Teo stands taken by the complainant defeats the complaint
13. It is clear from the above that the petitioner had specifically come up with two stands in the course of cross examination. The first stand is that the petitioner had an independent transaction with Sri Sai Baba Waste Paper Company and it was admitted by PW.1 that in the said transaction, there was an amount due and payable by the petitioner. This admission made by PW.1 becomes significant since from the cheque which was marked as Ex.P.2, it is seen that the cheque has been issued by the petitioner in his capacity as the Proprietor of Sahithya Enterprises.
Defence of the accused
14. The second stand that has been taken by the petitioner is that he had an independent transaction with the said Mr.K.P.Ravindran and the cheque was given to the said Mr.K.P.Ravindran and that cheque has been misused in the present case.
Rebuttal can take place in cross-examination itself
15. It is true that the presumption u/s. 139 of the Negotiable Instruments Act, 1881, is in favour of the complainant. The Larger Bench of the Hon’ble Apex Court in Rangappa .v. Sri Mohan reported in 2010 4 CTC 118 has held that the legally enforceable debt or liability is also under presumption u/s.139 of the Negotiable Instruments, Act, 1881 and the same has to be rebutted by the accused. Insofar as the rebuttal is concerned, the standard that is adopted is the test of preponderance of probabilities. In view of the same, the accused need not even enter into the witness box or examine any witness on his side and such rebuttal can take place even during the course of cross examination of the complainant.
Non-explanation of vital witness
17. This Court had an occasion to deal with the effect of non-examination of vital witness to establish the existence of legally enforceable debt and it was held that such non-examination resulted in the burden which shifted to the complainant not being discharged. Useful reference can be made to Mohan vs Viswanathan reported in 2018 (2) LW(Crl)424 .
Non issue of reply notice to the statutory notice is not fatal
18. There is yet another issue that has been put against the petitioner in this case and that is the fact that the petitioner did not give a reply notice to the statutory notice that was issued by the complainant. The non issuance of a reply notice need not result in an adverse interference taken against an accused person in every case and it will depend upon the facts and circumstances of each case. This Court had an occasion to deal with this issue in P. Gnanambigai .v. S. Krishnasamy and Ors. reported in 2011 1 LW (Crl)366 and it was held has follows:
“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. 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”.
19. The non issuance of the reply notice in the present case does not completely destroy the defence taken by the petitioner since the petitioner has rebutted the legal presumption u/s. 139 of the Negotiable Instruments Act, 1881. Hence, the non issuance of the reply notice cannot be considered to be fatal to the case of the petitioner.
Accused Acquitted.
Party
N.Gopalakrishnan S/o.Navaneethan M/s.Sahithya Enterprises No.1276-D, Periyakaruppan Street Kamarajapuram Colony Near SCI Church Sivakasi 626 189. vs. S.Chandra Mohan (died)Crl.R.C No: 663 of 2019 – 30.03.2023.
https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/1031101
