R. Basant, J.@mdashThe complainant is the appellant. The complaint filed by him alleging commission of the offence punishable u/s 138 of the N.I. Act against the accused ended in acquittal. The complainant alleged that the accused had issued cheques for Rs. 90,000/- to him for the discharge of a legally enforceable debt/liability. The said cheques when presented for encashment were dishonoured by the bank of the ground of insufficiency of funds. Notice of demand was issued as insisted by Section 138 of the N.I. Act. It was duly received and acknowledged. But no payment was made as demanded. It is in these circumstances that the complainant came to court with this complaint.
2. Cognizance was taken by the learned Magistrate. The accused entered appearance and denied the offence alleged against him. Thereupon the complainant examined himself as PW1. An official of the drawee bank was examined as PW2. Exts. P1 to P13 were marked.
3. The accused denied all circumstances which appeared in evidence and which were put to him. He admitted that the cheques were written on cheque leaves issued to him by his bank to operate his account. He also admitted his signatures in the cheques. He further conceded that he had handed over the cheques to the complainant. But he took up the stand that they were not issued for the due discharge of any legally enforceable debt/liability. According to him those cheques were handed over only as security for the due payment of amounts which may become due from certain other persons with whom the complainant had entered into financial transactions as introduced by the accused. No defence witness was examined. Ext. D1 was marked.
4. The learned Magistrate on an anxious consideration of all the relevant inputs came to the conclusion that the complainant has not succeeded in proving the offence alleged against the accused. Accordingly, the learned Magistrate proceeded to pass the impugned judgment of acquittal.
5. The learned counsel for the appellant/complainant and respondent/accused have advanced their arguments. The learned counsel for the appellant assails the impugned verdict of not guilty and acquittal. The acquittal is primarily based on two circumstances. They are:-
(1) The averments in the complaint do not disclose that the cheque was dishonoured on the ground of insufficiency of funds.
(2) Ext. P13, the extract of the account is not duly certified as insisted by Section 2(8) of the Bankers'' Book Evidence Act.
6. The first ground for dismissal of the complaint is that the complaint does not reveal that the dishonour was on one of the two grounds specified u/s 138 of the N.I. Act. It is by now trite that the complaint cannot be read ritualistically or in a pedantic manner. The complainant undoubtedly averred that the cheque was dishonored by the bank and that such dishonour was on the ground "refer to drawer". It is true that in the complaint it is not specifically averred that this ground "refer to drawer" means and implies insufficiency of funds. But in this context it must alertly be noted that along with the complaint the complainant had produced the registered notice of demand, Ext. P10. In the said notice, Ext. P10 it is very clearly averred that the cheques were dishonoured, with the endorsement "refer to drawer which means that you had no funds in your bank". The complaint must further be read, it is by now trite, along with the sworn statement of the complainant recorded by the learned Magistrate. In the sworn statement the complainant had clearly stated that the dishonour was on the ground of insufficiency of funds. It is by now trite that the expression "refer to drawer" is nothing but a curteous expression employed by the bank to convey insufficiency of funds. Averments in the complaint read along with the documents produced with the complaint and the sworn statement of the complainant recorded by the learned Magistrate can leave no doubt in any prudent mind that the allegation was specifically raised that the dishonour was on the ground of "refer to drawer" implying thereby that there was insufficiency of funds. The learned Magistrate was certainly in error in not reading the complaint reasonably and realistically. Acquittal on this ground certainly warrants interference invoking the jurisdiction u/s 372 Crl. P.C. I find no merit in the contention that the view taken by the learned Magistrate is a reasonable view and that when two reasonable views are possible, the one in favour of the accused must be preferred. That proposition of law is well accepted. The learned Magistrate in coming to the conclusion that the prosecution must fail for the reason that there is no sufficient averments in the complaint had certainly acted unreasonably. The acquittal on this ground deserves to be interfered with.
7. The next ground of acquittal is that the cause of dishonour has not been proved satisfactorily. Whether the cheque has been dishonoured on the ground of insufficiency of funds is a question of fact which the learned Magistrate was obliged to answer. To answer this crucial question the standard/yard stick/touch stone to be adopted is certainly the one specified u/s 3 of the Evidence Act. u/s 3 of the Evidence Act a fact is said to be proved when, the court on the basis of the materials before it, either believers it to exist, or considers its existence so probable that an ordinarily prudent mind ought to act upon the supposition that such fact exists. The crucial question hence is whether with all the relevant inputs available, a prudent mind would have believed that the cheque was dishonoured on the ground of insufficiency of funds.
8. While considering this question first of all, the endorsement on the cheque is important. The cheque is dishonoured with the endorsement "refer to drawer". As I have already adverted to, in business it is well known that the expression ''refer to drawer" is employed by a bank to convey courteously that the cheque issued by a customer cannot be honoured on the ground of insufficiency of funds. It is quite possible that the expression "refer to drawer" may be elastic enough to take within its sweep, certain other contingencies also. In language it may not exclusively convey insufficiency of funds. But normally and ordinarily consistent with established business practices it would be more prudent to reckon the endorsement "refer to drawer" as one indicating dishonour on the ground of insufficiency of funds. That is what the evidence of PW2 also shows.
9. The only further question is whether any reason is there to confirm this conclusion. After dishonour of the cheque Ext. P10 notice of demand was issued. I have already extracted the relevant passage in Ext. P10 above. In that it is also clearly stated that dishonour was on the ground "refer to drawer" which means that the accused had no funds in his bank. This notice attracted Ext. P12 reply. It is significant that in Ext. P12 there is no whisper of an everment that dishonour was on any ground account other than insufficiency of funds. Memo of dishonour does not disclose any other ground. Ext. P10 specifically suggests the ground as insufficiency of funds. In reply thereto (Ext. P12) there is no whisper that any other ground was available for dishonour of the cheque. A prudent mind in these circumstances cannot come to any other conclusion -than that the cheque was dishonoured on the ground of insufficiency of funds.
10. In this context, it is also relevant that in the course of cross examination of PW1 or PW2 there is no semblance of a suggestion that the dishonour was on any ground other than insufficiency of funds.
11. Reliance was placed on certain answers given by PW2, an official of the bank who was examined to prove Ext. P13. PW2 had no role to play in the actual dishonour of the cheque. He obviously came to that branch much later. The dishonour was not made or the endorsement of dishonour was not written by him. He had tendered specific evidence to show and there was no sufficient amount available in the account. This crucial aspect is left untouched and unchallenged in the course of cross examination. PW2 had specified that the amount which was available in the bank on the date of dishonour was not sufficient to honour the cheque. I find no challenge against this assertion on oath.
12. It is next contended that, at any rate Ext. P13 should not have been accepted and acted upon. Ext. P13 is a true copy of the account maintained by the accused with his bank. The complainant had to prove that the dishonour was on the ground of insufficiency of funds. Instead of calling the original books, the complainant had got produced Ext. P13. The complainant had summoned the Manager of the bank and it is PW2 who came to the court with the relevant documents. Ext. P13 bears an endorsement that it is a "true copy" of the bank''s account. I have been taken through Section 2(8) of the Bankers'' Book Evidence Act and Section 4 of the said Act. Sections 2(8) and 4 of the Banker''s Book Evidence Act read as follows:
Section 2(8): "certified copy" means a copy of any entry in the books of a bank together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in the ordinary books of the bank and was made in the usual and ordinary course of business, and that such book, is still in the custody of the bank (and where the copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect but where the book from which such copy was prepared has been destroyed in the usual course of the bank business after the date on which the copy had been destroyed in the usual course of the bank business after the date on which the copy had been so prepared, a further certificate to the effect each such certificate being dated and subscribed by the principal accountant or manager of the bank with his name and official title.
Section 4: Mode of proof of entries in banker''s books:- Subject to the provisions of this Act, a certified copy of any entry in a bankers'' book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every cases where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise.
I have already taken into account the fact that there is no challenge raised against the assertions of PW2 that sufficient amount was available in the account on the date of dishonour. When PW2 proved Ext. P13 it was marked without any objection. No objection whatsoever was raised by the accused. One must alertly note that certainly the accused would have an extract of his account in the pass book issued to him by his bank. If Ext. P13 suffered from any defect/inadequacy or error it would be idle to expect the accused not to challenge the entries in Ext. P13. Thus Ext. P13 was received in evidence and marked in the presence of the accused without any objection. It is also crucial to note that during the cross examination of PW2 there is no challenge raised about the veracity, acceptability and admissibility of Ext. P13.
13. Ext. P13 does suffer from a defect/inadequacy. The inadequacy or imperfection lies in the fact there is no certification in exactly the same words as employed by Section 2(8). The counsel were requested to enlighten the court on the question whether the defect/inadequacy in complying with the mandate of Section 2(8) would vitiate the reception of the document. The learned counsel for appellant relies on the decisions reported
14. I am satisfied that there is no certification in Ext. P13 in strict compliance with the mandate of Section 2(6). But in the facts and circumstances of this case such inadequacy/imperfection is, according to me, of no crucial significance. The decision reported in
In my judgment the aforesaid view of the learned judge of the lower appellate court was hyper technical. The said extract of account was duly signed by the Agent of the bank. Implicit in it was a certificate that it was a true copy of an entry contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business and that such book was in the custody of the bank. The detailed ingredients mentioned in the defining Cl. 8 of S. 2 of ''the Bankers'' Books Evidence Act, 1891 for qualifying to be ''certified copy'' are not mandatory but merely directory. Sufficient compliance depending upon facts and circumstances of each case is enough to qualify a document to be ''certified copy''. I, therefore, hold that the said extract of account produced at Ext. 55 A is admissible in evidence
(Emphasis supplied).
I am inclined to accept the said view of the learned Single Judge of the Bombay High Court that Section 2(8) of the Act is only directory and not mandatory. The non/inadequate compliance was of no substance at all. It had not resulted in any prejudice. It is evident notwithstanding the inadequacy in certification that the entries therein are correct and are not challenged. In these circumstances it was certainly unreasonable not to look into Ext. P13 for the reason that it does not meticulously comply with the words specified u/s 2(8) Bankers'' Book Evidence Act for certification. In Ashit Kumar Mazumdar v. State of Assam (1981 CrLJ NOC 7 (GAU) the High Court of Gauhati also considered the consequences of such inadequacy when no objection is raised at the time when the document was introduced in evidence and marked. The decision reported in United Bank of India v. H.S. Bank (AIR 1952 Cal 325) does not obviously refer to the impact of reception of the documents without challenge. If the challenge were raised at the appropriate stage, certainly, the court would have insisted and the complainant could have produced a proper copy duly certified strictly complying with the mandate of Section 2(8) of the Bankers'' Book Evidence Act. In not having raised that objection (and in having led the court to accept the same without objection and in having induced the complainant by his inaction not to take any further steps) the accused has forfeited the option to raise any such objection at any later stage of the proceedings against the inadequacy in such certification. I find no merit in these circumstances in the contention that Ext. P13 is inadmissible in evidence.
15. Even if it be assumed for the sake of arguments that Ext. P13 is inadmissible in evidence, it must be noted that the substantive evidence tendered by PW2, an official of the bank, that on the relevant date no sufficient amount was available in the account having not been challenged the inadequacy in certification of Ext. P13 cannot at any rate influence the decision on the question.
16. No other contentions are raised. I am satisfied that all the ingredients of the offence punishable u/s 138 of the N.I. have been established. The impugned judgment warrants interference. The accused deserves to be found guilty, convicted and sentenced u/s 138 of the N.I. Act.
17. Coming to the question of sentence, the trial was conducted by the Additional Chief Judicial Magistrate, who is in law competent to impose any sentence of fine authorised by law. I am satisfied that imposition of a sentence of fine shall adequately meet the ends of justice in this case. I have already adverted to the principles governing imposition of sentence in a prosecution u/s 138 of the N.I. Act in the decision reported in Anil Kumar v. Shammu (2002 (3) KLT 852).
18. In the result,
a) This appeal is allowed.
b) The impugned judgment is set aside.
c) The respondent/accused is found guilty, convicted and sentenced u/s 138 of the N.I. Act to pay a fine of Rs. 1,15,000/- (Rupees one lakh fifteen thousand only) and in default to undergo simple imprisonment for a period of three months. If realised an amount of Rs. 1,10,000/- (Rupees one lakh ten thousand only) shall be released to the legal heirs of the appellant/complainant as compensation u/s 357(1) Crl. PC.
The learned Magistrate shall take necessary steps to execute the sentence hereby imposed. The respondent/accused shall appear before the learned Magistrate on 30-06-2003 for execution of the default sentence.
