Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 825 (MP)

Mahendra Khatik v. Rajeev Dhanawat

2017-07-13

S.K.AWASTHI

body2017
ORDER 1. The applicant is assailing the order dated 17.5.2016 passed in Criminal Appeal No.282/2015 by Special Judge (Atrocities)/Additional Sessions Judge, Shivpuri by which the judgment dated 6.8.2015 passed in Criminal Case No. 14/2015 by the Court of Judicial Magistrate First Class, Shivpuri has been affirmed. 2. The factual matrix of the case is that the respondent filed a complaint case alleging that the present applicant had borrowed money Rs.2,00,000/- for satisfying his urgent business related requirements. As per the applicant, the amount of Rs.1,00,000/- was paid by Cheque No.1938896 dated 15.6.2013 drawn on Panjab and Sindh Bank, whereas the remaining amount of Rs.1,00,000/- was paid in cash. The arrangement which was arrived at between the parties for that the applicant shall refund the money within a period of one year. However according to the respondent, the money was not paid and the applicant continuously stalled the demand made by the respondent. Further, after continuous persuation, the applicant agreed to issue a cheque drawn on HDFC Bank bearing No.130879 of Rs.2,00,000/- to refund the money borrowed from the respondent. It is further borne out from the record that the respondent presented the cheque (Ex.P-1), although, the same was returned by the Bank with a memo reflecting insufficient of funds in the account of applicant. Upon receiving the return memo dated 4.12.2014, the respondent issued a legal notice dated 10.12.2014 (Ex.P-4) clearly making demand of Rs.2,00,000/- from the applicant. Despite receiving the legal notice, the applicant did not obey the instructions therein which gave rise to liability under section 138 of the Negotiable Instrument Act, 1881. 3. The respondent filed a complaint case before the competent Court which was registered as Criminal Case No.14/2015 in which the applicant was summoned to face the trial and to come forward with his defence. The respondent recorded his statement in support of the complaint and was subjected to cross-examination by the applicant. After completion of the process, the Court of Judicial Magistrate First Class, Shivpuri pronounced judgment dated 6.8.2015 and arrived at a finding that the applicant is liable to suffer the consequences provided under section 138 of the Negotiable Instruments Act, thereby directing the applicant to undergo Rigorous Imprisonment of six months and further, directed for payment of Rs.2,30,000/- as compensation under section 357 of CrPC with default stipulation of additional rigorous imprisonment for a period of two months. 4. 4. The judgment was called in question by both the parties by filing separate appeals before the Sessions Court, Shivpuri; the appeal preferred by the respondent was registered as appeal No.280/2015 for seeking enhancement of the punishment imposed by the trial Court, whereas the appeal preferred by the applicant was registered as Appeal No.282/2015 which called in question the veracity of the judgment dated 6.8.2015. The appellate Court decided both the appeal by a common judgment dated 17.5.2016 and rejected both the appeals, thereby giving its stamp of approval to the order dated 6.8.2015. The judgment dated 17.5.2016 has been called in question by filing the instant revision application. 5. The learned counsel for the applicant submitted that the trial Court as well as appellate Court have erred in appreciation of evidence and lost sight of the fact that the respondent has not discharged its burden of establishing that the money advanced to the applicant was illegally in forcibly debt. He further submitted that the presumption envisaged under section 139 of the Negotiable Instruments Act cannot be extended to the extent of absolving the complainant of his liability to prove the compliance of steps prescribed under section 138 of the Negotiable Instruments Act. The learned counsel for the applicant laid much emphasis on the defence version of the applicant that the money reflecting in Cheque No.130879 could not have been advanced by the respondent who does not have financial capacity to advance such a huge amount. Therefore, he submitted that the judgments which are called in question are perverse and deserves to be set aside. 6. In reply to the contention advanced by the learned counsel for the applicant, the learned counsel for the respondent submitted that the Courts below have not committed any error in appreciation of evidence and have correctly arrived to the finding that the applicant had committed an act amounting to violation of section 138 of the Negotiable Instruments Act. 7. I have given my anxious consideration to the rival contentions of the parties and have perused the record. 8. 7. I have given my anxious consideration to the rival contentions of the parties and have perused the record. 8. The perusal of the statement of the respondent-Rajiv Dhanawat in the context of cross-examination carried out by the applicant, this Court has no hesitation in concluding that the respondent has duly established that advancement of Rs.2,00,000/- to the applicant and the attempt made by the applicant to demonstrate that the respondent did not have financial resources to advance such a huge amount of money is nothing more than a bald statement. In this regard, the Court below has rightly recorded its finding in paragraph No.8 of the judgment dated 6.8.2015. This Court is also in agreement that the conclusions drawn by the trial Court in paragraphs No.12 and 13 to arrive at the finding that the steps prescribed under section 138 of the Negotiable Instruments Act have been meticulously followed by the respondent, before maturing the case for presentation before the trial Court. It is also evident from the record that the applicant has not been able to bring record of any document which may controvert the presumption provided under section 139 of the Negotiable Instruments Act. The Hon'ble Supreme Court in the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde, reported in (2008)4 SCC 54 , has discussed jurisprudence and applicability of section 139 of the Negotiable Instruments Act in the following terms :- 35. A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. 36. In M.S. Narayana Menon Alias Mani v. State of Kerala and another [ (2006)6 SCC 39 ], it was held that once the accused is found to discharge his initial burden, it shifts to the complainant. 37. Four cheques, according to the accused, appear to have been drawn on the same day. 36. In M.S. Narayana Menon Alias Mani v. State of Kerala and another [ (2006)6 SCC 39 ], it was held that once the accused is found to discharge his initial burden, it shifts to the complainant. 37. Four cheques, according to the accused, appear to have been drawn on the same day. The counterfoil of the cheque book, according to the appellant, was in the handwriting of R.G. Bhat wherein it was shown that apart from other payments, a sum of Rs.1500/- was withdrawn on a self- drawn cheque. The Courts below proceeded to hold that the defence raised by the appellant has not been proved, which, in our opinion, is not correct. He did not know that the said cheque had not been encashed. He replied to the notice thinking that one of the cheque has been misused. There is nothing on record to show that he knew that one of the cheques was still with R.G. Bhat. 38. Disputes and differences between him and R.G. Bhat stood established by admission of the respondent himself. Similar industry was being run by R.G. Bhat although he was acting as the constituted attorney of the appellant. According to the appellant, R.G. Bhat had cheated him. The counterfoil showed that not more than Rs.20,000/- had ever been withdrawn from that bank at a time. The Courts were required to draw an inference as to the probability of the complainants advancing a sum of Rs.1.5 lacs on mere asking and that too without keeping any documentary proof. Even there was no witness. The purported story that the appellant would himself come forward to return the amount by a cheque knowing fully well that he did not have any sufficient funds is difficult to believe. 39. In K. Prakashan v. P.K. Surenderan [2007(12) SCALE 96], this Court following M.S. Narayana Menon (supra) opined : 12. The Act raises two presumptions; firstly, in regard to the passing of consideration as contained in section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in section 139 discharged in whole or in part any debt or other liability. Presumptions both under sections 118(a) and 139 are rebuttable in nature. Presumptions both under sections 118(a) and 139 are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis-a-vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision. 13. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability. 40. In John K. John v. Tom Varghese and another [JT 2007(13) SC 222], this Court held : 10. The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the Court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent even was not in a position to discharge his burden to pay instalments in respect of the prized amount, an advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under section 139 of the Act, no exception thereto can be taken. 41. Mr. Bhat relied upon a decision of this Court in Hiten P. Dalal v. Bratindranath Banerjee [ (2001)6 SCC 16 ], wherein this Court held : 22. 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. 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. 23. In other words, provided the facts required to form the basis of a presumption of law exist, 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. [See also K.N. Beena v. Muniyappan and another [ (2001)8 SCC 458 ] 42. We assume that the law laid down therein is correct. The views we have taken are not inconsistent therewith. 43. But, we may at the same time notice the development of law in this area in some jurisdictions. 9. In the instant case the applicant has failed to rebut the presumption to place the onus on the respondent to come with better quality of evidence than the one which already on record. Therefore, the contentions canvassed by the learned counsel for the applicant recording wrong appreciation of evidence and inaccurate applicability of section 139 of the Negotiable Instruments Act deserves to be repelled. 10. Taking this view of the matter the instant criminal revision is hereby dismissed. The applicant is directed to surrender before the Court below on 8.8.2017 to complete the remaining sentence imposed by the Court below. 10. Taking this view of the matter the instant criminal revision is hereby dismissed. The applicant is directed to surrender before the Court below on 8.8.2017 to complete the remaining sentence imposed by the Court below. If the applicant has deposited any money in furtherance to the direction issued by the appellate Court or by this Court, same be released to the respondent upon furnishing certified copy of this order. The applicant is further directed to deposit the remaining money, if any, on or before 8.8.2017, failing which the default stipulation indicated in judgment dated 6.8.2015 shall be enforced.