Allowed

J.Shamlal v. G.Manoharan Prop.

Madras HC19 Dec 2016CRL A/38/2014

Case brief

AI extract

What is this about?

This is an appeal against a judgment of acquittal under Section 138 of the Negotiable Instruments Act. The trial court acquitted the accused because the complainant failed to prove a legally enforceable debt as the financiers were not examined. The High Court allowed the appeal and remanded the matter to examine the complainant and financiers.

What did the court decide?

The judgment of the trial court acquitting the accused is set aside. The matter is remanded to the trial court for fresh disposal after examining the complainant and the financiers.

J.Shamlal Vs G.Manoharan Prop. — Cheque Dishonour | Madras HC (2016)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

Reserved on : 02.12.2016

¶4

Pronounced on : 19.12.2016

¶5

Coram

¶6

THE HONOURABLE Mr. JUSTICE M.VENUGOPAL

¶7

Crl.A.No.38 of 2014

J.Shamlal

... Appellant

G.Manoharan, Proprietor, M/s.S.D.M. & Co., No.6, Aziz Mulk 1^st Street, Thousand Light, Chennai – 600 006. ... Respondent

¶12

Prayer: Appeal filed under Section 378(4) of the Criminal Procedure Code, praying to set aside the Judgment passed against the Appellant on 06.09.2013 in C.C.No.3332 of 2010 on the file of the Learned IV Fast Track Court, George Town, Chennai and convict the respondent for the offence under Section 138 r/w.142 of the Negotiable Instruments Act.

¶13

For Petitioner : M/s.L.Prabakaran For Respondent : M/s.C.K.M.Appaji

¶14

JUDGMENT

¶15

The Appellant/Complainant has preferred the present Criminal

¶16

Appeal before this Court as against the Judgment of Acquittal dated 06.09.2013 in C.C.No.3332 of 2010 passed by the Learned Judicial

¶17

¶18

Magistrate, (Fast Track Court No.IV), George Town, Chennai.

¶19

2.The trial Court, while passing the impugned Judgment in C.C.No.3332 of 2010 dated 06.09.2013, at paragraph 14, had, among other things, observed that '... the afore-stated financiers were not examined in the case to prove the debt amount to be paid by the Respondent to the financiers', further the said financiers details were not informed on behalf of the Complainant and that for collecting the debt, the financiers had not given any authorisation and opined that under the present circumstances, there arises suspicion on the case of the Complainant and by granting the benefit of doubt in favour of the Respondent/Accused found him not guilty, since the offence under Section 138 of the Negotiable Instruments Act was not proved beyond reasonable doubt and consequently, acquitted him under Section 255(1) Cr.P.C.

¶20

3.Challenging the Legality of the Judgment of Acquittal dated 06.09.2013 passed by the trial Court in acquitting the Respondent/ Accused, the Appellant/Complainant (through his Power Agent) has filed the instant Appeal, basically contending that the trial Court had acquitted the Respondent/Accused based only on 'presumptions, surmises and conjectures' and furthermore, the evidence of P.W.1 was

¶21

¶22

not taken into account while passing the impugned Judgment.

¶23

4.It is represented on behalf of the Appellant that the Respondent/Accused had borrowed the Loan, which was arranged by the Appellant from numerous financiers and that the same was paid by means of cheque, which was encashed by the Respondent, which was not disputed at any point of time.

¶24

5.The Learned Counsel for the Appellant urges before this Court that the trial Court had failed to consider Ex.P2 (Confirmation Letter dated 27.04.2009 in favour of the Appellant/Complainant) and the said execution of the document was not disputed by the Respondent and this pivotal aspect was not borne in mind at the time of passing of the impugned Judgment.

¶25

6.The Learned Counsel for the Appellant takes a legal plea that the Appellant/Complainant is the Holder of Ex.P2 – Confirmation Letter dated 27.04.2009 and in fact, as per Section 8 of the Negotiable Instruments Act, 1881, the Appellant is a 'Holder of Case Cheque' – Ex.P3 and consequently, entitled to receive the recovered amount due from the third parties concerned.

¶26

¶27

7.The Learned Counsel for the Appellant submits that the trial Court had failed to consider the ingredients of Section 50 of the Negotiable Instruments Act which speaks of 'Effect of Endorsement'. Also, it is represented on behalf of the Appellant that the Appellant is an Agent on behalf of the Financiers, who had advanced loan to the Respondent/Accused [based on the Confirmation Letter – Ex.P2], in and by which, an express implied - authority is given to the Appellant. In short, the Respondent/Accused had executed Ex.P2 – Confirmation Letter in terms of Section 187 of the Indian Contract Act, 1872.

¶28

8.The Learned Counsel for the Appellant brings it to the notice of this Court that the Appellant/Complainant has 'Holder of Case Cheque' – Ex.P3 is entitled to collect the amount due in the instrument, but the trial Court had failed to consider this aspect, which has resulted in miscarriage of Justice.

¶29

9.The Learned Counsel for the Appellant proceeds to submit that the Respondent/Accused (D.W.1) had admitted in his evidence about the availing of loan and the same was credited in the account of the Respondent which reflected in the statement of account of the

¶30

¶31

Respondent Bank (Ex.D1). However, these salient aspects were not looked into by the trial Court in a correct perspective. In this regard, the Learned Counsel for the Appellant draws the attention of this Court to the effect that the Respondent/Accused had alleged that the amount was repaid to the Appellant and except his Ipsi Dixit Statement, there is no other convincing evidence on his behalf to rebut the case of the prosecution.

¶32

10.Repelling the contentions of the Learned Counsel for the Appellant, the Learned Counsel for the Respondent/Accused submits that before the trial Court the Appellant/Complainant had not examined the financiers for whom the Respondent/Accused purportedly to pay the due loan amount and further that, the details of who were the financiers were not brought to the fore and also that, the Appellant/Complainant was not given any authority by the financiers to recover the loan amount and that the trial Court, at paragraph 13 of its Judgment, had clearly opined that the Appellant/Complainant had not given loan to the Respondent/Accused, there was no outstanding loan to be paid by the Respondent/Accused to the Appellant and as such, for the case pronote, there was no consideration and also that, when there was no outstanding loan, under these circumstances, the

¶33

¶34

Appellant/Complainant cannot file a complaint under Section 138 of the Negotiable Instruments Act. Further, the trial Court had proceeded to state that the Respondent/Accused in proper manner had rebutted the presumption under Section 139 of the Negotiable Instruments Act and through evidence, when it came to light that the Respondent/ Accused had no loan amount to be paid to the Appellant/Complainant, in the present case, the presumption under Section 139 of the Negotiable Instruments Act was properly repudiated and ultimately, the Respondent/Accused was acquitted, giving him the benefit of doubt in his favour, which may not be dislodged by this Court, at this distance point of time.

¶35

11.The Learned Counsel for the Respondent takes a plea that in the instant case, the principal is not disclosed. In this regard, he refers to Section 195 of the Indian Contract Act, 1872 which speaks of 'Agent's Duty in naming such person'. Also, on behalf of the Respondent, a reference is made to the Section 226 of the Indian Contract Act which enjoins 'Enforcement and consequences of Agent's contracts'. Moreover, it is the contention of the Respondent that an Agent cannot enforce the contract of the 'Principal' personally, as per Section 230 of the Indian Contract Act. The Learned Counsel for the Respondent submits that the Appellant/ Complainant must show who is

¶36

¶37

the 'Principal'.

¶38

12.At this stage, the Learned Counsel for the Respondent/ Accused relies on the Order of this Court dated 08.12.2010 in Crl.O.P.No.19551 of 2010 (between K.Kumaravel V. R.P.Rathinam), whereby and whereunder, at paragraph 17, it is observed as under:

¶39

“17.There is always a presumption of liability under Section 139, however, it is also a rebuttable presumption. In Giridhari Lal Rathi V. P.T.V Ramanujacharim and Anr. 1997 2 Crimes 658, it is held that by issuance of the cheque, the limitation for realising the loan amount cannot be taken as extended, because at the time of issuance of the cheque, a cheque should be for a legally recoverable debt. In A.V.Murthy v. B.S.Nagabasavanna MANU/SC/0089/ 2002 : 2002 (2) SCC 642), cited supra, the Supreme Court held “for example if the cheque was drawn in respect of a debt or liability payable under a wagering contract, it could have been said that the debt or liability is not legally enforceable as it is a claim which is prohibited under law. Likewise, a time barred debt is also not legally enforceable debt.”

¶40

12.To appreciate the entire conspectus of the subject matter in issue in a meaningful and pragmatic manner, this Court makes a useful reference to the evidence of P.W.1 and D.W.1.

¶41

13.It is the evidence of P.W.1 (Power Agent of the Complainant)

¶42

¶43

that from the year 2009, he knew the Respondent/Accused and he had filed the instant case on behalf of Shamlal (Complainant) and that the said Shamlal gave a sum of Rs.5,00,000/- to the Accused and that from the Respondent/Accused, the said Shamlal had received the cheque in his favour and that the two cheques were written by the Respondent/Accused and given to Shamlal and to a suggestion whether one cheque was made for Rs.1,50,000/- and another cheque for Rs.50,000/-, he had stated that he had to look into the documents and to answer the same and that he does not remember correctly.

¶44

14.P.W.1 proceeds to state in his evidence that Ex.P2 (Confirmation Letter) was written in favour of Shamlal by the Respondent/Accused and his wife viz., Radhakrishnan. Moreover, P.W.1 had stated that in Ex.P2 a sum of Rs.5,00,000/- was shown and out of that, a sum of Rs.2,50,000/- was paid by the Respondent/ Accused and Shamlal had received a sum of Rs.10,000/- as commission for the advancement of loan of Rs.5,00,000/-.

¶45

15.Apart from that, P.W.1 had deposed that either in the Complaint or in the Lawyer's Notice or in his chief examination (sworn statement), it was not mentioned that the Complainant (Shamlal) had

¶46

¶47

received the 'Broker Amount'.

¶48

16.D.W.1 (Respondent/Accused) in his evidence had stated that

¶49

in the year 2008, he had asked for money with the Complainant – Shamlal and that he had given the money after obtaining the same from five persons for which he had taken the interest amount of Rs.85,000/- and also took a commission amount of Rs.10,000/-. Added further, it is also the evidence of D.W.1 that every month at the rate of Rs.10,000/-, the Appellant/Complainant had received a sum of Rs.50,000/- in cash and that on 27.2.2010 he had paid the full amount which he had to pay and that Ex.D1 is the Bank Account for the amount paid by him and after settling the amount, the Appellant/ Complainant had informed him that interest amount was a lesser one and he demanded for the interest amount, but he had not paid the same and for the said reason, the Appellant/Complainant sent him a Lawyer's Notice – Ex.P5 and that the Appellant/Complainant had filed the present case by utilising the cheques given to him already towards security and further that the complaint is not maintainable. D.W.1 (in his cross examination) had stated that in Ex.D2 (Notice), it was mentioned that the amount was paid for which no document was filed.

¶50

17.At this stage, this Court pertinently points out that the

¶51

¶52

Appellant/Complainant (through his Power Agent) in the complaint in C.C.No.3332/2010 on the file of the trial Court (filed under Section 200 Cr.P.C. seeking punishment of the Respondent/Accused) had stated, at paragraph 3, that the Accused (Respondent) had availed a loan for a sum of Rs.5,00,000/- dated 27.04.2009, which were arranged from various financiers by the Complainant and also issued a Confirmation Letter in his favour, in view of the confirmation and to discharge the dues as a part liability, the Accused (Respondent) had issued a cheque bearing No.056354 dated 27.10.2009 for an amount of Rs.50,000/- (Rupees Fifty Thousand Only) drawn on 'Punjab & Sind Bank', Gandhi Nagar, Adyar, Chennai – 600 020. In favour of the Complainant and also the Accused had made an oral promise to the Complainant that necessary arrangements are made to honour the aforesaid cheque at the time of presentment.

¶53

18.It comes to be known that the afore-stated cheque for an amount of Rs.50,000/- was presented for collection of encashment, but the same was returned as 'unpaid due to Insufficient Funds' in his Bank Account, to that effect a memorandum was issued to the Complainant by his banker with an endorsement 'Exceeds Arrangement' on 29.04.2010.

¶54

¶55

19.It is represented on behalf of the Appellant/Complainant that since the Respondent/Accused had failed and neglected to pay the cheque amount in question even after receipt of Ex.P5-Lawyer's Notice dated 07.05.2010 issued on behalf of the Appellant, the present complaint was filed before the trial Court (in respect of an offence under Section 138 of the Negotiable Instruments Act).

¶56

20.It transpires that the Appellant (Complainant – J.Shamlal) had executed Special Power of Attorney to and in favour of J.Arjunlal (his brother) for the purpose of engaging or appointing any Advocates, Vakils, Pleaders, Attorney, Auditors etc., to sign and verify Plaints, Written Statements, Affidavits, Documents, Execution Petition, Claim Petition and all other Documents and Papers to institute or defend or continue any proceedings in any Court of Law in which he may be interested or concerned and to appear in any Court or Courts or before any Judge, Magistrate, Police and other Officers for administrating, Law, Justice and equity of whatsoever nature. Also, the said Ex.P1 (Special Power of Attorney) refers to the authorisation given to Arjunlal (P.W.1) to sign and file Complaints, Applications, Petitions, Civil and Criminal Cases and executions in all Courts and Police Stations etc.

¶57

¶58

Moreover, the said Power envisages to file complaints before the Magistrate Court and to file on behalf of him before the Magistrate and the Appellate Courts. Added further, the said Power empowers the Power of Attorney to execute any compromise and to engage any Lawyers to conduct the case whenever his said Attorney may think proper.

¶59

21.A perusal of Ex.P2 – Confirmation Letter executed by the Respondent/Accused and his wife Shanthi to and in favour of Shamlal (Complainant) unerringly points out that the Respondent/Accused had, in a crystalline fashion, stated that he had borrowed a sum of Rs.5,00,000/- and executed pronotes in favour of his financiers and also the said letter speaks of confirmation for the payment of Rs.10,000/- towards commission and assisting for arranging the above loan and also agreed to issue repayment cheques in his favour, as an Agent on behalf of the financiers and the same may be presented for collection on the due date and to distribute to various financiers from whom he had borrowed as mentioned of the overleaf. The details of the financiers from whom the Respondent/Accused had borrowed (through the Appellant/Complainant) though it was mentioned in Ex.P2 that it was mentioned overleaf, the said details were not found.

¶60

¶61

22.As seen from Ex.P5-Lawyer's Notice (issued under instructions from the Appellant/Complainant) addressed to M/s.SDM & Company, Chennai – 6, it was mentioned that the Respondent/Accused had availed a sum of Rs.5,00,000/- dated 27.04.2009 (which were arranged from various financiers) by the Appellant and that promissory notes were executed in favour of various financiers and a confirmation letter was issued [in favour of the Appellant] and to discharge the dues as a part liability, a cheque bearing No.056354 dated 27.10.2009 for an amount of Rs.50,000/- drawn on 'Punjab & Sind Bank', Gandhi Nagar, Adyar, Chennai – 600 020 was issued by the Respondent etc. Furthermore, in Ex.P5, it was stated that the cheque in question was presented on 27.04.2010 for collection and encashment and the same got returned as 'unpaid due to Exceeds Arrangement' on 29.04.2010. As such, the Respondent/Accused was called upon to discharge the afore-stated cheque amount of Rs.50,000/- within 15 days from the date of receipt of the notice, failing which, it was informed that necessary criminal proceedings will be initiated etc.

¶62

23.The Respondent/Accused had given a Reply Lawyer's Notice Ex.D2 dated 02.06.2010 addressed to the Appellant/Complainant's

¶63

¶64

Lawyer stating that on 27.04.2009 the Appellant/Complainant (J.Shamlal) had arranged Rs.5,00,000/- from various financiers while obtaining signatures in blank promissory notes, blank cheques and blank papers from his client and his wife Mrs.M.Shanthi and one Mr.N.M.Radhakrishnan as security.

¶65

24.Continuing further, it was stated that the Respondent/ Accused had settled the entire loan liabilities in time, the financiers refused to hand over the blank documents even after repeated requests and ultimately, the Appellant/Complainant came to the rescue of the financiers and insisted upon the Respondent/Accused to pay Rs.1,00,000/- as pre-condition for returning of the documents or else the blank cheques would be used etc. Moreover, in Ex.D2 – Reply notice, it was pin pointedly made mention of that the present notice (Ex.P5) was issued by misusing the blank cheques handed over to the financiers on trust.

¶66

25.Besides the above, in Ex.D2- Reply Notice, the Respondent/ Accused had taken a categorical stand that there was no privity of contract between him and Mr.J.Shamlal (Appellant/Complainant) in respect of the loan transaction and that he was not owing any legally

¶67

¶68

enforceable debt or liability towards the Appellant, warranting the compliance of the legal notice. In short, the stand of the Respondent/ Accused, in Ex.D2 – Reply Notice, is that 'in the absence of any enforceable debt or liability, the Appellant (Complainant) is not entitled to make any demand on the Respondent'.

¶69

26.At this stage, this Court significantly points out that a Power of Attorney Holder and a Special Power of Attorney Holder can very well file a complaint on behalf of the Complainant. This is because the said complaints are maintainable by virtue of the definition of Power of Attorney and proviso of Section 2 of the Power of Attorney Act. However, an examination of 'Attorney' as a 'Witness' in the capacity of Complainant is impermissible. A Holder of Power of Attorney can very well appear as a witness in his capacity. But, due to non examination of the Complainant under Section 200 Cr.P.C., the cognizance taken by a Judicial Magistrate on a particular complaint cannot, by no stretch of imagination, be characterised as an illegal or without jurisdiction.

¶70

27.That apart, if a 'Power of Attorney Holder' has appeared as a Witness, his evidence can be taken into consideration for the purpose of registering the complaint in question/issue of process under Section

¶71

¶72

204 Cr.P.C. However, for further proceedings, the Complainant ought to be examined and in case of Managing Partner or Dormant Partner/ Working Partner, of a Partnership Firm, or if it is a Company or any other juristic individual, then, the individual authorised in this regard is quite competent to adduce evidence, in the considered opinion of this Court. It is to be remembered that neither the Criminal Procedure Code nor the Negotiable Instruments Act, 1881 specifies that any one can depose for and on behalf of the Complainant.

¶73

28.A perusal of Section 190 Cr.P.C. indicates that it permits any one to approach the Learned Magistrate to file a complaint. In fact, it does not prescribe has any qualification for an individual eligible to prefer a complaint. No wonder, any one can set the Criminal Law in Motion by filing a complaint of facts constituting an offence before the Magistrate concerned, who is empowered to take cognizance. One cannot brush aside an important fact that an explicit assertion as to the knowledge of 'Power of Attorney Holder' about the transaction in issue must be stated in the complaint, as opined by this Court. If a 'Power of Attorney Holder' who is not possessing any knowledge as to the transaction in question, then, he cannot be examined as a witness in a given case.

¶74

¶75

29.Apart from the above, a 'Power of Attorney Holder' can adduce evidence before the Court concerned and also to prove the averments of the complaint, he can verify on oath, but the rider is that a 'Power of Attorney Holder' should have witnessed the transaction as an Agent of the Payee/Holder in Due Course should possess the requisite knowledge about the transaction in question.

¶76

30.It is to be remembered that the Hon'ble Supreme Court in the decision Janki Vashdeo Bhojwani V. Indusind Bank Limited reported in AIR 2005 SUPREME COURT 439 , it is held that 'the 'Power of Attorney Holder' can appear as witness in his personal capacity and this is because of the ingredients of Order III Rule 1 and 2 of the Civil Procedure Code and 2 of the second Power of Attorney's Act (7 of 1882)'. In short, a 'Power of Attorney Holder' cannot depose in place and instead of the principal. In fact, the word 'acts' in Rule 2 of Order III C.P.C. does not include the act of 'General Power of Attorney' to appear as a Witness on behalf of his party as per decision

¶77

Ratheesh Kumar V. Jithendra Kumar, 2005 AIHC 2870 (DB) (Ker.)

¶78

¶79

31.That apart, it is to be noted that a person, who is competent to file a complaint under Section 138 of the Negotiable Instruments Act, 1881 must be a 'Payee' or 'Holder in Due Course'. Furthermore, an existence of a legally recoverable debt is not a matter of presumption under Section 139 of the Negotiable Instruments Act. As a matter of fact, Section 139 of the Negotiable Instruments Act applies only if cheque was established to be of nature mentioned in Section 138. Moreover, the strict liability under Section 138 of the Negotiable Instruments Act can be enforced only when cheque was issued in discharge of any legally enforceable debt or other liability partly or wholly. However, the onus to establish that cheque was not issued against a legally enforceable debt was on the Respondent/Accused.

¶80

32.There is no two opinion of an important fact that a cheque must be issued in respect of either post or existing debt or other liability. One of the essential ingredients of an offence under Section 138 of the Negotiable Instruments Act is that the cheque was drawn for discharge in whole or part of liability. If this aspect is not covered in the complaint petition, then, it will be a fatal one. Furthermore, an offence as defined in Section 2(n) of the Criminal Procedure Code

¶81

¶82

includes not only the doing of possible act, but by omitting to do something as well. Also, the onus is on the Complainant to prove that the cheque was signed by Drawee in discharge of 'Legally Enforceable Debt'. It is an axiomatic fact that in the absence of any cause of action, one cannot launch a prosecution. Under the Negotiable Instruments Act, the arising of cause of action is not mere presentation of cheque nor mere dishonour of cheque alone, real cause of action is non payment of cheque sum or non compliance of demand through notice by the 'Drawer' within the statutory period.

¶83

33.As far as the present case is concerned, the Appellant/ Complainant (Shamlal) was not examined as a Witness on his side instead the Appellant/Complainant's brother (Special Power of Attorney Holder) was examined as P.W.1. Before the trial Court, P.W.1 (in his cross examination) had stated that he had filed the present case for Shamlal (Complainant) and that to a suggestion, as to how much money was given to the Respondent/Accused by the said Shamlal (Complainant), he had stated that Rs.5,00,000/- was given and from the Respondent/Accused, the Complainant (Shamlal) had received the cheque and the Respondent/Accused had given two cheques for Shamlal and that Ex.P2 was executed by the Respondent/Accused.

¶84

¶85

Although P.W.1, by virtue of Ex.P1 – Special Power of Attorney, is entitled to file complaint in C.C.No.3332/2010 on the file of the Learned VII Metropolitan Magistrate, Chennai. On behalf of the Complainant, on his examination as P.W.1 (as a witness in the capacity of Complainant) is impermissible in Law. Only for a limited extent of preferring a complaint, for the purpose of taking cognizance, by means of Ex.P1 – Special Power of Attorney, the Ex.P1 is held to be legal and valid, in the considered opinion of this Court. Moreover, at the time of taking cognizance of the complaint by the trial Court, if the Power of Attorney Holder had appeared as a witness, his deposition can be considered for the purpose of registration of a complaint by issuance of process as per Section 204 Cr.P.C. But, in the present case on hand, the Complainant (brother of P.W.1) was not examined as a witness for further proceedings of the case. Furthermore, in the instant case, P.W.1 was examined on behalf of the Complainant, since he had not appeared as a witness only in his personal capacity, he cannot appear as a witness on behalf of the Complainant in the capacity of the Complainant.

¶86

34.At this juncture, a mere glance of the complaint in C.C.No.3332/2010 [filed by the Special Power of Attorney Holder]

¶87

¶88

indicates that nowhere in the complaint an explicit or an expression assertion was made as to the knowledge of a Special Power of Attorney (P.W.1) about the transaction. As seen from Ex.P2 – Confirmation Letter, it is quite clear that the Respondent/Accused and his wife while confirming the borrowal of Rs.5,00,000/- had stated that they had executed pronotes in favour of the Complainant's financiers. In the present case, the concerned financiers, who had lent money to the Complainant (who acted as Agent for the Respondent/Accused) were not examined to show how much each one of them had lent/paid to the Complainant, because of the reason the Respondent had reportedly borrowed a sum of Rs.5,00,000/-. When the Respondent/ Accused had taken a stand in Ex.D2 – Reply Notice that he had settled the entire loan liabilities in time and that the financiers refused to hand over the blank documents even after the repeated requests and ultimatel,y the Complainant came to the rescue of the financiers and insisted upon the Respondent/Accused to pay a sum of Rs.1,00,000/as pre-condition for returning of the documents or else, the blank cheques will be used against him etc., then, this Court opines that on the side of the Appellant/Complainant, the steps should have been taken to examine the concerned financiers as witnesses. Unfortunately, such a procedure was not resorted to. Suffice it for this

¶89

¶90

Court to point out that the various amounts borrowed from the financiers through the Complainant were outstanding to prove the same, the respective financiers were not examined.

¶91

35.In this connection, this Court points out that existence of a legally recoverable debt is not a matter of presumption under Section 139 of the Negotiable Instruments Act. Undoubtedly, Section 138 of the Negotiable Instruments Act is a penal provision. Section 139 applies only if 'Cheque' was established to be of nature stated in Section 138. Strictly speaking, the strict liability under Section 138 of the Negotiable Instruments Act, 1881 could be enforced only when cheque was issued in discharge of any legally enforceable debt or other liability, partly or wholly the burden to prove the cheque was not issued against the legally enforceable debt, of course is on the Respondent/Accused. Moreover, the term 'Payee' means the party to whom a bill of exchange, cheque or note is payable.

¶92

36.Ordinarily, it is to be borne in mind that an Appellate Court is not meant to fill up lacuna or plug loopholes in the prosecution evidence. A miscarriage of Justice might have occurred wherein an Accused would have been acquitted. However, it cannot be gainsaid

¶93

¶94

that the Appellate Court can exercise its discretionary power to prevent an Offender/Accused to escape. After all, the ends of Justice is of 'primordial consideration' to be taken note of by an Appellate Court.

¶95

37.Be that as it may, as far as the present case is concerned, this Court is of the considered view that in the instant case, based on the materials available on record, it is not possible for this Court o pronounce a Judgment and therefore opines that 'Remand of the Matter' is just, fair and necessary, otherwise there would be a failure of Justice. Also that, this Court is of the earnest opinion that the evidence of the Complainant is necessary to prosecute the complaint (filed by P.W.1) in order to render a correct Judgment in the case. The respective financiers from whom the Complainant had borrowed and lent money to the Respondent/Accused acting as an 'Agent' should be examined as witnesses on behalf of the Appellant/Complainant. For that purpose also, this Court opines that Remand of the entire gamut of the matter is an inevitable one. If really, the respective financiers are examined, then, they may throw light before the trial Court whether the Respondent/Accused owe the necessary amounts. Apart from that, the pronotes executed in favour of the concerned financiers can also be marked as Exhibits before the trial Court. Viewed in these

¶96

¶97

prospectives, this Court interferes with the Judgment of the trial Court in acquitting the Accused and sets aside the same to prevent an aberration of Justice. Resultantly, the Criminal Appeal succeeds.

¶98

38.In the result, the Criminal Appeal is allowed. The Judgment of the trial Court passed in C.C.No.3332 of 2010 dated 06.09.2013 is set aside for the reasons assigned by this Court in this Appeal. The matter is remanded back to the trial Court for fresh disposal in the manner known to Law and in accordance with Law. The trial Court is directed to provide an opportunity to the Appellant/Complainant to examine himself as one of the witnesses on his side, besides permitting the Appellant/Complainant to examine respective financiers as witnesses, who had advanced respective sums through the Complainant to the Respondent /Accused. Liberty is granted to the Appellant/Complainant side to mark the pronotes executed by the Respondent/Accused to and in favour of the concerned financiers. It is open to the respective sides to raise all factual and legal pleas before the trial Court at the time of fresh hearing of C.C.No.3332 of 2010. The trial Court shall also permit the Respondent/Accused to adduce rebuttal evidence when fresh witnesses/additional witnesses/documents are examined/marked in the main case. The trial Court, in any event, shall dispose of the main

¶99

¶100

case with a free, open mind and that too in a dispassionate manner [of course, after providing necessary opportunities to both sides by adhering to the principles of Natural Justice] within three months from the date of receipt of copy of this Judgment. Soon after disposal of the case in C.C.No.3332 of 2010, the trial Court shall send a compliance report to this Court without fail.

¶101

19.12.2016

¶102

Index : Yes Internet : Yes

¶103

Sgl

¶104

¶105