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CASE NO.:

Appeal (crl.) 688 of 1995

PETITIONER:

HITEN P. DALAL

Vs.

RESPONDENT:

BRATINDRANATH BANERJEE

DATE OF JUDGMENT: 11/07/2001

BENCH:

Ruma Pall, Brijesh Kumar, B.N.Kirpal

JUDGMENT:

RUMA PAL, J

The appellant was found guilty of an offence under

Section 138 of the Negotiable Instruments Act, 1881 by the

Special Court set up under the Special Court (Trial of

Offences relating to Transactions in Securities) Act, 1992

(referred to as, the "Act"). The appellant was sentenced to

rigorous imprisonment for a term of one year and a fine for a

sum of Rs. 1 lakh, in default to undergo further rigorous

imprisonment for a term of three months. Aggrieved by the

judgment and order of the Special Court, the appellant has

preferred this appeal.

In the course of the hearing of the appeal before this

Court, learned counsel for the appellant raised a preliminary

issue based on the language of sub Section 2 of Section 3 of

the Act. It was contended that the jurisdiction of the Special

Court was limited to offences committed between 1. 4. 1991

and on or before 6.6.1992 and the offence alleged having

taken place after 6.6.92, the Special Court had no

jurisdiction to try it. The Bench then hearing the appeal,

recorded in its order dated 7.9.1999:

"... ... ... Prima Facie we are not in agreement

with the contention raised by the learned counsel

for the appellant on first principles but the

learned counsel for the appellant has brought to

our notice a judgment of this Court in the case of

Minoo Mehta vs. Sharak D. Mehta (1998) 2

SCC 418. In the aforesaid judgment on facts of

that case this question possibly did not arise for

consideration but even otherwise Their Lordships

in paragraph 12 have come to the conclusion :

'Therefore, every offence pertaining to any

transaction in securities which is covered by the

sweep of the Act, that is if such transaction has

taken place between 1.4.1991 and on or before

6.6.1992 would be subjected to the provisions of

the Act regarding trial of such an offence.'

Having held so in the later part of the said

paragraph the Lordships have come to the

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conclusion:

'The offence referred to in sub-section (2)

of Section 3 which is within the sweep of Section

7 of the Act must be on offence committed by

any person and must have the following two

characteristics:

1. Such offence must relate to transactions in

securities; and

2 Such offence should be alleged to have

been committed between 1.4.1991 and on

or before 6.6.1992'.

This statement of law is contrary to what

their Lordships have said in the earlier paragraph

as referred to earlier and we are not in agreement

with the enunciation made in the second part of

paragraph 12 quoted above. In this view of the

matter, we think it appropriate that this appeal

should be placed before a 3-Judge Bench."

The matter was thereafter placed before this Bench and

heard.

The apparently contradictory observations in Minoo

Mehta V. Shavak D. Mehta, need resolution with reference

to the provisions of the Act.

The Act was promulgated on 6.6.92 to "provide for the

establishment of a Special Court for the trial of offences

relating to transactions in securities and for matters

connected therewith or incidental thereto."

The jurisdiction of the Special Court was specified in

Section 7 and was limited to offences referred to in section

3(2) of the Act. Section 3(2) insofar as it is relevant

provides:

"....... Any offence relating to transactions

in securities after the 1st day of April 1991

and on and before 6th June 1992....."

The question is - does the period specified qualify the

word "offence" or the word "transactions" ? If it is the

former, the jurisdiction of the Special Court would be, as

contended by the appellant, limited to offences committed

within the period specified whenever the transactions may

have taken place. The respondent has however contended

that the period qualifies the word 'transactions' and that this

was not only clear from the language of the statutory

provisions but also supported by authority.

In our view the respondent's submission is correct and

must be accepted. The Statement of Objects and Reasons of

the Act gives the background and the focus of the Act as :

"large scale irregularities and malpractices were

noticed in transactions in both the Government

and other securities, indulged in by some brokers

in collusion with the employees of various banks

and financial institutions."

The preamble to the Act also makes it clear that the

purpose of the enactment was to deal with those particular

transactions in securities. In sub-section (2) of Section 3 the

statutory period occurs after the word transaction. If the

period were to qualify the word 'offence' the section would

have read "any offence after the 1st day of April and on or

before 6th June 1992" From the language used it is apparent

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that the period relates to the transaction in securities and that

the date of the offence is immaterial. Other sections of the

Act also show that the object of the Act is those particular

transactions which were carried out during a particular

period of time. Thus Section 4 of the Act allows the

Custodian, under certain circumstances to cancel "any

contract or agreement entered into at any time after the first

day of April 1991 and on or before the 6th June of 1992".

The position has been further clarified by Section 9-A(1)(b)

(introduced by way of amendment in 1994) which confers

on the Special Court all the jurisdiction, powers and

authority as were exercisable immediately before the

commencement of the amended Act by any civil court in

relation to, inter-alia, any matter or claim -

"arising out of transactions in securities

entered into after the 1st day of April 1991,

and on or before the 6th day of June, 1992,

in which a person is notified under sub-

section (2) of Sec. 3 is involved as a party,

broker, intermediary or in any other

manner."

In these circumstances the inevitable conclusion is that

the ambit of the Special Courts jurisdiction, whether in

criminal proceedings or in civil disputes is in respect of the

transactions in securities entered into after the 1st day of

April 1991 and on or before 6th day of June, 1992.

That the period mentioned in Section 3(2) refers to the

transactions and not to the offence is a view which found

favour with this Court in Harshad Shantilal Mehta V.

Custodian and Others A Bench of three-Judges of this

Court after considering the various sections of the Act held

"Therefore, the jurisdiction of the Special

Court in civil as well as criminal matters is

in respect of transactions during the

statutory period of 1.4.1991 to 6.6.1992;

and in relation to the properties attached, of

a notified person. The entire operation of

the said Act, therefore, revolves around the

transactions in securities during this

statutory period."

In our opinion the decision in Mino Mehta V. Shavak

D. Mehta (supra), does not decide to the contrary. In that

case shares had been lodged with the accused by the

complainant in December 1991. The accused was to arrange

the sale of the shares and to pay the sale proceeds to the

complainant. In January, 1992 the accused sold the shares

and misappropriated the sale proceeds. Thus the

transactions in securities as well as the offence of

misappropriation had both taken place during the period

specified in Section 3 sub-section (2). The only issue before

the Court was whether the Special Court would have

jurisdiction to deal with offences even if the accused was not

notified by the Custodian. The learned Judges decided the

issue in the affirmative.

While reaching its conclusion, the Court observed:

" ................The scheme of Section 7, in the

light of the Preamble of the Act and the main

purpose for enactment of the Act, appears to be

that all criminal proceedings pertaining to

prosecutions in connection with the accused

involved in transactions in securities during the

relevant period will lie before the Special Court

and not before ordinary courts as the section

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starts with a non obstante clause stating that

notwithstanding anything contained in any other

law, only Special Courts will have exclusive

jurisdiction to try such offences."

Because the offence and the transactions overlapped,

the learned Judges did not make a distinction between the

transaction and the offence when they summed up their

conclusions by saying :

"The offence referred to in, sub-section (2) of

Section 3, which is within the sweep of Section 7

of the Act must be an offence committed by any

person and must have the following two

characteristics:

1. Such offence must relate to

transactions in securities; and

2. Such offence should be alleged to

have been committed between

1.4.1991 and on or before 6.6.1992."

The use of the word 'offence' in item 2 was an obvious

error because what was meant has been made clear by the

Court in paragraph 15 of the judgment which reads:

"Before parting with this case we may state

that the learned Senior Counsel for the

appellant also submitted that the offence

alleged against the appellant was not

relating to any transaction in securities

during the relevant time but qua the sale

consideration alleged to have been received

by the appellant out of the said transaction

and for which alleged offence under Section

409 prosecution is sought to be launched

against the appellant. It is difficult to agree

with this contention. A conjoint reading of

the recitals in the complaint which

obviously must be assumed to be true at

this stage would show that the accused is

alleged to have entered into transaction in

securities, namely, the shares during the

relevant period and out of the said

transaction is alleged to have received sale

proceeds which he has not handed over or

transmitted to the complainant who claims

to be entitled to the said amount. Thus the

offence alleged is certainly relating to the

transaction in securities as said to have been

entered into by the accused during the

relevant period."

It is clear therefore that the summing up did not

correctly reflect the actual view of the Court.

In the present case the four cheques which are the

subject matter of the criminal proceedings were admittedly

executed by the appellant on 24.12.1991, 26.12.1991,

17.2.1992, and 27.3.1992 i.e. within the statutory period.

The cheques were drawn on the Andhra Bank in favour of

the Standard Chartered Bank (briefly referred to as 'the

Bank') for the sums of Rs.27 Crores, Rs.14.5 Crores, Rs.17

Crores, and Rs.19,95,75,000/- respectively. According to

the Bank the cheques were issued for payment of loss

suffered by the Bank arising out of transactions in securities

entered into by the Bank through or at the instance of the

appellant during the statutory period. According to the Bank

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on 21.5.1992 all four cheques were returned dishonoured by

the Andhra Bank with the remark "Not arranged for". The

Bank served notices on the appellant under Section 138 of

the Negotiable Instruments Act on 31.5.1992 and 1.6.1992

calling upon the appellant to make payment in respect of the

four cheques within 15 days from the date of the receipt of

the notices. The appellant did not pay. The transactions as

alleged being within the statutory period, the Special Court

had the jurisdiction to entertain the complaint and the

preliminary objection of the appellant is, in the

circumstances, rejected.

On the merits of the case also, we do not find any

reason to interfere with the decision of the Special Court. In

the complaint filed on behalf of the Bank by one

Bratindranath Banerjee (the respondent herein), on 14th July,

1992, it was alleged that the appellant was acting as a broker

in respect of security transactions between the Bank and

other banks and financial institutions. According to the

complaint the appellant had issued the four cheques in

discharge of his liabilities to the Bank. The four cheques

were presented to Andhra Bank but were dishonoured. A

First Information Report was lodged against the appellant

and others. In the written statement filed by the appellant

under Section 247 of the Code of Criminal Procedure it was

said that pursuant to an oral information from the Bank's

officer that the Bank was working on some new scheme and

methods of augmenting its income and request for assistance

for the same, the appellant agreed to "certain formalities and

adjustments as and when required". Pursuant to this

arrangement, the appellant had executed and sent several

cheques to the bank including the four cheques (Ext. B, C, D

& E) which related to certain intended transactions of

purchase of security by the appellant from the Standard

Chartered Bank. According to the appellant none of these

intended transactions actually materialised and as a result the

cheques were never to be acted upon or encashed. It was

denied that the appellant was liable to make any payment in

respect of the four cheques. According to the appellant

although the transactions had not taken place and the

cheques should have been returned the four cheques were

not returned back to the appellant by the Bank through

oversight.

It is unnecessary to consider the various preliminary

stages of the Trial before the Special Court except to note

that charges were framed on 26th August 1992 by the Special

Court against the appellant under Section 138 of the

Negotiable Instruments Act, 1881.

That the four cheques were executed by the appellant

in favour of the Standard Chartered Bank (hereafter referred

to as the Bank), has not been denied nor was it in dispute

that the cheques were dishonoured because of insufficient

funds in the Appellants' account with the drawee, viz.

Andhra Bank. Because of the admitted execution of the four

cheques by the appellant, the Bank was entitled to and did in

fact rely upon three presumptions in support of its case,

namely, under Sections 118, 138 and 139 of the Negotiable

Instruments Act. Section 118 provides, inter-alia, that until

the contrary is proved it shall be presumed that every

negotiable instrument was made or drawn for consideration,

and that every such instrument when it has been accepted,

indorsed, negotiated or transferred, was accepted, indorsed,

negotiated or transferred for consideration. The presumption

which arises under Section 138 provides more specifically

that where any cheque drawn by a person on an account for

payment of any amount of money for the discharge in whole

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or in part of any debt or other liability, is returned by the

drawee bank unpaid, either because of the amount of money

standing to the credit of that account is insufficient to honour

the cheque, such persons shall be deemed to have committed

an offence and shall be punished with imprisonment for a

term which may extend to twice the amount of the cheque,

or with both. The nature of the presumption under Section

138 is subject to the three conditions specified relating to

presentation, giving of the notice and the non payment after

receipt of notice by the drawer of the cheque. All three

conditions have not been denied in this case.

The appellant's submission that the cheques were not

drawn for the 'discharge in whole or in part of any debt or

other liability' is answered by the third presumption

available to the Bank under Section 139 of the Negotiable

Instruments Act. This section provides that "it shall be

presumed, unless the contrary is proved, that the holder of a

cheque received the cheque, of the nature referred to in

Section 138 for the discharge, in whole or in part, of any

debt or other liability". The effect of these presumptions is to

place the evidential burden on the appellant of proving that

the cheque was not received by the Bank towards the

discharge of any liability

Because both Sections 138 and 139 require that the

Court "shall presume" the liability of the drawer of the

cheques for the amounts for which the cheques are drawn, as

noted in State of Madras vs. A. Vaidyanatha Iyer AIR

1958 SC 61, it is obligatory on the Court to raise this

presumption in every case where the factual basis for the

raising of the presumption had been established. "It

introduces an exception to the general rule as to the burden

of proof in criminal cases and shifts the onus on to the

accused" (ibid). Such a presumption is a presumption of law,

as distinguished from a presumption of fact which describes

provisions by which the court "may presume" a certain state

of affairs. Presumptions are rules of evidence and do not

conflict with the presumption of innocence, because by the

latter all that is meant is that the prosecution is obliged to

prove the case against the accused beyond reasonable doubt.

The obligation on the prosecution may be discharged with

the help of presumptions of law or fact unless the accused

adduces evidence showing the reasonable possibility of the

non-existence of the presumed fact.

In other words, provided the facts required to form the

basis of a presumption of law exists, no discretion is left

with the Court but to draw the statutory conclusion, but this

does not preclude the person against whom the presumption

is drawn from rebutting it and proving the contrary. A fact is

said to be proved when, "after considering the matters before

it, the Court either believes it to exist, or considers its

existence so probable that a prudent man ought, under the

circumstances of the particular case, to act upon the

supposition that it exists" . Therefore, the rebuttal does not

have to be conclusively established but such evidence must

be adduced before the Court in support of the defence that

the Court must either believe the defence to exist or consider

its existence to be reasonably probable, the standard of

reasonability being that of the 'prudent man'.

Judicial statements have differed as to the quantum of

rebutting evidence required. In Kundan Lal Rallaram vs

Custodian, Evacuee Property, Bombay AIR 1961 SC

1316, this Court held that the presumption of law under

Section 118 of Negotiable Instruments Act could be

rebutted, in certain circumstances, by a presumption of fact

raised under Section 114 of the Evidence Act. The decision

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must be limited to the facts of that case. The more

authoritative view has been laid down in the subsequent

decision of the Constitution Bench in Dhanvantrai

Balwantrai Desai vs State of Maharashtra AIR 1964 SC

575, where this Court reiterated the principle enunciated in

State of Madras vs Vaidyanath Iyer (Supra) and clarified that

the distinction between the two kinds of presumption lay not

only in the mandate to the Court, but also in the nature of

evidence required to rebut the two. In the case of a

discretionary presumption the presumption if drawn may be

rebutted by an explanation which "might reasonably be true

and which is consistent with the innocence" of the accused.

On the other hand in the case of a mandatory presumption

"the burden resting on the accused person in such a case

would not be as light as it is where a presumption is raised

under S.114 of the Evidence Act and cannot be held to be

discharged merely by reason of the fact that the explanation

offered by the accused is reasonable and probable. It must

further be shown that the explanation is a true one. The

words 'unless the contrary is proved' which occur in this

provision make it clear that the presumption has to be

rebutted by 'proof' and not by a bare explanation which is

merely plausible. A fact is said to be proved when its

existence is directly established or when upon the material

before it the Court finds its existence to be so probable that a

reasonable man would act on the supposition that it exists.

Unless, therefore, the explanation is supported by proof, the

presumption created by the provision cannot be said to be

rebutted......"

[See also V.D. Jhingan vs. State of Uttar Pradesh

AIR 1966 SC 1762; Sailendranath Bose vs. The State of

Bihar AIR 1968 SC 1292 and Ram Krishna Bedu Rane

vs. State of Maharashtra 1973 (1) SCC 366.]

We will therefore have to consider whether in the case

before us, the appellant had supported his defence by any

proof sufficient to rebut the presumption drawn against him.

At the trial three witnesses were examined in support of the

Bank's case. The first was a Mr. Derek Reed (PW 1), the

Bank's Group Security Adviser. Mr. Reed deposed that he

had come to India with instructions from the Bank to

investigate the fraud which appeared to have been

perpetrated in Bombay in which several banks including the

Bank were involved. In the course of investigation he found

the four cheques Ext. B, C, D & E from the desk of an

officer of the Bank who has since been dismissed because of

his involvement in the fraud.

The Bank's second witness was Mr. S.

Gyananavinayagam (PW2).He was the Manager, Operations

in Andhra Bank. He deposed that the four cheques were

dishonoured on the ground of insufficient funds in the

appellant's account. The third witness Mr. Bratindra Nath

Banerjee (PW 3) was the Director of the Bank in-charge of

the India Task Force set up by the Bank to investigate the

fraud. His was the primary evidence relied upon by the

Bank. Broadly speaking, Mr. Banerjee deposed that there

were two main areas of fraud perpetrated by the appellant.

According to him the first fraud committed by the appellant

related to large amounts paid by the Bank at the instance of

the appellant or through him, for which the Bank had failed

to receive any security or valid bank receipts. The second

fraud pertained to the actual purchase and sale of securities

at the instance of the appellant and the failure of the

appellant to pay the Bank the difference between the

contract rate and delivery rate of the securities. He verified

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the statements pertaining to the transactions between the

appellant and the Bank prepared on the basis of the Bank's

books of account and other records maintained in the usual

course of the business of the Bank. All the statements (Ex.

O, P Q and T) were tendered in evidence and marked as

exhibits without any objection by the appellant.

The first statement pertained to the period between

8.11.1991 and 18.12.1991 and showed the contract rates,

delivery rates, the rates of difference and the amount of

difference of securities mentioned. The statement along with

the deal slips, cost memos, instruction issued by the Reserve

Bank of India and entry in a clearing sheet in respect of four

deal slips were marked as Ext. 'O'. Out of Ext. 'O', difference

of rates covered by four deal slips had been settled by the

appellant by giving a cheque for Rs.15 crores. The balance

amount on this account was Rs.45,77,40,250/-.

The second statement prepared and vouched for by Mr.

Banerjee was Ext. 'P' prepared in connection with

transactions between 28.12.1991 and 17.2.1992. The

statement was supported by 18 deal slips. The liability of the

appellant on this account was claimed to be

Rs.56,50,50,000/-. Ext. 'P' was subsequently corrected by

Ext. 'T' which gave the figure of appellant's liability for the

period covered by Ext. 'P' as Rs.39,50,50,000/-.

The third statement was marked as Ext. 'Q'. This gave

particulars of the claim for the period 21.2.1992 to

27.3.1992. The appellants liability for this period was

claimed to be Rs.30,97,34,135/-. Ext. 'Q' was supported by

five deal slips.

All the deal slips which were printed forms and serially

numbered showed the contract rate and the delivery rates..

They were prepared by dealers of the Bank. Mr. Banerjee

also stated that the use of the abbreviation 'DIR' in the

column which required the name of the Broker, referred to

the Appellant. The witness also showed that in respect of

certain transactions where the contract rate was less than the

delivery rate, the appellant was paid by the Bank. In dealing

with the appellant's case namely that the cheques had been

given for intended deals which had never taken place, Mr.

Banerjee said that he had gone through all the deal slips

which had been brought with him to the Court and that there

was no evidence of any cancellation of any deal between the

appellant and the Bank.

In the course of his examination, Mr. Banerjee also

gave evidence of payment made by the Bank to the appellant

amounting to Rs.1240 crores and of the loss suffered by the

Bank on account of the non-furnishing of bank

receipts/securities.

Two further witnesses were produced by the Bank.

One proved the appellant's account with the Bank and the

second proved the Appellant's account with Andhra Bank for

the relevant period.

As far as the appellant's defence was concerned, he did

not enter the witness box to support his case that the four

cheques in particular had been given in respect of any

arrangement or in respect of any transactions which did not

materialise. The four witnesses called by the Appellant apart

from those subpoenaed to produce documents, were Mr.

Ramesh Laxman Kamat (DW 1) Mr. S.R. A. Rao (DW 2),

Mr. G. D. Bhalla (DW 3) and Mr. G. CKC Talukdar (DW.

4). The Special Court found that the evidence of DW 1 was

not credit-worthy and that "almost all points including

inconsequential points and points which could not be denied,

(he) prevaricated ....... (and) ...... sought to deny the truth

until truth could no longer be denied." DW 1 was then a

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Deputy General Manager of the State Bank of India (referred

to as SBI). He had sought to contend that a number of

transactions mentioned in the four statements viz. Exs. O, P

and Q were ready forward transactions between the Bank

and SBI, and did not reflect the sale and purchase of

securities. It was a case which he was unable to substantiate

with reference to the documents already on record or

produced from the custody of the CBI. The documents

produced by the witness himself were found by the Special

Court to be suspect.

The second witness for the defence, Mr. SRA Rao also

sought to establish that one transaction in Ex.O was non-

existent or a dummy transaction. The third defence

witness,Mr. G.D. Bhalla, Branch Manager of Andhra Bank,

proved that the appellant had made payments of several

crores to the Bank.

The fourth witness, G.K. Talukdar, a staff officer of

the Reserve Bank of India produced a list stipulating

contract rates of several securities, in an attempt to show that

the contract rates claimed by the Bank were not correct. It

was not stated that the list applied to the Bank or that other

rates could not be contracted for.

The brunt of the evidence given by the appellant's

witnesses was as to the nature of the transactions between

the appellant and the Bank. However, not one of the defence

witnesses gave any evidence in support of the only defence

of the Appellant, namely that the four cheques in question

had been given towards intended transactions which did not

take place. No one said why the appellant had executed and

delivered the particular cheques to the Bank or that the

appellant had not given the four cheques to discharge his

debts to the Bank. Nor did any defence witness claim that

the cheques were given an account of any ready forward

transactions. In fact, DW 1 in cross- examination admitted

that it was not the practice of a purchasing party to hand

over cheques in advance. The appellant alone could have

said why he had admittedly executed the four cheques,

handed them over to the Bank and never asked for their

return. He did not choose to do so.

As said by the Special Court :

"Thus according to the Accused, the cheques

Exs. B and C were delivered on 23rd December

1991. This ostensibly was for intended purchases

of 2 crores and 1.08 crores Units. According to

him the cheque Ex. D was given on 17th February

1992. This ostensibly for intended purchase of

1,22,50,000 Units. The Ex. E was allegedly given

on 27th March 1992 for intended purchase of 7

crore Units of Can Star and 10 crore Units of Can

Premium. Apart from what is stated in the

Written Statement there is no evidence or proof

in support of this case."

The burden was on the appellant to disapprove the

presumptions under Ss. 138 and 139 a burden which he

failed to discharge at all. The averment in the written

statement of the appellant was not enough. Incidentally, the

defence in the written statement that the four cheques were

given for intended transactions was not the answer given by

the Appellant to the notice under Section 138. Then he had

said that the cheques were given to assist the Bank for

restructuring (Ex.H). It was necessary for the appellant at

least to show on the basis of acceptable evidence either that

his explanation in the written statement was so probable that

a prudent man ought to accept it or to establish that the

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effect of the material brought on the record, in its totality,

rendered the existence of the fact presumed, improbable.

(Vide Trilok Chand Jain Vs. State of Delhi 1975 (4) SCC

761 ). The appellant has done neither. In the absence of any

such proof the presumptions under Sections 138 and 139

must prevail.

We may also mention here that in proceedings initiated

by the Bank to recover monies from the appellant in

connection with the first area of fraud mentioned by B.

Banerjee (PW 3), this Court in Standard Chartered Bank

vs. Custodian (2000 (6) SCC 427) upholding the decision

of the Special Court, found that the appellant was liable to

pay the Bank a sum of Rs.280.00 crores which is several

times the amount covered by the four cheques in question.

The argument of the Appellant before the Special

Court that no offence under section 138 had in fact been

committed because he could not have paid within the period

of 15 days after receipt of the notice even if he wanted to,

was rightly rejected. The appellant's submission was based

on the fact that he had been notified by the Custodian under

section 3 of the Act and all his properties had consequently

stood attached. But, as observed by the Learned Special

Court, the Special Court had before it a number of

applications by a number of parties asking for permission to

fulfill their obligations under contracts. In some cases the

Court had granted them. There was nothing which

prevented the Appellant from applying to the Special Court

for permission to fulfill his obligations or to pay off his

debts under the cheques Exs. B, C, D & E. No attempt had

been make by the Appellant to make any payment towards

the dishonoured cheques. The appellant would not have paid

even if he could have. This is clear not only from the

correspondence, and the appellant's conduct but also from

his defence of total denial of liability. The argument was

therefore wholly academic.

The Special Court found the appellant's defence

improbable and the evidence adduced at his instance flawed

and unbelievable. After meticulously scanning both the oral

and documentary evidence and ultimately drawing on the

presumptions statutorily provided under sections 118, 138

and 139 of the Negotiable Instruments Act, the appellant

was found guilty. For the reasons stated earlier, there is no

ground for us to decide differently and to differ from the

view taken by the Special Court in holding the appellant

guilty of the offence with which he was charged. We

therefore affirm the conviction and sentence imposed on the

appellant by the Special Court and dismiss the appeal with

costs assessed at Rs.10,000/-.