CRLA/1255/2010 of Mr. O.Srinivas, Vs The State of Andhra Pradesh, on 30 December 2014

JUDGMENT:

The unsuccessful complainant -O.Srinvas ofC.C.No.11 of 2009 seeks to assail the order of acquittal,dated 06.07.2010, passed by the learned XVI AdditionalJudge-cum-XX A.C.M.M., Hyderabad in the privatecomplaint case filed by the said complainant underSection 138 of the Negotiable Instruments Act, 1881 (forshort, ‘the Act’)

2. The brief facts of the case are that the complainantfiled C.C.No.11 of 2009 against the accused-Rajasekharfor Exs.P.1 to P.3 cheques respectively of Rs.2,00,000/-,dated 28.08.2003, Rs.1,00,000/- each, dated06.09.2003, stating the same issued by the accusedhaving borrowed the amount, when presented returneddishonoured vide cheque return memos and bankintimation respectively covered by Exs.P.4 to P.9 andthere from the cause issued Ex.P.10-legal notice coveredby Ex.P.11-receipt and acknowledged by the accusedunder Ex.P.12, dated 24.10.2003, failed to pay and didnot even reply and that the accused also executedundertaking-cum-receipt, dated 15.09.2003acknowledging the receipt of the amount covered byEx.P.13 herein and another Rs.4,00,000/- under twocheques borrowed from the father of the complainant herein and there from maintained the complainant casefor the offence under Section 138 of the Act and the samewhen taken cognizance and after the accused wasexamined and questioned by supply of copies frompleaded not guilty and claimed to be tried.

3. The parties put to trial and in the course of trial, onbehalf of the complainant, he himself was examined asPW.1 as only witness, besides placed reliance uponExs.P.1 to P.13 supra and on behalf of accused, he cameto witness box as DW.1 and cause exhibited Exs.D.1 toD.5. Among Exs.D.1 to D.5, Ex.D.5 is the legal notice,dated 23.09.2003 issued by the complainant to thebrother of the accused by name Chandra Shekar statingthat Chandra Shekar borrowed Rs.4,00,000/- by hand-loan from the complainant herein and issued threecheques, one dated 28.08.2003 and the other two dated06.09.2003, one is for Rs.2,00,000/- and the other twoeach for Rs.1,00,000/- each drawn on CharminarCooperative Urban Bank (the self same date and selfsame amount of Exs.P.1 to P.3 cheques herein) anddemanded to pay stating when cheque presentedreturned dishonoured.

4. After closure of evidence including from 313 Cr.P.C.examination of accused, after completion of evidence andcomplainant and before entering the defence by theaccused from his denying truth of the incriminatingevidence also.

5. From hearing both parties, the trial Court, videjudgment dated 06.07.2010 acquitted the accused.

6. The contentions in the grounds of appeal as well asoral submissions of the learned counsel for the appellantare that the trial Court gravely erred in acquitting theaccused despite Exs.P.1 to P.3 and the evidence of thecomplainant substantiates the claim of the complainant ofaccused borrowed the amounts and issued cheques andfailed to pay the amount and the cheques whenpresented returned dishonoured and even statutory noticeissued and acknowledged with no reply and hence, he isguilty of the offence, thereby set aside the acquittaljudgment and to convict the accused according to law.

7. Whereas, it is the contention of the learned counselfor the accused that against the double presumption frominnocence of accused and confirmation acquittaljudgment of the trial Court while sitting in appeal, there isnothing to interfere, much less, to reverse the acquittaljudgment, hence to dismiss the appeal, confirming theacquittal judgment.

8. Perused the material on record. The partiesreferred to as they are arrayed before the trial Court.referred to as they are arrayed before the trial Court.

9. Now the points that arise for consideration in theappeal are:appeal are:

1. Whether the cheques were not issued by theaccused, if issued, whether there is any legallyenforceable debt or other liability, if there is alegally enforceable debt or other liability, whetheraccused, if issued, whether there is any legallyenforceable debt or other liability, if there is alegally enforceable debt or other liability, whether the trial Court acquittal judgment is unsustainableand requires interference by this Court whilesitting in appeal with what observations?2.To what result?

POINT No.1:

10-(A) Before advert to the merits of the matter, it isbeneficial to quote; the provisions incorporated in ChapterXVII of the N.I. Act make a civil transaction to be anoffence by fiction of law and with certain (rebuttable)presumptions that shall be drawn. Sections.138 to 142are incorporated in the N.I.Act,1881 as Chapter XVII bythe Banking Public Financial Institutions and Negotiableinstruments Laws (Amendment) Act,1981 (66 of 1988)--which came into force w.e.f.01041989and the N.I.Actwas further amended by Act,2002 (55 of 2002) which--came into force w.e.f.06022003incorporating newsections 143 to 147 in this Chapter XVII and further someof the existing provisions not only of the Chapter XVII butalso of other Chapters amended to overcome the defectsand drawbacks in dealing with the matters relating todishonour of cheques.

10-(B). The object and intention of these penal provisionsof the Chapter XVII (Sections 138 – 147), in particular,Sections 138 & 139 (besides civil remedy),areto preventissuing of cheques in playful manner or with dishonestintention or with no mind to honour or without sufficientfunds in the account maintained by the drawer in Bank and induce the Payee/Holder or Holder in due course toact upon it. The remedy available in a Civil Court is a longdrawn matter and an unscrupulous drawer normally takesvarious pleas to defeat the genuine claim of the payee.Since a cheque that is dishonoured may causeuncountable loss, injury or inconvenience to the Payeedue to the latter’s unexpected disappointment, theseprovisions incorporated are in order to provide a speedyremedy to avoid inconvenience and injury to the Payeeand further to encourage the culture of use of chequesand enhancing credibility of the instruments as atrustworthy substitute for cash payment and to inculcatefaith in the efficacy of Banking operations - GOA PLAST.(PVT.) LTD. v. CHICO URSULA D’SOUZA[[1]]

10-(C). To fulfill the objective, the Legislature whileamending the Act has made the following procedure:

In the opening words of the Section 138 it is stated:"Where any cheque drawn by a person on an accountmaintained by him with a banker for payment of anyamount of money to another person from out of thataccount for the discharge, in whole or in part, of anydebt or other liability, is returned by the bank unpaid,---------, such person shall be deemed to have committedan offence and shall, without prejudice to any otherprovision of this Act (See Sec.143), be punished ----.Provided, nothing contained in this section shall apply unless,-(a), (b); and (c) Explanation---(supra)."

"(i) Under Section 138 a deeming offence is created .by fiction of law

(ii) An explanation is provided to Section 138 todefine the words "debt or other liability" to mean alegally enforceable debt or other liability."

(iii) In Section 139, a presumption is ingrained thatthe holder of the cheque received it in discharge ofdebt or other liability.

(iv) Disallowing a defence in Section 140 that drawerhas no reason to believe that cheque would bedishonoured.

(v) As per Section 146(new section)the productiono f the Bank’s slip or Memo with official markdenoting that the cheque has been dishonoured isprima facie evidence for the Court to presume thefact of dishonour of such cheque unless such fact isdisproved by the accused.

10-(D). Further the provision for issuing notice within thirtydays under section 138 after dishonour is to afford anopportunity to the Drawer of the cheque to rectify hismistakes or negligence or in action and to pay the amountwithin fifteen days of receipt of notice, failing which thedrawer is liable for prosecution and penal consequences.

-10-(E). Reasonability of cause for nonpayment is not atall a deciding factor. Mensrea is irrelevant. It is a strictliability incorporated in public interest.

10-(F). Availability of alternative remedyis no bar to theprosecution 10-(G). In the words-where any cheque, the word anysuggests that for whatever reason if a cheque is drawnon an account maintained by him with a Banker in favourof another person for the discharge of any debt or otherliability, the liability cannot be avoided in the event ofthe cheque stands returned by the Banker unpaid.

11-A. The Apex Court in NARAYAN MENON v. STATE

OF KERALA[[2]]held that once the complainant shown thatthe cheque was drawn by the accused on the accountmaintained by him with a banker for payment of anyamount in favour of the complainant from out of thataccount for its discharge and the same when presentedreturned by the Bank unpaid for insufficiency of funds orexceeds arrangement, such person shall be deemed tohave been committed an offence under Section 138 ofN.I. Act. What Section 139 of the Act speaks of thepresumption against the accused to rebut is the holder ofa cheque received the cheque of the nature referred inSection 138 of the Act for discharge of debt. For rebuttingsuch presumption, what is needed is to raise a probabledefence. Even for the said purpose, the evidenceadduced on behalf of the complainant could be reliedupon. Accused need not enter into the witness box andexamine other witnesses in support of his defence.Accused need not disprove the prosecution case in itsentirety. Therefore, the rebuttal does not have to be conclusively established but such evidence must beadduced before the court in support of the defence thatthe court must either believe the defence to exist orconsider its existence to be reasonably probable, thestandard of reasonability being that of the "prudent man".

11-B. The presumption that further applied amongclauses (a) to (g) of Section 118 of N.I. Act also, like thepresumption under Section 139 of the Act, as per Section4 of the Evidence Act, is a rebuttable presumption forwhich the burden is on the accused, however, to rebut thepresumption if a case is made out by accused either bypointing out from the case of the complainant includingvery documents and cross-examination or by examiningany person and need not be always by coming to witnessbox vide decision in KUMAR EXPORTS PVT. LTD. V.SHARMA CARPETS[[3]].

11-C. Further, as per the expression of the Apex Court inRANGAPPA vs. MOHAN[[4]](3-Judges Bench) paras-9 to15 referring to Goa Plast’s case (supra), KRISHNAJANARDHAN BHAT v. DATTATRAYA G. HEGDE[[5]]bydistinguishing at para-14 saying the observation inKRISHNA JANARDHAN BHAT (supra) of the presumptionmandated by Section 139 does not indeed include theexistence of a legally enforceable debt or liability is notcorrect, though in other respects correctness of the

Conclusion

decision does not in any way cause doubted; by alsoreferring to HITEN P. DALAL v. BRATINDRANATHBANERJEE[[6]]holding at paras-22 and 23 therein of theobligation on the part of the Court to raise the presumptionunder 138, 139 and 118 of the N.I. Act, in every casewhere the factual basis for raising the presumption hasbeen established since introduces an exception to thegeneral rule as to the burden of proof in criminal casesand shifts the onus on to the accused, as a presumptionof law distinguished from a presumption of fact as part ofrules of evidence and no way in conflict with presumptionof innocence and the proof by prosecution against theaccused beyond reasonable doubt, but for saying to rebutthe accused can discharge the burden showingreasonable probability of non-existence of thepresumption of fact and to that proposition, the earlierexpression in BHARAT BARREL & DRUMMANUFACTURING COMPANY v. AMIN CHANDPYARELAL[[7]]para-12 showing the burden on theaccused is to bring on record by preponderance ofprobability either direct evidence or by referring tocircumstances upon which he relies, rather than baredenial of the passing of the consideration; apparently thatdoes not appear to be of any defence, to get the benefit indischarge of the onus against, also held referring theM.M.T.C. LTD. AND ANOTHER v. MEDCHL CHEMICALS

& PHARMA (P) LTD[[8]]that where the accused able toshow justification of stop payment letter even from fundsare there, but no existence of debt or liability at the time ofpresentation of cheque for encashment to say no offenceunder Section 138 of the N.I. Act made out in dischargeof the burden. It was concluded referring to the above,including of MALLAVARAPU KASIVISWESWARA RAO v.

THADIKONDA RAMULU FIRM & ORS[[9]]paras-14 and 15that the initial presumption lays in favour of thecomplainant and Section 139 is an example of a reverseonus clause, which has been included in furtherance ofthe legitimate objection of improving the credibility of thenegotiable instruments. While Section 138 specifies astrong criminal remedy in relation to the dishonour ofcheques, the rebuttable presumption under Section 139 isa device to prevent undue delay in the course of litigation.Bouncing of a cheque is largely in the nature of a civilwrong whose impact is usually confined to the privateparties involved in commercial transactions and the test ofproportionality should guide the construction andinterpretation of reverse onus clause and the accusedcannot be expected to discharge an unduly high standardor proof and in the absence of compelling justifications,reverse onus clauses usually impose an evidentiaryburden and not a persuasive burden to discharge bypreponderance of probabilities by raising creation of doubt about the existence of a legally enforceable debt orliability to fail the prosecution and for that the accused canrely on the material submitted by the complainant also inorder to raise such a defence and he may not need toadduce any evidence of his own.

11-D.It was also observed in para-15 that theaccused appear to be aware of the fact that the chequewas with the complainant, further-more the very fact thatthe accused has failed to reply to the statutory noticeunder Section 138 of the Act leads to the inference thatthere was merit in the complainant’s version. It was alsoheld by this court way back Chapala Hanumaiah Vs

Kavuri Venkateshwarlu[[10]]that having received andacknowledged the statutory legal notice after dishonour ofcheque, non-giving of reply to said legal notice,improbablises the defence version, as any prudent personunder the said circumstances should have, but for nodefence to reply.

12. From the above prepositions of law, coming to thefacts, a perusal of Exs.P.1 to P.3 cheques show thatEx.P.1 was dated 28.08.2003 for Rs.2,00,000/- in thename of O.Srinivas (complainant) the signatory of thecheque is Managing Partner for Mallappa Auto Parts. Thecheque is bearing No.007260 equally Ex.P.2 and Ex.P.3-cheques each for Rs.1,00,000/- both dated 06.09.2003and the signatory for Mallappa Auto Parts, Managing Partner in the name of the complainant O.Srinivas. It is tosay the said Mallappa Auto Parts partnership firm was notarrayed as accused. There is no statutory notice issuedto that firm, which is the person who issued the cheques. It is not even mentioned either in Ex.P.10-legal notice(statutory notice, dated 21.10.2003) issued by thecomplainant to the said Rajashekar ie., accused herein oreven in the private complaint filed or even in the chief-examination of the complainant that the said Rajashekar(accused) is proprietor of Mallappa Auto Parts and therubber stamp as if as not correct and it was not apartnership firm/entity. Once it is a partnership entity, theentity is the main accused must be arrayed and theManaging Partner, who is in-charge of day-to-day affairsand who signed the cheque must be shown as co-accused as the entity is to be represented by somehuman agency. The joining as accused of the entity ismandatory, as even the entity is a juristic person not ahuman being though represented by human being notliable for imprisonment, but for fine while even imposingthe sentence of imprisonment to the person in-charge ofthe affairs of the entity. The entity on that count cannoteven claim immunity from prosecution being within thedefinition of ‘person’ as per Section 11 I.P.C. and Sections3(42) General Clauses Act. The same is held by theConstitutional Bench expression of the Apex Court inStandard Chartered Bank v. Director of Enforcement[[11]].

Enforcement[[11]].

12-A Coming to the liability of the legal entity and thepersons in-charge of the management and thoseresponsible for its day-today affairs personally concerned,Section 141 of the N.I.Act is an instance of specificprovision that in case an offence under Section 138 of theAct is committed by a company, the criminal liability fordishonour of a cheque will extend also to the officers ofthe company. As a matter of fact, Section 141 containsconditions which have to be satisfied before the liabilitycan be extended on the officers of the entity. Inasmuchas, the provision creates a criminal liability, the conditionshave to be strictly complied with. In other words, thepersons who had nothing to do with the matter, need notbe roped in as co-accused with the entity.An entitybeing a juristic person, all its deeds and functions arethe result of acts of others. Therefore, the officers ofthe company, who are responsible for the acts done inits name, are sought to be made personally liable forthe acts which result in criminal action being takenagainst the entity. In other words, it makes everyperson, who, at the time of commission of offence,-was incharge of and responsible for the conduct ofbusiness of the entity, as well as the entity, liable forthe offence.

12-B. It is true that the proviso to sub-section of theSection 141 of the Act enables certain persons to prove that the offence was committed without their knowledge orthat they had exercised all due diligence to preventcommission of the offence. The liability under Section 141of the N.I. Act is sought to be fastened vicariously on aperson connected with the company, the principalaccused being the company itself. It is a departure fromthe rule in criminal law against vicarious liability. See also .[[12]]Anil Gupta v. Star India Pvt. Ltd 12-C In this regard, in S.M.S. Pharmaceuticals Ltd. Vs.

Neeta Bhalla[[13]], the Apex Court (three Judges Bench)held in answering to the questions posed in the Referenceas under:

“(a) It is necessary to specifically aver in acomplaint under Section 141 that at the timethe offence was committed, the personaccused was in charge of, and responsible forthe conduct of business of the company. Thisaverment is an essential requirement ofSection 141 and has to be made in acomplaint. Without this averment being madein a complaint, the requirements of Section 141cannot be said to be satisfied.

(b) The answer to question posed in sub-para(b) has to be in negative. Merely being adirector of a company is not sufficient to makethe person liable under Section 141 of the Act.A director in a company cannot be deemed tobe in charge of and responsible to thecompany for conduct of its business. Therequirement of Section 141 is that the personsought to be made liable should be in charge of and responsible for the conduct of thebusiness of the company at the relevant time.This has to be averred as a fact as there is nodeemed liability of a director in such cases.(c) The answer to question (c) has to be inaffirmative. The question notes that theManaging Director or Joint Managing Directorwould be admittedly in charge of the companyand responsible to the company for conduct ofits business. When that is so, holders of suchpositions in a company become liable underSection 141 of the Act. By virtue of the office,they hold as Managing Director or JointManaging Director, these persons are incharge of and responsible for the conduct ofbusiness of the company. Therefore, they getcovered under Section 141. So far assignatory of a cheque which is dishonoured isconcerned, he is clearly responsible for theincriminating act and will be covered undersub-section (2) of Section 141. The Referencehas been answered.”

13. From the above propositions of law, coming back tothe facts, as contended by the learned counsel for therespondent-accused, all the three cheques Exs.P.1 to P.3shows the rubber stamp is with same colour of inkpen/pad and the signatures of the person, who signedthe cheques is at a time is same pen. Whereas, theamount in words and figures mentioned in the chequesand name of the payee are with different writings withdifferent pens by different persons not tallying. In Ex.P.10-legal notice for dishonor of Exs.P.1 to P.3-cheques presented by complainant through his banker, as statedthe notice was not even issued to the partnership firm orto said Ms.Mallappa Auto Parts, Managing Partner, but tothe accused herein by name Rajashekar and not even tothe partnership firm with the said Rajashekar saying he isManaging Partner. The notice speaks the cheques werereturned as not drawn on the payee bank to which it issent U.T.I. Bank, the trial Court observed that there is nopleading that Charminar Cooperative Urban Bank ismerged with U.T.I. Bank. In fact, Ex.P.10-legal notice sentby registered post proved from Ex.P.11-postal receiptacknowledged by the accused Rajashekar to whom it wasaddressed having received under Ex.P.12 on24.10.2003. Ex.P.4-cheque return memo of U.T.I. Banksend back to Deena Bank was, dated 08.09.2003 forEx.P.1-cheque. The Deena Bank intimation to thecomplainant, dated 09.09.2003 stating that the chequewas not cleared for the reasons not drawn on the U.T.I.Bank. The statutory notice is required to be given withinone month from the date of the said receipt of chequedishonor intimation. Ex.P.10-notice dated 21.10.2003was received and acknowledged by the accused on24.10.2003 as referred supra under Ex.P.12. However, aperusal of the endorsement of Ex.P.1-cheque shows, itwas again presented for clearing on 10.10.2003 and thesubsequent cheque return memo not filed, but for theendorsement on reverse of Ex.P.1. If that is taken, the notice is within time including for Ex.P.1-cheque amongExs.P.1 to P.3-cheques. The accused did not issue anyreply for reasons better known. The complainant placedreliance upon Ex.P.13 so-called undertaking letter givenby the accused D.Rajashekar in favour of the complainantand his father. It is only a Xerox copy and not the originaland the said original stated filed in a cheque dishonouredcase filed by the father of the complainant against theaccused herein that there is in the evidence. In fact, thecomplainant filed an application to send Ex.P.13 xeroxcopy of the so-called undertaking letter executed by theaccused in favour of the complainant and his father jointlyand the original even directed by the trial Court to submitfor comparison by expert, it was not submitted and laterthe accused entered his defence and subsequentlycomplainant filed Crl.M.P.No.2295 of 2010 and the samewas after contest, ended in dismissal holding no merits toentertain the request to permit for examination of otherwitnesses in proof of so-called Ex.P.13-letter as the trialCourt observed that having not produced despitedirection, the original of Ex.P.13 and even not sought andnot examined any witness before commencement ofevidence of the accused after completion of the evidenceof the accused and even filed earlier petition to send thedocument to expert, that was ordered to produce originalthat was not produced, there are no grounds to re-openthe evidence and permit any further evidence to the

complainant to examine any other witnesses for proof ofthe so-called xerox copy of the alleged letter withoutfoundation for the original. No doubt, as required theoriginal for comparison by expert, the same was notproduced while seeking to send the same to expert evendirected to produce the original to send to expert. However, the fact remains Ex.P.13 shows, it was markedin C.C.No.188 of 2003 where from the certified copyobtained, it was marked as exhibit herein as Ex.P.13. Atthe time of marking the accused did not object. Thesecondary evidence once produced without objectionwhile marking is as good as original since that objectionon procedural aspect as per the settled law deemedwaived and not open to the accused raise later as held byt h e R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple[[14]].It is thecontention of the accused that the so-called letter is aforged one and there was no amount borrowed by himfrom the complainant and the cheques were not issued,those were among other cheques stolen. No doubt, thedefence of the accused is at several lines one notconsistence to the other and with developmentsinconsistently time to time.

14. Coming to PW.1-complainant’s evidence on recordin his chief examination, he did not even explain for notfiling the case against the so-called partnership firm, forwhich the cheques were signed by the Managing Partner of the firm, but for against Rajashekar without evenspecific pleading as he is in-charge of day-to-day affairs. No doubt, the accused is the Managing Partner of thebusiness and in-charge of day-to-day affairs not in disputefrom the accused as he also admitted from his evidenceas DW.1.

15. Coming to PW.1 cross-examination, PW.1 deposedof doing automobile business and his father LaxmiNarayana is only a tailor and there was acquaintance withthe accused for the past 12 years as accused was doingbusiness in the name and style of Mallappa Auto Partsand Mallappa Automobiles and the complainant’sbusiness is Baba Automobiles and there is no proofregarding complainant’s business, much less, anymunicipal permission and that his father is not even doingtailoring at present and denied the suggestion his elderbrother Tirupathi worked in the Automobile shop ofaccused during 1995 to 2002 as collection agent and withthat experience, the complainant and his brother, etc.,opened separate business in Automobiles in the year2003. He deposed that he does not know the turn over ofthe business of accused is nearer to Rs.1 crore perannum, but for he knows that the business is runningwell. He denied the suggestion of himself and his brotherworked in the shop of the accused and taking advantageof their working, the complainant took away the signedcheques available in the shop, while brother of the accused by name Chandra Shekar was sitting in theshop. The complainant himself categorically admitted thatthe business of the accused is a partnership firm. Hedeposed that he does not know whether the accused wasused to keep signed cheques in the custody of his brotherChandra Shekar. It is suggested that signatures onEx.P.1 to P.3-cheques are at a time of the person whosigned when issuing the same and the writings of payeeand amounts are at different times with glaring differenceto a nacked eye. He denied the suggestion that blankcheques were misused by subsequent filling as referredsupra. It is in fact clear to a nacked eye and as held by

the Apex Court in C.Antony v. Raghavan Nair[[15]]. is oneof the circumstances in support of the defence of theaccused. In the further cross-examination, thecomplainant deposed that he did not file any accountsbook and statements reflecting the transactions relating tothe cheque lending in dispute and deposed that he did notsubmit any income tax returns showing any of thetransactions reflected therein. He deposed that he doesnot know whether any transaction of payment beyondRs.20,000/- must be rooted by cheque under Section 271(ss) of the Income Tax Act. He categorically deposed thatthe cheques were issued on behalf of the partnership firmand Rajasekhar-the accused herein and his brotherChandra Shekar are the partners of the said firm. Thecomplainant denied the suggestion that while the complainant was working in the firm of the accused, heobtained Exs.P.1 to P.3 blank signed cheques andmisused the same by filling, but for wrongfully gain thoughno amounts lend and he has no means or capacity to lendsuch huge amounts. He deposed that he does notremember whether he issued for the self same cheques,notice to the brother of the accused by name ChandraShekar and denied the suggestion that having beenearlier issued notice and not maintained any complaintfrom that cause of action, the subsequent presentationand giving of notice to the accused is not sustainable. It isimportant to note from what already referred of Ex.D.5-notice issued for dishonour of the self same threecheques by complaint to Chandra Sekhar, who is thebrother of the accused herein. If so, when that noticeEx.D.5 with reference to the present notice supra Ex.P.10-gives any amount of doubt on the genuineness of thecheques and borrowal and due from uncertainty of theversions in the two notices. But for the above, if sameperson issued the cheques and even earlier dishonouredand notice issued there is no bar for 2[nd] presentation andfresh notice after dishonour to count fresh cause ofaction. The law is fairly settled in this regard from theexpression of the Apex Court in Msr Leathers v.S.Palaniappan[[16]]three judge bench held in para 16 asfollows:

“With utmost respect to the Judges whodecided Sadanandan Bhadran’s case(supra) we regret our inability to fall in line withthe above line of reasoning to hold that while acheque is presented afresh the right toprosecute the drawer, if the cheque isdishonoured, is forfeited only because theprevious dishonour had not resulted inimmediate prosecution of the offender evenwhen a notice under clause (b) of proviso toSection 138 had been served upon thedrawer. We are conscious of the fact thatSadanandan Bhadran’s case (supra) hasbeen followed in several subsequent decisionsof this Court such as inSil Import, USA v. EximAides Silk Exporters, Bangalore,(1999) 4 SCC567,Uniplas India Ltd. and Ors. v. State (Govt.of NCT Delhi) and Anr.,(2001) 6 SCC 8,Dalmia Cement (Bharat) Ltd. v. Galaxy Traders& Agencies Ltd. and Anr.,(2001) 6 SCC463,Prem Chand Vijay Kumar v. YashpalSingh and Anr.,(2005) 4 SCC 417,S.L.Constructions and Anr. v. Alapati SrinivasaRao and Anr.,(2009) 1 SCC 500,TameshwarVaishnav v. Ramvishal Gupta,(2010) 2 SCC329”.

16. In the further cross-examination of the complainant,he was confronted with, the accused issued a telegramnotice to him followed by legal notice and the complainantissued legal notice earlier to the brother of the accusedand suggested there from that it is a false case and thecheques were stolen and the signatures on the cheuqesare forged and the so-called Ex.P.13 receipt is also forged.

17. From this background, coming to the evidence ofDW.1, in his chief-examination, saying himself and hisbrother Chandra Shekar, who is younger to him, are thepartners of Mallappa Auto Parts and it is a partnership firmand he is the authorized signatory of the firm being theManaging Partner. It is also there in the evidence of theaccused, besides the evidence of the complainantreferred supra, to say not impleaded the firm as mainaccused and the complaint is not maintainable onlyagainst the accused that too personally, for himself is onlyone of the partners being the Managing Partner withreference to Section 141 of the Act. He deposed that thecomplainant and his brother Tirupathi worked under thefirm of the accused during 1995 to 2002 as collectionboys and that the accused used to keep the cheque bookand signed cheques at the shop in his absence for hisbrother Chandra Shekar to attend and make use and itwas later noticed about missing of the cheques includingthose covered by Exs.P.1 to P.3 and the same wasnoticed only in the year 2003 and there from he causeissued telegraphic notice to the complainant on17.09.2004 followed by legal notice Ex.D.2 dated19.09.2004 received by the complainant and the same iscertified by postal authority of service under Ex.D.4 withreference to Ex.D.3 speed post receipt in proof of serviceon complainant on 20.09.2004. He further deposed that his business turn over is nearly Rs.1 Crore per annumand he is financially sound and there is no need of anyamount from the complainant or his father and none of thecheques signed and issued by him and Ex.P.13 letter isalso a forged and fabricated one and not with hissignature. No doubt, the accused even received Ex.P-10legal notice covered by Ex.P.12-acknowledgment, butstated the signature on that is also not of him. It is not hiscase that it is not sent to correct address. It is not evenhis case that some body on his behalf received. He failedto establish further by examining the postal authority torebut the presumption as it is the registered post withacknowledgment due with the presumption of due servicein favour of the complainant. It is appearing of theaccused is being conscious, unable to get over hissignatures on the cheques Exs.P.1 to P.3 even choose todeny by going to the extent of his signature on Ex.P.12-acknowledgment from its co-relation. He deposed that hedid not issue Exs.P.1 to P.3-cheques for discharge of anydebt or liability. In the chief-examination, he did notspecifically stated therein all the signatures on Exs.P.1 toP.3 are forged. From this, coming to his cross-examination, he deposed that he studied Intermediateand he is in the habit of sending any paper after goingthrough and the staff of his office used to prepare Englishcorrespondence for which, he go through and signedthough he is not fully equipped with English language in

studied with Telugu medium. He deposed that to say thatthe complainant and his brother Tirupathi worked in hisshop and he paid Rs.3,000/- per month as salary, orinitially there was no salary, he did not file any record inproof of it. Even he deposed that what he stated in thelegal notice Ex.D.2 as if the complainant and his brothermisappropriated Rs.50,000/- from the shop and businessof the accused and there from they were removed. Forthat also there is no basis or proof and he did not evenstate that fact in the chief-examination. He deposed thathe was in the habit of keeping blank cheques at the shopfor his brother in his absence to attend and the chequesleft by him at his shop were lost and the complainantmisuses the same. Undisputedly, he did not issue anyletter to the Bank to stop payment or even policecomplaint or even if at all suspected the complainant andhis brother, not even issued any legal notice to that effectimmediately later to his socalled noticing and it is quiteunbelievable of he noticed several years later of the so-called signed blank cheques and it is un known whenstated complainant and his brother was working ascollection boys, how they came into custody of his signedblank cheques kept with his brother Chandra Shekar, tosteel or take away from said Chandra Shekar. He did noteven give reply notice to Ex.P.10-notice having receivedunder Ex.P.12. Even in the so-called misappropriation ofRs.50,000/- by the complainant and his brother to believe, he did not issue any notice, he did not give any policecomplaint, he did not take any action and there is no evenproof to say they worked in his shop. He denied thesuggestion that the complainant and his brother got theirown business and source of living and never workedunder partnership firm of the accused and his brother. Hedeposed that he does not know whether the complainantgot the Automobile Shop for the last 30 years. In fact,coming to Ex.D.1-telegraphic notice issued by theaccused to the complainant, dated 17.09.2004, there is amention that Exs.P.1 to P.3 cheques were presented bythe complainant for encashment that were returned andthe complainant received those cheques from the brotherof the accused by name Chandra Shekar, which theaccused came to know through his brother ChandraShekar and by again saying as if complainant committedtheft of cheques and forged signatures of accused andfilled the same and misused and there are furthercheques in his possession which he cannot present ormisuse but for to return. Coming to the legal notice Ex.D.2dated 19.09.2004, it is stated that the complainant, hisbrother and father as well as the accused, his brother andfather Mallappa were all close friends and familyassociates and it is for the alleged financial problemsexpressed by the complainant, the brother of the accusedaccommodated to work in the shop of the accused andhis brother for remuneration. The complainant and his

father for running customer service and to collect amountsand to place orders on credit basis and in that connectionissued post dated cheques to give to various agency forauto parts, etc., and the cheque books of the accusedthere from out of that fiduciary relation came to thecustody of the complainant and his father and they aremisusing; and at the other breath in saying the forged andfabricated cheques are misusing and again at the otherbreath saying those were stolen and by saying theft ofblank cheques and also by saying forgery of signaturesand misusing and to refrain from so doing. Exs.A.3 andA.4 are the speed post receipt and acknowledgment ofservice on the complainant obtained from postalauthorities and Ex.D.5 is notice, dated 23.09.2003 issuedby the complainant to the brother of the accused by nameChandra shekar. That notice also reflects only Exs.P.1 toP.3 cheques as discussed earlier. Ex.D.5-notice, dated23.09.2003, speaks that, brother of the accusedapproached the complainant and borrowed Rs.4,00,000/-for urgent needs and issued three cheques to repay andthe same presented dishonoured, hence to pay. Thoughas referred supra of S.L.R. Leathers, the subsequentpresentation and giving of statutory notice and filing ofcomplaint not a bar from earlier presentation and earliergiving of notice; however, the fact remains here fromperusal of Exs.P.5 and Ex.P.10 with reference to Exs.P.1to P.3 cheques that, for the three cheques as referred supra shown issued by person signed as ManagingPartner for Mallappa Automobile. If Ex.D.5 issued by thecomplaint is taken into consideration, that notice speaksas if issued by the said Chandra Shekar, brother of theaccused and not by accused; whereas the Ex.P.10-noticeissued by self same complaint from subsequentpresentation of the cheques; even not says as if issued bythe accused and the said Chandra Shekar was not evenshown as co-accused, but maintained against theaccused even accused is one of the partners of the firm. Ex.P.13 socalled letter said to have been executed by theaccused even it was dated 15.09.2003 as per complaint. If the Ex.P.13 is true, there is no meaning in giving within aweeks days to the Ex.P.13; the Ex.D.5 notice dated23.09.2003 which is subsequent to the said Ex.P.13 as ifChandra Shekar issued three cheques and in Ex.P.10 asif the accused Rajashekar issued the three cheques andin more particularly the Mallappa Auto Parts partnershipfirm not shown as accused. Having regard to the above,apart from the complainant, could not establish anymeans and how he financed Rs.4,00,000/- to the accusedunder Exs.P.1 to P.3 cheques in the alleged hand loanstated obtained earlier for which for demands allegedlyissued three cheques it is not even with particulars as todate when socalled hand loan obtained and by whatsource of income the complainant got to lend such hugeamounts to the said Mallappa Auto Parts or it is Managing

Partner and also by the father of the complainant forlending equal amounts and apart from not showing ofmeans despite the above evidence and non array of theMallappa Auto Parts-partnership firm, as accused and thefirst notice under Ex.D.5 given to the brother of theaccused as if he issued the cheques Exs.P.1 to P.3 andby subsequent presentation and dishonor, second noticeissued to the accused as if issued by the accused the selfsame Exs.P.1 to P.3, all these facts and also non filing ofthe original of Ex.P.13 despite direction and non provingof the same and for all the cloud left uncleared and thereis no meaning if Ex.P.13 obtained within eight days againto issue Ex.D.5, that too if Ex.P.13 signed by accused toissue Ex.D.5 to brother of accused; no prudent personcan do to draw adverse inference from such impossibleand unprudent conduct of complaint. Further, there isnothing to show the accused personally and voluntarilyborrowed the amount and issued the cheques for anylegally enforceable debt or other liability. When the trialCourt from the above evidence on record, though not withsuch detailed discussion above, when came to the rightconclusion in acquitting the accused finding thecomplainant could not make out case and the defence ofthe accused also non suits the complainant’s case, forthis Court while sitting in appeal, against the doublepresumption of innocence, as also held by the Apex Court in Chandrappa V. State of Karnataka[[17]]and also

C.Antony supra, there is nothing to interfere. Accordingly,point No.1 is answered.

POINT No.2:

18. In the result, the appeal is dismissed.

19. Miscellaneous Petitions pending, if any, shall standdismissed.

30.12.2014.mar

____________________________

Dr. B. SIVA SANKARA RAO, J

[1]AIR 2003 SC 2035

[2](2006)3 SCC 30

[3](2009) 2 SCC 513

[4]AIR 2010 SC 1898

[5]AIR 2008 SC 1325[6]AIR 2001 SC 3897

[7]AIR 1999 SC 1008

[8]AIR 2002 SC 182

[9]AIR 2008 SC 2898

[10]1971 (1) An.W.R. 65

[11] AIR 2005 SC 2622 = 2005(4) SCC 530

[12] 2014 (1) SCC – 373 Para 10 (3 Judge Bench)

[13]Appeal(crl.)664 of 2002, dated 20/09/2005

[14] (2003) 8 SCC 752

[15] 2003 (1) SCC 1

[16] 2013 (1) SCC 177 2013 (1) SCC 177

[17](2007)4 Supreme Court Cases 415