Allowed

M/S.Eicher Motors Ltd. v. C.Y.Salim and Another

Kerala HC10 Nov 2023CRL.A/1938/2011

Case brief

AI extract

What is this about?

In four criminal appeals regarding cheque dishonour, the High Court of Kerala set aside an acquittal granted by the Appellate Court. The Court held that relying solely on a subsequent uncorroborated complaint to discharge the reverse onus was erroneous, and restored the trial court's conviction.

What did the court decide?

The impugned common judgment of acquittal is set aside; the Trial Court's conviction and sentence are confirmed; the accused must pay the fine and appear for sentence.

M/S.Eicher Motors Ltd. Vs C.Y.Salim and Another — Cheque Dishonour | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE C.S.DIAS

¶4

FRIDAY, THE 10TH DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945

¶5

CRL.A NO. 1938 OF 2011

¶6

AGAINST THE ORDER/JUDGMENT CRA 980/2008 OF THE COURT OF THE ADDITIONAL

¶7

SESSIONS JUDGE (ADHOC-I), ERNAKULAM

¶8

AGAINST THE ORDER/JUDGMENT IN ST NO.978/2006 OF THE COURT OF THE JUDICIAL
FIRST CLASS MAGISTRATE-IV, KOCHI

¶9

APPELLANT/S:

¶10

M/S.EICHER MOTORS LTD, 102, INDUSTRIAL AREA NO.1
PITHAMPUR, BRANCH OFFICE AT 40/1170A FIRST FLOOR, MANGALATH,
BUILDING, T.D ROAD, COCHIN 682 011 REPRESENTED BY POWER OF
ATTORNEY HOLDER SATISH.D, S/O.A.P DIVAKARAN, AGED 41 YEARS
BY ADVS.
SRI.M.RAMESH CHANDER
SRI.ANEESH JOSEPH
SMT.P.M.SHIJI

¶11

RESPONDENT/S:

¶12

1. C.Y.SALIM , S/O.USEPH, CHENTHARA HOUSE, ALLAPRA P.O, VENGOLA
VILLAGE, PERUMBAVOOR, ERNAKULAM, 683 553

¶13

2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM

¶14

BY ADVS.
SRI.C.A.NAVAS
SRI.P.A.SHAJI SAMAD
SMT.C.S.SIMI
SMT.M.K PUSHPALATHA, SENIOR PUBLIC PROSECUTOR- R2

¶15

THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
10.11.2023 ALONG WITH CRL.A NOS.1939, 2038 AND 2175 OF 2011, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

¶17

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶18

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶19

PRESENT

¶20

THE HONOURABLE MR.JUSTICE C.S.DIAS

¶21

FRIDAY, THE 10TH DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945

¶22

CRL.A NO. 1939 OF 2011

¶23

AGAINST THE ORDER/JUDGMENT CRA 977/2008 OF THE COURT OF THE ADDITIONAL

¶24

SESSIONS JUDGE, (ADHOC-I), ERNAKULAM

¶25

AGAINST THE ORDER/JUDGMENT IN ST NO.975/2006 OF THE COURT OF THE

¶26

JUDICIAL FIRST CLASS MAGISTRATE-IV, KOCHI

¶27

APPELLANT/S:

¶28

M/S.EICHER MOTORS LTD, 102, INDUSTRIAL AREA NO.1

¶29

PITHAMPUR, BRANCH OFFICE AT 40/1170A FIRST FLOOR,
MANGALATH, BUILDING, T.D ROAD, COCHIN 682 011 REPRESENTED
BY POWER OF ATTORNEY HOLDER SATISH.D, S/O.A.P DIVAKARAN,
AGED 41 YEARS

¶30

BY ADV SRI.M.RAMESH CHANDER

¶31

RESPONDENT/S:

¶32

1. C.Y.SALIM , S/O.USEPH, CHENTHARA HOUSE, ALLAPRA P.O,
VENGOLA VILLAGE, PERUMBAVOOR, ERNAKULAM, 683 553

¶33

2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM

¶34

BY ADVS.
SRI.C.A.NAVAS
SRI.T.K.SASIKUMAR
SRI.P.A.SHAJI SAMAD
SMT.C.S.SIMI

¶35

SMT.SEETHA.S PUBLIC PROSECUTOR

¶36

THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON

¶37

10.11.2023 ALONG WITH CRL.A NOS.1938, 2038 AND 2175 OF 2011,,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶38

¶39

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶40

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶41

PRESENT

¶42

THE HONOURABLE MR.JUSTICE C.S.DIAS

¶43

FRIDAY, THE 10TH DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945

¶44

CRL.A NO. 2038 OF 2011

¶45

AGAINST THE ORDER/JUDGMENT CRA 979/2008 OF THE COURT OF THE ADDITIONAL

¶46

SESSIONS JUDGE, (ADHOC-I), ERNAKULAM

¶47

AGAINST THE ORDER/JUDGMENT IN ST NO.977/2006 OF THE COURT OF THE
JUDICIAL FIRST CLASS MAGISTRATE-IV, KOCHI

¶48

APPELLANT/S:

¶49

M/S.EICHER MOTORS LTD., 102
INDUSTRIAL AREA NO.1, PITHAMPUR, BRANCH OFFICE, AT 40/1170
A, 1ST FLOOR, MANGALATH BUILDING,, T.D. ROAD, COCHIN-
682011, REPRESENTED BY POWER OF ATTORNEY HOLDER SATISH.D.,
S/O. A.P. DIVAKARAN, AGED 41 YEARS
BY ADVS.
SRI.M.RAMESH CHANDER
SRI.ANEESH JOSEPH

¶50

RESPONDENT/S:

¶51

1C.Y.SALIM , S/O.USEPH, CHENTARA HOUSE
ALLAPRA.P.O., VENGOLA VILLAGE, PERUMBAVOOR,, ERNAKULAM
DISTRICT.
2STATE OF KERALA REPRESENTED BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.
BY ADVS.
SRI.T.K.SASIKUMAR
SRI.C.A.NAVAS
SRI.P.A.SHAJI SAMAD
SMT.C.S.SIMI
SMT.M.K PUSHPALATHA, SENIOR PUBLIC PROSECUTOR- R2

¶52

THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2023
ALONG WITH CRL.A NOS.1938, 1939 AND 2175 OF 2011,, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:

¶53

¶54

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶55

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶56

PRESENT

¶57

THE HONOURABLE MR.JUSTICE C.S.DIAS

¶58

FRIDAY, THE 10TH DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945

¶59

CRL.A NO. 2175 OF 2011

¶60

AGAINST THE ORDER/JUDGMENT CRA 978/2008 OF THE COURT OF THE ADDITIONAL

¶61

SESSIONS JUDGE, (ADHOC-I), ERNAKULAM

¶62

AGAINST THE ORDER/JUDGMENT IN ST NO.976/2006 OF THE COURT OF THE

¶63

JUDICIAL FIRST CLASS MAGISTRATE-IV, KOCHI

¶64

APPELLANT/S:

¶65

M/S.EICHER MOTORS LTD., 102,AGED 41 YEARS
INDUSTRIAL AREA NO.1, PITHAMPUR, BRANCH OFFICE AT, 40/1170
A, 1ST FLOOR, MANGALATH BUILDING,, T.D.ROAD, COCHIN-682
011, REPRESENTED BY POWER, OF ATTORNEY HOLDER SASTISH.D.,
S/O.A.P.DIVAKARAN,AGED 41 YEARS
BY ADVS.
SRI.M.RAMESH CHANDER
SRI.ANEESH JOSEPH
SMT.K.A.SANJEETHA

¶66

RESPONDENT/S:

¶67

1C.Y.SALIM, S/O.USEPH, CHENTARA HOUSE
ALLAPRA P.O., VENGOLA VILLAGE,, PERUMBAVOOR, ERNAKULAM
DISTRICT.PIN 683553
2STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
BY ADVS.
SRI.P.A.SHAJI SAMAD
SRI.C.A.NAVAS
SRI.T.K.SASIKUMAR
SMT.C.S.SIMI
SMT.SEETHA.S PUBLIC PROSECUTOR-R2

¶68

THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2023

¶69

ALONG WITH CRL.A NOS.1938, 1939 AND 2038 OF 2011, THE COURT ON THE SAME

¶70

DAY DELIVERED THE FOLLOWING:

¶71

¶72

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶73

C. S. DIAS, J.

¶74

------------------------Crl.A. Nos.1938, 1939, 2038

¶75

and 2175 of 2011

¶76

Dated this the 10^th day of November, 2023

¶77

COMMON JUDGMENT

¶78

These appeals are directed against the common

¶79

judgment in Crl.A Nos.977, 978, 979 and 980 of 2008

¶80

of the Court of the Additional Sessions Judge (AdhocI), Ernakulam, (Appellate Court), holding the first respondent not guilty for the offence under Sec.138 of

¶81

the Negotiable Instruments Act ( for short, N.I Act) and consequently setting aside the common judgment in ST Nos.975, 976, 977 and 978 of 2006 of the Court of

¶82

the Judicial Magistrate of First Class-IV, Kochi (Trial

¶83

¶84

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶85

Court) and acquitting the first respondent. The

¶86

appellant was the complainant and the first respondent was the accused in the four complaints. For convenience, the parties are referred to as per their litigate status before the Trial Court.

¶87

Factual matrix

¶88

The common case of the complainant in the

¶89

four complaints was that the accused had approached the complainant and had availed financial assistance to the tune of Rs.7,50,000/- to purchase an Eicher Jumbo Truck. In discharge of the said liability, the accused had issued Exts P2(a) to P2(d) cheques, all for an amount of Rs.19,500/-. The cheques, on presentation

¶90

to the bank for encashment, got dishonoured by Exts

¶91

¶92

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶93

P3(a) to P3(d) memorandums on the ground of insufficient funds in the bank account of the accused. Although, the complainant issued Exts P4 series statutory demand lawyer notices, the accused failed to pay the demanded amount. Hence the accused committed the above offence.

¶94

The complainant had filed the four complaints as CC Nos.524, 525,526 and 527 of 2006 before the Chief Judicial Magistrate, Ernakulam. The complaints

¶95

were made over to the Court of the Judicial First Class Magistrate-IV, Kochi and renumbered as ST Nos.975, 976, 977 and 978 of 2006. The accused denied the substance of accusation read over to him. The learned Magistrate consolidated and jointly tried the four complaints.

¶96

¶97

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶98

The complainant examined its agent as PW1

¶99

and marked Exts P1 to P4 series in evidence. The accused denied the incriminating circumstances appearing against him in the evidence in the questioning under Section 313 of the Code of Criminal Procedure, 1973 (‘Code’, in short). The accused got himself examined as DW1 and marked Exts D1 & D2 in evidence.

¶100

Trial Court judgment:

¶101

The learned Magistrate, after analysing the materials placed on record, found the accused guilty and convicted him for the offence under Section 138 of the N.I. Act and directed him to remit a fine of Rs.19,500/- in all the four cases and in default to undergo simple imprisonment for a period of 10 days.

¶102

¶103

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶104

If the fine amounts were realised, the same to be paid to

¶105

the complainant by way of compensation under Section

¶106

357(1) (b) of the Code.

¶107

Aggrieved by the said common judgment, the accused preferred Crl.A.Nos.977, 978, 979 & 980/2008 before the Appellate Court.

¶108

The Appellate Court, after re-appreciating the materials placed on record, and also after accepting Ext D3 copy of the complaint in S.C.No.779/2008 concluded that, as the complainant had re-possessed the vehicle in question, the cheques were not issued towards legally enforceable debts. The Appellate Court

¶109

relied on the decision of this Court in Sudha Beevi v.

¶110

State of Kerala (2004(2) KLT 748) to arrive at the

¶111

above conclusion. Consequently, the Appellate Court

¶112

¶113

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶114

set aside the impugned common judgment of the Trial

¶115

Court and acquitted the accused.

¶116

Aggrieved by the said common judgment; the appeals are filed.

¶117

Heard; Sri. M.Ramesh Chander, the learned Senior Counsel appearing for the appellant; Sri. C.A

¶118

Navas, the learned counsel appearing for the first respondent and Smt. Seetha. S, the learned Senior Public Prosecutor appearing for the second respondent

¶119

– State.

¶120

Is there any error in the impugned common judgment passed by the Appellate Court?

¶121

It is very well-nigh settled in a host of precedents that this Court should be slow and

¶122

circumspect in interfering with an order of acquittal. It

¶123

¶124

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶125

is only when the conclusions arrived at by the Trial Court are manifestly erroneous and wrong, this Court should take a contrary view.

¶126

Recently, in Rupesh Manger (Thapa ) v. State of Sikkim [MANU/SC/1014/2023], the Honourable Supreme Court has held that the Appellate Court shall reverse an order of acquittal only if it is so perverse and the conclusions are not plausible. Just because another view is possible, on the re-appreciation of evidence, the Appellate Court shall not disturb the findings of acquittal and substitute the findings to convict the accused.

¶127

Keeping the above principles in mind, this Court proceeds to decide the appeals.

¶128

¶129

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶130

The complainant's common case in the four complaints was that, the accused in discharge of legally enforceable debts had drawn Exts P2(a) to P2(d) cheques, each of them for an amount of Rs.19,500/- in favour of the complainant. The cheques, on presentation to the bank for encashment, got dishonoured by Ext P3 series memorandums, due to insufficient funds in the account of the accused. Even though the complainant issued Ext P4 series statutory demand lawyer notices to the accused, he failed to send any reply notice or pay the demanded amount. Hence, the accused committed the above offence.

¶131

Admittedly, the accused did not send a reply

¶132

notice to Ext P4 series statutory demand notices.

¶133

¶134

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶135

The agent of the complainant got himself

¶136

examined as PW1 and marked Exts P1 to P4 series in evidence. The accused denied the incriminating circumstances appearing against him under Section 313 of the Code. Thereafter, the accused mounted the box and got himself examined as DW1 and marked Exts D1

¶137

& D2 in evidence.

¶138

The defence of the accused was that he had purchased a truck bearing registration No.KL-17/B6161 by availing a loan from Sundaram Finance. The loan was arranged by the complainant. He also purchased another truck bearing registration No.KL17/B-1414 by availing a loan of Rs.7,50,000/- from the complainant and Rs.7,50,000/- from the Sundaram

¶139

Finance. Ext D1 letter produced by the accused is an

¶140

¶141

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶142

understanding between him and Sundaram Finance.

¶143

Ext D2 is a letter issued by the Sundaram Finance to the accused, certifying that the accused had surrendered

¶144

the truck.

¶145

The learned Magistrate, after taking into account the fact that there was no material on record to

¶146

substantiate that the accused had surrendered the truck to the complainant and that the debt covered by the four cheques were discharged, convicted and sentenced the accused for the offence under Section 138 of the N.I. Act.

¶147

In appeals, the accused produced a document, with a leave of the Appellate Court under Section 391 of the Code, which was marked as Ext D3. Ext D3 is a

¶148

copy of the complaint filed in S.T.No.779/2008 on the

¶149

¶150

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶151

file of the Chief Judicial Magistrate Court, Ernakulam, by the complainant against the accused, alleging that the accused had committed the offence under Section 138 of the N.I. Act due to the dishonour of a cheque for Rs.3,67,522/-.

¶152

The Appellate Court solely based on Ext D3 complaint, that too without any corroboration, concluded that, since the complainant has admitted in Ext D3 complaint that they had re-possessed and sold the vehicle bearing registration No. KL-17/B-1414 for Rs.3,50,000/- and admittedly the balance amount was only Rs.3,67,522/-, the accused is not liable to pay the amount covered by Ext P2 series cheques.

¶153

The course and procedure adopted by the learned Sessions Judge is totally alien, erroneous and

¶154

¶155

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶156

wrong. I say this for more reasons than one.

¶157

There is profusion of judicial authority on the

¶158

point that a mere marking of a document will not make it admissible in evidence. In PRS Hospital and another vs. P.Anil Kumar [2021 KHC 1] , a Division Bench of this Court has succinctly laid down the procedure to admit a document in evidence.

¶159

It was without following the procedure contemplated under Sec.61 of the Evidence Act and under Sec.391 of the Code, that the learned Sessions Judge has accepted Ext D3 in evidence and gone on to impeach the complaints, on the ground that the assertions in Ext D3 complaint would establish that the accused had discharged the liability covered by Ext P2

¶160

series cheques.

¶161

¶162

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶163

The learned Sessions Judge has failed to take note of the fact that the accused had failed to issue reply notices to Ext D2 series statutory demand notices. Even in his defence, while he was examined as DW1, he had only produced Exts D1 & D2 letters that was issued by Sundaram Finance, which company has no connection with the complainant as per the materials placed on record.

¶164

DW1, in his oral testimony, has admitted that he had purchased two trucks bearing registration Nos. KL-17/B-6161 & KL-17/B-1414 by availing loans from Sundaram Finance and the complainant. One truck was purchased by availing loans of Rs.7,50,000/each from the complainant and the other truck by availing a loan exclusively from Sundaram Finance.

¶165

¶166

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶167

Exts D1& D2 show that the accused had surrendered

¶168

one Truck back to Sundaram Finance.

¶169

Undisputably, the accused did not produce any statement of account or material to prove that he had closed the loan account with the complainant.

¶170

The learned Magistrate considering the fact that there was no material to prove that the accused had discharged his liability covered by Ext P2 series cheques concluded that the accused had committed the

¶171

above offence.

¶172

The learned Sessions Judge, acting solely on Ext D3 complaint, that too without any corroboration, at the appellate stage concluded that the accused had discharged the amounts covered by Ext P2 series

¶173

cheques in view of filing of the subsequent complaint.

¶174

¶175

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶176

A negotiable instrument, which includes a

¶177

cheque, carries the presumption of consideration under Secs.118(a) and 139 of the N.I Act. It is profitable to

¶178

extract the said relevant provisions:

¶179

“118. Presumptions as to negotiable instruments – Until the contrary is proved, the following presumptions shall be made;-

¶180

(a) of consideration -that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

¶181

Presumption in favour of holder . —It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability.

¶182

A three-Judge Bench of the Hon’ble Supreme Court in Rangappa vs. Sri.Mohan [2010 KHC 4325], while dealing with Sec.139 of the N.I Act has conceptualised the doctrine of ‘reverse onus’, by

¶183

holding thus:

¶184

¶185

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶186

“ 18. In light of these extracts, we are in agreement with the respondent - claimant that the presumption mandated by S.139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While S.138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under S.139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by S.138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused / defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications,

¶187

¶188

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶189

reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of

¶190

'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. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his / her own.

¶191

(emphasis given)

¶192

Recently, a three-Judge Bench of the Hon’ble Supreme Court in Kalamani Tex and Anr vs. P. Balasubramanian [2021 (2) KHC 517] has reiterated

¶193

the above legal position and doctrine of the reverse onus. It is apposite to extract the relevant paragraphs,

¶194

which declare the law on the point in the following

¶195

terms:

¶196

¶197

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶198

“14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature (s) of an accused on the cheque/negotiable instrument are established, then these ‘reverse onus’ clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019 (2) KHC 243).”

¶199

(emphasis supplied)

¶200

In Rangappa & Kalamani Tex (supra), the

¶201

Hon'ble Supreme Court had held that once the complainant proves the concomitants constituting the offence under Section 138 of the N.I. Act, then the reverse onus of proof shifts to the accused under Section 139 of the N.I. Act. The non-issuance of a

¶202

reply notice leads to an inference in favour of the

¶203

complainant.

¶204

¶205

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶206

In the instant cases, not only did the

¶207

complainant fail to send reply notices to Exts P4 series demand notices, he also did not set up a defence regarding the discharge of the liability covered in view of filing of Ext D3 complaint. It is for the first time at the appellate stage, that the accused produced Ext D3 copy of complaint and staked the claim. Unfortunately, the Appellate Court accepted the plea and concluded that the accused had discharged the liability as per the impugned cheques.

¶208

On a comprehensive re-appreciation of the materials placed on record and law on the point, I am of the definite view that the accused has miserably failed to discharge the reverse onus of proof and ergo, the conclusion arrived at by the learned Magistrate is

¶209

¶210

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶211

correct and the Appellate Court is wrong.

¶212

Consequentially, I allow the appeals and set aside the impugned common judgment of the Appellate Court and confirm the conviction and sentence passed by the Trial Court, holding the first respondent/accused guilty for the offence under Sec.138 of the N.I Act in the four

¶213

complaints and accordingly convict and sentence him.

¶214

In the result,

¶215

(i) The impugned common judgment in Crl.A Nos.977,978,979 and 980 of 2008 of the Appellate Court is set aside.

¶216

(ii) The common judgment of the Trial Court in ST Nos.975,976,977 and 978 of 2006 is upheld and

¶217

¶218

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶219

confirmed, consequentially the conviction and sentence imposed by the Trial Court is restored and revived.

¶220

(iii) The first respondent/accused is directed to

¶221

appear before the Trial Court on 11.12.2023 to undergo the sentence and pay the fine and in default to undergo the default sentence as imposed by the Trial Court.

¶222

(iv) If the fine amount is realised, the same shall be

¶223

paid to the appellant/complainant as compensation under Sec.357(1) (b) of the Code.

¶224

(v) In case of failure of the first

¶225

respondent/accused to appear before the Trial Court as ordered above, the learned Magistrate shall execute the sentence as imposed by this common judgment.

¶226

¶227

Crl.A. Nos.1938, 1939, 2038 and 2175 of 2011

¶228

(vi) The execution of sentence as against the first

¶229

respondent shall stand deferred till 10.12.2023.

¶230

(vii) The Registry is directed to forward a copy of

¶231

this judgment to the Trial Court for compliance.

¶232