2014 STPL(Web) 1886 MADRAS
[(2014) 3 MLJ (Crl) 730]
MADRAS HIGH COURT
(HON'BLE MR. M. VENUGOPAL, J.)
T. VELNADAR
Appellant
VERSUS
P. AYYANATHAN
Respondent
Criminal Appeal Nos.710 to 712 of 2011-Decided on 25-7-2014.
Negotiable Instruments Act, 1881, (Act), Section 138 - Code of Criminal Procedure, 1973 (CrPC), Section 391 - Criminal Procedure - Additional Evidence - Not allowed - Complaint of dishonour of cheque resulted in acquittal - Appeal against - Plea for additional evidence - Held: Complainant cannot be allowed to produce documents as evidence at an appellate stage, because of the simple reason that the documents in question were very much available before the trial Court at the time of conducting trial of the three cases.
(Para 21)
In short, the exercise of power by the Appellate Court under Section 391 Cr.P.C. is one of discretion. It is true that the power of an Appellate Court to take additional evidence in Appeal is vested based on the view that the 'Concept of Justice' does not suffer and to rectify an irregularity, in the considered opinion of this Court. Undoubtedly, Section 391 Cr.P.C. is to be exercised with great care and circumspection so that the respond of additional evidence for prosecution may not operate in any manner detrimental to the interest of an accused
(Para 20)
The purpose of Section 391 Cr.P.C. is not to enable a prosecution to produce evidence at a later stage which could have been produced at the first trial and plug the gaps left by it.
(Para 21)
Advocate(s): M. V. Muralidaran, for Appellant
G.R. Rajagopal, Senior Counsel for M/s. S. Govindaraman for Respondent COMMON JUDGMENT
1. These Criminal Appeals have been preferred by the Appellant/Complainant as against the Judgment dated 14.9.2011 in C.C.Nos.2301, 230d2 and 2304 of 2001 passed by the Learned II Metropolitan Magistrate, Egmore, Chennai.
2. The Learned II Metropolitan Magistrate, Egmore, Chennai, while passing the impugned Judgments in C.C.Nos.23 01, 2302 and 2304 of 2001, on 14.09.2011, had clearly held that the Appellant/Complainant had miserably failed to prove his cases against the Respondent/ Accused and ultimately found him not guilty under Section 138 of the Negotiable Instruments Act and acquitted him under Section 255(1) of Cr.P.C.
Appellant's Contentions:
3. According to the Learned Counsel for the Appellant/Complainant, the trial Court had committed an error, in acquitting the accused in three Calender Cases, by not appreciating the material evidences projected by the Appellant/ Complainant.
4. The Learned Counsel for the Appellant vehemently submits that the Respondent/Accused impliedly accepting the money transaction between him and the Appellant/ Complainant and further, he issued 3 cheques viz., 1.Cheque No.564482 dated 20.07.2000, 2.Cheque No.564483 dated 16.08.2000 and 3.Cheque No.564484 dated 31.08.2000, (each cheque for Rs.50,000/-), totalling in all for a sum of Rs. 1,50,000/- drawn from Indian Bank, Washermenpet Branch.
5. The Learned Counsel for the Appellant/Complainant takes a stand that the trial Court should have taken note of the fact that the Appellant/Complainant presented three cheques in question in his Bank Account i.e. Canara Bank, Perambur Barracks Road, Chennai - 12 on 20.12.2000 and the said cheques were returned with an endorsement of 'insufficient of funds' in the Bank Account maintained by the Respondent/Accused.
6. Advancing his arguments, the Learned Counsel for the Appellant/Complainant contends that due to oversight some mistakes had crept in before the trial Court in regard to the marking of three cheques and the three cases were tried simultaneously and because of the mistakes committed by the Appellant/Complainant, the Respondent/Accused could not take advantage of the same and escape from his liability.
7. The Learned Counsel for the Appellant/Complainant brings it to the notice of this Court that the Appellant/Complainant filed C.M.P.Nos.100 to 102 of 2006 for recalling of P.W.1 and the trial Court was pleased to allow the recall petition on 23.02.2007 by granting a limited relief of permitting the examination of P.W.1.
8. The Learned Counsel for the Appellant/ Complainant submits that the Respondent/ Accused issued three cheques in question in respect of legally enforceable debts and the signature found in the instrument was that of the Respondent/Accused who issued the cheque.
Respondent's Submissions:
9. Per contra, the Learned Senior Counsel for the Respondent/Accused submits that the Appellant/Complainant, before the trial Court, in the three calender Cases in question, had not established his cases, by means of an oral or documentary evidence to the effect that the Respondent/Accused guilty under Section 138 of the Negotiable Instruments Act. Further, the trial Court had clearly observed, in the impugned Judgments, that marking of documents by the Appellant/Complainant in a haphazard manner could not be considered to be a mere mistake and finally, it rejected the petition filed under Section 311 Cr.P.C. by the Respondent/Accused to remark the documents.
10. In effect, the stand of the Respondent/ Accused is that it is not open to the Appellant/ Complainant to fill up the gaps at the appellate stage.
Narration of Evidence:
11. At this stage, this Court, for fuller and better appreciation of the three Calender Cases in C.C.Nos.2301, 2302 and 2304 of 2001 in question, refers to the evidence of Appellant / Complainant as P.W.1 as under:
(i) P.W.1 (Appellant/Complainant), in his evidence, in C.C.No.2301 of 2001, before the trial Court, had deposed that the Respondent/ Accused for the purpose of family expenses asked a loan of Rs. 50,000/- from him and on 20.07.2000, he gave Rs.50,000/- to the Respondent/Accused as loan and that the Respondent/ Accused informed him to return the same within a month and finally, he gave Rs.50,000/- on 16.08.2000 and again the Respondent/Accused asked for a loan from him and that the Respondent/Accused had not given any proof for the loan advanced by him.
(ii) It is the further evidence of P.W.1 that the Respondent/Accused firstly issued a cheque dated
20.07.2000 and he deposited the cheque for collection at Canara Bank at Perambur Barracks Road, Chennai and on 22.12.2000, the Bank informed that the cheque was returned by not honouring the same and that Ex.P.1 was the return cheque bearing No.564482 and the Return Memo was Ex.P.2 and Ex.P.3 is the Debit Note issued by the Bank.
(iii) Further, P.W.1 proceeds to state that on 26.12.2000, he issued Lawyer's Notice-Ex.P.4 to the Respondent/Accused and that was received by the Respondent/Accused and the same was returned and the Returned Cover was Ex.P.5.
(iv) P.W.1 (in his cross examination) had categorically stated that it was correct to state that C.C.No.2301 of 2001 was filed on 11.01.2001 and further deposed that it was correct to state that in Ex.P.1, the date was mentioned as 20.07.2000. Further, he went on to add in his evidence that it was correct to state that in Ex.P.3 the date was seen as 24.07.2000 and it was correct to state that in Ex.P.4-Lawyer's Notice, the date was mentioned as 26.12.2000.
(v) P.W.1, in his evidence, in C.C.No.2302 of 2001, had deposed that on 20.07.2000 he advanced a loan of Rs.50,000/- to the Respondent/Accused who informed him to return the same within a month and that on 31.08.2000, he gave Rs.50,000/- as loan but the Respondent/Accused had not given any proof for the loan advanced by him and for the second time, the Respondent/Accused gave a cheque for Rs.50,000/- which was Ex.P.1 and that he deposited the said cheque at Canara Bank, Perambur Branch and the Bank's Return Memo was Ex.P.2. Statement of Accounts was Ex.P.3 and his Lawyer's Notice dated 26.12.2000 was Ex.P.4 but it was not received by the Respondent/Accused and the same was returned and the Returned Cover was Ex.P.5.
(vi) P.W.1, in his evidence in C.C.No.2304 of 2001 had deposed that on 20.07.2000 he gave a loan of Rs.50,000/- to the Respondent/ Accused who informed him that he would return the same within a month and on 31.08.2000 he advanced a loan of Rs.50,000/- for which he had not taken any document for the loan advanced to the Respondent/Accused and for the amount to be returned to him, the Respondent/Accused gave three cheques each for Rs.50,000/- and in all, he issued three cheques.
(vii) It was the further evidence of P.W. 1 that Ex.P.1-Cheque concerning the case in C.C.No.2304 of 2001 for Rs.50,000/- dated 31.08.2000 bearing No.564484, Indian Bank, Vannarapettai Branch was issued by the Respondent/Accused and he deposited the said cheque for collection at Canara Bank, Perambur Branch on 20.12.2000 and for insufficiency of funds, the said cheque was returned on 22.12.2000 and the Debit Note was Ex.P.3 and the memo of the Bank was Ex.P.2. Further, Ex.P.4 was the notice issued by him on 26.12.2000 to the Respondent/Accused and the same was not received by the Respondent/ Accused and the cover returned on 10.01.2001 was Ex.P.5.
12. It is to be pertinently pointed out by this Court that the complaints in C.C.Nos.2301, 2302 and 2304 of 2001 on the file of the trial Court was filed on 17.01.2001. However, the said complaints of the Appellant/Complainant were taken on file by the trial Court on 02.03.2001 on the basis of the sworn statement of the Complainant. Earlier, the notice was issued on behalf of the Appellant/Complainant got returned as 'unserved' on 10.01.2001 (as per Ex.P.5) and that the complaints were presented before the trial Court on 17.01.2001.
13. It is to be remembered that the limitation of 30 days for preferring the complaint starts from the very next day of the expiry of the statutory period of 5 days available to the Respondent/Accused to make the repayment of the cheque sum. As stated already, in the instant cases viz., in C.C.Nos.2301, 2302 and 2304 of 2001, the complaints were filed on 17.01.2001 before the trial Court and it was taken on file on
02.03.2001 after recording the sworn statement of the Appellant/ Complainant. Even though the Appellant/ Complainant had presented the complaints in C.C.Nos.2301, 2302 and 2304 of 2001 on
17.01.2001 on the file of trial Court, since the cognizance of these cases were taken only on 02.03.2001 after the expiry of grace period of the complaints filed by the Appellant/Complainant is legally maintainable in law.
14. Discussions in Crl.A.No.710 of 2011 (CC.No.230J of 2001):
(i) Coming to the evidence of P.W.1 in C.C.No.2301 of 2001, he had not spoken about the Cheque No.564484 dated 31.08.2000 which was mentioned in the complaint in respect of the transaction made on 31.08.2000, instead he deposed in regard to Cheque bearing No.564482 dated 20.07.2000, which was marked as Ex.P.1. Although he had deposed that Ex.P.1 -Cheque was presented on 20.07.2000 in Canara Bank, Perambur Barracks Road, Chennai which got dishonoured with an endorsement 'Insufficient Funds' on 22.12.2000, he issued legal notice dated
26.12.2000. But he marked the Return Memo dated 22.07.2000 as Ex.P.2. As a matter of fact, the Return Memo dated 22.07.2000 was marked as Ex.P.2 and the corresponding Debit Advise dated
22.07.2000 was marked as Ex.P.3. Legal Notice dated 26.12.2000 was marked as Ex.P.4 and the returned postal cover as 'not claimed' was marked as Ex.P.5. Strictly speaking, the evidence of P. W. 1 was not quite in tune with the evidence tendered by P.W. 1 or in consonance with the averments made in the complaint.
(ii) In fact, the evidence of P.W.1 that the Respondent/Accused gave a cheque bearing No.564482 dated 20.07.2000 was quite contra to the contents of complaint to the effect that the Respondent/Accused issued a Cheque bearing No.564484 dated 31.08.2000. Indeed, P.W. 1 had marked Ex.P.2-Return Memo dated 22.07.2000 and Ex.P.3-Debit Advise dated 24.07.2000. To put it precisely, these documents viz., Exs.P.2 and P.3 were not helpful to the case of the Appellant/Complainant. Also, the averments of the Appellant/Complainant in his complaint that the Cheque bearing No.564484 dated 31.08.2000 was issued by the Accused in respect of loan of Rs.50,000/-borrowed on 31.08.2000 and the dishonour of the cheque had not been established. In regard to Ex.P.4 the issuance of Legal Notice dated 26.12.2000 and the Returned Postal Cover- Ex. P. 5 shows that an intimation was given but the same was not claimed and therefore, it can be safely concluded that the said legal notice duly served. The Appellant had issued Legal Notice- Ex.P.4 dated 26.12.2000. However, Ex.P.2-Return Memo and Ex.P.3-Debit Advise were dated
22.07.2000 and as such, the Legal Notice-Ex. P.4 was not issued within 15 days time limit allowed for issuance of legal notice prior to Amendment Act, 2000, which was only 15 days. A closer scrutiny of Exs.P.2 and P.3 dated 22.07.2000 and the Legal Notice Ex.P.4 dated
26.12.2000 unerringly point out that the issuance of Legal Notice-Ex.P.4 after long period of 5 months, which fact was not in accordance with the ingredients of Section 138 of the Negotiable Instruments Act, 1881. Viewed in that perspective, Ex.P.4-Notice dated 26.12.2000 was not a proper and valid notice in the eye of law.
15. Discussions in Crl.A.No.711 of 2011 (C.C.No.2302 of 2001):
(i) Similarly, P.W.1 in C.C.No.2302 of 2001 had not whispered about the Cheque No.564482 dated 20.07.2000 stated by him in the complaint which related to the transaction made on
20.07.2000. Per contra, he had deposed that the Cheque was dated 16.08.2000 bearing No.564483 which was marked as Ex.P.1. He also deposed that he presented the Cheque-Ex.P. 1 on
20.12.2000 in his Bank, but the same got returned because of 'Insufficient Funds' on 22.12.2000 and the Return Memo was marked as Ex.P.2 dated 22.07.2000 and the Debit Advise dated
22.07.2000 was marked as Ex.P.3 and the Legal Notice dated 26.12.2000 was marked as Ex.P.4.
(ii) At this stage, this Court very relevantly points out the evidence of P.W.1 in C.C.No.2302 of 2001 was not in accordance with the averments made by him in the complaint and in fact, he had not produced and marked the correct cheque number viz., 564482 dated 20.07.2000 for Rs.50,000/-. But he had deposed that the Respondent/Accused issued Cheque bearing No.564483 dated 16.08.2000 which run opposite to the contents of the complaint. When P.W.1 had deposed in his chief examination that he lent Rs.50,000/- to the Respondent/Accused on the date of borrowal viz., on 20.07.2000. Ex.P. 1-Cheque bears the date 16.08.2000 and as such, this Court unhesitatingly holds that the Appellant/Complainant had not established his case to the subjective satisfaction of this Court. P.W.1 on 20.12.2000 presented Ex.P.1-Cheque which was returned on
22.12.2000 for the reason 'Funds Insufficient' and the Return Memo and Debit Advise were marked as Exs.P.2 and P.3.
(iii) In fact, P.W.1, in his evidence, has admitted that Ex.P.1-Cheque dated 16.08.2000 does not contain any seal or initial to exhibit that it was presented for encashment on 20.12.2000, instead, it shows that it was presented on 17.08.2000. As such, it could be taken as Ex.P.1-Cheque was presented only on 17.08.2000 and not on 20.12.2000. Viewed in that angle, Exs.P.2 and P.3 could not be held to be documents establishing the presentation of Ex.P. 1-Cheque on 20.12.2000. Resultantly, this Court is of the considered view that the Appellant/Complainant had not established his case under Section 138 of the Negotiable Instruments Act. Moreover, P.W.1 had stated in his evidence that he issued the notice dated 26.12.2000 which was returned with an endorsement 'Unclaimed' on 10.01.2001. However, a perusal of the cause of action of the complaint, in paragraph No. 7, shows that the Returned Cover was dated 09.01.2001 which was purportedly marked as Ex.P.5 by P.W.1 but, in fact, the same was not marked. As such, the Legal Notice-Ex.P.4 was not proved to have been issued on 26.12.2000.
16. Discussions in Crl.A.No.712 of 2011 (C.C.No.2304 of 2001):
(i) Likewise, P.W.1, in C.C.No.2304 of 2001, had not stated anything in regard to Cheque No.564483 dated 16.08.2000 has made mention of in the complaint to be the document issued for the transaction made on 16.08.2000. However, P.W.1 had deposed in regard to the Cheque bearing No.564484 dated 31.08.2000 which was marked as Ex.P.1. He had also further added in his evidence that he presented the Ex.P. 1-Cheque on 20.12.2000 in his Bank which got dishonoured owing to 'Insufficient Funds' on 22.12.2000 and that he had issued a legal notice on
26.12.2000. Significantly, P.W.1 marked the Return Memo dated 18.08.2000 and the Debit Advise dated 19.08.2000 as Exs.P.2 and P.3 and the Legal Notice dated 26.12.2000 as Ex.P.4 and the Returned Postal Cover was marked as Ex.P.5 which contained the endorsement 'Not Claimed'. Thus, it is latently and patently quite clear that the evidence of P.W.1 is not in agreement with the averments made by the Appellant/Complainant in his complaint. Even Exs.P.2 and P.3 were also not quite in tune with the deposition of P. W. 1 or with the contents of complaint.
(ii) In this connection, this Court more relevantly points out that the Appellant/P. W. 1, in his complaint, had stated that the Respondent/ Accused borrowed an amount of Rs.50,000/-on
16.08.2000 and issued a cheque on the same date bearing No.564483 but Ex.P.1 marked was dated 31.08.2000. As such, this Court holds that the Appellant/Petitioner had not established his case in terms of the ingredients of Section 138 of the Negotiable Instruments Act. In reality, for Ex.P.1-Cheque which P.W. 1 presented on 20.12.2000 which was returned on 22.12.2000 with an endorsement 'Funds Insufficient', he had not filed the return memo or the debit advise to support his version. In short, he had not established through oral or documentary evidence as regards the date of dishonour of cheque. Also, Exs.P.2 and P.3 dated 18.08.2000 and 19.08.2000 were also not substantiated by P.W.1 through his oral evidence. Suffice it for this Court to point out that Exs.P.1 to P.3 documents were not helpful to the case of the Appellant/Complainant and in fact, the averments of the Appellant/ Complainant that to discharge his liability, the Respondent/Accused issued a cheque for Rs.50,000/- dated 16.08.2000 bearing Cheque No.564483 and its dishonour were not established on the side of the Appellant/ Complainant.
17. In so far as M.P.No.100 to 102 of 2006 were concerned in regard to recalling of P.W.1 and remarking of documents in three Calendar Cases, the Learned Counsel for the Appellant/ Complainant contends that the said petitions were partly allowed on 23.02.2007 for recalling P.W. 1 and re-examining him without marking documents. As against the said Common Order of the trial Court, the Appellant/P.W. 1 had not taken any further steps to challenge the said Common Order before the competent higher forum in accordance with law, which is certainly an adverse circumstance against the Appellant/Complainant.
18. At this juncture, the Learned Counsel for the Appellant refers to Section 391 of the Criminal Procedure Code which deals with about taking of further evidence by an Appellate Court or directing the Magistrate to take the same and submits that an opportunity may be provided to the Appellant to produce the additional evidence in the interest of Justice.
19. It is to be noted that the discretion vested in an Appellate Court under Section 391 Cr.P.C. to take additional evidence is not mainly intended to fill up the loopholes or lacuna in the prosecution evidence. Although the power of an Appellate Court is unfettered, the recourse to exercise this power ought not to be made, ordinarily, in a situation where either of the parties had not availed the opportunity to adduce evidence.
20. In short, the exercise of power by the Appellate Court under Section 391 Cr.P.C. is one of discretion. It is true that the power of an Appellate Court to take additional evidence in Appeal is vested based on the view that the 'Concept of Justice' does not suffer and to rectify an irregularity, in the considered opinion of this Court. Undoubtedly, Section 391 Cr.P.C. is to be exercised with great care and circumspection so that the respond of additional evidence for prosecution may not operate in any manner detrimental to the interest of an accused, as opined by this Court.
21. Furthermore, if in a given case where a party had the opportunity to file the documents before the trial Court, then, before the Appellate Court, the same would not be admitted as additional evidence. To put it differently, the purpose of Section 391 Cr.P.C. is not to enable a prosecution to produce evidence at a later stage which could have been produced at the first trial and plug the gaps left by it. Viewed in that perspective, this Court is of the considered view that it cannot permit the Appellant/Complainant to produce documents as evidence at an appellate stage, because of the simple reason that the documents in question were very much available before the trial Court at the time of conducting trial of the three cases in issue. Consequently, the plea taken on behalf of the Appellant/Complainant in this regard is not acceded to by this Court.
Conclusion:
22. In the upshot of qualitative and quantitative discussions mentioned supra and this Court, taking into consideration the attendant facts and circumstances of the present case in an integral manner, comes to an inescapable conclusion that the Appellant/Complainant had not established his cases against the Respondent/Accused and in this regard, the view taken by the trial Court, in acquitting the Respondent/Accused in C.C.Nos.2301, 2302 and 2304 of 2001 by holding him not guilty, does not suffer from any infirmities, illegalities and perversities, in the eye of law. Consequently, the Criminal Appeals fail.
23. In the result, the Criminal Appeals are dismissed.
Appeal dismissed.
[(2014) 3 MLJ (Crl) 730]
MADRAS HIGH COURT
(HON'BLE MR. M. VENUGOPAL, J.)
T. VELNADAR
Appellant
VERSUS
P. AYYANATHAN
Respondent
Criminal Appeal Nos.710 to 712 of 2011-Decided on 25-7-2014.
Negotiable Instruments Act, 1881, (Act), Section 138 - Code of Criminal Procedure, 1973 (CrPC), Section 391 - Criminal Procedure - Additional Evidence - Not allowed - Complaint of dishonour of cheque resulted in acquittal - Appeal against - Plea for additional evidence - Held: Complainant cannot be allowed to produce documents as evidence at an appellate stage, because of the simple reason that the documents in question were very much available before the trial Court at the time of conducting trial of the three cases.
(Para 21)
In short, the exercise of power by the Appellate Court under Section 391 Cr.P.C. is one of discretion. It is true that the power of an Appellate Court to take additional evidence in Appeal is vested based on the view that the 'Concept of Justice' does not suffer and to rectify an irregularity, in the considered opinion of this Court. Undoubtedly, Section 391 Cr.P.C. is to be exercised with great care and circumspection so that the respond of additional evidence for prosecution may not operate in any manner detrimental to the interest of an accused
(Para 20)
The purpose of Section 391 Cr.P.C. is not to enable a prosecution to produce evidence at a later stage which could have been produced at the first trial and plug the gaps left by it.
(Para 21)
Advocate(s): M. V. Muralidaran, for Appellant
G.R. Rajagopal, Senior Counsel for M/s. S. Govindaraman for Respondent COMMON JUDGMENT
1. These Criminal Appeals have been preferred by the Appellant/Complainant as against the Judgment dated 14.9.2011 in C.C.Nos.2301, 230d2 and 2304 of 2001 passed by the Learned II Metropolitan Magistrate, Egmore, Chennai.
2. The Learned II Metropolitan Magistrate, Egmore, Chennai, while passing the impugned Judgments in C.C.Nos.23 01, 2302 and 2304 of 2001, on 14.09.2011, had clearly held that the Appellant/Complainant had miserably failed to prove his cases against the Respondent/ Accused and ultimately found him not guilty under Section 138 of the Negotiable Instruments Act and acquitted him under Section 255(1) of Cr.P.C.
Appellant's Contentions:
3. According to the Learned Counsel for the Appellant/Complainant, the trial Court had committed an error, in acquitting the accused in three Calender Cases, by not appreciating the material evidences projected by the Appellant/ Complainant.
4. The Learned Counsel for the Appellant vehemently submits that the Respondent/Accused impliedly accepting the money transaction between him and the Appellant/ Complainant and further, he issued 3 cheques viz., 1.Cheque No.564482 dated 20.07.2000, 2.Cheque No.564483 dated 16.08.2000 and 3.Cheque No.564484 dated 31.08.2000, (each cheque for Rs.50,000/-), totalling in all for a sum of Rs. 1,50,000/- drawn from Indian Bank, Washermenpet Branch.
5. The Learned Counsel for the Appellant/Complainant takes a stand that the trial Court should have taken note of the fact that the Appellant/Complainant presented three cheques in question in his Bank Account i.e. Canara Bank, Perambur Barracks Road, Chennai - 12 on 20.12.2000 and the said cheques were returned with an endorsement of 'insufficient of funds' in the Bank Account maintained by the Respondent/Accused.
6. Advancing his arguments, the Learned Counsel for the Appellant/Complainant contends that due to oversight some mistakes had crept in before the trial Court in regard to the marking of three cheques and the three cases were tried simultaneously and because of the mistakes committed by the Appellant/Complainant, the Respondent/Accused could not take advantage of the same and escape from his liability.
7. The Learned Counsel for the Appellant/Complainant brings it to the notice of this Court that the Appellant/Complainant filed C.M.P.Nos.100 to 102 of 2006 for recalling of P.W.1 and the trial Court was pleased to allow the recall petition on 23.02.2007 by granting a limited relief of permitting the examination of P.W.1.
8. The Learned Counsel for the Appellant/ Complainant submits that the Respondent/ Accused issued three cheques in question in respect of legally enforceable debts and the signature found in the instrument was that of the Respondent/Accused who issued the cheque.
Respondent's Submissions:
9. Per contra, the Learned Senior Counsel for the Respondent/Accused submits that the Appellant/Complainant, before the trial Court, in the three calender Cases in question, had not established his cases, by means of an oral or documentary evidence to the effect that the Respondent/Accused guilty under Section 138 of the Negotiable Instruments Act. Further, the trial Court had clearly observed, in the impugned Judgments, that marking of documents by the Appellant/Complainant in a haphazard manner could not be considered to be a mere mistake and finally, it rejected the petition filed under Section 311 Cr.P.C. by the Respondent/Accused to remark the documents.
10. In effect, the stand of the Respondent/ Accused is that it is not open to the Appellant/ Complainant to fill up the gaps at the appellate stage.
Narration of Evidence:
11. At this stage, this Court, for fuller and better appreciation of the three Calender Cases in C.C.Nos.2301, 2302 and 2304 of 2001 in question, refers to the evidence of Appellant / Complainant as P.W.1 as under:
(i) P.W.1 (Appellant/Complainant), in his evidence, in C.C.No.2301 of 2001, before the trial Court, had deposed that the Respondent/ Accused for the purpose of family expenses asked a loan of Rs. 50,000/- from him and on 20.07.2000, he gave Rs.50,000/- to the Respondent/Accused as loan and that the Respondent/ Accused informed him to return the same within a month and finally, he gave Rs.50,000/- on 16.08.2000 and again the Respondent/Accused asked for a loan from him and that the Respondent/Accused had not given any proof for the loan advanced by him.
(ii) It is the further evidence of P.W.1 that the Respondent/Accused firstly issued a cheque dated
20.07.2000 and he deposited the cheque for collection at Canara Bank at Perambur Barracks Road, Chennai and on 22.12.2000, the Bank informed that the cheque was returned by not honouring the same and that Ex.P.1 was the return cheque bearing No.564482 and the Return Memo was Ex.P.2 and Ex.P.3 is the Debit Note issued by the Bank.
(iii) Further, P.W.1 proceeds to state that on 26.12.2000, he issued Lawyer's Notice-Ex.P.4 to the Respondent/Accused and that was received by the Respondent/Accused and the same was returned and the Returned Cover was Ex.P.5.
(iv) P.W.1 (in his cross examination) had categorically stated that it was correct to state that C.C.No.2301 of 2001 was filed on 11.01.2001 and further deposed that it was correct to state that in Ex.P.1, the date was mentioned as 20.07.2000. Further, he went on to add in his evidence that it was correct to state that in Ex.P.3 the date was seen as 24.07.2000 and it was correct to state that in Ex.P.4-Lawyer's Notice, the date was mentioned as 26.12.2000.
(v) P.W.1, in his evidence, in C.C.No.2302 of 2001, had deposed that on 20.07.2000 he advanced a loan of Rs.50,000/- to the Respondent/Accused who informed him to return the same within a month and that on 31.08.2000, he gave Rs.50,000/- as loan but the Respondent/Accused had not given any proof for the loan advanced by him and for the second time, the Respondent/Accused gave a cheque for Rs.50,000/- which was Ex.P.1 and that he deposited the said cheque at Canara Bank, Perambur Branch and the Bank's Return Memo was Ex.P.2. Statement of Accounts was Ex.P.3 and his Lawyer's Notice dated 26.12.2000 was Ex.P.4 but it was not received by the Respondent/Accused and the same was returned and the Returned Cover was Ex.P.5.
(vi) P.W.1, in his evidence in C.C.No.2304 of 2001 had deposed that on 20.07.2000 he gave a loan of Rs.50,000/- to the Respondent/ Accused who informed him that he would return the same within a month and on 31.08.2000 he advanced a loan of Rs.50,000/- for which he had not taken any document for the loan advanced to the Respondent/Accused and for the amount to be returned to him, the Respondent/Accused gave three cheques each for Rs.50,000/- and in all, he issued three cheques.
(vii) It was the further evidence of P.W. 1 that Ex.P.1-Cheque concerning the case in C.C.No.2304 of 2001 for Rs.50,000/- dated 31.08.2000 bearing No.564484, Indian Bank, Vannarapettai Branch was issued by the Respondent/Accused and he deposited the said cheque for collection at Canara Bank, Perambur Branch on 20.12.2000 and for insufficiency of funds, the said cheque was returned on 22.12.2000 and the Debit Note was Ex.P.3 and the memo of the Bank was Ex.P.2. Further, Ex.P.4 was the notice issued by him on 26.12.2000 to the Respondent/Accused and the same was not received by the Respondent/ Accused and the cover returned on 10.01.2001 was Ex.P.5.
12. It is to be pertinently pointed out by this Court that the complaints in C.C.Nos.2301, 2302 and 2304 of 2001 on the file of the trial Court was filed on 17.01.2001. However, the said complaints of the Appellant/Complainant were taken on file by the trial Court on 02.03.2001 on the basis of the sworn statement of the Complainant. Earlier, the notice was issued on behalf of the Appellant/Complainant got returned as 'unserved' on 10.01.2001 (as per Ex.P.5) and that the complaints were presented before the trial Court on 17.01.2001.
13. It is to be remembered that the limitation of 30 days for preferring the complaint starts from the very next day of the expiry of the statutory period of 5 days available to the Respondent/Accused to make the repayment of the cheque sum. As stated already, in the instant cases viz., in C.C.Nos.2301, 2302 and 2304 of 2001, the complaints were filed on 17.01.2001 before the trial Court and it was taken on file on
02.03.2001 after recording the sworn statement of the Appellant/ Complainant. Even though the Appellant/ Complainant had presented the complaints in C.C.Nos.2301, 2302 and 2304 of 2001 on
17.01.2001 on the file of trial Court, since the cognizance of these cases were taken only on 02.03.2001 after the expiry of grace period of the complaints filed by the Appellant/Complainant is legally maintainable in law.
14. Discussions in Crl.A.No.710 of 2011 (CC.No.230J of 2001):
(i) Coming to the evidence of P.W.1 in C.C.No.2301 of 2001, he had not spoken about the Cheque No.564484 dated 31.08.2000 which was mentioned in the complaint in respect of the transaction made on 31.08.2000, instead he deposed in regard to Cheque bearing No.564482 dated 20.07.2000, which was marked as Ex.P.1. Although he had deposed that Ex.P.1 -Cheque was presented on 20.07.2000 in Canara Bank, Perambur Barracks Road, Chennai which got dishonoured with an endorsement 'Insufficient Funds' on 22.12.2000, he issued legal notice dated
26.12.2000. But he marked the Return Memo dated 22.07.2000 as Ex.P.2. As a matter of fact, the Return Memo dated 22.07.2000 was marked as Ex.P.2 and the corresponding Debit Advise dated
22.07.2000 was marked as Ex.P.3. Legal Notice dated 26.12.2000 was marked as Ex.P.4 and the returned postal cover as 'not claimed' was marked as Ex.P.5. Strictly speaking, the evidence of P. W. 1 was not quite in tune with the evidence tendered by P.W. 1 or in consonance with the averments made in the complaint.
(ii) In fact, the evidence of P.W.1 that the Respondent/Accused gave a cheque bearing No.564482 dated 20.07.2000 was quite contra to the contents of complaint to the effect that the Respondent/Accused issued a Cheque bearing No.564484 dated 31.08.2000. Indeed, P.W. 1 had marked Ex.P.2-Return Memo dated 22.07.2000 and Ex.P.3-Debit Advise dated 24.07.2000. To put it precisely, these documents viz., Exs.P.2 and P.3 were not helpful to the case of the Appellant/Complainant. Also, the averments of the Appellant/Complainant in his complaint that the Cheque bearing No.564484 dated 31.08.2000 was issued by the Accused in respect of loan of Rs.50,000/-borrowed on 31.08.2000 and the dishonour of the cheque had not been established. In regard to Ex.P.4 the issuance of Legal Notice dated 26.12.2000 and the Returned Postal Cover- Ex. P. 5 shows that an intimation was given but the same was not claimed and therefore, it can be safely concluded that the said legal notice duly served. The Appellant had issued Legal Notice- Ex.P.4 dated 26.12.2000. However, Ex.P.2-Return Memo and Ex.P.3-Debit Advise were dated
22.07.2000 and as such, the Legal Notice-Ex. P.4 was not issued within 15 days time limit allowed for issuance of legal notice prior to Amendment Act, 2000, which was only 15 days. A closer scrutiny of Exs.P.2 and P.3 dated 22.07.2000 and the Legal Notice Ex.P.4 dated
26.12.2000 unerringly point out that the issuance of Legal Notice-Ex.P.4 after long period of 5 months, which fact was not in accordance with the ingredients of Section 138 of the Negotiable Instruments Act, 1881. Viewed in that perspective, Ex.P.4-Notice dated 26.12.2000 was not a proper and valid notice in the eye of law.
15. Discussions in Crl.A.No.711 of 2011 (C.C.No.2302 of 2001):
(i) Similarly, P.W.1 in C.C.No.2302 of 2001 had not whispered about the Cheque No.564482 dated 20.07.2000 stated by him in the complaint which related to the transaction made on
20.07.2000. Per contra, he had deposed that the Cheque was dated 16.08.2000 bearing No.564483 which was marked as Ex.P.1. He also deposed that he presented the Cheque-Ex.P. 1 on
20.12.2000 in his Bank, but the same got returned because of 'Insufficient Funds' on 22.12.2000 and the Return Memo was marked as Ex.P.2 dated 22.07.2000 and the Debit Advise dated
22.07.2000 was marked as Ex.P.3 and the Legal Notice dated 26.12.2000 was marked as Ex.P.4.
(ii) At this stage, this Court very relevantly points out the evidence of P.W.1 in C.C.No.2302 of 2001 was not in accordance with the averments made by him in the complaint and in fact, he had not produced and marked the correct cheque number viz., 564482 dated 20.07.2000 for Rs.50,000/-. But he had deposed that the Respondent/Accused issued Cheque bearing No.564483 dated 16.08.2000 which run opposite to the contents of the complaint. When P.W.1 had deposed in his chief examination that he lent Rs.50,000/- to the Respondent/Accused on the date of borrowal viz., on 20.07.2000. Ex.P. 1-Cheque bears the date 16.08.2000 and as such, this Court unhesitatingly holds that the Appellant/Complainant had not established his case to the subjective satisfaction of this Court. P.W.1 on 20.12.2000 presented Ex.P.1-Cheque which was returned on
22.12.2000 for the reason 'Funds Insufficient' and the Return Memo and Debit Advise were marked as Exs.P.2 and P.3.
(iii) In fact, P.W.1, in his evidence, has admitted that Ex.P.1-Cheque dated 16.08.2000 does not contain any seal or initial to exhibit that it was presented for encashment on 20.12.2000, instead, it shows that it was presented on 17.08.2000. As such, it could be taken as Ex.P.1-Cheque was presented only on 17.08.2000 and not on 20.12.2000. Viewed in that angle, Exs.P.2 and P.3 could not be held to be documents establishing the presentation of Ex.P. 1-Cheque on 20.12.2000. Resultantly, this Court is of the considered view that the Appellant/Complainant had not established his case under Section 138 of the Negotiable Instruments Act. Moreover, P.W.1 had stated in his evidence that he issued the notice dated 26.12.2000 which was returned with an endorsement 'Unclaimed' on 10.01.2001. However, a perusal of the cause of action of the complaint, in paragraph No. 7, shows that the Returned Cover was dated 09.01.2001 which was purportedly marked as Ex.P.5 by P.W.1 but, in fact, the same was not marked. As such, the Legal Notice-Ex.P.4 was not proved to have been issued on 26.12.2000.
16. Discussions in Crl.A.No.712 of 2011 (C.C.No.2304 of 2001):
(i) Likewise, P.W.1, in C.C.No.2304 of 2001, had not stated anything in regard to Cheque No.564483 dated 16.08.2000 has made mention of in the complaint to be the document issued for the transaction made on 16.08.2000. However, P.W.1 had deposed in regard to the Cheque bearing No.564484 dated 31.08.2000 which was marked as Ex.P.1. He had also further added in his evidence that he presented the Ex.P. 1-Cheque on 20.12.2000 in his Bank which got dishonoured owing to 'Insufficient Funds' on 22.12.2000 and that he had issued a legal notice on
26.12.2000. Significantly, P.W.1 marked the Return Memo dated 18.08.2000 and the Debit Advise dated 19.08.2000 as Exs.P.2 and P.3 and the Legal Notice dated 26.12.2000 as Ex.P.4 and the Returned Postal Cover was marked as Ex.P.5 which contained the endorsement 'Not Claimed'. Thus, it is latently and patently quite clear that the evidence of P.W.1 is not in agreement with the averments made by the Appellant/Complainant in his complaint. Even Exs.P.2 and P.3 were also not quite in tune with the deposition of P. W. 1 or with the contents of complaint.
(ii) In this connection, this Court more relevantly points out that the Appellant/P. W. 1, in his complaint, had stated that the Respondent/ Accused borrowed an amount of Rs.50,000/-on
16.08.2000 and issued a cheque on the same date bearing No.564483 but Ex.P.1 marked was dated 31.08.2000. As such, this Court holds that the Appellant/Petitioner had not established his case in terms of the ingredients of Section 138 of the Negotiable Instruments Act. In reality, for Ex.P.1-Cheque which P.W. 1 presented on 20.12.2000 which was returned on 22.12.2000 with an endorsement 'Funds Insufficient', he had not filed the return memo or the debit advise to support his version. In short, he had not established through oral or documentary evidence as regards the date of dishonour of cheque. Also, Exs.P.2 and P.3 dated 18.08.2000 and 19.08.2000 were also not substantiated by P.W.1 through his oral evidence. Suffice it for this Court to point out that Exs.P.1 to P.3 documents were not helpful to the case of the Appellant/Complainant and in fact, the averments of the Appellant/ Complainant that to discharge his liability, the Respondent/Accused issued a cheque for Rs.50,000/- dated 16.08.2000 bearing Cheque No.564483 and its dishonour were not established on the side of the Appellant/ Complainant.
17. In so far as M.P.No.100 to 102 of 2006 were concerned in regard to recalling of P.W.1 and remarking of documents in three Calendar Cases, the Learned Counsel for the Appellant/ Complainant contends that the said petitions were partly allowed on 23.02.2007 for recalling P.W. 1 and re-examining him without marking documents. As against the said Common Order of the trial Court, the Appellant/P.W. 1 had not taken any further steps to challenge the said Common Order before the competent higher forum in accordance with law, which is certainly an adverse circumstance against the Appellant/Complainant.
18. At this juncture, the Learned Counsel for the Appellant refers to Section 391 of the Criminal Procedure Code which deals with about taking of further evidence by an Appellate Court or directing the Magistrate to take the same and submits that an opportunity may be provided to the Appellant to produce the additional evidence in the interest of Justice.
19. It is to be noted that the discretion vested in an Appellate Court under Section 391 Cr.P.C. to take additional evidence is not mainly intended to fill up the loopholes or lacuna in the prosecution evidence. Although the power of an Appellate Court is unfettered, the recourse to exercise this power ought not to be made, ordinarily, in a situation where either of the parties had not availed the opportunity to adduce evidence.
20. In short, the exercise of power by the Appellate Court under Section 391 Cr.P.C. is one of discretion. It is true that the power of an Appellate Court to take additional evidence in Appeal is vested based on the view that the 'Concept of Justice' does not suffer and to rectify an irregularity, in the considered opinion of this Court. Undoubtedly, Section 391 Cr.P.C. is to be exercised with great care and circumspection so that the respond of additional evidence for prosecution may not operate in any manner detrimental to the interest of an accused, as opined by this Court.
21. Furthermore, if in a given case where a party had the opportunity to file the documents before the trial Court, then, before the Appellate Court, the same would not be admitted as additional evidence. To put it differently, the purpose of Section 391 Cr.P.C. is not to enable a prosecution to produce evidence at a later stage which could have been produced at the first trial and plug the gaps left by it. Viewed in that perspective, this Court is of the considered view that it cannot permit the Appellant/Complainant to produce documents as evidence at an appellate stage, because of the simple reason that the documents in question were very much available before the trial Court at the time of conducting trial of the three cases in issue. Consequently, the plea taken on behalf of the Appellant/Complainant in this regard is not acceded to by this Court.
Conclusion:
22. In the upshot of qualitative and quantitative discussions mentioned supra and this Court, taking into consideration the attendant facts and circumstances of the present case in an integral manner, comes to an inescapable conclusion that the Appellant/Complainant had not established his cases against the Respondent/Accused and in this regard, the view taken by the trial Court, in acquitting the Respondent/Accused in C.C.Nos.2301, 2302 and 2304 of 2001 by holding him not guilty, does not suffer from any infirmities, illegalities and perversities, in the eye of law. Consequently, the Criminal Appeals fail.
23. In the result, the Criminal Appeals are dismissed.
Appeal dismissed.
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