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Gujarat High Court · body

2011 DIGILAW 821 (GUJ)

Ganu Shivram Taddalekar v. Harish Nanakram Rupani

2011-12-09

BANKIM N.MEHTA

body2011
JUDGMENT : 1. Appellant - original complainant has preferred this appeal under section 378 of the Code of Criminal Procedure, 1973 and challenged the judgment and order of acquittal passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Vadodara on 21.10.2010 allowing Criminal Appeal No.104 of 2009 and acquitting the respondent accused against the judgment and order of conviction passed by the learned Additional Senior Civil Judge and JMFC, Vadodara on 29.9.2009 in Criminal Case No.8116 of 2007 convicting the respondent accused for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short "the Act"). 2. According to the appellant complainant, the respondent accused was his friend and as he was in need of finance, obtained in all Rs. 4,90,000/- as hand loan on different times from him. The respondent accused gave cheque No.223345 dated 3.3.2007 of Rs. 4,90,000/- drawn on Indusland Bank Limited, Varasia Ring Road, Vadodara towards discharge of his liability. On presenting cheque in the Bank on 13.3.2007, the cheque has been returned unpaid with the endorsement "Account Closed" and he was informed about the return of cheque unpaid on 15.3.2007 by the Bank. Therefore, Notice as required under law was sent to the respondent accused on 19.3.2007 making demand of amount of the unpaid cheque. The respondent accused refused to accept the notice on 21.3.2007. Therefore, the complaint under section 138 of the Act was filed in the Court of learned JMFC, Vadodara and it was registered as Criminal Case No.8116 of 2007. 3. The trial Court issued summons to respondent accused, 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 accused were explained to him. Respondent accused in his further statement recorded under section 313 of the Code of Criminal Procedure, 1973 denied having committed the offence and stated that he had obtained Rs. 50,000/- in the year 2002 and at that time, cheque in question with his signature was given, that the amount of Rs. 50,000/- was repaid through his brother-in-law, that the complainant used to purchase goods from his shop and as he demanded the amount of goods sold, cheque is presented in the Bank and false case is filed. 50,000/- in the year 2002 and at that time, cheque in question with his signature was given, that the amount of Rs. 50,000/- was repaid through his brother-in-law, that the complainant used to purchase goods from his shop and as he demanded the amount of goods sold, cheque is presented in the Bank and false case is filed. The respondent accused also examined himself and a witness in his defence. After hearing learned advocates for the parties, the trial Court convicted the respondent accused. Therefore, Criminal Appeal No. 104 of 2009 was preferred by the respondent accused in the Court of learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Vadodara. After hearing learned advocates for the parties, the lower appellate Court by its impugned judgment, set aside the judgment and order of conviction passed by the trial Court and acquitted respondent accused. Being aggrieved by the said decision, the appellant - original complainant has preferred this acquittal appeal. 4. I have heard learned advocate Mr. Dave for the appellant, learned advocate Mr. Mehta for respondent No.2 at length and in great detail. I have also heard learned APP Ms. Shah for the respondent No.1 - State. I have also perused the R & P of the trial Court. 5. Learned advocate Mr. Dave for the appellant complainant submitted that under sections 118 and 139 of the Act, there is presumption of existing debt and the respondent accused has not rebutted the presumption. The learned trial Court was justified in convicting the respondent accused, but the lower appellate Court committed error in reversing the judgment. He also submitted that the evidence of the appellant complainant indicates the source of money for payment made to the respondent accused and the respondent accused did not reply to the notice nor did produce any evidence to rebut the evidence led by the appellant complainant. He also submitted that the amounts were advanced between 2003 and 2007 and as the cheque is given against the amount borrowed, hence, there is no question of limitation and the debt was legally recoverable debt. He further submitted that the cheque in question was given by the respondent accused after closing of the account and therefore, the case under section 138 of the Act is made out. He further submitted that the cheque in question was given by the respondent accused after closing of the account and therefore, the case under section 138 of the Act is made out. He further submitted that there is typographical error in the evidence of the appellant complainant and therefore, an application was given in the trial Court to correct the typographical error. Therefore, the appellant complainant was able to prove that details in the cheque in question were written by the respondent accused and hence, the trial Court was justified in convicting the respondent accused, but the lower appellate Court committed error in reversing the judgment and acquitting the respondent accused. He has relied upon decision reported in AIR 2001 SC 2895 and AIR 1999 SC 1952 . 6. Learned advocate Mr. Mehta for the respondent accused submitted that the cheque in question was given towards security as Rs. 50,000/- were borrowed in the year 2001 from the appellant complainant. However, there is alteration in the cheque as the details therein are not filled in at the instance of the respondent accused and therefore, negotiable instrument is void. He also submitted that the cross examination of the appellant complainant indicates that there was no evidence to prove that the amount, as alleged, was advanced to the respondent accused as the amount was not shown in the income tax return nor any evidence was adduced to prove that the amount was borrowed as claimed by the appellant complainant. He also submitted that payment over Rs. 20,000/- is required to be made by the cheque. However, admittedly, no amount has been paid to the respondent accused by cheque and therefore, it becomes doubtful that there was any existing recoverable debt. He also submitted that simply because there was no reply to the notice, it does not absolve the appellant complainant to prove his case as the respondent accused had rebutted the presumption under section 139 of the Act. Therefore, the lower appellate Court was justified in acquitting the respondent accused and hence, no interference is warranted in the impugned judgment. He has relied upon decision reported in 2008(4) SCC 54 . 7. According to the appellant complainant, in all Rs. 4,90,000/- were advanced to the respondent accused. The appellant complainant has, in the complaint, not specifically given details about the amounts advanced to the respondent accused. He has relied upon decision reported in 2008(4) SCC 54 . 7. According to the appellant complainant, in all Rs. 4,90,000/- were advanced to the respondent accused. The appellant complainant has, in the complaint, not specifically given details about the amounts advanced to the respondent accused. The complaint alleges that various amounts were advanced on different dates and no writing was obtained for such advance. It is not in dispute that the amounts were advanced in cash. The respondent accused has disputed the fact of having received the amounts as claimed by the appellant complainant and has raised a defence that the cheque in question was given by him towards repayment of Rs. 50,000/- taken by him from the appellant complainant in the year 2001. It is also defence that the blank cheque with his signature was given to the appellant complainant and it was misused. 8. In view of above, it is clear that the alleged transaction was entered into between the appellant and respondent No.2 and the appellant had allegedly advanced the amount by making payment by cheque. 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. 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 order to prove his case, the appellant complainant has examined himself at Exh-16. The respondent accused has cross examined the appellant complainant in detail. In the cross examination, the appellant complainant has deposed that the transaction with the respondent accused was started with Rs. 50,000/- in the year 2003 and the said amount was repaid within four years. The appellant complainant has also deposed that he had advanced Rs. 4,50,000/- between 2003 and 2007, but did not obtain any writing in that regard. The appellant complainant has admitted that being cashier in the Bank, he is aware that amount of above Rs. 50,000/- in the year 2003 and the said amount was repaid within four years. The appellant complainant has also deposed that he had advanced Rs. 4,50,000/- between 2003 and 2007, but did not obtain any writing in that regard. The appellant complainant has admitted that being cashier in the Bank, he is aware that amount of above Rs. 20,000/- is required to be paid by cheque, but he did not make any payment to the respondent accused by cheque. The appellant complainant has also deposed that he pays income tax and has not shown this amount of Rs. 4,90,000/- in the income tax department. He has also deposed that the amounts given to the respondent accused were given from his overdraft account. He has further deposed that other amount of Rs. 1,20,000/- was given after borrowing from his brother-in-law and some from the amount received on maturity of National Savings Certificate (NSC). He has also deposed that Rs. 25,000/- were paid after obtaining loan. The appellant complainant has also admitted that he is required to pay interest for loan and overdraft and also admitted that no interest was to be charged from the respondent accused and he was not his relative. The appellant complainant has also admitted that he has not produced any evidence to show that he advanced Rs. 4,90,000/- to the respondent accused and has no evidence in that regard. The appellant complainant has also admitted that details in cheque Exh-22 like name of payee, amount and debt were either written by him or by his person at his instance. He has denied that the respondent accused obtained Rs. 50,000/- and a blank cheque was obtained towards security and it was misused. 10. Learned advocate Mr. Dave submitted that there was error in recording of evidence in respect of hand writing in cheque Exh-22 and therefore, the appellant complainant gave application Exh-40 to correct the same. It appears from the application Exh-40 that the appellant complainant wanted to correct the evidence that the hand writing in cheque Exh-22 were of the respondent accused or his person and not of the appellant complainant or his person as recorded. On perusal of the R & P, it appears that the deposition of the appellant complainant was taken on 22.9.2008 and on completion of recording of evidence was read over to the witness, who approved the same. On perusal of the R & P, it appears that the deposition of the appellant complainant was taken on 22.9.2008 and on completion of recording of evidence was read over to the witness, who approved the same. Thereafter, an application Exh-40 for correction in the deposition was filed on 24.4.2009 and the trial Court fixed the application for hearing. However, no order was passed below the said application. Therefore, no correction in the oral deposition was made as requested by the appellant complainant. In view of this, it is clear that the details in cheque Exh-22 were not in the hand writings of the drawer i.e. the respondent accused. 11. On examination of the evidence of the appellant complainant, it emerges that different amounts were allegedly advanced to the respondent accused between 2003 and 2007. However, no writing in that regard was obtained. It also emerges that the amounts were paid in cash and were not shown in the income tax return filed by the appellant complainant. The evidence of the appellant complainant also indicates that he was working as a Head Cashier in the Bank and was aware that any amount above Rs. 20,000/- is required to be paid by cheque, but he did not pay any amount by cheque. The evidence also indicates that the appellant complainant allegedly gave the amount after withdrawing the amount from overdraft account also from borrowing from his brother-in-law, obtaining loan of Rs. 25,000/- and from maturity of NSC. However, the appellant complainant has not adduced any evidence to show that he raised the amount from the sources as claimed by him. The appellant complainant has not examined his brother-in-law to show that he borrowed any amount from him. The appellant complainant has not produced any documentary evidence to show that he had overdraft account or that he raised loan of Rs. 25,000/- or that amount was received on account of maturity of NSC. It also appears that the appellant complainant was required to pay interest on the loan amount and overdraft account, but no interest was to be charged from the respondent accused for the amounts allegedly advanced to him. 25,000/- or that amount was received on account of maturity of NSC. It also appears that the appellant complainant was required to pay interest on the loan amount and overdraft account, but no interest was to be charged from the respondent accused for the amounts allegedly advanced to him. If a borrower is not a relative and the amounts are advanced allegedly after obtaining loan or from the overdraft account which requires payment of interest, it is difficult to believe that a person lending such a huge amount as a loan to a stranger would not charge interest. It is true that under the provisions of sections 118 and 139 of the Act, there is a legal presumption that unless contrary is proved, 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. Section 118 of the Act also provides for the presumption as to the negotiable instruments. It is also settled proposition that presumption under section 139 of the Act is rebut table. It merely raises presumption in favour of the holder of cheque that same has been issued for discharge of debt or any other liability and existence of legally recoverable debt is not a matter of presumption under section 139 of the Act. It is also settled proposition that an accused, for discharging the burden of proof placed upon him under a statute, need not examine himself and he may discharge his burden on the basis of the materials already produced on record as an accused has a constitutional right to maintain silence. It is also settled proposition that when accused has to rebut the presumption under section 139 of the Act, the standard of proof is "preponderance of probability". Therefore, if the accused is able to raise a probable defence, the prosecution can fail. The accused can rely on the materials submitted by the complainant to raise such defence. If the accused is proved to have discharged the initial onus showing that the existence of consideration was improbable or doubtful, the onus would shift to the complainant to prove it as a matter of fact. The Court may not insist upon the accused to prove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated. The Court may not insist upon the accused to prove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated. In the instant case, as observed earlier, the cross examination of the appellant complainant clearly indicates that except bare words, there is no cogent and convincing evidence to prove that an amount of Rs. 4,90,000/- was advanced to the respondent accused. The appellant complainant did not examine the witness from whom he allegedly collected the amount and paid to the respondent accused. Even, there is no evidence that he obtained the amount from overdraft account and also obtained loan to pay to the respondent accused. Even, there is no evidence that the appellant complainant had received the amount on maturity of his NSC. Therefore, there is no convincing evidence to show that the appellant complainant had financial ability to pay any amount to the respondent accused. The respondent accused, by cross examining the appellant complainant, was able to raise a probable defence about the existence of legally recoverable debt. Therefore, the lower appellate Court was justified in not believing the prosecution case with regard to existence of recoverable debt. 12. It also appears that the respondent accused raised defence that cheque in question was given as a security to the appellant complainant for the amount he had obtained in the year 2001. In order to support this, the accused has examined himself at Exh-34. In his evidence, he has deposed that in the year 2001, the appellant complainant gave him Rs. 50,000/- as hand loan and cheque in question was given to him towards security. The respondent accused has been cross examined by the appellant complainant. However, there is no cross examination with regard to this fact. Therefore, the defence that the cheque in question was given towards security has gone unchallenged. In my view, therefore, it cannot be said that the cheque in question was given by the respondent accused towards discharge of debt or other liability. 13. In view of above, in my view, the appellant complainant did not adduce any evidence to show that he advanced Rs. 4,90,000/- to the respondent accused and the cheque in question was given by him towards discharge of his debt. The respondent accused was able to raise probable defence and thereby rebutted the presumption under section 139 of the Act. In view of above, in my view, the appellant complainant did not adduce any evidence to show that he advanced Rs. 4,90,000/- to the respondent accused and the cheque in question was given by him towards discharge of his debt. The respondent accused was able to raise probable defence and thereby rebutted the presumption under section 139 of the Act. Therefore, the lower appellate Court was justified in acquitting the respondent accused and reversing the judgment and order of the conviction passed by the trial Court. 14. In the decision of K.N. Beena Vs. Muniyappan and another reported at AIR 2001(14) SC 2895, the Hon'ble Supreme Court has held that burden of proof that cheque had not been issued for a debt or liability is on the accused. There cannot be any dispute with regard to proposition laid down by the Hon'ble Supreme Court, but in the subsequent decision reported in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde reported in 2008(4) SCC 54 , the Hon'ble Supreme Court has held that section 139 merely raises a presumption but existence of legally recoverable debt is not a matter of presumption under section 139 of the Act. It is also held in the said decision that the accused, in order to discharge the burden placed upon him, need not examine himself, but may discharge his burden on the basis of materials produced on record. In the present case, as observed earlier, the respondent accused has discharged his burden by way of the cross examination of the appellant complainant. Therefore, the decision relied upon by learned advocate Mr. Dave does not give any assistance to him. 15. In the decision of NEPC Micon Ltd. and others Vs. Magma Leasing Ltd. reported in AIR 1999 SC 1952 , the Hon'ble Supreme Court has held that return of cheque by bank with endorsement "Account Closed" is also an offence under section 138 of the Act. In the facts of this case, it is true that the cheque has returned unpaid as the account was closed, but in view of the fact that the appellant complainant has not been able to prove that the cheque in question was given towards discharge of debt or other liability, this decision is also not applicable to the facts of the present case. 16. 16. In view of above, even if the respondent accused has admitted the fact of drawing of the cheque in question, it would not absolve the appellant complainant from his liability to prove the debt. Even, submission that no reply to the notice was given cannot be a ground to saddle the respondent accused with criminal liability. Therefore, the lower appellate Court was justified in acquitting the respondent accused. 17. It was also submitted by learned advocate Mr. Dave that the lower appellate Court though did not disclose the same in detail, in my view, the learned advocate, after considering the ratio laid down in all the judgments, has passed the impugned judgment. Learned advocate Mr. Dave has not been able to point out that the lower appellate Court has not considered any decision, which were in his favour. Therefore, this submission also cannot be accepted. Learned advocate Mr. Mehta has made submission with regard to section 87 of the Act. In view of the fact that the appellant complainant has not been able to prove this case. There is no need to go into detail of this contention. 18. In view of above, no interference is warranted in the impugned judgment. Therefore, the appeal fails and stands dismissed. The judgment and order of acquittal passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court, Vadodara on 21.10.2010 allowing Criminal Appeal No.104 of 2009 and acquitting the respondent accused quashing and setting aside the judgment and order of conviction passed by the learned Additional Senior Civil Judge and JMFC, Vadodara on 29.9.2009 in Criminal Case No.8116 of 2007, is hereby confirmed. Appeal dismissed.