GOA HANDICRAFTS, RURAL AND SMALL SCALE INDUSTRIES DEVELOPMENT CORPORATION LTD Vs. SAMUDRA ROPES PVT LTD

JUDGEMENT

(1.) The appellant herein is the Original complainant. He is challenging the judgment and Order passed by the Ist Additional Sessions Judge, Panaji, who by his Order dated 5-9-2003 acquitted the Respondent/Accused for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (Act, for short) and who by his judgment and Order was pleased to set aside the Order passed by the Judicial Magistrate, First Class, Panaji, who had convicted the accused under Section 138 of the Act.

(2.) The brief facts which are relevant for the purpose of deciding this Criminal Appeal are as under:

(3.) Submissions: The learned Counsel appearing on behalf of the Appellant has submitted that the Additional Sessions Judge has erred in coming to the conclusion that there was no existing debt or liability and had further erred in relying on a judgment in the case of R. Sreenivasan v. State of Kerala, (2002) Vol. III Company Case 740 and in the case of Taherr Khambati v. M/s. Vinayak Enterprises, 1995 Cri. LJ 560 and the same had been overruled by subsequent Judgment of the Supreme Court. He submitted that the lower appellate Court had failed to take into consideration that the Complainant in his cross-examination had clearly admitted that there was an existing debt and liability payable to the Complainant and that the cheque was issued for discharging the said liability. He submitted that, therefore, the finding of the Sessions Court was perverse to the extent that he did not take into consideration the specific admission given by the Accused in his cross-examination. He further submitted that the Sessions Court had clearly erred in coming to the conclusion that the trial Court had only considered the point whether the said cheque was issued by way of security. He submitted that the trial court in fact had considered the evidence adduced by the Complainant and the admissions which were given by the Accused in its totality and thereafter has given a specific finding that the cheque was issued towards the existing debt and legally enforceable liability. The learned Counsel appearing on behalf of the Appellant further invited my attention to a number of Judgments of the Supreme Court and to Judgments of this Court and various other High Courts in support of his submissions firstly on the point that even if the cheque was issued under security even then it would attract the liability under Section 138 of the said Act. In support of this submission, he relied on a Judgment of the Supreme Court in the case of ICDS Ltd. v. Beena Shabeer(2002) 6 SCC 426 He also relied on a Judgment of Kerala High Court in the case of Gopi, S/o Vasudevan v. Sudarsanan, S/o Chackrapani, 2003 (1) All India Criminal LR (Ker.) 693 He also relied on a Judgment of the Madras High Court in the case of Palraj v. Lalchandh, (2001) 103 Comp Case 527 and on a Judgment of Madras High Court in the case of M/s. Alsi Constructions and Housing Limited v. M. Mal Reddy6. He further submitted that even if the amount mentioned in the cheque was larger than the liability even then the penal provisions under Section 138 of the said Act were attracted. In support of the same submissions he relied on a Judgment in the case of Kochayippa v. Suprasidhann, 2002 Cri. LJ 4803 and in the case of Andhra Engineering Corporation v. TCI Finance Ltd., 1999(3) All India Criminal LR (A.P.) 55 He also relied on another Judgment of the Kerala High Court in the case of R. Gopikuttan Pillai v. Sankara Narayanan Nair, (2004) 1 DCR 222 The learned Counsel also sought to distinguish the Judgment on which reliance was placed by the Additional Sessions Judge. He further submitted that it was the burden of rebutting the presumption which is raised under Section 139 of the said Act which was squarely on the Accused and the said burden had to be discharged by leading cogent evidence. In support of the said submission, he relied on a Judgment of the Supreme Court in the case of K.N. Beena v. Muniyappan, 2001 (8) SCC 458 He further submitted that a mere disability of the Accused to pay the amount would not absolve him from his liability under Section 138 of the said Act. In support of the said submission he relied on a Judgment of the Supreme Court in the case of Punkaj Mehra v. State of Maha-rashtra, (2000)2 SCC 756 He further submitted that pendency of the proceedings before the BIFR did not in ex post facto file a complaint under Section 138 of the said Act. In support of the said submission, relied on a judgment of the Supreme Court in the case of Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd., 2000(2) SCC 745 He further submitted that the provisions of Section 138 to Section 142 had to be construed in such a manner that the mischief which was sought to be remedied by the said provisions would not render. In support of the said submission regarding the object of Section 138 to Section 142 he relied on a Judgment of the Supreme Court in the case of Modi Cements Ltd. v. Kuchil Kumar Nandi, (1998) 3 SCC 249 and also in the case of Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd., 2001 6 SCC 463 and also in the case of Goa Plast (P) Ltd. v. Chico Ursula D'Souza, (2004) 2 SCC 235 and in the case of M/s. Alsi Construction and Housing Limited v. M. Mal Reddy (supra). He further relied on two recent judgments of Kerala High Court in the case of M/s. General Auto Sales v. D. Vijayalakshmi 2005(3) All MR (Journal) 6 and in another case in Assoo Hajee v. K.I. Abdul Latheef, 2005(2) All India Criminal LR (Ker.) 53 and in another in support of his submission that the prosecution for the dishonour of the cheque was maintainable even though the cheque was given by way of security.