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2009(1) CIVIL COURT CASES....(Madras)

MADRAS HIGH COURT
A.SELVAM, J.
Criminal Appeal No.296 of 2004, D/07.01.2008.
K.K.Seshien
Vs
S.R.Sundar
Counsels:
M/s.Ram and Ram, for the Petitioner
No appearance, for the Respondent.
ORDER
A.Selvam, J. - Challenge in this Criminal Appeal is to the judgment dated 13.01.2004 passed in Summary
Trial Case No.291 of 2003 by the Judicial Magistrate No.I, Madurai.
2. The appellant herein as complainant has lodged the complaint in question under Section 138 r/w.142 of the
Negotiable Instruments Act, wherein the present respondent has been shown as the accused. The complaint
filed by the appellant/complainant has been taken on file in Summary Trial Case No.291 of 2003 on the file of
the Judicial Magistrate Court No.I, Madurai.
3. It is stated in the complaint that the respondent/accused has been running a business under the name and
style of “M/s.Sri Chakra Agencies”. The wife of the respondent/accused has been lending her assistance to the
business of the respondent/accused. The respondent/accused has used to receive money from the appellant/
complainant for his business. On 10.08.1997, he has received Rs.65,000/- from the appellant/complainant
and to that effect, he has given a cheque bearing No.581425. On 09.09.1997, he has received another sum of
Rs.10,000/- from the appellant/complainant and to that effect, he has given a cheque bearing No.581424. The
respondent/accused has not discharged his liability. The appellant/complainant has tried to present the cheques
in question in the concerned Bank. But the respondent/accused has requested the appellant/complainant to
present the cheques next month. The respondent/accused has made correction in the cheques in question with
regard to dates. On 10.11.1987, the appellant/complainant has tried to present the cheques for collection and
at that time, the respondent/accused has given a cheque for a sum of Rs.4,630/-. Since the respondent/
accused has failed to discharge his liability, the appellant/complainant has presented all the cheques for collec-
tion. But the concerned Bank has returned the same stating “funds insufficient”. The appellant/complainant has
sent a statutory notice on 28.02.1988. On 03.03.1988, the respondent/accused has received the same. Since
the respondent/accused has committed offence under section 138 r/w 142 of the Negotiable Instruments Act,
the present complaint has been filed.
4. The Judicial Magistrate No.I, Madurai has taken the complaint on file in Summary Trial Case No.291 of
2003. On the side of the appellant/complainant, PW1 has been examined and Exs.P1 to P11 have been
marked. On the side of the respondent/accused, Ex.D1 has been marked and no oral evidence has been
adduced.
5. On the basis of the divergent contentions raised on either side, the trial Court has dismissed the complaint
and ultimately acquitted the respondent/accused under Section 255 (1) of the Code of Criminal Procedure.
Against the dismissal order, the present Criminal Appeal has been filed.
6. Even though the respondent/accused has been served with notice, no appearance has been made on his side
and therefore, the present Criminal Appeal is disposed of on merits on the basis of the argument advanced on
the side of the appellant/complainant.
7. The learned counsel appearing for the appellant/complainant has repeatedly contended that on 10.08.1997,
the respondent/accused has received a sum of Rs.65,000/- from the appellant/complainant and to that effect,
he has given a cheque bearing No.581425 and on 09.09.1997, he has received a sum of Rs.10,000/- from the
appellant/complainant and to that effect, he has given the cheque bearing No.581424 and since the respon-
dent/accused has failed to discharge his liability, the appellant/complainant has tried to present the cheques for
collection and the respondent/accused has requested the appellant/complainant to put the cheques for collec-
tion after one month and he has also made corrections in the cheques with regard to dates. On 10.11.1997, the
respondent/accused has given another cheque for a sum of Rs.4,630/- and since he has failed to discharge his
liability, all the cheques have been presented in the concerned Bank for collection. But the same have been
returned stating “funds insufficient” and under the said circumstances, the respondent/accused has committed
offence under Section 138 r/w.142 of the Negotiable Instruments Act and the appellant/complainant has filed
the complaint in question and the same has been taken on file in Summary Trial Case No.291 of 2003. During
the pendency of the same, the respondent/accused and his wife have come to the house of the appellant/
complainant on 22.02.2000 at about 8.30 P.M., and they promised to settle the amounts. The respondent/
accused has represented that he would settle the amount in question after getting money from his brother-in-
law and he would advance money only after seeing the cheques in question and under the pretext of seeing the
same, he has received two cheques from the appellant/complainant and thereafter, he has not turned up and his
wife has also left the house of the appellant/complainant abruptly and to that effect, the appellant/complainant
has given a complaint in B.1 Police Station and on 21.02.2000, the appellant/complainant has given another
complaint to the Commissioner of Police and despite of best efforts, the appellant/complainant has not been
able to secure the original cheques received by him and due to that he has filed xerox copies of the cheques in
question as Exs.P4 and P5. But the trial Court without invoking the provision of Section 65(a) of the Indian
Evidence Act has erroneously dismissed the complaint. Under the said circumstances, the present Criminal
Appeal has been filed and therefore, the judgment passed passed by the trial Court is liable to be interfered
with.
8. Before perpending the argument advanced by the learned counsel appearing for the appellant, it has become
shunless to perorate something about the following factual aspects.
9. The specific contention of the appellant/complainant is that on 10.08.1997, the appellant/complainant has
advanced a sum of Rs.65,000/- from the respondent/accused and to that effect, he has given the cheque
bearing No.581425. On 09.09.1997, he has advanced another sum of Rs.10,000/- to the respondent/ac-
cused and to that effect, he has given the cheque bearing No.581424. On 10.11.1997, the respondent/ac-
cused has given a cheque for interest to the tune of Rs.4,630/- and all the cheques have been presented for
collection in the concerned Bank and the same have been returned stating “funds insufficient” and subse-
quently, the appellant/complainant has given statutory notice and even after receipt of the same, the respon-
dent/accused has not discharged his liability.
10. As adverted to earlier, on the side of the appellant/complainant, Exs.P1 to P11 have been marked. Exs.P4
and P5 are the xerox copies of cheques issued for a sum of Rs.65,000/- and Rs.10,000/-. Ex.P6 is a cheque
issued for a sum of Rs.4,630/-. Ex.P8 is a memo given by Indian Bank. Ex.P9 is a debit advice. Ex.P10 is a
copy of statutory notice and Ex.P11 is a postal acknowledgment.
11. The trial Court after considering all the rival contentions raised on either side has dismissed the complaint
mainly on the ground that the appellant/complainant has failed to establish the fact that on 21.02.2000, the
respondent/accused has received the cheques in question from the appellant/complainant.
12. At this juncture, it would be apropos to look into the provision of section 65(a) of the Indian Evidence Act,
1872 and the same reads as follows:-
“Cases in which secondary evidence relating to documents may be given - Secondary evidence may be given
of the existence, condition or contents of a document in the following cases:-
(a). When the original is shown or appears to be in the possession or power - of the person against whom the
document is sought to the proved, or of any person out of reach of, or not subject to, the process of the Court,
or of any person legally bound to produce it and when, after the notice mentioned in section 66, such person
does not produce it.”
13. From the close reading of the provision of Section 65(a) of the said Act, it is easily discernible that a party
to a proceeding can seek aidance of Section 65(a) of the said act. Only after proving the fact that the original
document in question is in possession or power of the person against whom, the same is sought to be proved.
Therefore, a primordial duty is cast upon him to prove that the person against whom the document is sought to
be proved is in possession of the same and further, Section 65(a) of the said Act can be invoked only after
giving notice mentioned in Section 66 of the said Act.
14. With these legal backdrops, the Court has to analyse the argument advanced by the learned counsel
appearing for the appellant/complainant.
15. As stated earlier, all the cheques in question have been presented in the concerned Bank for collection and
the concerned Bank has returned all the cheques stating “funds insufficient”. The appellant/complainant after
getting proper memorandum from the concerned Bank has issued a statutory notice and the same has also
been received by the respondent/accused. But the respondent/accused has not chosen to give any reply
denying issuance of the cheques in question. Therefore, it is pellucid that the respondent/accused has issued the
cheques in question to the appellant/complainant and the Court need not decide the same in detail.
16. The only point that has now winched to the fore in the present Criminal Appeal is
“Whether the appellant/complainant has handed over the cheques in question to the respondent/accused on
21.02.2000 and whether the provision of Section 65 (a) of the Indian Evidence Act, 1872 can be invoked in
the present case?”
17. The entire contention of the appellant/complainant hinges upon the evidence of PW1. The appellant/
complainant has been examined as PW1. He would say in his evidence that on 21.02.2000, at about 8.30
P.M., both the respondent/accused and his wife have come to his house and promised to settle the amount in
question and they have also given assurance to give Rs.35,000/- instantly and with regard to Rs.40,000/- they
have to get the same from the brother-in-law of the respondent/accused and they have to show the cheques in
question and on the basis of the assurance given by them, the appellant/complainant has given two cheques
issued for Rs.65,000/- and Rs.10,000/-. But the respondent/accused has not turned up and after some time,
his wife has also left the house of the appellant/complainant abruptly and they cheated the appellant/complain-
ant and to that effect, he has lodged the complaint immediately in B.1 Police Station and further, he would say
in his evidence that one M.S.Subramanian has also known the occurrence occurred on 21.02.2000.
18. Even though PW1 has categorically stated in his evidence that on 21.02.2000, the respondent/accused has
received the two cheques mentioned supra under the pretext of getting money from his brother-in-law and
after knowing the evil design of the respondent/accused, he has lodged a complaint on the same day in B.1
Police Station, PW1 has not produced any document, so as to encrust the above limb of evidence and further,
the said Subramanian has not been examined on the side of the appellant/complainant, so as to prove the
alleged occurrence. Since the appellant/complainant has not proved the factum of lodging the complaint on the
date of occurrence in B.1 Police Station and since the said Subramanian has not been examined on his side, it
is very difficult to come to a conclusion that the alleged occurrence has taken place on 21.02.2000 and the
respondent/accused has received the cheques in question from PW1 under the pretext of getting money from
his brother-in-law. Therefore, it is quite clear that the contention urged on the side of the appellant/complainant
cannot be believed in.
19. At this juncture, it would also be more useful to look into the xerox copies of the cheques in question. The
specific contention of the appellant/complainant is that at the time of filing the complaint, original cheques have
been produced for the scrutiny of the Court and after making scrutiny, the same have been returned to the
appellant/complainant. In fact, this Court has closely perused the xerox copies of the cheques in question and
no indication is found that at the time of filing the complaint, original cheques have been produced for the
scrutiny of the Court. On that score also, the contention of the appellant/complainant cannot be accepted.
20. It has already been pointed out that the entire argument advanced by the learned counsel appearing for the
appellant/complainant rests purely upon the provisions of Section 65(a) of the Indian Evidence Act, 1872. It is
an admitted fact that the appellant/complainant has not filed the originals of cheques in question and he has filed
only xerox copies of the same which have been marked as Exs.P4 & P5. The trial Court has dismissed the
complaint mainly on the ground that the originals of Exs.P4 & P5 have not been marked. It has already been
pointed out that a party to a proceeding can seek aidence of Section 65(a) of the Indian Evidence Act, 1872
only after proving the fact that the original document in question is in possession or power of the person against
whom the same is sought to be proved. In the instant case, the appellant/complainant has failed to prove that on
21.02.2000 the respondent/accused has received the cheques in question under the pretext of getting money
from his brother-in-law. Therefore, it is quiet clear that in the instant case the provisions of Section 65(a) of the
Indian Evidence Act, 1872 cannot be invoked. Since the appellant/complainant has failed to file the originals of
Exs.P4 & P5 and since he has failed to prove the occurrence alleged to have taken place on 21.02.2000, it is
needless to say that the entire argument advanced by the learned counsel appearing for the appellant/com-
plainant is sans merit and the same cannot be given weight to. The trial Court after considering the contentions
urged on either side has rightly dismissed the complaint.
21. In view of the foregoing narration of both the factual and legal aspects, this Court has not found even a
flimsy ground to make interference with the well merited judgment passed by the Court below and altogether
the present criminal appeal deserves to be dismissed.
22. In fine, this criminal appeal deserves dismissal and accordingly is dismissed and the judgment dated
13.01.2004 passed in Summary Trial Case No.291 of 2003 by the Judicial Magistrate Court No.I, Madurai
is confirmed.
Appeal dismissed.
*****