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2018 DIGILAW 1646 (GAU)

Nipan Das v. Malati Chetri Choudhury

2018-11-27

HITESH KUMAR SARMA

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JUDGMENT : HITESH KUMAR SARMA, J. 1. By way of this appeal under Section 378(4) of the Code of Criminal Procedure, the complainant, as appellant, has challenged the judgment of acquittal, dated 19.06.2015, passed by learned Judicial Magistrate 1st Class, Kamrup (M), Guwahati, in CR Case No. 3595/2010. It may be mentioned here that a leave application, under Section 378(3) of the Code of Criminal Procedure, was filed seeking leave to file the appeal and this appeal came to be heard after granting the leave. The facts of the case may be summarised as follows; 2. The complainant and the accused were well known to each other. In connection with the business needs of the husband of the accused the complainant had lent an amount of Rs. 15,00,000 (Rupees Fifteen lacs). Thereafter, the accused issued a cheque No. 285075, dated 24.08.2015, for an amount of Rs. 15,00,000 in favour of the complainant. The complainant presented the cheque to be credited in his account at State Bank of India, Bharalumukh Branch, but the cheque was dishonoured with a bank memo that the account of the accused has been closed. The complainant, thereafter, issued a statutory demand notice demanding payment of the cheque amount. Since the amount was not paid, the complainant lodged a criminal complainant against the accused. 3. On appearance of the accused, the learned trial Court explained the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act of 1881") to him and proceeded with the trial. In the course of trial, the complainant adduced evidence of himself and another witness. The accused was examined under Section 313 of the Cr.P.C.. The defence plea is that there was no business transaction with the complainant and the alleged loan was never given by the complainant. The accused further pleaded that she has not issued the cheque and that the cheque book was lost, for which, she has lodged an FIR with Dispur Police Station. The accused did not adduce any defence evidence. 4. Upon hearing the arguments, the learned trial Court delivered the impugned judgment acquitting the accused. 5. Aggrieved by the impugned judgment the appellant has preferred this appeal, inter alia, on the following grounds; i. That the decision of the learned trial Court is based on wrong appreciation of evidence as well as law. ii. 4. Upon hearing the arguments, the learned trial Court delivered the impugned judgment acquitting the accused. 5. Aggrieved by the impugned judgment the appellant has preferred this appeal, inter alia, on the following grounds; i. That the decision of the learned trial Court is based on wrong appreciation of evidence as well as law. ii. That the learned trial Court without going through the evidence on record and materials exhibited has passed the impugned judgment of acquittal. iii. That when the accused himself admitted the cheque and the cheque bears the signature of the complainant, then mere is no question of denying the liability and the learned trial Court without recording the same passed the judgment. iv. That the cheque was issued by the accused-respondent in discharge of his legally enforceable debt, the burden shifted on the accused-respondent by issuing the cheque for and on behalf of her husband, who has the business transaction with the appellant-complainant and the said facts and circumstances was admitted by the accused respondent during the trial and without considering the same the learned trial Court acquitted the accused-respondent by the judgment, dated 19.06.2015. v. That the learned trial Court acted beyond the law while deciding whether the accused has been able to discharge the burden in rebutting the presumption as provided under Section 139 of the Act of 1881 that the holder of the cheque issued it for discharge of the debt or liability. vi. That the learned trial Court misconstrued the evidence and documents available on record in its true sense. vii. That the execution of the cheque is not denied by the accused. As per Section 139 of the Act of 1881 there is presumption in favour of the complainant that the said cheque was issued in discharge of legally enforceable debt or liability and it was for the accused to rebut the said presumption. According to the accused the said cheque was obtained from her by force or coercion, but the accused did not lodge any police complaint against the complainant nor did she instruct her banker to stop payment. The complainant had given statutory notice to the accused, which was not accepted by the accused and returned 'unclaimed'. The accused; therefore, is deemed to have the statutory notice, but she did not reply the same. Hence, adverse inference ought to have been drawn against the accused. The complainant had given statutory notice to the accused, which was not accepted by the accused and returned 'unclaimed'. The accused; therefore, is deemed to have the statutory notice, but she did not reply the same. Hence, adverse inference ought to have been drawn against the accused. In the letter issued to the accused it is mentioned that the same is in the handwriting of the accused and that is written without any coercion or pressure of any one and that the accused had signed the cheques on her own as matter of amicable settlement, cannot establish that there was coercion on the accused to sign the letter. Such observation of the learned trial Court is without any basis. In fact, there was no reason for the accused not to lodge any police complaint or not to instruct the bank to stop payment and even there was no reason for the accused not to reply the statutory notice. According to the accused, she was called along with the cheque book and other documents in the office of the complainant, but she did not go to the office of the complainant. In such circumstances, it cannot be said that the accused had successful in discharging her reverse burden to show that the said cheque was not issued towards the discharge of legally enforceable debt or liability. 6. I have heard the learned Counsel appearing for the parties and perused the evidence on record. 7. On a reading of the judgment, I find that the learned trial Court was persuaded to record an order of acquittal because the complainant could not prove the source of his funds for payment to the accused. The learned trial Court has relied upon the judgment in John K. Abraham Vs. Simon C. Abraham, (2014) 2 SCC 236 , particularly the following observation; "9............It has to be stated that in order to draw the presumption under Section 118 read along with 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant." 8. However, it appears that the learned trial Court picked up an extract of the observation from John K. Abraham (supra) ignoring the other material aspects of that judgment 9. In John K. Abraham (supra) the trial Court, after considering the oral and documentary evidence, had held that the complainant was making a prevaricating statement as regards the issuance of the cheque, he was not even aware of the date when the amount was said to have been borrowed by the appellant, there was material alteration in the instrument; therefore, the respondent failed to establish a case under Section 138 of the Act of 1881. Consequently, the learned trial Court found the accused not guilty and acquitted him. In appeal before the High Court, the impugned judgment was reversed and the accused was convicted. 10. When the matter reached the Supreme Court, it gave more weightage to the observation of the trial Court holding that the complaint was not even aware of the date when the substantial amount of Rs. 15,00,000/- was advanced by him to the accused, that he was not sure as to who wrote the cheque. He was not even aware when exactly and where exactly the transaction took place for which the cheque came to be issued by the accused. Apart from the said serious lacuna in the evidence of the complainant, he further admitted by stating once, in the course of the cross-examination, that the cheque was in the handwriting of the accused and the very next moment, taking a diametrically opposite stand, stated that it is not in the handwriting of the accused and that it was written by the complainant himself, by further reiterating that the amount in words was written by him. 11. It was in this context of various evidence on record that the Supreme Court made an observation that due to material defects in the evidence, the veracity of the complainant's case becomes doubtful. The case of John K. Abraham (supra) cannot be read as ratio on the point that in all cases there is a burden on the complainant to establish the source of his fund. 12. The case of John K. Abraham (supra) cannot be read as ratio on the point that in all cases there is a burden on the complainant to establish the source of his fund. 12. In this regard I would like to refer to Section 139 of the Act, 1881 which provides as follows: "Sec. 139:Presumption in favour of holder 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." 13. In this context, the Supreme Court, in the case of Rangappa Vs. Sri Mohan reported in (2010) 11 SCC 441 , has observed as follows: "Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail." 14. In Hiten P. Dalal Vs. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail." 14. In Hiten P. Dalal Vs. Bratindranath Banerjee reported in (2001) 6 SCC 16 , it was held, with respect to presumption under Section 139 of Act of 1881, that 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 nonexistence of the presumed fact. 15. 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'. 16. The Supreme Court, Hiten P. Dalai (supra), having considered the ratio of cases in Kundan Lal Rallaram Vs. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316 , and Dhanvantrai Balwantrai Desai Vs. State of Maharashtra, AIR 1964 SC 575 , further observed that 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. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316 , and Dhanvantrai Balwantrai Desai Vs. State of Maharashtra, AIR 1964 SC 575 , further observed that 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. 17. Thus, what has been observed in Hiten Dalai (supra) is that the words 'unless the contrary is proved' 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. 18. In the present case, the complainant stated that he arranged the funds by taking Rs. 10,00,000 from his maternal uncle Sri Nayan Uzir and Rs. 5,00,000 from his elder brother Sri Ranju Deka. The complainant has thus deposed, on oath, about the source of money. There was no cross-examination that the evidence as to source of money is false. 18. In the present case, the complainant stated that he arranged the funds by taking Rs. 10,00,000 from his maternal uncle Sri Nayan Uzir and Rs. 5,00,000 from his elder brother Sri Ranju Deka. The complainant has thus deposed, on oath, about the source of money. There was no cross-examination that the evidence as to source of money is false. Infact, when I read the cross-examination, the accused has not even suggested that the evidence as to source of money is false. 19. On a further reading of the cross examination I find that complainant, as PW1, has also deposed that the particulars of the cheque were written by him and thereafter the accused signed the cheque. Now, such an admission elicited in the cross-examination lends credence to the complainant's case that accused issued the cheque in question. The accused has not even denied her signature in cheque. Thus, the complainant has established that cheque was issued by the accused. 20. This apart, the complainant has also deposed about the precise place where the cheque was issued by the complainant. 21. The learned Counsel for the respondent, while referring to Babu Vs. State of Kerala, (2010) 9 SCC 189 , argues that the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. 22. A similar view was expressed in the case of State of Rajasthan Vs. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. 22. A similar view was expressed in the case of State of Rajasthan Vs. Shem Ram, (2012) 1 SCC 602 wherein the Supreme Court held that a judgment of acquittal has the obvious consequence of granting freedom to the accused and unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, the Court shall be reluctant to interfere with such judgment of acquittal. 23. There is no denying the principles laid down that ordinarily the Appellate Court should be slow in interfering with an order of acquittal when an equally conflicting view is possible than the one taken by the trial Court. However, this principle is subject to another principle that if there exists any perversity in the judgment of trial Court for its failure to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law an interference by the appellate Court would be justified. 24. Now, in her examination under Section 313 Cr.P.C., as against question No. 7, the accused made a statement that cheque belongs to her account but the account has been closed. She also admitted the signature to be her but the cheque book was lost in the month of February, 2010 and in this regard she has lodged an FIR with the Dispur Police Station. 25. It may be pointed that the plea about the lost cheque book was not suggested to the complainant in his cross examination. Such a plea was taken for the first time during examination under Section 313 Cr.P.C. The plea, thus, appears to be an after-thought and no reliance can be placed on such a plea. 26. It would, thus, appear that the source of fund, as deposed by the complainant, remains unrebutted. The accused sought to rebut the presumption under Section 139 on the plank of lack of financial capacity of the complainant and the plea of lost cheque. Both the pleas have fallen flat and hence the presumption under Section 139 of the Act, 1881 remains un-rebutted. The complainant has, thus, ably established his case. 27. The accused sought to rebut the presumption under Section 139 on the plank of lack of financial capacity of the complainant and the plea of lost cheque. Both the pleas have fallen flat and hence the presumption under Section 139 of the Act, 1881 remains un-rebutted. The complainant has, thus, ably established his case. 27. In view of the discussions of evidence, at paragraphs-19 and 20, it appears that the learned trial Court did not take into consideration such vital evidence as well as the materials on record and had such materials been taken into consideration, the accused could not have secured an order of acquittal. Therefore, the judgment of the learned trial Court suffers from perversity, requiring interference by this Court. 28. Therefore, the judgment of the learned trial Court is set aside and the appeal is allowed. 29. Accordingly, the accused-respondent is held guilty for commission of an offence under Section 138 of the Act of 1881 and is convicted. On conviction, the accused-respondent is sentenced to simple imprisonment for 1 (one) year and to pay compensation of Rs. 20,00,000/- (Rupees Twenty Lakhs only) and in default of payment of compensation, shall suffer simple imprisonment for another 6 (six) months. 30. The compensation, if realised, be given to the complainant/appellant. 31. The accused/respondent is directed to surrender before the learned trial Court to serve out the sentence within 1 (one) month. 32. Send back the LCR alongwith a copy of this judgment.