காசோலையில் கையெழுத்து ஒரு பேனாவிலும், மற்றவை மற்றொரு பேனாவிலும் எழுதப்பட்டிருந்தால் அந்த காசோலை செல்லாது என சென்னை உயர்நீதிமன்றம்

காசோலை மோசடி வழக்கு – காசோலையில் புகார்தாரரின் கையெழுத்து ஒரு பேனா மையிலும், மற்றவை மற்றொரு பேனா மையிலும் எழுதப்பட்டிருந்தால் அந்த காசோலை செல்லாது என சென்னை உயர்நீதிமன்றம் தீர்ப்பு கூறியுள்ளது.

(Even though in cheque payee ‘s name written in one ink and remaining body of cheque written in another ink, it cannot be presumed that cheque not valid document). S. Prakash Vs A. Palaniappan (2015-2-MLJ-CRL-5)

The complainant in C.C.No.351 of 2004 on the file of the learned Judicial Magistrate No.I, Salem is the appellant. The complainant filed the above complaint under Section 138 of the Negotiable Instruments Act (for short, “N.I.Act”) stating that the respondent borrowed a sum of Rs.3,00,000/- from him on 17.5.2002 and executed a pro-note for the same and also issued a cheque dated 10.12.2013 for a sum of Rs.3,00,000/- drawn on City Union Bank, Salem and the cheque was presented for collection on 10.12.2003 and the same was returned on 11.12.2003 by the bank on the ground that the account was already closed. Thereafter, notice was issued on 17.12.2003 calling upon the respondent to pay the cheque amount and the notice was received by the respondent on 20.12.2003 and thereafter, the respondent did not make any payment and therefore, the complaint was filed.

2. The appellant filed the complaint through his power agent P.Yuvaraj and examined the power agent as PW.1 and himself as PW.2 and marked the power document as Ex.P.1, Cheque dated 10.12.2003 as Ex.P.2, information received from the bank as Ex.P.3, Copy of the notice dated 17.12.2003 as Ex.P.4 and the Acknowledgment as Ex.P.5. The respondent/accused marked bank statement of the appellant/complainant as Ex.D.1 and also a paper in which some accounts were written, as Ex.D.2 and did not examine any witness on his side.

3. Upon consideration of the evidence and Exhibits marked, the learned Judicial Magistrate dismissed the complaint holding that the power of attorney Ex.P.1 was not executed on duly stamped paper and it was an invalid document and the complainant did not file his Day Book Ledger that was summoned by the order of the Court and in the cheque, payee’s name and body of the cheque were written in different ink and it was not clarified by the complainant whether the loan was given by the complainant in his individual capacity or from the HUF or from Prakash Textile firm and he has not filed any proof for payment of Rs.3,00,000/- by producing pro-note and therefore, the complainant failed to prove the passing of consideration and the complaint was not properly instituted by a properly appointed power agent.

4. Mr.T.M.Hariharan, learned counsel for the appellant/complainant submitted that the trial court without properly appreciating the provision of section 35 of the Indian Stamp Act and presumption under section 139 of the N.I.Act, erred in holding that the power of attorney was not executed on a duly stamped paper and the complainant failed to prove the passing of consideration and also failed to prove whether the amount was advanced by him or by the HUF or by Prakash Textiles in which he was a partner and no such plea was taken by sending a reply and the accused did not deny the receipt of consideration, and therefore, the Court ought to have drawn presumption under section 139 of the N.I.Act and ought to have convicted the respondent and the respondent failed to rebut the presumption and therefore, the judgment of the trial Court is liable to be set aside and the accused has to be convicted. He also relied upon the following judgments in support of his contention.

Hiten P.Dalai v. Bratindranath Banerjee reported in (2001) 6 Supreme Court Cases 16 K.N.Beena v. Muniyappan and another reported in (2001) 8 Supreme court Cases 458 P.K.Manmadhan Kartha v. Sanjeev Raj and another reported in (2002) 7 Supreme Court Cases 150 Rangappa v. Sri Mohan reported in (2010) 11 Supreme Court Cases 441

5. On the other hand, learned counsel for the respondent, Mr.Devaraj, submitted that the trial Court rightly held that the power of attorney document was not a valid document as it was not duly stamped and inadmissible under section 35 of the Indian Stamp Act and even according to the complainant, the cheque was issued one week prior to 10.12.2003 the date on which the cheque was drawn but the power of attorney document was executed on 15.9.2003 much earlier to the issue of cheque, and in the power of attorney, authorisation was given to prosecute the respondent for offence under section 138 of the N.I.Act and that would show that the cheque must have been given earlier to 15.9.2003 on which date the power of attorney was executed and that was not the case of the complainant and the complainant did not come to Court with clean hands and as per Ex.D.1, a sum of Rs.30,000/- was received by the complainant but the respondent admitted receipt of Rs.15,000/- and when the power of attorney was not a valid document, the complaint was not instituted by a proper person and therefore, considering all these aspects, the trial Court rightly acquitted the respondent. He also submitted that there is no need to rebut the presumption by adducing independent evidences and the Court can draw rebuttal presumption by adducing independent evidence of the prosecution and having regard to the fact that the complainant failed to produce the Day Book Ledger and the pro-note, even after he was summoned to produce, the Court was right in drawing adverse inference that the respondent rebutted the presumption and that wsa properly appreciated by the Court below.

6. From the arguments of the learned counsel for the parties, the following points arise for consideration in this case:-

(i)whether the power of attorney executed on a twenty rupees stamp paper was not duly stamped and was inadmissible in evidence?

(ii)Whether the complainant failed to prove the passing of consideration for the payment of Rs.3,00,000/-.

(iii)Whether the trial Court was justified in drawing adverse inference on the ground that the complainant failed to produce Day Book Ledger and pro-note though the complainant was summoned to produce those documents.

7. Point No.(i) :- The procedure for trial of cases under the Negotiable Instruments Act is summary trial procedure and the Court has to follow the procedure contemplated for summary trial as per the provision of Code of Criminal Procedure. Under Section 35, proviso d, of the Indian Stamp Act, it is stated that nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898. Therefore, though under section 35, no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped, having regard to proviso “d”, there is an exception to such document being produced and admitted in evidence in any proceeding in a criminal Court. Chapter XXI of Criminal Procedure Code 1973 deals with summary trial and under section 262 of the Cr.P.C., the procedure specified in reference to the trial of summons cases shall be followed in summary trial cases. Chapter XX deals with trial of summons cases. Therefore, as per provisio “d” to section 35 of the Indian Stamp Act, even though the instrument was not duly stamped, the same can be received in evidence in criminal cases. Further, it has been held in 2007 (1) CTC 653 in the matter of R.B.K.Rajeswari Nachiar v. N.N.S.A.Mohamed Kasim, that improperly stamped instrument can be made admissible on payment of proper stamp duty. Further, as per the judgment reported in (2011) 5 CTC 206 (Mad) in the matter of Manickam v. Chinnasamy and (2007) 1 MLJ 916, in the matter of S.Amutha VS. C.Manivanna Bupathy, the admissibility of a document has to be decided before marking the same and not thereafter and in this case, no question was raised when the power of attorney marked as Ex.P.1. Therefore, after marking the said document, the same cannot be challenged. Therefore, the power of attorney is admissible in evidence.

8. It was further contended by the learned counsel for the respondent that power of attorney was not duly executed as it was written on two ten rupees stamp paper and another ordinary paper and in the stamp papers, the signature of the Principal was not found and in the last page, the Principal signed in the place earmarked for power agent and power agent signed in the place earmarked for Principal and therefore, the power of attorney cannot be accepted. The further contention raised was in the power of attorney, there was reference to the prosecution under section 138 of the N.I.Act. Admittedly, the cheque was not issued on the date of execution of power of attorney and the cheque was issued one week prior to 10.12.2003 and on this ground also, the power of attorney must be rejected. According to me, singing by the power agent in the place earmarked for the principal and the principal signing in the place earmarked for agent will not invalidate the power of attorney. The power of attorney was admitted by the principal. Similarly, the failure to put the signature in the first two stamp papers will not also invalidate the power of attorney as it was spoken to by PW.2 the principal in whose name, the cheque was issued that he executed power of attorney in favour of the agent. Further, the mentioning of right to institute proceedings under section 138 of the N.I.Act will not also lead any suspicion as the appellant being a business man would have thought of giving all powers while executing the power of attorney and therefore, the fact that the cheque was issued later and the power to institute prosecution under section 138 of N.I.Act was mentioned in the power of attorney which was given earlier will not lead to the presumption that the cheque would not have been issued as stated by the complainant. Therefore, the contention of the learned counsel for the respondent with regard to the power has to be rejected. I therefore hold that the trial Court erred in rejecting the power of attorney as inadmissible on the ground that it was not duly stamped and trial Court ought to have received the power of attorney in evidence.

9. Point Nos.(ii) and (iii):- The issuance of cheque by the respondent was not denied. No doubt, it is true that in the cheque, payee’s name was written in one ink and the remaining body of the cheque was written in another ink. On that ground, it cannot be presumed that the cheque is not a valid document. Though the appellant/complainant did not produce a pro-note alleged to have been executed by the respondent for having received Rs.3,00,000/- on 17.5.2002 and also failed to produce the Day Book Ledger and other account books though summoned, on that ground, the Court cannot hold that the appellant failed to prove passing of consideration having regard to Ex.D.1 and having regard to presumption under Section 139 of the N.I.Act. Ex.D.1 is the statement produced by the respondent/accused and it is the General Ledger maintained by S.Prakash, HUF. In that, there is an entry, on 17.5.2002, for the payment of cash for a sum of Rs.3,00,000/- to the accused. Therefore, in the General Ledger of S. Prakash, HUF, there is an entry for payment of Rs.3,00,000/- on 17.5.2002 to the accused. It is also the case of the complainant/appellant that on 17.5.2002, a sum of Rs.3,00,000/- was paid to the respondent. Therefore, the payment to the respondent on 17.5.2002 has been proved through Ex.D.1. No doubt, there are two entries in the same statement for Rs.30,000/- and it has been made clear that those amounts were received on two occasions towards interest. Therefore, there is no suppression of any particulars. The learned counsel for the respondent was not able to give any reason for making Ex.D.2, paper mentioning some accounts and therefore, Ex.D.2 has to be rejected. The contention of the learned counsel for the respondent that as per Ex.D.1, the General Ledger maintained by Mr.S.Prakash, HUF, a sum of Rs.3,00,000/- was paid to the respondent but the cheque was given to the complainant in his individual capacity. Therefore, the complainant failed to prove passing of consideration. I am unable to accept the contention of the learned counsel for the respondent. Even accepting that under Ex.D1, Rs.3,00,000/- was paid to the respondent by S.Prakash, HUF, it is not the case of the respondent that S.Prakash, the complainant is not a member of S.Prakash, HUF. Therefore, there is nothing wrong in issuing the cheque in favour of one of the members of HUF and merely because, the appellant was not able to state whether the amount was advanced by HUF or by firm or in his individual capacity, it cannot be stated that passing of consideration was not proved having regard to the fact that through Ex.D.1, it was proved that the amount was paid by S.Prakash, HUF to the respondent. Further, as per the judgment reported in (2001) 6 Supreme Court Cases 16 supra, the burden was on the accused to rebut the presumption under section 139 of the N.I.Act and some evidence must be adduced before the Court in support of the defence and 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. It is also held that mere denial or rebuttal by the accused in reply notice is not enough to rebut the presumption and the accused ought to prove the case by cogent evidence that there was no debt or liability as per the judgment reported in (2001) 8 SCC 458 in the matter of K.N.Beena versus Muniyappan and another. It is held in (2010) 11 SCC 441 in the matter of Rangappa versus Sri Mohan that if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. No attempt was made by the accused to rebut the presumption and having regard to Ex.D.1, the payment of consideration was proved and the complainant being a member of the HUF is entitled to receive the cheque drawn in his favour and therefore, it cannot be stated on that ground, the cheque was issued not towards discharge of a legally enforceable liability. I therefore hold that the appellant proved the consideration and the respondent failed to rebut the same. Further, the Court erred in drawing adverse inference by the non-production of Day book Ledger by the appellant as the payment consideration was proved by Ex.D.1. Hence, Points (ii) and (iii)are also answered in favour of the appellant.

10. In the result, the judgment of the trial court dated 21.9.2007 made in C.C.No.351 of 2004 is set aside and the respondent is found guilty.

The Appeal is adjourned to 10.03.2015 for questioning the respondent on the sentence.

24.02.2015 Index : Yes Internet: yes asvm To

1.The Judicial Magistrate No.I, Salem.

R.S.RAMANATHAN, J (asvm) Judgment in 24.02.2015