A.v. Anbu Chezhian v. P. Ambikadass

(Prayer: Petition filed under Section 397 r/w 401 of Cr.P.C, against the order passed in Crl.M.P.No.1438 of 2008 in C.C.No.11 of 2008, on the file of the Judicial Magistrate, Vedarnayam, dated 01.07.2008.)

The revision petitioner herein is an accused in C.C.No.11 of 2008, on the file of the Judicial Magistrate, Vedarnayam and the respondent filed a complaint against the petitioner herein for offence under Section 138 of the Negotiable Instruments Act. The petitioner herein filed an application before the trial Court under Section 91 Cr.P.C., summoning documents such as bills, accounts and income-tax returns relating to the period 1995-2004 to be produced by the complainant. The said petition was dismissed by the learned Magistrate. Aggrieved by the order of the learned Magistrate, the petitioner had preferred this criminal revision petition.

2. The learned counsel for the petitioner submitted that as per the complaint, the cheque was given by the petitioner to the respondent and the cheque amount was Rs.10,50,000/-. The petitioner/accused was doing business with the respondent/complainant for the past ten years and he had paid all the dues and only a sum of Rs.1,50,000/- is due. The blank cheque which was given by the petitioner herein to the respondent as security had been misused by the complainant. The learned counsel for the petitioner further submitted that though a presumption under Section 139 of the Negotiable Instruments Act arises with regard to the liability, no presumption could be drawn for the existence of the legally recoverable debt and the accused is also entitled to prove his defence that there is no legally recoverable debt. To prove the innocence of the accused, the documents are required. It is the duty of the complainant to show how there is a legally recoverable debt and he should have maintained an account for the business transaction and it should have been reflected in the income tax account also. As such, duty is cast upon the complainant to produce the documents, but the learned Magistrate by dismissing the application filed by the petitioner has caused a prejudice to the accused and it also hinders the defence case.

3. The learned counsel also relied on the decision of the Honourable Supreme Court reported in 2008(1) Crimes 227 (SC) (Krishna Janardhan Bhat vs. Pattatraya G.Hegde).

4. The learned counsel appearing for the respondent submitted that the order passed by the learned Judicial Magistrate being an interlocutory order, no revision lies before this Court and also relied on the decision of the Honourable Supreme Court reported in 2009(2) Crimes 1 (SC) (Sethuraman vs. Rajamanickam).

5. The learned counsel for the respondent further submitted that the transaction was made in the year 2004, the cheque was issued in the year 2005 and the case was filed in the year 2006. The petition is filed by the accused under Section 91 Cr.P.C after a long lapse of two years and only in order to protract the trial, the vexatious petition is filed by the accused. The learned counsel for the respondent further submitted that the accused wants the bills and other accounts relating to the year 1995 to 31.12.2004, but the liability arose due to the transaction after 31.12.2004 and it is not possible to produce the bills and accounts for such a long period from 1995.

6. This court considered the submissions made by both parties and perused the records. It is observed by the Honourable Supreme Court in the decision reported in 2008(1) Crimes 227 (SC) (Krishna Janardhan Bhat v. Dattatraya G.Hegde) as follows:

"19. The courts below failed to notice that ordinarily in terms of Section 269 SS of the Income Tax Act, any advance taken by way of any loan of more than Rs.20,000/- was to be made by way of an account payee cheque only.

Section 271 D of the Income Tax Act reads as under:

"271D. Penalty for failure to comply with the provisions of section 269SS. (1) If a person takes or accepts any loan or deposit in contravention of the provisions of section 269SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted.

(2) Any penalty impossible under sub section (1) shall be imposed by the Joint Commissioner."

20. Indisputably, a mandatory presumption is required to be raised in terms of Section 118(b) and Section 139 of the. Section 13(1) of thedefines negotiable instrument to mean "a promissory note, bill of exchange or cheque payable either to order or to bearer".

Section 138 of thehas three ingredients, viz.,

(i)that there is a legally enforceable debt;

(ii)that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt, and

(iii)that the cheque so issued had been returned due to insufficiency of funds.

21. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of themerely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability."

7. Applying the ratio laid down by the Honourable Supreme Court, it is open to the accused to deny his legally recoverable debt and no presumption also arises as per Section 139 of the Negotiable Instruments Act. It is only for the trial Court to decide on the basis of the evidence whether there is any legally recoverable debt. As such, of course, full opportunity should be given to the accused to prove his case. It could not be said that the accused is not entitled normally to call for the accounts and bill books from the complainant, but in this case, the accused wants the account books for the period from 1995 to 31.12.2004. According to the accused, he was doing business with the complainant for more than ten years, but according to the complainant, the cheque was issued only towards the liability which arose after the period 31.12.2004. Further in the counter filed by the complainant before the trial Court, it is stated that no bills are available from that period as the accounts are computerized and further the individual transactions are not reflected in the income tax. Therefore, the counter filed by the complainant before the trial Court reflected that it is not possible for the complainant to produce the document. Though the reasoning given by the trial Court while dismissing the petition filed by the petitioner that the accused is not entitled to call for the documents is not correct, as it is made clear by the complainant that it is not possible to produce the records, no useful purpose will be served by allowing the petition filed by the petitioner under Section 91 Cr.P.C.

8. Further the Honourable Supreme Court in the decision reported in 2009(2) Crimes 1 (SC) (Sethuraman vs. Rajamanickam) has held as follows:

"4. Secondly, what was not realized was that the order passed by the trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and a such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C........................... Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C for production of documents and other on the application under Section 311 Cr.P.C., for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable."

9. For the above said reasons, the revision petition is dismissed.

10. Of course, it is open to the trial Court to consider all the arguments of the petitioner finally on the basis of the evidence let in and to be let in by both sides, on taking into consideration with regard to the non-availability of the relevant records to prove the existence of legally recoverable debt.