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2011 DIGILAW 801 (GUJ)

Arpit v. Pandya VS State of Gujarat

2011-11-30

BANKIM.N.MEHTA

body2011
JUDGMENT : Bankim. N. Mehta, J. The appellant - original complainant has filed this appeal under section 398 of the Code of Criminal Procedure, 1973 and challenged the judgment and order of acquittal passed by the learned Metropolitan Magistrate (Negotiable Instruments Act), Ahmedabad on 19.4.2001 in Criminal Case No. 8590 of 2009 acquitting respondent No.2 for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short "the Act). 2. According to the appellant, respondent No.2 was serving with his father Vinodray Pandya and therefore, he was known to him. On account of good relations between respondent No.2 and father of the appellant, father of the appellant had advanced Rs. 1,20,000/between 1999 and 2000 by making payment by cheque from his father's account. On settlement of account with respondent No.2, he gave a cheque of Rs. 30,000/bearing cheque No.130730 dated 12.3.2009 for Rs. 30,000/drawn on Union Bank of India, Jamalpur Branch. The said cheque had returned dishonoured by the bank with endorsement "No Account/Account closed on advice". The bank memo dated 22.6.2009 was sent by bank of respondent No.2 and his bank informed him with regard to the same on 24.6.2009. Therefore, notice dated 20.7.2009 was served to respondent No.2, but respondent No.2 gave false reply dated 4.8.2009 and did not pay the amount of cheque. Therefore, complaint under section 138 of the Act was filed and it was registered as Criminal Case No.8590 of 2009. 3. The trial Court issued summons to respondent No.2, who appeared and pleaded not guilty to the charge and claimed to be tried. Therefore, the complainant adduced evidence in support of his case. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against respondent No.2 were explained to him. Respondent No.2 in his further statement recorded under section 313 of the Code of Criminal Procedure, 1973 denied having committed the offence and has stated that cheque given to the father of the complainant has been misused. After hearing learned advocates for the parties, the trial Court by impugned judgment acquitted respondent No.2. Being aggrieved by the said decision, the appellant - original complainant has preferred this acquittal appeal. 4. I have heard learned advocate Mr. Mehta for the appellant at length and in great detail. I have also heard learned APP Mr. Poojari for the respondent No.1 - State. Being aggrieved by the said decision, the appellant - original complainant has preferred this acquittal appeal. 4. I have heard learned advocate Mr. Mehta for the appellant at length and in great detail. I have also heard learned APP Mr. Poojari for the respondent No.1 - State. Respondent No.2 - original accused is served, but has chosen not to appear. I have also perused the R & P of the trial Court. 5. Learned advocate Mr. Mehta submitted that the complainant had produced sufficient evidence to connect respondent No.2 with the offence in the form of cheque in question and therefore, the trial Court committed error in recording that the complainant failed to prove the debt. He also submitted that the presumption under section 139 of the Act is that the cheque was given towards discharge of debt and respondent No.2 failed to rebut the presumption. Therefore, the trial Court committed error in acquitting respondent No.2 and hence, impugned judgment is required to be set aside. 6. Learned APP Mr. Poojari for the respondent State submitted that the complainant failed to prove debt as no documentary evidence in that regard was produced. Mr. Poojari submitted that the evidence indicates that in the reply to the notice, respondent No.2 raised defence that the cheque in question was given as security to the father of the complainant and the bank account was closed before five years of the incident. Therefore, the complainant was required to prove legally recoverable debt, but no evidence in that regard was adduced by the complainant and therefore, the trial Court was justified in passing the impugned order and no interference is warranted in the impugned judgment. 7. It appears from the allegations made in the complaint that the father of the appellant - original complainant advanced in all Rs. 1,20,000/between 1999 and 2000 by cheque from his account and after settlement of the account with the applicant, respondent No2 allegedly gave cheque dated 12.3.2009 drawn in favour of the appellant - original complainant . These allegations indicate that the appellant did not advance any amount to respondent No.2. Therefore, the appellant was required to produce cogent evidence to indicate that his father advanced any amount to respondent No.2 between 1999 and 2000. The death certificate produced on record of the trial Court indicates that father of the appellant had expired on 17.12.2007. These allegations indicate that the appellant did not advance any amount to respondent No.2. Therefore, the appellant was required to produce cogent evidence to indicate that his father advanced any amount to respondent No.2 between 1999 and 2000. The death certificate produced on record of the trial Court indicates that father of the appellant had expired on 17.12.2007. It also appears from the oral evidence of the appellant that the entire transaction was allegedly entered into between his father and respondent No.2. The appellant has also admitted that there are other heirs of his deceased father and he has not obtained consent of other heirs to file the complaint. It also appears that there is no evidence that the appellant has personal knowledge about the transactions entered into between respondent No.2 and father of the appellant. Even, the complaint and the notice given to respondent No.2 with regard to dishonour of the cheque do not indicate that the appellant was aware about the transactions allegedly entered into between the father of the appellant and respondent No.2. 8. In view of above, it is clear that the alleged transaction was entered into between the father of the appellant and respondent No.2 and father of the appellant had allegedly advanced the amount by making payment by cheque. Even, the alleged advance was between 1999 and 2000. No documentary evidence is produced to support the transaction. It is settled position that when an accused has to rebut the presumption under section 139 of the Act, standard of proof for doing so is that of 'Preponderance of Probabilities'. Therefore, if accused is able to raise a probable defence, which creates doubts about the existence of a legally enforceable debt, the prosecution can fail. In the present case, as observed earlier, the appellant did not produce convincing evidence of payment of amounts by his father between 1999 and 2000. Therefore, in my view, respondent No.2 has raised probable defence that the cheque in question was misused as there was no legally recoverable debt existing as alleged by the appellant. 9. In the present case, as observed earlier, the appellant did not produce convincing evidence of payment of amounts by his father between 1999 and 2000. Therefore, in my view, respondent No.2 has raised probable defence that the cheque in question was misused as there was no legally recoverable debt existing as alleged by the appellant. 9. In the decision relied upon by the appellant in the case of Rangappa v. Sri Mohan, reported in (2010) 11 SCC 441 : 2010 (1) NIJ 396 (SC), the Hon'ble Supreme Court has held that presumption mandated by section 139 includes a presumption that there exists a legally enforceable debt or liability and that the Court has to consider that whether ingredients of offence under section 138 have been met and if so, whether the accused was able to rebut statutory presumption contemplated under section 139. In the instant case, as observed earlier, the evidence indicates that no cogent evidence was produced in the trial Court to indicate that father of the appellant advanced the amount by cheque to the respondent No.2. The respondent No.2 was able to rebut the presumption of existence of legally enforceable debt. Therefore, this decision does not help the appellant. 10. In the result, no interference is warranted in the impugned judgment and hence, the appeal requires to be dismissed and accordingly, it is dismissed. Appeal dismissed.