MOHAMMED ASHFAQ Vs. IQBAL HUSSAIN H A

JUDGEMENT

(1.) Heard the learned counsel for the petitioner and the learned counsel for the respondents.

(2.) The petitioner was the accused in a complaint by the respondents for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ((Hereinafter referred to as the 'NI Act', for brevity). The complaint was contested by the present petitioner. It was the defence of the petitioner-accused that the cheque in question, which was said to have been dishonoured, was no doubt, a cheque issued on the account of the petitioner and duly signed by him. But it was contended that the same had been presented to the respondents in an earlier transaction as security for carrying out certain obligations under a contract. The same has not been returned after satisfaction of that contract. It was sought to be misused by the respondents. This defence was negated by the trial court after a trial and the petitioner was convicted for an offence punishable under Section 138 of the NI Act and the petitioner was sentenced to pay a fine of Rs.4,49,750/-and the same was payable to the respondents as compensation apart from Rs.20,000/- which was to be paid as fine to the State. This having been challenged in appeal by the present petitioner, a particular ground that was raised was that the transaction under which the respondents were claiming that a cheque had been issued, was, in fact, a bogus transaction, as there was no such transaction at all. In this regard, the petitioner had particularly addressed the circumstance that the alleged transaction involved a large amount of money, which certainly attracted tax liability and in the absence of any material to demonstrate that the taxes had been paid by the respondents on the said amounts of money, it would fortify the case of the petitioner that there was no transaction. This was the rebuttal that was sought to be set up by the petitioner even before the appellate court. At that point of time, the respondent, in order to cure a glaring defect and on account of which, the entire case of the complainant would have been taken away, the respondent sought to produce a document from the Department of Commercial Taxes, to demonstrate that he had subsequently met certain tax liabilities, which would establish the transaction, under which the cheque had been issued. This, according to the learned counsel for the petitioner, was certainly a mischievous design adopted by the respondent to make good the lacuna in the case. In that, the bogus transaction would have revealed the fact that no such liability existed, as the corresponding documents pertaining to payment of taxes were not available. The report, which was sought to be produced before the appellate court, did not pertain to the alleged transaction. It is in that light that the petitioner had filed an application seeking to summon a competent officer from the Commercial Tax Department to be examined on the aspect of, whether or not, the documents sought to be produced by the respondent corresponded to the transaction, under which the cheque in question had been issued. The appellate court however, has rejected that application on the ground that the petitioner had ample opportunity before the trial court to have tendered positive evidence in rebuttal, if the defence was indeed tenable. It is that additional ground, which is sought to be urged in the present petition, to contend that there has been a miscarriage of justice in the appellate court having summarily rejected the application and even if this court is not inclined to interfere with the findings of fact, that circumstance is a glaring circumstance which would necessarily warrant interference by this court in revision, as complete justice is not rendered to the petitioner.

(3.) In this context, the learned counsel would place strong reliance on a judgment of the apex court, which the learned counsel for the petitioner would submit, was rendered in identical circumstances, wherein in respect of a transaction of sale of carpets, a cheque purportedly having been issued was sought to be produced in a case, for an offence punishable under Section 138 of the NI Act. It is in that backdrop that the apex court has discussed the options available to the accused in a trial under Section 138 of the NI Act and sequence of events vis- -vis the charges thereto and has expounded as follows:-