held that all the documents in issue before the Ld. Trial Court namely - the cheque dated 01st August, 2012, the return memo of the Bank, the legal notice dated 1st November, 2012 as well as the postal receipt showing delivery of the legal notice at the address of the respondent were all exhibited at the trial.
(d) The learned Trial Court further went on to hold that the evidence of the appellant to the extent of issuance of the blank cheque was not challenged by the defence in cross-examination. On the contrary, a suggestion was given by the defence to PW-1 which was answered by PW-1 denying misuse of the blank cheque issued by the respondent. Therefore, the learned Trial Court held that it is an admitted fact that the respondent issued a blank cheque being Exhibit-I.
(e) On the basis of the above noted findings on facts, the learned Trial Court went on to discuss the law as applicable under the NI Act as well as the judicial authorities on the point. The learned Trial Court first proceeded to consider the aspect of presumption under section 139 of the NI Act. Noticing some of the judgments of the Hon''ble Apex Court on the statutory presumption created under section 139 of the NI Act, the learned Trial Court opined that a cheque is deemed to be payment in discharge of a debt or liability incurred, even on presentation on a future date. Therefore, the dishonor of such cheque amounts to an offence under section 138 of the NI Act.
However, the learned Trial Court thereafter proceeded to consider in detail the judgment of the Hon''ble High Court at Kerala in In Re: Kamalammal v. Mohanan reported in 2007 Criminal Law Journal page 3124 whereby the Hon''ble High Court at Kerala was pleased to, inter alia, hold that in respect of a blank cheque the presumption under section 139 of the NI Act may not always apply. The learned Trial Court pointed out that in respect of a blank cheque, the presumption of the discharge of a debt or liability by such instrument is merely probable.
Discussing the facts of the present case, the learned Trial Court further opined that improbabilities exist with regard to the capacity of the appellant to extend the loan amount of Rs.8.00 lakhs in favour of the respondent. Referring to the deposition of the sole witness for the defence, being the Income Tax Inspector(DW-1), Income Tax Office, Shadipur, Port Blair, the learned Trial Court dwelt on Exhibit -A, being the Income Tax Return of the appellant for the financial year 2008-2009. The learned Trial Court came to the conclusion that the complainant had disclosed his income to be Rs.2,21,900/- for the said financial year and paid income tax of Rs.7,604/-. Therefore, under no circumstances could it be probable that the appellant had the capacity to advance a sum of Rs.8.00 lakhs in favour of the respondent notwithstanding the claim of the appellant in his evidence that he retained a deposit of Rs.40.00 lakhs in cash relevant to the year 2008 in his capacity as a dealer in cosmetic goods and tobacco.
(f) Comparing the financial capacity of the appellant as deposed by DW-1 (supra) corresponding to the amount filled in by the appellant in the blank cheque, the learned Trial Court determined that in the absence of any other corroborative evidence connected to the advance of the purported sum of Rs.8.00 lakhs by the appellant in favour of the respondent, it could not be presumed that such blank cheque was signed by the respondent in discharge of a debt or liability qua the appellant.
(g) The learned Trial Court also considered the agreement or bond executed between the appellant and the respondent dated 5th January 2010 marked Exhibit-5. In the background of the improbable capacity of the appellant to extend the loan of Rs.8.00 lakhs to the respondent in the year 2008 as discussed above, the agreement dated 5th January, 2010 by which the respondent promised to pay the said amount by June 2012 was held to be intrinsically inconsistent. The learned Trial Court further noticed the fact that in the original agreement the amount of Rs.80.00 lakhs has been reduced to Rs.8.00 lakhs by applying whitener to the amount in figures as well as to the letter ''y'' to the amount in words. The learned Trial Court further opined that the fact that the appellant waited for a further period of two years for presenting the cheque for encashment is not enough to draw the presumption that such could be an accepted response of a creditor in respect of a proceeding under the NI Act.
However, the learned Trial Court, at the same time, was of the view that the alleged discrepancy in the amount mentioned in the agreement dated 5th January, 2010 as well as in the demand notice issued by the learned lawyer for the appellant was a simple clerical error.
(h) The learned Trial Court ultimately concluded that having regard to the above noted inconsistencies surrounding the loan offered, the proceeding under section 138 of the NI Act deserves to be dismissed.
Shri Gopala Binnu Kumar, learned counsel appearing for the appellant has argued as follows:
(i) That the learned Trial Court took notice of extraneous factors such as the Income Tax return of the appellant for the financial year 2008-2009 while deciding the proceeding under the NI Act. According to Shri Kumar, the income tax return of the appellant in respect of the said financial year could not be the primary consideration before the learned Trial Court while deciding a proceeding under the NI Act.
(ii) Referring to several provisions of the NI Act and, particularly Sections 118, 138 and 139 thereof, Shri Kumar argues that once it is admitted by the learned Trial Court that the cheque was signed and delivered to the appellant by the respondent, the presumption arises in favour of the appellant being the holder of the cheque in due course.
(iii) Shri Kumar, taking this Court to several portions of the facts placed by the appellant before the learned Trial Court, submits that even the learned Trial Court has admitted to the fact that the cheque along with his signature as well as the facts surrounding the return of the cheque followed by a legal notice by the lawyer for the appellant have been recognised by the learned Trial Court. In view of such recognition evident from the impugned judgment of the learned Trial Court, no other presumption could be drawn except the presumption provided under section 139 of the NI Act consistent with the guilt of the respondent.
(iv) It is also argued by Shri Kumar that no evidence in his defence with regard to the above noted clinching factual scenario was placed by the respondent in his defence before the learned Trial Court. Even in his statements recorded under Section 313 of the Code of Criminal Procedure, the respondent failed to provide a cogent answer with regard to the placement of a signed cheque by him with the appellant. Shri Kumar argues that the denials by the respondent are merely bald in nature.
(v) Further taking this Court to the evidence adduced on behalf of the prosecution, Shri Kumar submits that in the cross-examination of the PWs by the defence, not a single suggestion denying the existence of the above noted facts including the agreement dated 5th January, 2010 was placed. On the part of the defence it was merely pointed out that the stand taken by the appellant is false.
(vi) Relying heavily on the agreement dated 5th January, 2010 Shri Kumar further argues that it is extremely probable that the appellant as the creditor and the holder of the cheque in due course was hopeful of getting his money back from the respondent. Therefore, the appellant tried to approach the respondent over the months and years to receive the money back and, the agreement was signed willingly by the respondent for protecting the appellant''s interest. Thereafter, the appellant placed the cheque in issue with the Banker for encashment only after receiving the assurance from the respondent that the cheque would be encashed some time in the last week of October, 2012.
(vii) In support of his arguments Shri Kumar relied upon several judicial authorities being - A.V. Murthy v. B.S. Nagabasavanna reported in 2002(1) Supreme 517, Mallavarapu Kasivisweswara Rao v, Thadikonda Ramulu Firm and Ors. reported in 2008(4) Supreme 79, Rangappa v. Sri Mohan reported in 2010(4) Supreme 169, I.C.D.S Ltd v. Beena Shabeer and another reported in 2002(6) Supreme 25.
Arguing for the respondents, Shri D. Ilango, learned counsel raises the following points.
(1) That the case of the appellant is heavily constructed upon the agreement dated 5th January, 2010 although, the agreement dated 5th January, 2010 is of no intrinsic value but was relied upon by the appellant only to buttress the validity of the cheque in issue.
(2) It is significant to note that the appellant waited for a period of two years from the day of issuance of the purported blank cheque in 2008 and entered into an agreement on 5th January, 2010. Thereafter, the appellant waited for a further period of two years before presenting the said cheque for encashment. The above noted conduct of the appellant is not a probable one which may be connected to the expectation of a creditor for return of a loan claimed to be extended by him.
(3) Taking this Court to the original agreement which is a part of the Lower Court Records (for short L.C.R), Shri Ilango argues that the signatures of both the appellant and respondent are not in the appropriate blank spaces meant for their signatures on the non-judicial stamp paper. The said signatures appear below the description of both the appellant and the respondent in the agreement.
(4) Shri Ilango therefore points out that the signatures bear testimony to the fact that the signature of the respondent was obtained in a blank non-judicial stamp paper which was thereafter filled in conveniently by the appellant in order to pursue the remedy under the NI Act.
(5) Taking this Court to the judgment of the Hon''ble High Court at Kerala In Re: 2007 Cr.L.J 3124 (supra), Shri Ilango argues that no inference of discharge of debt or liability can automatically arise in respect of a blank cheque and such stand was correctly held in the above noted judgment. In the light of the discrepancies pointed out by the learned Trial Court with regard to the incapacity of the appellant at the relevant point of time to extend the loan amount in favour of the respondent, there can be no presumption that the said blank cheque was issued in discharge of a debt or liability by the respondent qua the appellant.
(6) Shri Ilango reiterates the observations of the learned Trial Court with regard to manipulation in the loan amount as reflected in the agreement dated 5th January, 2010 as well as the demand notice of the lawyer for the appellant dated 1st November, 2012. From the discrepancies as reflected in the amount mentioned and corrected in both the agreement and the legal notice (supra), Shri Ilango stresses the point that a strong probability exists that the blank cheque and the agreement signed by the respondent were misused by the appellant. Therefore, Shri Ilango supports the impugned judgment on the ground that in spite of both the proven incapacity of the appellant to extend the loan amount as well as the discrepancies in the figures mentioned as above, it cannot be automatically presumed that the cheque was held by the appellant towards satisfaction of a debt or liability by the respondent.
(7) Shri Ilango further argues that the witnesses to the purported agreement dated 5th January, 2010 confess to having no personal knowledge of any monetary transaction between the appellant and the respondent. In effect, according to the learned counsel for the respondent, no consideration flowed between the parties on 5th January, 2010 and both the witnesses to the agreement, being the PWs 2 and 3 did not speak of any monetary transaction between the principal parties.
(8) Shri Ilango also points out that an important condition is required to be satisfied for a presumption to be drawn under Section 139 of the NI Act for a proceeding to arrive at a conclusion of guilt against the respondent. Referring to Section 20 of the NI Act which relates to "Inchoate Stamped Instruments", Shri Ilango submits that the definition of an instrument issued in discharge of a debt or liability, is not satisfied qua the blank cheque in issue and, the document involved in the present transaction between the appellant and the respondent can, at best, be described as a pro-note or a bill of exchange.
Shri Ilango draws sustenance from the judgments of Shri Ramdas Anant Naik v. Shri Jacob Fernandes & State reported in 2006(1) DCR 92, S. Gopal v. D. Balachandran reported in 2008(1) DCR 334, Sayeeda Iqbal Vakill v. Javed Abdul Latif Shaikh and Anr. reported in BomCR(Cri) 2008(2) 258, Vasudeo Ramchand Ahuja v. Vilas Shripati Kamble & Anr. reported in ALLMR(Cri) 2006 (3) 3203, Avon Organics Ltd. (A Company incorporated under Companies Act, 1956) v. Poineer Products Limited reported in 2004(1) Crimes 567.
Accordingly, learned counsel for the respondent submits that the impugned judgment requires to be affirmed.
Having heard the parties and considering the materials on record as well as the law on the point, this Court arrives at the following conclusions:-
(A) That the case made out by the appellant both in his complaint and in his evidence in chief is de hors of any ambiguity. As noticed by this Court herein above in this judgment, the appellant has put the facts straight with regard to the loan transaction entered into between the parties at the behest of the respondent. This Court further notices that the amount paid to the respondent by the appellant is clearly stated as Rs.8.00 lakhs and the number of blank cheque is 125545 drawn on Axis Bank, Port Blair. Furthermore, the circumstances in which the blank cheque was returned on presentation with the memo ''Fund Insufficient'' are clearly spelt out by the appellant both in his written complaint and evidence-in-chief.
(B) This Court is also persuaded to accept the argument of Shri Kumar that the amount involved was not meagre. Therefore, the appellant took the time available with him to pursue the respondent for return of the money which may have spanned a period of four years between 2008 to 2012. This Court is also persuaded to accept the submission of Mr.Kumar on the point that in order to protect the sum of money advanced to the respondent and, on the repeated failure of the respondent to return the amount, the appellant was left with no other alternative but to attempt to secure the money by the help of a written agreement.
(C) This Court also cannot be oblivious to the fact that the respondent signed on the blank cheque as also signed on the non-judicial stamp paper holding the agreement dated 5th January, 2010 with his eyes open. Both the blank cheque as well as the non-judicial stamp agreement were solely intended for the purpose of securing the sanctity of the transaction entered into between the parties and, it is difficult to assume that the true scope, intent and purport of both the documents were not understood by the respondent prior to appending his signature to the said documents.
(D) This Court is also persuaded to hold in favour of the appellant, who behaved with reasonable common sense like "the man on top of the Clapham omnibus" by attempting to secure the loan amount paid by him in favour of the respondent. Therefore, this Court is inclined to extend the benefit of any doubt in favour of appellant who, after exhausting his wait for the money to be paid by the respondent, had to take recourse to a bond and, thereafter ultimately present the cheque within the validity of the instrument flowing from the bond.
(E) This Court further notices the crisp observations of the learned Trial Court accepting the transaction between the parties in its essentials. This Court finds that the judgment impugned of the learned Trial Court is peppered with observations accepting the documentary evidence on record testifying to the exchange of a monetary consideration between the parties. This Court therefore axiomatically finds it difficult to accept the conclusion arrived at by the learned Trial Court in spite of accepting the essentials of the transaction between the parties.
(F) With reference to the observations made by the learned Trial Court on the point that the appellant lacked the capacity to extend the amount of Rs.8.00 lakhs in the year 2008 in favour of the respondent since the appellant failed to disclose the capacity to hold such amount qua the evidence of DW-1, this Court finds that such argument is simply incidental to the primary requirement of a proceeding under the NI Act. Assuming but not admitting the veracity of the evidence of DW-1, this Court cannot be ad idem with the learned Trial Court in respect of its findings that such evidence has a bearing on the discharge of a debt or liability by the respondent in favour of the appellant under the provisions of the NI Act. This Court is of the clear view that once the learned Trial Court proceeded to accept the documentary evidence marked as Exhibits to be true, the only logical path before the learned Trial Court was to proceed by applying the provisions of the NI Act whether such documentary evidence supports the theory of discharge of a debt or liability.
In this connection the observations of the Hon''ble Apex Court In Re:2002 (6) SCC 25 (supra) at paragraphs 9 and 10 may be usefully relied.
"9. As noticed hereinbefore, the principal reason for quashing of the proceeding as also the complaint by the High Court was by reason of the fact that Section 138 of the Act provides for issuance of a cheque to another person towards the discharge in whole or in part of any debt or liability and on the factual context, the High Court came to a conclusion that issuance of the cheque cannot be co-related for the purpose of discharging any debt or liability and as such complaint under Section 138 cannot be maintainable.
The language, however, has been rather specific as regards the intent of the legislature. The commencement of the Section stands with the words "Where any cheque". The above noted three words are of extreme significance, in particular, by reason of the user of the word "any" the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment."
(G) This Court also notices that the observations of the Hon''ble High Court at Kerala In Re: 2007 Cr.L.J 3124 (supra) connected to the presumption that cannot be drawn in respect of a blank cheque cannot be applied to the facts of the present case. The purported discrepancies noticed by the learned Trial Court with regard to the figure eight used to describe the amount transacted between the parties, wafts of an underlining certainty since repeatedly in the documentary evidence furnished by the appellant no other figure apart from the figure eight is thrown up for consideration by the Court. Furthermore, the fact that in the cheque in issue as well as in the complaint and the evidence-in-chief the amount of Rs.8.00 lakhs is unerringly spelt out by the appellant, must lead to the presumption that the discrepancies in the figures pointed out by Shri Ilango were inadvertent and do not shake the foundation of the case made out by the appellant under the NI Act.
(H) This Court is further satisfied that the witnesses to the bond which was entered into between the parties on the 5th of January,2010, i.e. two years after the transaction complained of by the appellant in 2008, have deposed to the extent of their knowledge connected to their signatures in the bond and, could not have placed in their deposition to the transaction of 2008. The evidence of PWs 2 and 3 stands correctly limited to their role of being witnesses to the bond and, in the opinion of this Court, could not have travelled beyond or transgressed their roles qua the bond itself. Therefore, the attempt to elicit a larger meaning to the evidence of PWs 2 and 3 is an exercise of imagination.
(I) This Court, in the light of the judgment of the Hon''ble High Court at Kerala In Re :2007 Crl.L.J 3124 (Supra) cannot lose sight of the overwhelming presence of the judgments of the Hon''ble Apex Court reported In Re: A.V. Murthy v. B.S. Nagabasavana reported in 2002(1) Supreme 517, Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm and Ors. reported in 2008(4) Supreme 79, Rangappa v. Sri Mohan reported in 2010(4) Supreme 169, I.C.D.S Ltd v. Beena Shabeer and another reported in 2002(6) Supreme 25 as relied upon by Shri Kumar. As rightly argued by Shri Kumar, the Hon''ble Apex Court tellingly held In Re 2010 [4] Supreme 169, that in the light of the admission of the accused of his signature on the cheque in issue a statutory presumption of a legally enforceable debt or liability had arisen under the NI Act and same had to be rebutted in every probable respect. In Re: 2010[4] Supreme 169 the Hon''ble Apex Court clearly held that a slight discrepancy on the face of the complaint shall not dilute the statutory presumption arising out of the prima facie existence of a legally enforceable debt or liability qua the circumstances pleaded by the complainant/appellant with regard to the financial accommodation extended by him to the accused/respondent.
(J) The Hon''ble Apex Court discussing the effect of sections 138 and 139 of the NI Act formulated the following points for consideration:-
(a) When an accused has to rebut the presumption under Section 139 of NI Act, the standard of proof for doing so is that of ''preponderance of probabilities''. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail.
(b) Presumption mandated by Section 139 of NI Act does indeed include the existence of a legally enforceable debt or liability.
In the light of the cogent view expressed by the Hon''ble Three Judges of the Hon''ble Apex Court In Re: 2010(4) Supreme 169 (supra) and applying the facts of the present case to the law as discussed above, this Court has little hesitation to hold that a monetary transaction did take place between the parties and the appellant held two key documents in the nature of the blank cheque as well as the bond dated 5th January, 2010 adequate to create the presumption in his favour under the NI Act that the respondent acted to discharge a legally enforceable debt or liability.
(K) For the above noted reasons, this Court is unable to accede to the arguments advanced by Shri Ilango on the impact of Section 20 of the NI Act. Conceding for the sake of argument but not admitting such arguments to the facts of this case in the light of the judicial authorities relied upon by Shri Ilango on the facts of their respective cases, this Court finds that the judgments relied upon by the respondent fade like a pale moon to the bright rays of the rising sun as visible in the ratio laid down in 2010(4) Supreme 169 (supra).
In the backdrop of the above discussion, this Court concludes by holding that the respondent has taken recourse to several technicalities in his attempt to create a probable defence. However, this Court even finds from the judgement impugned of the learned Trial Court that the essential facts pertaining to the transaction in issue as emanating from the documentary evidence is recognised by the learned Trial Court. This Court notices that there being a general consistency with regard to the substratum of the prosecution case, the discrepancies of the nature referred to by the Ld.Defence Counsel will not be a ground to reject the documentary evidence read with the other evidence. Inspiration for this proposition may be gathered from the judgment of the Hon''ble Apex Court In Re: State of Punjab v. Wassan Singh and Others reported in AIR 1981 SC 697 of which, Paragraph 17 reads as follows:
"17. The occurrence took place on August 4, 1973, while Resham Singh (P.W.2) and Bachan Singh (P.W.3) were examined at the trial on December 27,m 1974, that is to say, 17 months after the incident. Such discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in the statements of truthful witnesses, particularly when they are examined to depose to events which happened long before their examination. Such discrepancies are hardly a ground to reject the evidence of the witnesses when there is general agreement and consistency in regard to the substratum of the prosecution case. As rightly observed by the trial court, Resham Singh (P.W.2) was never cross-examined by the defence regarding his whereabouts and that of Hazara Singh deceased on the previous night. The mere fact that P.W.2 did not make any purchases at Amarkot could hardly be a reason to hold that his being in the company of Hazara Singh deceased at the material time, was improbable."
Therefore, this Court finds legal infirmity in the judgment impugned dated 13th April, 2015 in so far as the learned Trial Court has embarked on a subjective hypothesis on the probability of the defence created by the respondent. Such luxury must yield to the straight and narrow path of the presumption created under a special statute in the nature of the NI Act.
It is trite law that a judgment must be read for what it actually decides rather than what flows from such judgment. Such legal principle can safely be deduced from the observations of the Hon''ble Apex Court In Re: Prakash Singh Badal and Another v. State of Punjab and others reported in (2007) 1 SCC 1.
Paragraph 49 of the above noted judgment reads as follows:
"Great emphasis has been laid on certain decisions of this Court to show that even in relation to offences punishable under Sections 467 and 468 sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra''s case. That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately with the making of search and the allegations about alleged offences had their matrix on the absence of search warrant and other circumstances had a determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context."
This Court further notices that a proceeding under the NI Act is governed by the principle underlining the special statute and judicial authority is settled on the point. The legal milestones under the special statute must be strictly construed rather than culling the subjective theorisations from a judgement and attempting to apply them to the facts of the present case. To paraphrase the eminent poet Robert Frost, the learned Trial Court "missed the wood for the trees"
Before parting with this case, this Court must also observe that it is conscious of the role of an Appellate Court qua a judgment placed for scrutiny in an appeal from an order of acquittal. However, this Court is of the further view that the Appellate Court is not precluded from interfering in a judgment from an order of acquittal if, in the opinion of the learned Appellate Court, such judgement is found to be ex facie perverse. The judicial authority of the Hon''ble Apex Court in Syed Petha v. Public Prosecutor, 2008 CrLJ 3488 : AIR 2008 SC 2573 may be usefully relied upon in support of the above noted proposition.
For the above reasons, the judgment impugned is set aside. The respondent/accused is found guilty of the offence punishable under Section 138 of the N.I Act and sentenced to pay a fine of Rs.8,50,000/- lakhs within a month from the date of delivery of this judgement failing which the respondent/accused shall serve simple imprisonment for a period of one year. Out of the fine amount of Rs.8,50,000/-lakhs, Rs.8,00,000/- shall be paid as compensation to the appellant/complainant under Section 357 Cr.P.C.
CRA No.009 of 2016 stands accordingly allowed.
Registry is directed to send a copy of this judgment along with the Lower Court Records to the learned Trial Court forthwith.