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CHEQUE BOUNS CASE

NOTICE WAS ISSUED TO WHOM? WHETHER NOTICE WAS VALID?49. As stated earlier, in C.A.Nos.321 and 326, the notice was issued to the tenant as well as to the drawer of the cheque, but he is described as Chairman and Managing Director of the tennent. The body of the notice would explain that for the rent due and payable by the first party, the second party had issued the cheque. The complaint was filed against the second party with a description ‘Managing Director, Jewel Base Target Private Limited’. In my considered view, when the drawer has been addressed with or without any description of his position and when the intention of the holder of the cheque was to make a demand for the payment of the dishonored cheque from such drawer, the provision under section 138 (b) of the Act is satisfied. Sec.138(b) contemplates issuance of notice to the drawer demanding payment and the notice and its content is important then the address. When a person has issued the cheque towards the legally enforceable debt of a company, merely describing the drawer of the cheque by his position as Chairman and Managing Director of the Company, will not invalidate the notice.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Chennai high court view taken by myself in a N...

Chennai high court view taken by myself in a Nikon D 200 camera. (Photo credit: Wikipedia)

DATED : 1.02.2011

CORAM

THE HON’BLE MR.JUSTICE G.M. AKBAR ALI

CRIMINAL APPEAL Nos.321, 323, 324 and 326 of 2007

 

S.M. Omar ..Appellant in C.A.Nos.321 and 326/2007

P. Mohaideen Candu ..Appellant in C.A.No.323/2007
by Power of Attorney

Basheer Ahamed ..Appellant in C.A.No.324/2006

vs

Zackaria Thomas ..Respondent in all the appeals

 

Appeals filed under Sec.378 Cr.P.C against the Judgment dated 26.4.2006 on the file of the learned XVII M.M., Saidpet, Chennai made in Special C.C.Nos.15 of 2003, 4220 of 2004, 4223 of 2004 and 1618 of 2004.

For appellants : Mr. S. Natana Rajan

For respondent : Mr.Ganesh Rajan for
M/s Gita Asokan

 

COMMON JUDGMENT

Appellants in these appeals are the complainants before the learned XVII M.M., Saidapet, Chennai who preferred private complaints under Sec.138 of Negotiable Instruments Act and all the appeals are preferred against the judgment of the learned XVII M.M., Saidapet, Chennai.

2. Since all these matters have arisen under similar circumstances involving similar questions of fact and law, they all have been taken up together and are being disposed of by this common judgment.

3. C.A.No.321/2007
The brief facts of the case are as follows:

The appellant filed a complaint stating that the respondent herein issued a cheque dated 9.4.2001 for a sum of Rs.30,000/- towards the rent payable for the month of October 2010 and also issued a cheque dated 21.10.2003 for a sum of Rs10,50,000/- towards the rent for the period 1.11.2000- 28.2.2003 in his favour. According to the appellant, both the cheques were presented for payment through his banker viz., Indian Bank, T.Nagar, Chennai, on 31.10.2003 and they were returned by the bank on 1.11.2003 with an endorsement “Funds Insufficient”. Therefore, the appellant issued a statutory notice dated 8.11.2003 which was received by the respondent on 10.11.2003. Since no payment was made by the respondent, the appellant herein had initiated the proceedings under Sec.138 of the Negotiable Instruments Act (hereinafter referred to as “Act”) before the Court below in C.C.No.505 of 2004.

4. The defence taken by the respondent was that there was no landlord – tenant relationship between the appellant and the respondent; that the statutory notice was issued to one M/S.Jewel Base Target Private Limited and to the respondent with a description that he is the Chairman and Managing Director; while the cheque was issued by the respondent in his personal capacity and the complaint was filed against the respondent in his personal capacity, the statutory notice issued in the name of the respondent in his official capacity as Chairman and Managing Director of the Company is not valid.

5. On analysing the evidence of the appellant and the defence taken in the cross-examination, the learned Judicial Magistrate found that the statutory notice was issued to the above said Jewel Base Target Private Limited and to the respondent, who was described as chairman and Managing Director, but the drawer of the cheque was the respondent himself in his personal capacity and therefore, the notice issued under Sec.138(b) of the Act is not proper and valid and has dismissed the complaint, thereby acquitting the respondent, against which, the present appeal has been filed by the complainant.

6. C.A.NO.326 of 2007
The brief facts of the case in this appeal are as follows:

The appellant has filed a complaint under Sec.138 of Negotiable Instruments Act stating that towards arrears of the rent payable to the complainant, the respondent issued a cheque for Rs.3,15,000/- dated 21.12.2003 and when the same was presented for payment on 22.12.2003 by the appellant/complainant, through his banker, it was returned on 24.12.2003 with an endorsement “insufficient funds”. Statutory notice was issued on 27.12.2003 by the complainant and the same was received on 29.12.2003 by the respondent/accused. Since no payment was made, complaint has been filed before the Court below.

7. The respondent took a similar defence as in C.A.No.321 of 2007. While analysing the evidence, the learned Magistrate dismissed the complaint under similar ground as in the earlier case, against which the present appeal has been preferred.

8. C.A.No.323 of 2007

The complainant filed a private complaint under Sec.138 of NI Act stating that the respondent received a hand loan of Rs.7,00,000/- and issued a cheque dated 21.2.2004 drawn on Indian Bank, Alwarpet, Chennai. The said cheque was presented for payment by the appellant through Indian Bank, T. Nagar, Chennai on 21.2.2004 and the same was returned by the drawers bank with an endorsement “Funds insufficient” on 23.2.2004. The notice was issued on 3.3.2004 which was received by the respondent on 5.3.2004. Since there was no payment, the complaint was filed.

9. The appellant was represented by his power agent one Basheer Ahamed who was examined as P.W.1. The defence taken was that there was no legally enforceable debt and the appellant has not advanced any amount to the respondent and P.W.1 was also not able to give particulars about the loan transaction and also failed to produce any evidence for such hand loan and the power of attorney given in favour of P.W.1 is also not valid.

10. While considering the evidence of power of attorney, the trial court held that the document evidencing the power of attorney is not valid and P.W.1 could not give the particulars about the hand loan and substantiate the case that it is a legally enforceable debt. Further, the trial court also decided that the notice was not given in the personal capacity and therefore, the complaint is not proper and dismissed the complaint on the same grounds as in the earlier cases, against which the present appeal has been filed by the complainant.

Crl.Appeal No.324/2007

11. The appellant has filed a private complaint under Sec.138 of the Act stating that the respondent had received hand loan of Rs.1,25,000/- and issued a cheque dated 21.2.2004. When the said cheque was presented for payment on 21.2.2004, the same was returned with an endorsement “funds insufficient”. The appellant issued statutory notice dated 3.3.2004 and the same was received by the respondent on 5.3.2004. The respondent took the similar plea that there was no loan transaction with the appellant and the appellant has not furnished any accounts and also not produced any documents evidencing the hand loan and the cheque was issued as security to loan obtained by the father of the appellant who is the appellant in C.A.Nos.321 and 326 of 2007.

12. The learned Magistrate dismissed the complaint on the similar ground as in earlier cases and more particularly on the ground that the notice sent u/s 138(b) is not valid, against which the present appeal has been filed.

13. In all these cases, the learned Magistrate has relied on the following three judgments:
Gummudi Industries Ltd., Chennai-17 and another vs Khushroo (1999 (2) MWN (Cr.) 263)

M/s Mayfair Knitting Industries Limited, etc., vs G.P. Vijayakumar, M/s Rainbow Creations Private Limited etc.(2000 (2) LW (Crl.) 918 )

S. Badhusha Bibi vs Anandakumar Trading Co (1991) (2) MWN (Cr.)

14. Aggrieved by the dismissal of the private complaints, the present appeals are preferred on the ground that the learned Magistrate is wrong in holding that the notices are not valid and the presumption under section 139 of the act of was not considered.

15. The points for consideration that arise in all these appeals are
i) whether the notice under Sec.138(b) was issued in the personal capacity of the drawer?

ii) Whether the reasons given by the learned Magistrate in dismissing the private complaints filed under Sec.138 of the Act are sustainable?

16. Mr.S. Natana Rajan, learned counsel for the appellants would submit that one Jewel Base Target Private Limited was the lessee under the appeals in C.A.Nos.321 of 2007 and 326 of 2007 and the said company is represented by the respondent, who is the Chairman and Managing Director. The learned counsel pointed out that towards arrears of rent the respondent had issued cheques and they bounced giving rise to initiation of proceedings under the Act and notices were issued to the respondent addressing him as the Chairman and Managing Director.

17. The learned counsel further pointed out that in C.A Nos.323 and 324 of 2007 the respondent had issued cheques towards the hand loan which also bounced giving rise to initiation of proceedings under the Act.

18. The learned counsel pointed out that when the statutory notice was served, the respondent failed to reply and never denied the liability. According to the learned counsel for the appellant, the presumption under Sec.139 is that the cheques were issued for the legally enforceable debt and the respondent has failed to rebut the presumption. The learned counsel further pointed that the notices were issued only in the personal capacity of the respondent and the description was given as he is the Chairman and Managing Director and the complaints were filed only against the drawer of the cheque in his personal capacity. The learned counsel submitted that the trial court was wrong in dismissing all the complaints on the same ground. The learned counsel also submitted that the trial court has erred in holding that the appellant in C.A.Nos.323 and 324 of 2007 failed to prove the passing of consideration under the instrument when the presumption is in favour of the complainant.

19. On the contrary, Mr.Ganesh Rajan, learned counsel for the respondent submitted that there is no legally enforceable debt between the appellants and the respondent. The learned counsel pointed out that the appellant in C.A.Nos.321 and 326 of 2007 is not the owner of the property and it is the admitted case that he has already settled the property in favour of his daughters and therefore, there is no question of issuing cheque for arrears of rent.

20. The learned counsel further pointed out that in C.A.No.323 of 2007 the power of agent, who was examined as P.W.1, admitted in his cross-examination that he knew nothing about the transaction and therefore, the legally enforceable debt is also not proved. The learned counsel further submitted that in C.A.No.324 of 2007, P.W.1 would admit that only under the instruction of his father, who is the appellant in C.A.Nos.321 and 326 of 2007, he is deposing as witness and he is not aware of any transaction.

21. The learned counsel for the respondent also submitted that in all the statutory notices the respondent was shown as Managing Director of the company named Jewel Base Target Limited and the said Company is not a party in the proceedings. The learned counsel further submitted that when the cheques were signed by the respondent in his personal capacity, the notices were not issued against the respondent in his personal capacity and therefore, the notices are not valid. The learned counsel further submitted that though there is a presumption under Sec.139 of the Act, the rebuttable evidence need not be a strong one and it is only necessary to establish preponderance of probabilities.

22. The learned counsel for the respondent relied on a decision reported in 2006 (3) SCC (Crl) 30 (M.S. Narayana Menon Alias Mani vs State of Kerala and another, in which the Apex Court has held as follows:
“Applying the said definitions of “proved” or “disproved” to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.”

23. The learned counsel also relied on a decision reported in 2007 1 LW (Crl) 579 (Ramakanth vs V.A. Rahim), wherein this Court in paragraph  8 has held as follows:
“…….So the explanation of Section 138 of NI Act clearly indicates that “debt or other liability” means a legally enforceable debt or other liability. The learned counsel for the appellant would advance an argument that a legally enforceable debt means that it should not be for an illegal or immoral purposes. I am afraid that a legally enforceable debt does not mean only illegal or immoral in nature but also that it must be supported by some evidence to show that the debt was in subsistence on the date of drawal of Ex.P.1  cheque.”.

24. He also relied on a decision reported in 2007 1 LW (Crl) 579 (Ramakanth vs V.A. Rahim) wherein the Apex Court has held as follows:
“9. Although, ordinarily a judgment of acquittal should not be reversed when two views are possible, the High Court opined that the trial Judge had proceeded and adjudged the evidence on an incorrect premise that it was for the complainant to establish the details of the transaction. The High Court recorded a judgment of conviction and sentenced the appellant to undergo imprisonment till the rising of the Court and to pay a sum of Rs.3,16,000/- by way of compensation”.

25. He further relied on a decision reported in 2004 (2) MWN (Crl.) 99 (Mad), (Sri Murugan Financiers vs P.V. Perumal), wherein this Court has held as follows:
“11. In an appeal against order of acquittal, the High Court would be very slow to interfere in the order. Unless the appreciation of evidence and the findings suffer from patent erroneous approach and the findings are perverse, the High Court would not reverse an order of acquittal….”

26. Heard and perused the materials available on record.

27. All the appellants are the complainants before the trial court initiated under Sec.138 of the Negotiable Instruments Act against the respondent. Their case is that the respondent has issued cheques in their favour in discharge of rental arrears and in discharge of hand loan obtained by him on different dates. When the said cheques were presented for payment through their bankers, all of them were returned on the ground of “Insufficient Funds” leading to initiation of the proceedings by them under Sec.138 of the Act before the Court below.

28. Sec.138 of the Act would indicate that the debt or liability towards which the cheque is issued should be a legally enforceable debt or liability. This debt or liability would have the reference against such debt and not to the persons against whom it would be enforced. In other words, one person can issue the cheque towards the legally enforceable debt of another person. This includes a person who is in charge of and is responsible to the conduct of business of a company or a firm or a proprietorship, who issues the cheque on behalf of such company or firm. If such a drawer of cheque fails to make payment, the holder of the cheque in due course is entitled to initiate proceedings under Sec.138 of the Act.

29. Sec.7 of the Act defines “drawer” as the maker of bill of exchange or cheque. The person thereby directed to pay is called the “drawer”.

30. Once the drawer has issued the cheque and the same has been presented for payment and if it returns with an endorsement of “insufficient fund”, the holder in due course is to issue notice to the drawer demanding payment and on service of such notice, the drawer fails to make such payment within fifteen days, the offence is said to have been committed.

31. Sec.139 of the Act reads as follows
Presumption in favour of holder:
“It shall be presumed unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to in Sec.138 for the discharge in whole or in part of any debt or other liability”.

32. Sec.138(b) contemplates demand for payment by giving a notice in writing to the drawer of the cheque. If the drawer of the cheque had issued the cheque towards any legally enforceable debt or liability in his personal capacity or if he has issued the cheque for such a debt of an another person or a Company or a Firm and if he fails to make the payment, the offence is said to have been committed. If the demand is not made to the drawer, the notice is invalid. Under Sec.139 of the Act, the presumption is in favour of the holder. Therefore, the initial burden is upon the drawer to rebut the presumption.

33. In the following cases, the Apex Court has outlined the conditions to be complied with before a case under Sec.138 of the Act can be taken cognizance of by the trial court.

34. In the case of Shamshad Begum vs Mohammed which was reported in (2008(13) SCC 77), the Apex Court held thus:

As was noted in K. Bhaskaran case1 the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. The acts which are components are as follows:

(1) drawing of the cheque;
(2) presentation of the cheque to the bank;
(3) returning the cheque unpaid by the drawee bank;
(4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount;
(5) failure of the drawer to make payment within 15 days of the receipt of the notice.

35. In the case of Subodh S. Salaskar vs Jayaprakash M.Shah (2008(13) SCC 689), the Apex Court has held as follows:

138. Dishonour of cheque for insufficiency, etc. of funds in the account. * * *

Provided that nothing contained in this section shall apply unless

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

36. Section 142 of the Act also puts a limitation on the power of the court to take cognizance of the offences, which reads as under:
142 .Cognizance of offences.  Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974 ),

(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138:

Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period.

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138.

14. A complaint petition alleging commission of an offence under Section 138 of the Act must demonstrate that the following ingredients exist i.e.:
(a) a cheque was issued;
(b) the same was presented;
(c) but, it was dishonoured;
(d) a notice in terms of the said provision was served on the person sought to be made liable; and
(e) despite service of notice, neither any payment was made nor other obligations, if any, were complied with within fifteen days from the date of receipt of the notice.

37. Therefore it is very clear that if (a) a cheque was issued;(b) the same was presented;(c) but, it was dishonoured;(d) a notice in terms of the said provision was served on the drawer and (e) if he fails to comply, then the offence is said to have been committed. Whether the drawer is served are not is a question of fact. This being the legal position let us analyse the cases on hand.

38. In C.A.No.321 of 2007, the holder of the cheque has issued a notice. This notice was addressed to one M/s Jewel Base Target Private Limited and to one Zackria Thomas, Chairman and Managing Director. Paragraph  1 of the Notice would show that the first party was a tenant under the holder of the cheque and there was arrears of rent and the second party had issued two cheques towards arrears. The cheques were issued and signed by the second party. There is no dispute that this notice has been issued and served to the respondent. On failure of payment, the complaint has been filed. The accused is described as “Zackria Thomas, Managing Director, Jewel Base Target Limited”. The defence taken by the accused is that the cheque has been issued in his individual capacity and notice was issued to the tenant, which is a Company, represented by the Managing Director. In other words in the capacity of Chairman and Managing Director of a company.

39. The point is that the notice was not issued to Sri Zackria Thomas, who has issued the cheque. Accepting the contention of the respondent, the trial court has stated which reads as follows:

 

VERNACULAR (TAMIL) PORTION DELETED

 

40. The learned Magistrate has held that the respondent has issued the cheque in his personal capacity but the notice was issued in the capacity of the Managing Director of the Company. Therefore, it is not a valid notice under Sec.138(b) of the Act.

41. In C.A.No.326 of 2007 the notice has been issued to Sri Zackria Thomas , Chairman and Managing Director of Jewel Base Target Limited and in the body of the notice, the appellant has described that the said Jewel Base Target Limited was a tenant and there was arrears of rent and the respondent had issued the cheque which on presentation, returned dishonoured. In the complaint, the accused has been shown as Zackria Thomas, S/o K.P.S. Thomas.

42. In this case also, the learned Magistrate has held that the cheque was issued in the individual capacity and the notice was not issued to the respondent in his individual capacity and therefore, the notice is invalid under Sec.138(b) of the Act.

43. In C.A.No.323 of 2007, the transaction involved a personal loan of Rs.7,00,000/- from the appellant Mohideen Chandu rep by his power of agent. The cheque was issued by the respondent. The notice was issued to Sri Zackria Thomas, Chairman and Managing Director of Jewel Base Target Private Limited. In the complaint, the accused is described as Zackria Thomas, S/o K.P. S. Thomas. In this case also, the learned Magistrate has held that the cheque was issued in the individual capacity but the notice was issued to the respondent as the Chairman cum Managing Director of the Company and therefore, the notice is invalid under Sec.138(b) of the Act.

44. In C.A.No.324 of 2007, the transaction involved a personal loan of Rs.1,25,000/- from the appellant Basheer Ahamed. The cheque was issued by the respondent. The notice was issued to Sri Zackria Thomas, Chairman and Managing Director of Jewel Base Target Limited. In the complaint, the accused is described as Zackria Thomas, S/o K.P. S. Thomas. In this case also, the learned Magistrate has held that the cheque was issued in the individual capacity but the notice was issued to the respondent as the Chairman cum Managing Director of the Company and therefore, the notice is invalid under Sec.138(b) of the Act.

45. The learned Magistrate has relied on a decision reported in 1999 (2) MWN (Cr.) 263 (Gummudi Industries Ltd., Chennai-17 and another vs Khushroo) . The facts in that case was that the second accused was the drawer and the first accused was the Company. When the company challenged that it was the drawer, this Court held the proceedings against the second accused who has signed the cheque are maintainable ( as per para 29) and has quashed the proceedings against the first accused Company as the company was not the drawer of the cheque (as per para 32 and 33). Therefore, the above decision cannot be relied on to decide the validity of the notice issued under Sec.138(b) of the Act in the case on hand.

46. The learned Magistrate has also relied on a decision reported in (1991) (2) MWN (Cr.)1999 (S. Badhusha Bibi vs Anandakumar Trading Co). In this case, the law laid down was that the drawer of the cheque alone can be proceeded with for offence under the Act and not an indorser.

47. We have no quarrel with the ratio laid down, but this decision is also not relevant to decide the validity of the notice issued under Sec.138(b) of the Act in the case on hand.

48. The learned Magistrate has further relied on a decision reported in M/s Mayfair Knitting Industries Limited, etc., vs G.P. Vijayakumar, M/s Rainbow Creations Private Limited etc.(2000 (2) LW (Crl.) 918 ). It is a case where the cheque was issued by one G.P. Vijayakumar but the notice was addressed to one M/s Rainbow Creations who is not the drawer of the cheque. Therefore, this Court has held that the notice was not issued to the drawer of the cheque.

49. As stated earlier, in C.A.Nos.321 and 326, the notice was issued to the tenant as well as to the drawer of the cheque, but he is described as Chairman and Managing Director of the tennent. The body of the notice would explain that for the rent due and payable by the first party, the second party had issued the cheque. The complaint was filed against the second party with a description ‘Managing Director, Jewel Base Target Private Limited’. In my considered view, when the drawer has been addressed with or without any description of his position and when the intention of the holder of the cheque was to make a demand for the payment of the dishonored cheque from such drawer, the provision under section 138 (b) of the Act is satisfied. Sec.138(b) contemplates issuance of notice to the drawer demanding payment and the notice and its content is important then the address. When a person has issued the cheque towards the legally enforceable debt of a company, merely describing the drawer of the cheque by his position as Chairman and Managing Director of the Company, will not invalidate the notice.

50. Therefore, the trial court is wrong in concluding that the cheque has been issued by the respondent in his individual capacity but the notice was was not issued to the respondent in his individual capacity and therefore, the notice is invalid under Sec.138(b) of the Act.

51. In C.A.No.326 of 2007 the notice was issued only to the respondent describing him as Chairman and Managing Director of Jewel Base Target Private Limited. The reasons stated above will also apply to the present case.

52. In C.A.Nos.323 and 324 of 2007, the cheque was issued towards hand loan by the respondent. The notice was issued to the respondent again with a description as the Chairman and Managing Director of Jewel Base Target Private Limited. There is no allegation in the notice that he has taken the loan on behalf of the company and the notice was also not issued to the said company.

53. The learned Magistrate has applied the same reasons, relied on the same decisions and has stated that the notice was not issued in the individual capacity.
54. As already held if a notice is addressed to the drawer by name and describing him by his position as Chairman and Managing Director of a particular company or firm, it is valid. Therefore, the reasons stated above will also apply to these cases.

55. In all these criminal appeals, the trial court has shifted the burden on the complainant to prove the legally enforceable debt.

56. As stated earlier, under Sec.139 of the Act, the presumption is in favour of the holder and the initial burden is on the drawer to rebut the presumption.

57. The learned counsel for the respondent relied on the following decisions for the proposition that “for rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon” and “in an appeal against order of acquittal, the High Court would be very slow to interfere in the order. Unless the appreciation of evidence and the findings suffer from patent erroneous approach and the findings are perverse, the High Court would not reverse an order of acquittal”:

1. 2006 (3) SCC (Crl) 30 (M.S. Narayana Menon Alias Mani vs State of Kerala and another
2. 2007 1 LW (Crl) 579 (Ramakanth vs V.A. Rahim)
3. 2007 1 LW (Crl) 579 (Ramakanth vs V.A. Rahim)

58. We do agree that the burden of proof lying on the accused required to be discharged by preponderance of probability and nothing more. However, the learned Judicial Magistrate has not discussed any evidence relating to the legal presumption and infact has shifted the burden on the holder.

59. In C.A.No.323 of 2007 having accepted the complaint to be presented by a power of attorney the trial court has observed that there is suspicious circumstances in executing the document. In my opinion, the trial court has not given any finding on the other issues but has mainly considered the validity of the notice under Sec.138(b) of the Act. The respondent has also not gone into the box or examined any witnesses to rebut the presumption. As rightly pointed out he has not even replied to the notice. When the appreciation of evidence and the findings suffer from patent erroneous approach and the findings are perverse, the High Court can surely interfere.

60. However, I am of the considered view that as the trail court has dismissed the complaints mainly on the ground that the notices are not valid, these are the fit cases which have to be remanded back to the trial court for a fresh disposal.

61. In the result, all the criminal appeals are allowed and judgments of the learned Metropolitan magistrate are set aside and all the matters are remitted back to the trial court for fresh disposal in the light of the observations made above. Needless to mention that the parties are at liberty to adduce additional evidence. The learned Metropolitan Magistrate is directed to dispose of the cases within four months from the date of receipt of the this order and the Registry is directed to return the records immediately.

 

 

 

 

sr

To

The XVII M.M., Saidpet,
Chennai

 

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