URGENT MOTIONS AND ADMISSIONS ARE TO BE POSTED AS FOLLOWS :-
1) Motions and Admissions in Writ Appeals, WP (PIL), WP Judicial Service Matters and other DB Matters.
- FIRST BENCH.
2) Motions and Admissions in Green Bench Matters, WP-DB Service and
CMDA & Encroachment Matters.
- ELIPE DHARMA RAO & M.VENUGOPAL JJ
3) Motions and Admissions in DRT & DRAT Matters, Cont.Petitions &
Cont.Appeals, WP pertaining to Caste/Community Certificates and
CMA (DB) - Customs and Central Excise Matters
- D.MURUGESAN & K.K.SASIDHARAN JJ.
4) Motions and Admissions in HCP and Crl.Appeals (DB)
- C.NAGAPPAN & P.R.SHIVAKUMAR JJ
5) Motions and Admissions in OSA & LPA
- R.BANUMATHI & V.PERIYA KARUPPIAH JJ
6) Motions and Admissions in CMA (DB) - except Customs & Central Excise Matters,
STA, SA (Act 31/1978) and CMP in AS.
- K.MOHAN RAM & M.DURAISWAMY JJ
7) Motions and Admissions in WP - Education and Gen.Misc.
- P.JYOTHIMANI J
8) Motions and Admissions in Tax Matters
- CHITRA VENKATARAMAN & P.P.S.JANARTHANA RAJA JJ
9) Motions and Admissions in Crl.Appeal and Crl.Revision
- K.N.BASHA J from 14-06-2011.
10) Motions and Admissions in WP (Labour & Service)
- N.PAUL VASANTHAKUMAR J
11) Motions and Admissions in WP - Tax (Income Tax, Sales Tax & all other Tax Matters),
MV, MV Tax, M & M, Industries, C & CE and Prohibition and Excise.
- M.JAICHANDREN J
12) Motions and Admissions in WP - EB, Land Acq., Local Authority, ULC,
Co-op, Forest, APM,Cinema, LR & LT.
- R.SUDHAKAR J
13) Motions and Admissions in CRP (NPD).
- S.TAMILVANAN J
14) Motions and Admissions in Company Appeals, Company Petitions
and Arbitration Matters.
- VINOD K.SHARMA J from 14-06-2011.
15) Motions in all OAs, Application in Civil Suits, OPs (other than Arbitration Matters)
and Insolvency Petitions.
- V.RAMASUBRAMANIAN J
15a) Motions and Admissions in Company Appeals, Company Petitions
and Arbitration Matters.
- V.RAMASUBRAMANIAN J on 13-06-2011.
16) Motions and Admissions in SA.
- G.RAJASURIA J
17) Motions and Admissions in Crl.OP in Bail and Anticipatory Bail
- T.SUDANTHIRAM J
18) Motions and Admissions in CRP (PD), CMSA and Tr.CMP.
- R.SUBBIAH J
19) Motions and Admissions in Crl.OP (U/s.482 of Crl.PC)
- C.T.SELVAM J
20) Motions and Admissions in CMA
- C.S.KARNAN J
21) Motions and Admissions in Crl.Appeal and Crl.Revision
- R.MALA J on 13-06-2011.
22) Motions in CMPs in AS.
- T.MATHIVANAN J
23) Urgent Admissions & Lunch Motions can be moved before the
respective Hon'ble Judges.
24) Original Side matters will be posted before the MASTER daily .
25) Appellate Side matters will be posted before the DEPUTY REGISTRAR (Appellate-Side).
26) THE ABOVE ARRANGEMENTS ARE SUBJECT TO MODIFICATION.
Saturday, June 11, 2011
Madras HC sitting arrangements–13.6.11 to 17.6.11.
Saturday, June 4, 2011
Freedom of the press and journalistic ethics–Hon’ble Mr.Justice Markandey Katju, Judge, Supreme Court of India.
Freedom of the press and journalistic ethics
Markandey Katju
Freedom is important, so is responsibility. In countries like India, the media have a responsibility to fight backward ideas such as casteism and communalism, and help the people fight poverty and other social evils.
Freedom of the press and journalistic ethics is an important topic today in India — with the word ‘press' encompassing the electronic media also. There should be a serious discussion on the topic. That discussion should include issues of the responsibilities of the press, since the media have become very prominent and very powerful.
In India, freedom of the press has been treated as part of the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution, vide Brij Bhushan and Another vs. The State of Delhi, AIR 1950 SC 129 and Sakal Papers (P) Ltd vs. Union of India, AIR 1962 SC 305, among others. However, as mentioned in Article 19(2), reasonable restrictions can be placed on this right, in the interest of the sovereignty and integrity of India, the security of the state, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Hence, freedom of the media is not an absolute freedom.
The importance of the freedom of the press lies in the fact that for most citizens the prospect of personal familiarity with newsworthy events is unrealistic. In seeking out news, the media therefore act for the public at large. It is the means by which people receive free flow of information and ideas, which is essential to intelligent self-governance, that is, democracy.
For a proper functioning of democracy it is essential that citizens are kept informed about news from various parts of the country and even abroad, because only then can they form rational opinions. A citizen surely cannot be expected personally to gather news to enable him or her to form such opinions. Hence, the media play an important role in a democracy and serve as an agency of the people to gather news for them. It is for this reason that freedom of the press has been emphasised in all democratic countries, while it was not permitted in feudal or totalitarian regimes.
In India, the media have played a historical role in providing information to the people about social and economic evils. The media have informed the people about the tremendous poverty in the country, the suicide of farmers in various States, the so-called honour killings in many places by Khap panchayats, corruption, and so on. For this, the media in India deserve kudos.
However, the media have a great responsibility also to see that the news they present is accurate and serve the interest of the people. If the media convey false news that may harm the reputation of a person or a section of society, it may do great damage since reputation is a valuable asset for a person. Even if the media subsequently correct a statement, the damage done may be irreparable. Hence, the media should take care to carefully investigate any news item before reporting it.
I know of a case where the photograph of a High Court judge, who was known to be upright, was shown on a TV channel along with that of a known criminal. The allegation against the judge was that he had acquired some land at a low price misusing his office. But my own inquiries (as part of which I met and asked questions to that judge and many others) revealed that he had acquired the land not in any discretionary quota but in the open market at the market price.
Also, sometimes the media present twisted or distorted news that may contain an element of truth but also an element of untruth. This, too, should be avoided because a half-truth can be more dangerous than a total lie. The media should avoid giving any slant to news, and avoid sensationalism and yellow journalism. Only then will they gain the respect of the people and fulfil their true role in a democracy.
Recently, reports were published of paid news — which involves someone paying a newspaper and getting something favourable to him published. If this is correct, it is most improper. Editors should curb this practice.
Media comments on pending cases, especially on criminal cases where the life or liberty of a citizen is involved, are a delicate issue and should be carefully considered. After all, judges are human beings too, and sometimes it may be difficult for them not to be influenced by such news. The British law is that when a case is sub judice, no comment can be made on it, whereas U.S. law permits such comment. In India we may have to take an intermediate view on this issue: while on the one hand we have a written Constitution that guarantees freedom of speech in Article 19(1)(a) — which the unwritten British Constitution does not — the life and liberty of a citizen is a fundamental right guaranteed by Article 21 and should not lightly be jeopardised. Hence, a balanced view has to be taken on this.
Also, often the media publish correct news but place too much emphasis on frivolous news such as those concerning the activities of film stars, models, cricketers and so on, while giving very little prominence to much more important issues that are basically socio-economic in nature.
What do we see on television these days? Some channels show film stars, pop music, disco-dancing and fashion parades (often with scantily clad young women), astrology, or cricket. Is it not a cruel irony and an affront to our poor people that so much time and resources are spent on such things? What have the Indian masses, who are facing terrible economic problems, to do with such things?
Historically, the media have been organs of the people against feudal oppression. In Europe, the media played a major role in transforming a feudal society into a modern one. The print media played a role in preparing for, and during, the British, American and French Revolutions. The print media were used by writers such as Rousseau, Voltaire, Thomas Paine, Junius and John Wilkes in the people's fight against feudalism and despotism. Everyone knows of the great stir created by Thomas Paine's pamphlet ‘Common Sense' during the American Revolution, or of the letters of Junius during the reign of the despotic George III.
The media became powerful tools in the hands of the people then because they could not express themselves through the established organs of power: those organs were in the hands of feudal and despotic rulers. Hence, the people had to create new organs that would serve them. It is for this reason that that the print media became known as the Fourth Estate. In Europe and America, they represented the voice of the future, in contrast to the feudal or despotic organs that wanted to preserve the status quo in society. In the 20th century, other types of media emerged: radio, television and the Internet.
What should be the media's role? This is a matter of great importance to India as it faces massive problems of poverty, unemployment, corruption, price rise and so on.
To my mind, in underdeveloped countries like India the media have a great responsibility to fight backward ideas such as casteism and communalism, and help the people in their struggle against poverty and other social evils. Since a large section of the people is backward and ignorant, it is all the more necessary that modern ideas are brought to them and their backwardness removed so that they become part of enlightened India. The media have a great responsibility in this respect.
Underdeveloped countries like India are passing through a transitional stage, between a feudal-agricultural society and a modern-industrial society. This is a painful, agonising period. A study of the history of England of the 17th and 18th centuries and of France of the 18th and 19th centuries, shows that for them such periods of transition were full of turbulence, turmoil, revolutions, intellectual ferment, and social churning. It was only after going through this fire that modern society emerged in Europe. India is going through this fire. The barbaric ‘honour killings' in parts of the country of young men and women of different castes or religion who get married or wish to get married, among other incidents, show how backward we still are — full of casteism and communalism.
India's national aim must be to get over this transitional period as quickly as possible, reducing the inevitable agony. Our aim must be to make India a modern, powerful, industrial state. Only then will India be able to provide for the welfare of its people and get respect in the world community.
Today, the real world is cruel and harsh. It respects power, not poverty or weakness. When China and Japan were poor nations, their people were derisively labelled ‘yellow' races by Western nations. Today nobody dares use such terms as they are strong industrial nations. Similarly, if we wish India to get respect in the comity of nations, we must make it highly industrialised and prosperous. For this, our patriotic, modern-minded intelligentsia must wage a powerful cultural struggle, that is, a struggle in the realm of ideas. This cultural struggle must be waged by combating feudal and backward ideas, for example, casteism and communalism, replacing them with modern, scientific ideas among the masses.
The media have an extremely important role to play in this cultural struggle. But are they performing this role?
No doubt, the media sometimes refer to farmer suicides in different States, the price rise, and so on, but these form only a small part of their coverage — maybe 5 to 10 per cent. Most of the coverage is given to cricket, film stars, astrology and disco-dancing.
Sadly, India now has a disconnect between the mass media and mass reality. Here are a few facts from a speech delivered by P. Sainath, Rural Affairs Editor of The Hindu and Magsaysay award winner, on September 6, 2007 in Parliament House in the Speaker's Lecture Series.
•The mass reality in India (which has over 70 per cent of its people living in the rural areas), is that rural India is in the midst of the worst agrarian crisis in four decades. Millions of livelihoods in the rural areas have been damaged or destroyed in the last 15 years as a result of this crisis, because of the predatory commercialisation of the countryside and the reduction of all human values to exchange value. As a result, lakhs of farmers have committed suicide and millions of people have migrated, and are migrating, from the rural areas to the cities and towns in search of jobs that are not there. They have moved towards a status that is neither that of a ‘worker' nor that of a ‘farmer.' Many of them end up as domestic labourers, or even criminals. We have been pushed towards corporate farming, a process in which farming is taken out of the hands of the farmers and put in the hands of corporates. This process is not being achieved with guns, tanks, bulldozers or lathis. It is done by making farming unviable for the millions of small family farm-holders, due to the high cost of inputs such as seed, fertilizer and power, and uneconomical prices.
•India was ranked fourth in the list of countries with the most number of dollar billionaires, but 126th in human development. This means it is better to be a poor person in Bolivia (the poorest nation in South America) or Guatemala or Gabon rather than in India. Here, some 83.6 crore people (of a total of 110-120 crore) in India survive on less than Rs.20 a day.
•Eight Indian States in India are economically poorer than African states, said a recent Oxford University study. Life expectancy in India is lower than in Bolivia, Kazakhstan and Mongolia.
•According to the National Sample Survey Organisation, the average monthly per capita expenditure of the Indian farm household is Rs.503. Of that, some 55 per cent is spent on food, 18 per cent on fuel, clothing and footwear, leaving precious little to be spent on education or health.
•A report of the Food and Agriculture Organisation of the United Nations shows that between 1995-97 and 1999-2001, India added more newly hungry millions than the rest of the world taken together. The average rural family is consuming 100 kg less of food than it was consuming earlier. Indebtedness has doubled in the past decade. Cultivation costs have increased exorbitantly and farming incomes have collapsed, leading to wide-scale suicides by farmers.
•While there were 512 accredited journalists covering the Lakme India Fashion Week event, there were only six journalists to cover farmer suicides in Vidharbha. In that Fashion Week programme, the models were displaying cotton garments, while the men and women who grew that cotton were killing themselves at a distance of an hour's flight from Nagpur in the Vidharbha region. Nobody told that story except one or two journalists, locally.
Is this a responsible way for the Indian media to function? Should the media turn a Nelson's eye to the harsh economic realities facing over 75 per cent of our people, and concentrate on some ‘Potemkin villages' where all is glamour and show business? Are not the Indian media behaving much like Queen Marie Antoinette, who famously said that if people had no bread, they should eat cake.
No doubt, sometimes the media mention farmers' suicides, the rise in the price of essential commodities and so on, but such coverage is at most 5 to 10 per cent of the total. The bulk of the coverage goes to showing cricket, the life of film stars, pop music, fashion parades, astrology…
Some TV channels show cricket day in and day out. Some Roman emperor was reputed to have said: if you cannot give the people bread, give them the circus. This is precisely the approach of the Indian establishment. Keep the people involved in cricket so that they forget their economic and social plight. What is important is not price rise or unemployment or poverty or lack of housing or medicines. What is important is whether India has beaten New Zealand (or better still, Pakistan) in a cricket match, or whether Tendulkar or Yuvraj Singh has scored a century. Is this not sheer escapism?
To my mind, the role of the media in our country today must be to help the people in their struggle against poverty, unemployment and other social evils and to make India a modern, powerful, industrial state.
For this, scientific thinking should be promoted. Science alone is the means to solve this country's problems. By science I do not mean physics, chemistry and biology alone. I mean the entire scientific outlook, which must be spread widely among our people. Our people must develop rational, logical and questioning minds, and abandon superstition and escapism. For this purpose the media can, and must, play a powerful role.
The nation is passing through a terrible socio-economic crisis. Artists, writers and mediapersons must start acting responsibly and help the people solve their problems. And this they can do by focussing on the real issues — which are basically economic — and not by trying to divert people's attention to non-issues.
The Urdu poet Faiz wrote: Gulon mein rang bhare bade naubahaar chale/ Chale bhi aao ki gulshan ka kaarobaar chale. Urdu poetry often has an outer, superficial meaning, and an inner real meaning. The real meaning of this sher is that the objective situation in the country is ripe, and patriotic people to come forward to serve the country. (The word ‘gulshan' ostensibly means garden, but in this sher, it really means the country.)
Source:
1. http://www.hindu.com/2011/06/03/stories/2011060350440800.htm
2. http://www.hindu.com/2011/06/04/stories/2011060455071000.htm
Friday, June 3, 2011
An important judgment by Madras HC on section 138 of The Negotiable Instruments Act, 1881
P.Gnanambigai vs S.Krishnasamy on 23 December, 2010
Cites 6 docs - [View All]
Section 139 in The Code Of Criminal Procedure, 1973
The Code Of Criminal Procedure, 1973
Section 138 in The Code Of Criminal Procedure, 1973
The Negotiable Instruments Act, 1881
K.P.Chinnasamy vs T.B.Kennedy on 14 November, 2006
Madras High Court
Dated: 23.12.2010
Coram
THE HONOURABLE MS. JUSTICE K.B.K.VASUKI
Crl.R.C.No.1307 of 2005
P.Gnanambigai .. Petitioner
Vs.
1.S.Krishnasamy
2.The State of Tamil Nadu
rep. by the Public Prosecutor,
Erode District. .. Respondents
Prayer:- Criminal Revision Petition filed under Section 397 r/w 401 of Cr.P.C. against the order made on 12.05.2005 in C.A.No.176 of 2003 on the file of Additional District Judge-cum-Fast Track Court, Erode confirming the judgment dated 27.10.2003 made in CC.No.541 of 2002 on the file of Judicial Magistrate No.I, Erode.
For Petitioner : M/s.V.S.Kesavan
For Respondents : M/s.C.S.Saravanan for R1
M/s.I.Paul Noble Devakumar
G.A.(Crl. Side) for R2.
ORDER
The accused is the petitioner herein. The revision is filed against the judgment of conviction made in C.A.No.176 of 2003 on the file of Additional District Judge-cum-Fast Track Court, Erode confirming the judgment made in CC.No.541 of 2002 on the file of Judicial Magistrate No.I, Erode.
2. The case of the first respondent against the petitioner in his private complaint is that the petitioner on 14.07.2002 borrowed a sum of Rs.2,50,000/- as loan and paid interest of Rs.5,000/- and for the due repayment of the principle amount issued Ex.P1 cheque dated 12.08.2002, and when the same was presented for encashment on 13.08.2002, the same is returned for want of sufficient funds and the same was intimated to the petitioner by notice dated 23.08.2002 and the petitioner did neither respond to the notice nor pay the amount. The first respondent/complainant has in order to prove his case before the trial court examined himself as PW1 and has also produced Ex.P1 to Ex.P6 documents. The trial court has on the basis of the available records accepted the case of the complainant that Ex.A1 cheque is issued for the due repayment of loan amount of Rs.2,50,000/- and found the accused guilty of the offence under section 138 of the Negotiable Instruments Act (herein after referred to as "N.I. Act") and sentenced him to undergo imprisonment and to pay fine. Aggrieved against the same, the petitioner preferred C.A.176 of 2003 and the lower appellate court has also confirmed the findings and the judgment of conviction based on such finding passed by the trial court. Hence, this criminal revision by the accused before this court.
3. The learned counsel for the revision petitioner has argued that, though the petitioner admits his signature in the cheque and the issuance of cheque, the petitioner stoutly denies the circumstances in which the cheque is issued. According to the petitioner, the cheque is issued in blank for payment of chit arrears due from the petitioner to the respondent/complainant who conducted the chit transaction.
4. It is further argued by the learned counsel for the petitioner, though the petitioner has sufficiently made out before the court below that there was no such money transaction between the petitioner and the respondent and the respondent has no where withal to pay such huge amount as loan, both the courts below have without considering the such plea raised on the side of the accused found the accused guilty, mainly by invoking the presumption under section 139 of the N.I. Act and on the ground that the petitioner failed to rebut the same. It is also argued by the learned counsel for the petitioner, that the standard of proof required to be adduced by the petitioner to discharge the burden cast upon him is not beyond reasonable doubt but only preponderance of probability and it is sufficient discharge if he is able to create reasonable doubt in the mind of the court about the truthfulness of the transaction between the parties and as the petitioner has successfully made out one such case that the nature of the transaction is not the one as claimed by the complainant the courts below ought to have absolved the petitioner from liability to adduce further evidence and ought to have shifted the burden upon the complainant to prove his case and on his failure to do so rejected his case and acquitted the accused and the failure of the court below to adopt such course has resulted in totally erroneous finding.
5. Per contra, the learned counsel for the respondent/complainant would strenuously contend that though the presumption raised under section 139 of the N.I. Act is rebuttable the burden is upon the accused/petitioner to adduce sufficient material to rebut the same and mere raising some vague and bald defence in the course of trial is not sufficient enough to discharge the burden and the failure of the petitioner to issue reply notice and to enter into the witness box are the factors to be viewed against the petitioner and the minor discrepancies in the testimony of PW1 cannot be highlighted to reject the case of the complainant in toto.
6. The learned counsel for the petitioner and respondents have also cited authorities of the Supreme Court and our High Court in support of their respective contentions.
7. I have heard the rival submissions made on both sides and perused the records and authorities cited on both sides.
8. For the purpose of convenience the parties are referred to as per their rank in the trial court.
9. In the instance case, the signature and the issuance of cheque in question to the respondent is not denied. That being so, the trial court has rightly drawn the presumption under section 139 of the N.I. Act, that the same is issued for legally enforceable liability existing on the date of issuance of the cheque and has rightly cast the burden upon the accused to rebut such presumption.
10. The well settled legal position, which is reiterated in the recent larger bench judgment of Supreme Court reported in 2010 (4) CTC 118 in Rangappa V. Sri Mohan is that when an accused has to rebut the presumption under section 139 the standard of proof for doing so, is that of preponderance of probabilities and if the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. It is further observed in the same judgment that the accused can rely on the materials submitted by the complainant in order to raise such a defence. It is also observed by the Supreme Court in the earlier judgment reported in 2008 (1) CTC 433 in Krishna Janardhan Bhat V. Dattatraya G. Hedge that the court must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the N.I. Act, the same may not lead to injustice or mistaken conviction and the accused for discharging the burden of proof placed upon him under the statute need not examine himself and he can discharge his burden on the basis of the materials already brought on records and the accused has a constitutional right to maintain silence and standard of proof on the part of the accused and that of the prosecution in a criminal case is different. It is also observed by the Supreme Court that the presumption of innocence as a human right and the doctrine of Reserve Burden introduced under section 139 should be delicately balanced and such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to the legal principles governing the same. The test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused cannot be expected to dishcarge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden.
11. Only in this legal matrix the facts of the present case is to be necessarily appreciated. It is true that the petitioner raised the defence to the effect that the cheque in question is issued not in the circumstances as alleged in the complaint but under different circumstances only after the proceedings under section 138 is initiated such defence is for the first time raised by way of suggestion to PW1 in the course of his cross examination. The petitioner has neither sent any reply to that effect to the statutory notice issued by the complainant nor he entered into the witness box and deposed so. As far as his failure to reply the statutory notice, the same is sought to be highlighted on the side of the complainant by relying upon the judgment of our Supreme Court reported in 2010 (4) CTC 118 and judgment of our High Court reported in 2006 (1) L.W. (Crl.) 433 in K.P. Chinnasamy V. T.B.Kennedy. It is true that in both the cases, the Supreme Court and our High Court have in the given circumstances attached serious importance to the failure on the part of the accused to reply to the statutory notice and drew adverse inference against the accused. However, whether despite of such failure in the instant case the accused is able to rebut the presumption invoked in this case or not is to be necessarily considered only in the light of the other materials already brought on record as pointed out by the accused in support of his defence.
12. The learned counsel for the petitioner pointed out the following aspects in support of his contention (i) there was no money transactions on earlier occasion between the complainant and the petitioner (ii)different ink and different hand writing are used in the cheque in question (iii) the date on which the cheque is issued by the petitioner presented for clearance and the purpose for which the amount is said to be borrowed and the shorter period within which the amount is allegedly agreed to be repaid (iv) the absence of knowledge of PW1 about the contents of the cheque in question and about the time at and the manner in which the contents are filled (v) financial incapacity of the complainant to pay such a huge amount as loan (vi)non examination of one Munusamy who is according to the complainant fully aware of not only the money transaction but also the contents of the cheque and the manner in which it is filled up.
13. The cursory glance at the cheque in question would leave no doubt that the same is undisputedly filled up in three different hand writing and three inks and in three different ink. The complainant has as PW1 deposed in the witness box that the cheque bearing No.645152 dated 12.08.2002 for Rs.2,50,000/- is drawn on Indian Bank, Main Branch at Erode and the same is signed and issued to the complainant for the repayment of Rs.2,50,000/- borrowed on 14.07.2002 and PW1 has further stated in his cross examination stated that the accused brought the filled up cheque and singed it in his presence and handed over the same to the petitioner. However, he has in the later part of his cross examination denied any knowledge about the different inks and different handwriting used to fill up the contents of the cheque and he would categorically admit that he did not know to whose name the cheque was issued and the quantum of amount mentioned in the same and the person in whose presence it is issued.
14. It is only stated by him one Munusamy was present through out the transaction and it is the said Munusamy who is only aware of all the particulars including the contents of the cheque and he will be able to furnish the particulars in this regard. PW1 has but denied the suggestions put to him that the blank cheque was issued for payment of chit arrears and though the chit arrears was already paid the cheque was not returned but later on filled up to file the present case.
15. As rightly pointed out by the learned counsel for the petitioner the fact that different inks and different pens used to fill up the contents of the cheque is if viewed in the light of the denial of knowledge by the complainant about the contents of the same would lead to a reasonable doubt as to whether the cheque was issued in the circumstances as narrated in the complaint. Further though the specific case raised in the complaint is that the accused borrowed Rs.2,50,000/- on 14.07.2002 agreeing to repay the amount on 12.08.2002 and issued the cheque dated 12.08.2002 it is not stated in the complainant. It is not specifically stated as to whether the cheque bearing post date was issued on the same date of borrowal on 14.07.2002 or the borrowal was on 14.07.2002 and cheque was issued on 12.08.2002. Further neither the statutory notice, nor the complaint would whisper the reason for which the amount is borrowed. The same is for the first time put forth by PW1 as if the amount is borrowed for house construction expenses in the course of cross examination of PW1. As rightly argued on the side of the accused had it been true that huge sum of Rs.2,50,000/- was borrowed for building construction expenses the same would not have been agreed to be repaid within one month by issuing cheque dated 12.08.2002. In my considered view the allegations that the loan transaction was effected on 14.07.2202 for such shorter duration appears to be doubtful.
16. Next aspect to be considered is the financial condition of the complainant. It is his case that he is running travels by renting out mini buses, tourist car and taxis and he is not professional financier. He would further say that the accused was introduced to him through one Munusamy and the accused had money transaction with the complainant on two or three earlier occasions and the complainant had also similar money transaction tut[ bryt[ with two or three more other persons. Curiously enough the so called Munusamy is not at all brought into the witness box. It is also note worthy to mention at this juncture, that PW1 is in the course of his cross examination suggested on behalf of the accused that PW1 has no capacity to pay such huge amount as hand loan. Considering the nature of the business being carried on by the complainant, the contention so raised on the side of the accused deserves some merits and acceptance.
17. In that event, the combined appreciation of the factors discussed above would throw serious doubt about the nature of transaction effected between the parties and the same relieves the accused of burden cast upon him and shifts the burden upon PW1 and PW1 ought to have produced satisfactory materials such as accounts etc., to prove his capacity to pay Rs.2,50,000/- as loan amount to the accused and that he had money transaction with two or three persons. But no such material is produced by PW1, it is also not stated by PW1 as to whether the money was paid by cash or cheque, no such particulars are available to ascertain the financial capacity of the petitioner to lend such huge amount. As rightly argued by the learned counsel for the accused, when PW1 has categorically admitted that it is Munusamy who knows the contents of the cheque in question non examination of the said Munusamy who introduced the accused to PW1 and who was fully aware of the previous money transactions between the complainant and the accused and who was fully aware and was present through out the transaction in question assumes greater significance and importance in this case.
18. Thus the failure of the complainant to give possible explanation for all the material discrepancies found in the evidence and for the non examination of one Munusamy would only compel this court to hold that the prosecution fails to prove the case as pleaded in the complainant. As such the mere failure of the accused to reply the statutory notice and to enter the witness box will in no way affect the merit of the defence raised on the side of the petitioner/accused.
19. However, both the courts below have totally on erroneous approach to the facts of the case arrived at erroneous conclusion that the accused fails to discharge the burden of rebutting the legal presumption raised in favour of the complainant and both the courts below thus passed the order of conviction solely by applying the presumption clause and the same deserves interference on the grounds discussed above.
20. In the result, the criminal revision is allowed by setting aside the judgment dated 12.05.2005 made in C.A.No.176 of 2003 on the file of Additional District Judge-cum-Fast Track Court, Erode and the judgment dated 27.10.2003 made in CC.No.541 of 2002 on the file of Judicial Magistrate No.I, Erode. The fine amount, if any, paid by the petitioner is directed to be refunded to him. The bail bonds executed by the accused stands cancelled. tsh
To
1.The Additional District Judge-cum-Fast Track Court, Erode.
2.The Judicial Magistrate No.I,
Erode
Subscribe to:
Posts (Atom)