The legal position on this aspect is also very clear in Masud Khan v. State of U.P. , the Supreme Court held as follows (para 4) :
the principle of issue estoppel is simply this : that where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different and distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law.
Andhra High Court
Gorantla Venkateswara Rao vs Kolla Veera Raghava Rao And Anr. on 7 October, 2005
Equivalent citations: 2005 (2) ALD Cri 840, I (2007) BC 446, 2006 CriLJ 1
1. The complainant and the accused are same in both the cases. Both the cases relate to the transactions of a cheque, therefore, the appeal as well as the revision petition are clubbed and this common judgment is delivered.Crl. Appeal No. 1581 of 1999 :
2. Criminal Appeal No. 1581 of 1999 is preferred by the complainant in C.C. No. 1 of 1995 on the file of the V Additional Munsif Magistrate, Guntur. The appellant filed a private complaint against the first respondent (accused) for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'). The learned Magistrate after considering the evidence adduced by the complainant found the accused guilty of the offence, convicted and sentenced him to undergo rigorous imprisonment for one year for the offence under Section 138 of the Act, through judgment dated 9-1-1997. The accused, being aggrieved by the conviction and the sentence imposed by the learned Magistrate, preferred Criminal Appeal No. 12 of 1999 on the file of the I Additional Sessions Judge, Guntur. The learned Sessions Judge, through judgment dated 23-7-1997, set aside the conviction and the sentence imposed by the learned Magistrate for the offence under Section 138 read with 142 of the Act and allowed the appeal. The complainant, being aggrieved by the judgment of the learned Sessions Judge, preferred this appeal challenging its validity and legality.
3. The case of the prosecution leading to the complainant preferring this appeal is briefly as follows :
On 5-6-1992 the accused borrowed Rs. 60.000/- from the complainant for purchase of a house site and executed a demand promissory note in his favour agreeing to repay the same with interest at the rate of 24% per annum either to him or his order on demand. The accused failed to repay the amount to the complainant despite repeated demands and also failed to give reply to the legal notice dated 17-5-1994. Subsequently, the accused gave a crossed cheque for Rs. 90.000/- on 10-11-1994 in favour of the complainant drawn on Vysya Bank Limited, Arundelpet, Guntur, towards part payment of the debt. The complainant presented the said cheque to Vysya Bank Limited, Arundelpet, Guntur, through his Banker, State Bank of Hyderabad, Kothapet Branch, Guntur, and it was returned with an endorsement 'account closed'. The complainant issued a notice to the accused on 24-11-1994 intimating the dishonour of cheque and demanding payment of the amount due to him. The accused having received the notice gave a false reply. The accused without keeping the funds in his account issued Ex.P-1 cheque in favour of the complainant and cheated him, therefore, the accused is liable for punishment under Section 138 of the Act.
4. The accused took a defence that he borrowed Rs. 5.000/- only from Southern Finance Company, Guntur in the year 1991. The said company being managed by the complainant obtained his signatures on blank promissory notes, blank papers and two blank cheques as collateral security for payment of the amount of Rs. 5.000/- and kept them in the custody of the complainant. The said amount of Rs. 5.000/- was paid by the complainant to him after getting the cheque for an amount of Rs. 12.000/-encashed from the banker of the complainant and took away the balance amount of Rs. 7,000/- to give an impression that the accused drew Rs. 12.000/- by way of cheque. The accused repaid the entire amount due to the said Southern Finance Company, Guntur, together with interest, as agreed and demanded for return of the blank promissory notes, one blank paper and two blank cheques. Though the complainant promised to return, failed to do so. The complainant taking advantage of the possession of the blank promissory notes, blank paper and two blank cheques, created Ex. P-1 cheque bearing No. 0697889 and managed to get an endorsement 'account closed' and filed a complaint with a view to cause wrongful loss to the accused and to have wrongful gain for himself. The further defence of the accused was that the complainant made over one blank pronote and blank cheque bearing No. 0697890 to a fictitious person by name G. Ravindra Babu, got issued a notice through the said fictitious person alleging that he executed promissory note on 25-5-1991 and a cheque was issued in favour of the said Ravindra Babu on 26-12-1993 for Rs. 81,000/- in full discharge of the debt and the same was returned unpaid on presentation with an endorsement 'insufficient funds'. The complainant, being a moneylender, played the entire drama with a view to have wrongful gain and to cause wrongful loss to him.
5. The complainant in order to prove the guilt of the accused examined P.Ws. 1 to 4 and marked Exs. P-l to P-9. The accused in support of his defence examined D.Ws. 1 and 2 and marked Exs. D-l and D-2. The trial Court marked Exs. X-l and X-2 during the course of evidence.
6. The learned Magistrate after considering the evidence adduced by both parties found the accused guilty of the offence under Section 138 of the Act, convicted and sentenced him to undergo rigorous imprisonment for one year.
7. The learned Sessions Judge observed that the complainant as P.W. 1 failed to produce his account to indicate the debt of the accused that P.W. 1 failed to prove that any amount was due from the accused, that Ex.P-l cheque is a clouded document on account of typing of the contents, instead of the body written by the accused, who is a well educated person, that the complainant failed to establish that Ex. P-1 was executed by the accused in the strict sense of execution and that the execution of Ex. P-1 cheque by the accused was to discharge the outstanding debt, therefore, the accused cannot be found guilty of the offence under Section 138 of the Act.
8. The complainant assailed the judgment of the Sessions Court by contending that the Sessions Court erred in appreciating the evidence placed by him, therefore, the judgment of the Sessions Court is liable to be set aside by restoring the judgment of trial Court.
9. The learned Senior Counsel T. Ball Reddy, representing the complainant submitted that the Sessions Court failed to believe that there was a legally enforceable debt and that the accused gave Ex. P-l cheque towards discharge of the part of the debt, therefore, the judgment of the Sessions Court is liable to be set aside.
10. Sri C. Padmanabha Reddy, the learned Senior Counsel for the accused submitted that in the light of the specific contention of the accused that two blank cheques were taken by the complainant at the time of lending money on 20-2-1991 and not on 5-6-1992 as contended by the complainant, the learned Sessions Judge rightly observed that there was no legally enforceable debt against the accused and he did not issue any cheque for discharge of any amount.
11. The point for consideration is whether the judgment of the Sessions Court in Crl. Appeal No. 12 of 1997 is liable to be set aside?
12. The complainant in order to prove the offence under Section 138 of the Act against the accused relied on the evidence of P.Ws. 1 to 4.
13. The complainant as P.W. 1 deposed that on 5-6-1992 the accused borrowed Rs. 60.000/- and executed a demand promissory note agreeing to repay the amount with interest at the rate of 24% per annum. He demanded for repayment of the amount, but the accused did not pay the same. He is sued Ex. P-7 legal notice through the lawyer. After receiving the said notice, the accused informed him that he would pay the amount within four months, but failed to pay the same. Ultimately, the accused issued Ex. P-1 cheque for Rs. 90.000/- on 10-11-994 drawn on Vysya Bank Limited, Arundelpet Branch, Guntur, to discharge the debt under pronote. On the next day, he presented Ex. P-1 cheque for collection to State Bank of Hyderabad, Kothapet Branch, Guntur. On 15-11-1994 it was returned after dishonour with an endorsement 'account closed'. He got issued a statutory notice through his advocate to the accused on 24-11-1994 under the original of Ex.P-3. The accused received the notice under Ex. P-4 postal acknowledgment dated 28-11-1994. The accused did not pay the amount subsequent to the receipt of notice. Therefore, the accused cheated him by issuing a cheque without keeping funds in the bank.
14. P.W. 2, the Chief Manager of Vysya Bank Limited, Arundelpet Branch, Guntur, deposed that Ex. P-l cheque was received by their bank, through clearing on 12-11-1994 presented by State Bank of Hyderabad, Kothapet Branch, Guntur. The drawer of the cheque was accused, who was having account in their bank. Ex. P-l cheque was returned with an endorsement 'account closed. In cross-examination, he stated that he does not know till what date the accused was holding account in their bank and on what date the cheque book containing Ex. P-l leaf was issued to the accused. As and when the account was closed, the unused leaves of the cheque book will be returned to the bank.
15. P.W. 3, the then Deputy Manager of State Bank of Hyderabad, Kothapet Branch, Guntur, deposed that P.W. 1 presented Ex. P-l cheque in their bank on 12-11-1994. They presented the said cheque to Vysya Bank Limited, Arundelpet Branch, Guntur, for collection and the same was returned on 13-11-1994 with a memo that the account was closed. They handed over the returned cheque along with memo to P.W. 1.
16. The evidence of P.Ws. 1 to 3 indicates that Ex. P-l cheque signed by the accused was presented to the bank and it was returned with an endorsement 'account closed'. The accused contended that the endorsement was managed by the complainant from the bank officials. But, he could not elicit any further information from the prosecution witnesses to doubt the presentation of the cheque and it was returned with an endorsement 'account closed'. The evidence of D.Ws. 1 & 2 is not to discredit the evidence of P.Ws. 1 to 3 regarding the presentation of the cheque and the endorsement of the bank. The material placed by the prosecution, therefore, amply established that the cheque bearing No. 0697889 containing the signature of the accused was presented by the complainant for collection and it was returned with Ex. P-2 endorsement that the account was closed.
17. P.W. 4, a person, who runs the Southern Finance Company at Guntur, deposed that he knows the accused, who was his Lecturer, when he studied. On 5-6-1992 the accused borrowed Rs. 60.000/- from the complainant and executed a promissory note in his presence. After scribing promissory note, the accused signed on it and cash of Rs. 60.000/- was also paid by the complainant to the accused in his presence agreeing to repay the same with interest at 24% per annum. The accused did not borrow any amount from him and there were no financial transactions between him and the accused. The complainant is in no way concerned with the Southern Finance Company, which was run by him.
18. The accused concentrated more to impress upon the Court that there was no legally enforceable debt, that he did not issue Ex.P-1 cheque for discharge of the debt, that the promissory note as well as Ex. P-1 cheque were obtained blank as security for the amount of Rs. 5.000/- borrowed by him from Southern Finance Company, Guntur, which was managed by the complainant and that the complainant is a professional money-lender. Therefore, it has to be tested from the evidence available on record whether the accused was able to show preponderance of probabilities to indicate that the defence version might be true and the prosecution version is not true?
19. A lengthy cross-examination was done to P.W. 1 to discredit his evidence regarding the genuineness of the enforceable debt and Ex. P-l cheque. In cross-examination P.W. 1 stated that he might have advanced loan to four persons and those persons were due to discharge the debts and prior to those transactions also he lent amounts to others. He issued notices to some of the defaulters and he is not maintaining any accounts, and he is not an income-tax assessee at the time of lending money. He used to obtain promissory notes from the borrowers. If the borrowers are literates, he used to obtain pronotes in their handwriting, if not, he used to get the pronotes scribed through others. He knows the accused through P.W. 4. The accused borrowed money from him on two or three occasions and repaid the same. He has not filed any civil suit against the accused on the basis of the pronote executed by him. He got issued a notice demanding the repayment of the amount before he issued the cheque. He has not filed the promissory note executed by the accused in the Court. As on 10-11-1989 the interest accrued on the principal amount was Rs. 35.000/-. The accused got the body of the cheque typed on a type machine, subscribed his signature and gave it to him. On the date of issuing of the cheque, he did not verify whether the accused closed the account. The accused borrowed the amount for purchase of a house site. He could not produce the promissory note since it was misplaced and gave a complaint to Peddakakani Police Station in that connection. He carried the pronote with him to hand over the same to the advocate at Guntur for filing a suit. As his advocate was not available, he went to Peddakakani to attend his personal work and lost the pronote during transit at about 10 a.m. Immediately, he gave a complaint to Peddakakani Police Station. He denied a suggestion that the accused never borrowed any amount from him and no amount was due to him from the accused. He denied a further suggestion that P.W. 4 was unofficially managing Southern Finance Company and he was an unofficial partner in the said firm. He denied a further suggestion that the accused borrowed only Rs. 12.000/-from Southern Finance Company in the year 1991, that he issued a cheque for Rs. 22.000/- to the accused and after withdrawal, Rs. 12.000/- only was paid to the accused, that he and P.W. 4 obtained two blank pronotes, two blank cheques and two blank papers with signatures of the accused. He denied a further suggestion that the accused repaid the amount to Southern Finance Company and that the accused did not issue Ex. P-l cheque in his name. He denied a further suggestion that taking advantage of two blank cheques and two promissory notes taken by Southern Finance Company, P.W. 4 and himself created this debt covered by these cases with a view to have wrongful gain and to cause wrongful loss to the accused. In order to suppress the truth, he created the story of losing promissory note at Peddakakani and obtained the false endorsement from the bank. He denied a further suggestion that the accused issued the cheque leaf of Ex. P-1 in the year 1991 to Southern Finance Company as security and it was never given by the accused to him as alleged by the prosecution.
20. The appellant filed the complaint within time. Though the accused denied the debt and pleaded that the loan was discharged by him, he stated that the pronote was not returned. The above contention of the accused is a clear indication that he executed a demand promissory note in favour of the complainant for the amount borrowed by him. The accused did not elicit any information from the prosecution witnesses or adduced any evidence to prove on what date he discharged the debt and in whose presence he paid the amount to the complainant. In the absence of such material and in view of the failure of the accused giving reply to the Ex. P-7 notice given by the complainant alleging that he borrowed the amount under a demand promissory note, it cannot be said that the accused is not liable to pay the amount due under the demand promissory note. Had he paid the amount due under the demand promissory note, there would not have been any problem for him to take return of the demand promissory note or acknowledgment in proof of repayment of the amount covered by the demand promissory note. The complainant asserted that the accused borrowed Rs. 60,000/- and a demand promissory note was executed in his favour for the said amount, though he did not produce the D.P. note on the ground that he lost it during the transit. Therefore, it has to be inferred that there was a debt due to the complainant and in discharge of the said debt, Ex. P-l cheque was issued by the accused to the complainant.
21. The accused contended that a blank cheque duly signed by him was issued to a Chit Fund Company and the said cheque came to the hands of the complainant and the complainant taking advantage of the availability of the blank signed cheque foisted the case against him by getting the contents filled on a typewriter.
22. The defence of the accused is not consistent. One version of the accused is that he borrowed Rs. 50.000/-. Later he pleaded that he borrowed only Rs. 12.000/- from Southern Finance Company in the year 1991 and that the complainant got a cheque issued in the name of the accused for Rs. 22.000/- and after encashment the complainant paid Rs. 12.000/- to the accused by obtaining two blank pronotes, two cheques and two blank papers by obtaining the signatures of the accused. The further contention was that the said amount was repaid to Southern Finance Company and that the accused did not give Ex. P-1 in the name of the complainant. He further suggested to the complainant that the cheque leaf covered by Ex.P-1 was given to Southern Finance Company as security in 1991 and it was never given to the complainant as alleged by the prosecution. It was further suggested to P.W. 4, the person, who was running Southern Finance Company that P.W. 4 obtained two blank signed promissory notes, two blank signed cheques and blank signed paper from the accused at the time of borrowing the amount of Rs. 12.000/-by issuing a cheque for Rs. 17.000/-.
23. The accused did not explain whether there was any practice of the complainant obtaining blank signed promissory notes, blank signed cheques and blank signed papers on the earlier transactions also and what were the compelling circumstances, which made him to sign on so many blank papers. The accused did not suggest to any of the prosecution witnesses whether he borrowed any amount previously from Southern Finance Company represented by P.W. 4 and whether there was a practice of taking signatures on blank papers and blank cheques at the time of lending money to him or other borrowers.
24. The learned Counsel for the appellant-complainant placed strong reliance on the following judgments in support of his contention that the accused issued the cheque knowing fully well that no amount was lying in the bank, therefore, he was rightly found guilty by the trial Court for the offence under Section 138 of the Act.
25. In Hiten P. Dalai v. Bratindranath Banerjee 2001 (2) Andh LD (Crl) 234 : 2001 Cri LJ 4647 (SC), the Supreme Court while dealing with Sections 138 and 139 of the Act held that whenever a cheque was issued to the complainant for a specific amount, there is a presumption that it is towards discharge of legally enforceable debt. In the event of dispute, the burden is on the accused to prove that there was no subsisting liability as on the date of issuing of cheque and the proof must be sufficient to rebut the presumption and mere explanation is not sufficient. The Supreme Court further held as follows (Paras 21 & 22 of Cri LJ) :
Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.
In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw that statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.
26. In V. Munikrishnaiah v. C. Janakirama Naidu 2005 (1) Andh LD (Crl.) 638 : 2005 Cri LJ 1093 (AP), this Court while dealing with Sections 138 and 139 of the Act held that whenever there is denial of liability under a cheque issued by the accused, the burden is on the said accused to prove that the dishonoured cheque was not issued in discharge of legally enforceable debt or liability on drawer of cheque and not on payee. Failure of accused to adduce any evidence to rebut presumption under Section 139 in favour of the complainant, it has to be taken that the dishonoured cheque was issued by the accused towards legally enforceable debt or liability to complainant.
27. In Sharada Finance Corporation v. L. Laxman Goud 2004 (1) .Andh LD (Crl) 596 (AP), this Court held that whenever a cheque was issued towards partial discharge of the loan and when it was dishonoured after admitting the borrowal of the amount from the complainant, his plea that he gave a blank cheque duly signed in favour of the complainant does not amount to rebutting the presumption with regard to the existence of subsisting liability,
28. In B.V. Rangam v. B. Govinda Reddy 2004 (1) Andh LD (Crl) 810 : 2004 Cri LJ 3170 (AP), this Court held that in view of the presumption under Section 138 of the Act, the burden lies on the accused to prove want of subsisting liability. When the complainant discharged his initial burden of proving that the cheque was issued towards subsisting liability and when the accused failed to rebut the presumption by adducing any evidence, the acquittal given by the trial Court on the ground that the complainant failed to prove that the dishonoured cheque was issued for a subsisting debt, cannot be sustained.
29. The learned Counsel for the respondent-accused submitted that as per the evidence of P.W. 1, the body of the cheque was written in the handwriting of the accused, whereas Ex. P-1 cheque indicates that the body was type-written with a type machine. He further submitted that since there is a material contradiction as to whether the body of the cheque was written by the accused or typed on a type machine and as the contents of the body of the cheque are type-written, it is falsifying the version of P.W. 1 that the body of the cheque was written in the handwriting of the accused. There is any amount of doubt regarding the genuineness of the transaction as alleged by the prosecution and it is probabilising the defence version that the cheque was issued long prior to the date mentioned therein, therefore, it cannot be treated as a cheque issued to the complainant towards discharge of a debt.
30. The legal position on this aspect is very clear that the body of the cheque need not necessarily be written by the accused and it can be in the handwriting of the anybody else or typed on a type machine, so long as the accused do not dispute the genuineness of the signature on the cheque. The following decision in this regard, renders help to me.
31. In Satish Jayantilal Shah v. Pankaj Mashruwala 1996 Cri LJ 3099 the High Court of Gujarat held that law does not provide that in case of any negotiable instrument, entire body has to be written by maker or drawer only. What is material is signature of drawer or maker and not the body writing, hence, the dispute relating to body writing has no significance.
32. The learned Counsel for the accused further submitted that the accused did not borrow any amount from the complainant and there was no legally enforceable debt by the date of issuing the cheque.
33. The evidence of P.W. 1 was very specific that the accused borrowed Rs. 60.000/-ori 5-6-1992. His evidence was supported by the evidence of P.W. 4, who alleged to have scribed a demand promissory note executed by the accused. The accused did not deny the signatures on the cheque as well as the demand promissory note, but attributes that they were given by him to Southern Finance Company towards security, at the time of borrowing of Rs. 5.000/-form it. The accused did not suggest on what date and in whose presence the said Rs. 5.000/- said borrowed. In the light of the above and contention, it has to be examined whether the circumstances placed before the Court are leading to a conclusion that the defence version is probable.
34. The learned Sessions Judge reversed the judgment of the trial Court by making the following observations :
Had the accused issued Ex.P-l cheque in November, 1994 after closing the account in December, 1992, he would not only be guilty under Section 138 read with 142 of the Act, but also guilty under Section 420, I.P.C. for cheating. Ex. P-6 issued by Sub-Inspector seems to be a document of grave infirmities. The Sub-Inspector of Police, who issued Ex. P-6, did not put the date and it was not clear as to when the certificate was issued by him. He did not certify that such pronote existed or that P.W. 1 lost the said pronote. His certificate is only to the effect that the alleged lost pronote was not traced. Non-tracing the lost pronote does not mean that the pronote existed at one time and that it was subsequently lost. No one connected with Ex. P-6 was examined by the complainant. Apart from the fact that Ex. P-6 served a very limited purpose, where Ex. P-6 itself is not proved holding that Ex. P-6 established beyond doubt that the accused executed a pronote in favour of P.W. 1 for Rs. 60.000/- is not correct. The learned Sessions Judge, therefore, did not agree with the finding of the learned Munsif Magistrate in this regard and held that Ex. P-6 did not prove the prosecution case in any manner. Apart from Ex. P-6, P.W. 1 did not produce any other proof regarding the subsistence of the debt. P.W. 1 did not file any civil suit against the accused on the basis of the pronote. The contention of P.W. 1 that as he lost the pronote he could not lay the suit cannot be accepted since a suit can be filed on the basis of lost pronote also.
35. The fact that P.W. 1 did not take any steps on the civil side to recover the amount due to him from the accused is a pointer against P.W.1. P.W.4 mentioned the names of attesters who contended that the accused himself brought the attesters. P.W.4 was an erstwhile student of the accused. He contended that he scribed the pronote at the Registry at Guntur when he accidentally went to the accused and P.W. 1 at the Registry. The presence of the accused and P.W. 1 at the Registrar Office is not natural and it was not convincingly explained. P.W. 4 was also not cross-examined as to why the accused and P.W. 1 were present at the Registrar Office. Therefore, the learned Sessions Judge did not attach importance to this factor that P.W. 4 scribed pronote at the Registry. P.W. 1 did not state that P.W. 4 scribed the pronote. In the complaint also, P.W. 1 did not mention that P.W. 4 scribed the pronote. P.W. 1 did not state in Ex. P-3 and 7 notices that the pronote was scribed by P.W. 4. Therefore, the learned Sessions Judge agreed with the contention of the accused that P.W. 4 is a planted witness or a witness whose evidence has not been corroborated in any manner either by P.W. 1 or any other witnesses. It is, therefore, not safe to accept the evidence of P.W. 4 on the face of various infirmities and absence of corroboration.
36. The learned Sessions Judge further observed that a more vital factor is the fact that Ex. P-l is the typed cheque. The accused has been working as a Lecturer in English. The claim of the accused is that he signed two blank cheques and that Ex. P-1 was subsequently drafted on one of them. Admittedly, Ex. P-1 was one of the leaves from the cheque book held by the accused as proved by the evidence of D.W. 2.
37. He further observed that it is the claim of P.W. 1 that the cheque under Ex. P-l was not typed. Why was it typed is a million dollar question. It would be incorrect to assume that the accused did not want to fill up the cheque completely. He could have simply written the name of the payee, the amount payable in words and in figures and could have crossed the cheque in his own handwriting. P.W. 1 made a specific admission that when he was dealing with literate borrowers, he was making them to prepare and sign all the documents. It is for P.W. 1 to explain as to why Ex. P. 1 became an exception to this rule. Merely because a cheque is type-written, it does not automatically imply that the cheque was riot executed. One of the main grounds of probabilities is that the cheque was type-written. The other infirmity in this case is the failure of P.W. 1 to produce his account. If P.W. 1 occasionally lends money and a huge amount like Rs. 60.000/- giving into a single individual, P.W. 1 is expected to maintain an account, but he did not maintain such account. With reference to the amount due from the accused, P.W. 1 failed to prove that any amount was due from the accused and the question of issuing the cheque for amount outstanding, therefore, simply does not arise. Thus, the case of the complainant is negatived on every count. The claim of P.W. 1 that the accused became liable when Ex. P-1 bounced does not hold water. The complainant failed to establish that Ex. P. 1 cheque was executed by the accused in the strict sense of execution and it was executed by the accused in discharge of an outstanding debt.
38. After making the above observations, the learned Sessions Judge found the accused not guilty of the offence under Section 138 read with 142 of the Act.
39. The complainant, gave the date of borrowing money by the accused. He pleaded that the accused executed a demand promissory note for the amount borrowed by him agreeing to repay the same as and when demanded. The accused was in the habit of taking money from P.W. 1 and repaying it with interest. The accused could not elicit any information from any of the prosecution witnesses that he gave blank signed cheques either to P.W. 1 or P.W. 4. His defence that when he borrowed Rs. 5,000/-frorn Southern Finance Company, the blank pronote, blank cheques and blank papers with his signatures were taken for a debt of Rs. 5,000/-. There was no necessity for anybody to take so many documents regarding the said loan transaction. The accused could not suggest to any of the witnesses whether there were anybody with him at the time of alleged borrowing of Rs. 5.000/-. The learned Sessions Judge observed that since the complainant failed to produce the original demand promissory note, there is a doubt regarding the genuineness of the debt allegedly taken by the accused from P.W. 1.
40. The mere loss of the demand promissory note or its non-production by itself would not be sufficient to hold that there was no legally enforceable debt. There are no other probable circumstances placed by the accused in the process of discharge of his burden. The failure of the accused in giving reply to the legal notice issued by P.W. 1 is one of the strong circumstances to draw an inference that the accused borrowed the amount from P.W. 1 and the cheque was issued towards part payment of the legally enforceable debt.
41. So far as Ex. P-6 report given by the Sub-Inspector of Police is concerned, it was a fact that P.W. 1 gave a complaint on the second day of loss of the pronote and in pursuance of that Ex. P-6 certificate was given by the Station House Officer. By the date of loss of the pronote, no complaint has been filed by P.W. 1. The matter was only at the stage of notice. P.W. 1 would not have anticipated the plea of denial of the execution of promissory note and issuing of the cheque by the accused. When once the pronote was lost, there will not be any possibility for the appellant also to see the pronote or to mention the other particulars.
42. The accused attributed that since P.W. 4 was the student of the accused he colluded with P.W. 1 for creation of Ex. P-1 cheque and the demand promissory note. No specific cause or enmity has been attributed to P.W. 4 to speak falsehood against the accused. The learned Sessions Judge by simply taking into consideration a suggestion of the accused, commented that since there was no mention in the evidence of P.W. 1 that P.W. 4 was the scribe of the demand promissory note, there is a doubt about the indebtedness of the accused and when once the signatures on the demand promissory note as well as the cheque are not disputed by the accused, the burden is on the accused to establish under what circumstances he signed all those documents and in what connection he gave those documents and how those documents came to the possession of P.W. 1 and what was the necessity for P.W. 1 to file the present case when there was no borrowing of money from P.W. 1. Mere non-filing of the suit by itself is not a circumstance leading to a conclusion that there was no legally enforceable debt. The evidence of P.W. 4 was that he was the scribe of the promissory note. He gave the circumstances under which he acted as a scribe. The non-mentioning of the name of P.W. 4 as a scribe in the earlier notices is common since the notices usually confines to the claim and other details will be given only during the course of trial. Therefore, the non-mentioning of the name of P.W. 4 as a scribe in the notices is not fatal to the case of P.W. 1. P.W. 1 though stated In his evidence that the accused filed the body of the cheque with his handwriting, signed and gave it to him, after seeing the cheque he mentioned that the accused signed the cheque and the body of which was already type-written. Even if there is any discrepancy whether the body was written by the accused or got it typed it is immaterial when there was no denial of the signature on the said cheque.
43. The legal position regarding the above aspects is very clear as the accused failed to point out such circumstances leading to a doubt either in the prosecution version or leading to a conclusion probabilising the defence version that the blank promissory note and the blank cheque were used to implicate the accused in the present crime. Since the accused failed to discharge his burden, he cannot escape from criminal liability under Section 138 of the Act. After carefully going through the evidence available on record, I am of the view that the learned Sessions Judge went wrong in setting aside the conviction given by the trial Court and giving the benefit of doubt to the accused, on the basis of the aspects not material to the merits of the case. The judgment of the Sessions Judge is, therefore, liable to be set aside.
Crl. R.C. No. 312 of 1999:
44. Criminal Revision Case No. 312 of 1999 is filed by the de facto complainant in C.C. No. 161 of 1997 against the order of the V Additional Munsif Magistrate, Guntur, dated 27-12-1998 in Crl. M. P. No. 3667 of 1998 acquitting the accused under Section 300 of the Criminal Procedure Code (for short 'Cr. P.C.'). The complainant being aggrieved by the order of the learned Magistrate passed under Section 300(1)(4) of Cr. P.C. preferred this revision case, challenging its validity and legality.
45. In this matter, the complainant filed a private complaint for the offence under Section 420 of the Indian Penal Code (for short IPC) against the accused. The trial Court referred the matter to the police for investigation under Section 156(3), Cr. P.C. The police registered a crime and after investigation laid a charge-sheet for the offence under Section 420, IPC. The trial Court took cognizance of the offence and numbered the same as C.C. No. 161 of 1997. Subsequently, when the complainant was examined in part, the accused filed Crl. M.P. No. 3667 of 1998 under Section 300(1)(4) of Cr. P.C. to acquit him for the offence under Section 420, IPC. The learned Magistrate allowed the petition on the ground that the accused was already convicted for the offence under Section 138 of the Act in respect of the transaction relating to the same cheque.
46. The case of the prosecution leading to preferring of this revision is same as that is mentioned In Criminal Appeal No. 1581 of 1999. The further case of the prosecution Is that the accused borrowed Rs. 60.000/-on 5-0-1992. Ex P-l cheque was issued by him for Rs. 90.000/- on 10-11-1994 and the same was returned on 12-11-1994 with an endorsement 'account closed'. The complainant, during the course of evidence in C.C. No. 1 of 1995 came to know that the accused closed the account on 31-1-1992 long prior to the date of borrowing of the amount and issuing of Ex. P-l cheque. The accused issued the cheque with dishonest and fraudulent intention knowing fully well that the account: was previously closed and induced the complainant to present the cheque to the bank making him to believe that he can encash the same. Therefore, the accused is liable for punishment under Section 420, IPC.
47. The learned Counsel for the revision petitioner submitted that the learned Magistrate erred in arriving at a conclusion that the case covered by C.C. No. 161 of 1997 was on the same cause of action on which C.C. No. 1 of 1995 was filed in respect of the same transaction by not considering the fact that C.C. No. 161 of 1997 was filed under a different cause of action, which came to light during the trial of C.C. No. 1 of 1995, therefore, the order of the learned Magistrate in Crl. M.P. No. 3667 of 1998 is liable to be set aside,
48. The learned Counsel for the respondent submitted that since the accused was prosecuted for bouncing of Ex. P-l cheque, he cannot be prosecuted once again" in respect of the same transaction under Section 420, IPC, therefore, the learned Magistrate was right in finding that the second complaint cannot be maintained against the accused and rightly recorded his acquittal.
49. C.C. No. 161 of 1997 was filed by the complainant against, the same accused for the offence under Section 420, IPC. The accused pleaded not guilty of the offence arid claimed for trial. The complainant was examined as P.W. 1-in-chief and the cross-examination was deferred. Subsequently, the accused filed Crl. M.P. No. 3667 of 1998 under Section 300(1)(4) of Cr. P.C. to acquit him for the offence under Section 420, IPC. The learned Magistrate passed the impugned order on 22-12-1998 by observing that the facts and circumstances of both the cases are one and the same, that Section 300 of Cr. P.C. is squarely applicable to the case and, therefore, the accused is entitled for acquittal under Section 300, Cr. P.C.
50. . The learned Counsel for the complainant-revision petitioner in Crl. R. C. No. 312 of 1999 submitted that issuing a cheque without keeping the money in the account leads to dishonour of the cheque for want of sufficient money in the bank and in such an event, it attracts punishment for the offence under Section 138 of the Act. But, in the present case, the cheque presented by the complainant was dishonoured on account of closing of the account, therefore, the complainant filed C.C. No. 1 of 1995 for the offence under Section 138 of the Act. He further submitted that during the trial of the earlier case, it came to light that the account was closed by the accused long prior to the date of issuing of cheque, therefore, it is a clear indication that the accused knowing fully well that he closed the account long prior to the date of issuing of the cheque, that the cheque cannot be encashed due to closing of the account, that he issued the cheque to the complainant to make him to believe that the accused was sincere in discharging the debt and the complainant can encash the cheque towards part satisfaction of the debt due to him. It is a fact that the accused closed the account prior to the date of issuing of the cheque. Therefore, this is a fit case where the ingredients of Section 420, IPC are attracted and as the cause of action for this case is different from the cause of action for C.C. No. 1 of 1995, the complaint is perfectly maintainable and the order of the trial Court is liable to be set aside.
51. The learned Counsel for the respondent-accused submitted that since the cause of action for both the cases arose on account of dishonour of a cheque issued by the accused and as the accused was convicted for the offence under Section 138 of the Act in C.C. No. 1 of 1995, he cannot be again tried for the offence under Section 420, IPC on the same set of facts and circumstances and in respect of the same transaction relating to the cheque.
52. In the light of the submissions made by the counsel of both parties, it has to be examined whether the accused gave the cheque knowing fully well that the account has been closed long prior to the date of cheque, and whether the present case is maintainable against the accused in the light of the provisions of Section 300, Cr. P.C.
53. Section 300(1) to (6), Cr. P.C. reads as follows :
Person once convicted or acquitted not to be tried for same offence :--
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which different charge from the one made against him might have been made under Sub-section (1) of Section 221, or for which he might have been convicted under Sub-section (2) thereof.
(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under Sub-section (1) of Section 220.
(3) A person convicted of any offence constituted by any act causing consequences, which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) A person discharged under Section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of Section 26 of the General Clauses Act, 1897 (10 of 1897) or of Section 188 of this Code.
54. The section is based on the principle that no man's life or liberty shall be twice put in jeopardy for the same offence on the same set of facts. Article 20(2) of the Constitution of India is also basing on the same principle. Section 300, Cr. P.C. embodies within narrow limits the principles of the English common law pleas of autrefois convict and autrefois acquit. Section 300(2), Cr. P.C. provides that if the offences were distinct there is no question as to the rule of double jeopardy in Article 20(2) of the Constitution of India.
55. In OPTS Marketing (P) Limited v. State of A.P. 2001 (1) Andh LD (Cri) 312 : (2001 Cri LJ 1489) (AP) (FB) a Full Bench of this Court while considering the question of quashing the proceedings under Section 482 of Cr. P.C. relating to the offences under Section 420, IPC and 138 of the Act held as follows (para 27 of Cri LJ) :
Even after introduction of Section 138 of the Negotiable Instruments Act, prosecution under Section 420, IPC is maintainable in case of dishonour of cheques or postdated cheques issued towards payment of price of the goods purchased or hand loan taken, or in discharge of an antecedent debt or towards payment of goods supplied earlier, if the charge-sheet contains an allegation that the accused had dishonest intention not to pay even at the time of issuance of the cheque, and the act of issuing the cheque, which was dishonoured, caused damage to his mind, body or reputation. Private complaint or FIR alleging offence under Section 420, IPC for dishonour of cheques or postdated cheques cannot be quashed under Section 482, Cr. P.C. if the averments in the complaint show that the accused had, with a dishonest intention and to cause damage to his mind, body or reputation, issued the cheque which was not honoured.
56. In K. S. Anto v. Union of India 1992 (Supple) MWN (Cri) (sic) Kerala, while considering the Article 20(2) of the Constitution of India and Section 300 of Cr. P.C. held as follows :
Bar under Article 20(2) that no person shall be prosecuted and punished for same offence more than once cannot be said to be violated by Section 138 of the Negotiable Instruments Act. Some act or omission may be capable of constituting more than one offence under different provisions. That is no reason to say that Article 20(2) is offended. What is barred under Article 20(2) is only a second prosecution and conviction for the same offence. In other words, what is prohibited is double jeopardy, which is provided in Section 300 of the Code of Criminal Procedure. Also offences under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code are different and the ingredients are also different. Conviction for different offences, separately is not barred under Article 20(2). In spite of prosecution and conviction under Section 138, there will be no constitutional bar in prosecution for an offence punishable under Section 420 of the Penal Code and a prosecution will be if such an offence is made out.
57. In V. Kutumba Rao v. M. Chandrasekhar Rao 2003 (2) Andh LD (Cri) 830 : (2003 Cri LJ 4405) (AP) this Court while dealing with Sections 300 and 482 of Cr. P.C. held as follows (para 1.1 of Cri LJ) :
In a prosecution under Section 138, Negotiable Instruments Act, the mens rea viz. fraudulent or dishonest intention at the time of issuance of cheque need not be proved. However, in a prosecution under Section 420, IPC mens rea is an important ingredient to be established. In the former case the prosecution has to establish that the cheque was issued by accused to discharge a legally enforceable debt or other liability. This ingredient need not be proved in a prosecution for the charge under Section 420, IPC. Therefore, the two offences covered by Section 420, IPC and 138, Negotiable instruments Act are quite distinct and different offences even though sometimes there may be overlapping and sometimes the accused person may commit both the offences. The two offences cannot be construed as arising out of same set of facts. Therefore, Section 300, Cr. P.C. is not a bar for separate prosecutions for the offences punishable under Section 420, IPC and 138 of the Negotiable Instruments Act. The question of application of the principles of double jeopardy or rule of estoppel does not come into play. The acquittal of the accused for the charge under Section 420, IPC does not operate as estoppel or res judicata for a finding of fact or law to be given in prosecution under Section 138 of the Negotiable Instruments Act.
58. In Manipur Administration v. Bira Singh the
Supreme Court while dealing with Article 20(2) of the Constitution of India and Section 26 of the General Clauses Act, 1897, held as follows (para 6) :
Both in the case of Article 20 (2) of the Constitution as well as Section 26 of the General Clauses Act to operate as a bar the second prosecution and the consequential punishment thereunder, must be for "the same offence" i.e. an offence whose ingredients are the same. The Vth amendment of the American Constitution, which provides that no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb, proceeds on the same principle.
59. In the light of the above provision of law and the legal position, I wish to verify the facts leading to the filing of the second case against the accused.
60. The complainant as P.W. 1 in C.C. No. 1 of 1995 deposed that when he presented Ex. P-l cheque for collection, the bank gave an endorsement on 15-11-1994 'account closed'. He issued the original of Ex. P-3 notice, which was received by the accused on 28-11-1994. The accused did not pay the amount after receipt of the notice. Therefore, he filed the complaint to prosecute the accused for the offence under Section 138 of the Act.
61. In Ex. P.3, legal notice, the complainant mentioned that the amount of Rs. 60.000/- was borrowed by the accused on 5-6-1992 and executed a demand promissory note. A registered notice was issued on 17-5-1994 through his advocate, which was received by the accused on 24-5-1994, but he failed to give any reply. Subsequently, on 10-11-1994 the accused issued Ex. P-l cheque for Rs. 90.000/- towards part payment of'the debt. The complainant presented the cheque for collection on 11-11-1994, and it was returned with an endorsement 'account closed'. He further mentioned in the said notice that the accused knowing fully well that there was no balance left in the account deliberately and intentionally issued the cheque to cheat him and to cause wrongful loss to him. Therefore, he called upon the accused to pay the amount. Ex. P-2 endorsement given by the bank discloses that the account was closed. But, there was no mention as to when the account was closed. The complainant after seeing the said endorsement might have gained an impression that the account was closed after issuing the cheque.
62. D.W. 2 an Officer of Vysya Bank deposed that the accused was holding an account with his bank from 31 -12 -1990 to 31-1-1992. He was having cheque power and the cheque books were issued to him from time to time. The cheque book containing leaf numbers 0697889 and 0697890 was issued to the accused on 1-2-1991. Subsequently also cheque books were issued to the accused. He further deposed that the accused closed the account on 31-1-1992, and he gave the said information on the basis of the records.
63. The evidence of D.W. 2 who is none other than the witness of the accused clearly indicated that the accused closed his account on 31-1-1992. There is no record to show that the accused returned the cheque leaves remained with him to the Bank by the date of closing of the account. The accused did not dispute the closing of the account on 31-1-1992, but he took the defence that the cheque leaf covered by Ex. P-1 was given by him in the year 1991 to Southern Finance Company as security and it was never given to the complainant. The accused did not place any material to show that he had dealings with the Southern Finance Company and he gave Ex. P-l cheque to Southern Finance Company as security. No suggestion was given to any of the prosecution witnesses as to what was the said transaction and what was the necessity for him to give two blank cheques, two blank promissory notes, and two white papers duly signed by him. The mere taking the said defence is not sufficient unless it is probabilised from the material placed before the Court.
64. There is no dispute on the principle that the accused shall not be tried twice for the same offence. Whether the subsequent offence is similar to the earlier offence for which the accused was convicted is purely a question of fact to be considered separately in each and every case. In the present case, after the evidence of D.W. 2, P.W. 1 came to know that the accused closed the account on 31-1-1992, which was long prior to the date of borrowing the amount relating to the cheque transaction.
65. The petitioner contended that it is clear that the accused had an intention to cheat him by making him to believe that he was maintaining the bank account and there was sufficient money to encash Ex. P-l cheque issued by him to P.W. 1. Issuing a cheque after knowing fully well that the accused already closed the account attracts the ingredients of the offence under Section 420, IPC.
66. The accused pleaded that the borrowing of the amount of Rs. 5.000/- was long prior to the date alleged by the complainant for borrowing of the amount, therefore, there was no possibility of the accused issuing the cheque after closing of the account on 31-1-1992, therefore, the ingredients of Section 420 are not attracted.
67. The definition of cheating as defined in Section 415, IPC reads as follows :
Cheating :-- Whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver tiny property, to any person or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to the person in body, mind, reputation or property, is said to "cheat".
68. The ingredients of the above section will be attracted if there was mens rea for the accused to induce the complainant to part with the money making him to believe that it will be adjusted towards the debt. In the present case, the petitioner is contending that by the date of borrowing itself, the accused was having intention to cheat the complainant.
69. The cause of action for C.C. No. 1 of 1995 was the date of dishonour of the cheque, whereas in C.C. No. 161 of 1997 the cause of action arose from the date of borrowing of the amount, on which date the accused made P.W. 1 to part with the money towards the debt or on the day on which D.W. 2 deposed that the account was closed by the accused on 31-1-1992. Since the cause of action for C.C. No. 161 of 1997 is different from the cause of action for C.C. No. 1 of 1995, they cannot be treated, as the cases of similar facts except, that both the cases were in connection with the issuing of the cheque. The legal position on this aspect is also very clear in Masud Khan v. State of U.P. , the Supreme Court held as follows (para 4) :
the principle of issue estoppel is simply this : that where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different and distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by law.
Therefore, I have no hesitation to hold that the complaint covered by C.C. No. 161 of 1997 is maintainable and it is not hit by Section 300, Cr. P.C. and therefore inclined to set aside the order of the learned Magistrate in Crl. M.P. No. 3667 of 1998, dated 22-12-1998 acquitting the accused for the offence under Section 420, IPC.
70. In the result, the Criminal Appeal No. 1581 of 1999 is allowed and the judgment of the Sessions Court dated 23-7-1999 in Criminal Appeal No. 12 of 1997 is set aside. The conviction and the sentences given by the V Additional Munsif Magistrate, Guntur, in C.C. No. 1 of 1995 for the offence under Section 138 read with 142 of the Act are restored. The Crl. R.C. No. 312 of 1999 is also allowed by setting aside the order of the V Additional Munsif Magistrate, Guntur, dated 22-12-1998 in Crl. M.P. No. 3667 of 1998. The acquittal of the accused In C.C. No. 161 of 1997 under Section 300, Cr. P.C. is set aside. The learned Magistrate is directed to restore the C.C. No. 161 of 1997 to its original file and proceed with the trial for the offence under Section 420, IPC and dispose of the same after giving opportunity to both parties.
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