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2018 DIGILAW 1784 (BOM)

Shyam Harnamdas Gangwani v. Suresh Puniyani

2018-07-24

A.S.CHANDURKAR

body2018
JUDGMENT A.S. Chandurkar, J. - This appeal filed under section 378 of the Code of Criminal Procedure, 1973 takes exception to the judgment dated 19.04.2007 by the learned Judicial Magistrate First Class (Special Court), Nagpur thereby dismissing the complaint filed by the appellant under Section 138 of the Negotiable Instrument Act, 1881 (for short, ''the said Act'') and acquitting the respondent no.1 herein. 2. The facts relevant for adjudicating the appeal are that it is the case of the complainant that he had advanced an amount of Rs. 1,00,000/- ( Rupees One Lakh) to the accused by way of hand loan. For the purposes of repaying that amount, the accused issued a cheque bearing no.032648 dated 06.07.2000. This cheque was dishonoured on account of insufficiency of funds. After receiving intimation from the bank, the complainant issued a notice to the accused on 12.07.2000. After receiving that notice, the accused replied to the same on 27.07.2000 and denied the contents of the notice issued by the complainant. It was stated that one Wasudeo Gangwani was assisting the accused in his business affairs and that when the accused was ill, he had retained two blank cheques that were signed by the accused and had later on misused the same. As the notice issued by the complainant was not complied with, criminal complaint under Section 138 of the said Act came to be filed. 3. Process was accordingly issued by the learned Judicial Magistrate First Class. The complainant examined himself below Exhibit 33. The accused examined himself at Exhibit 48 as well as another witness at Exhibit 55. The learned Magistrate held that the accused had succeeded in rebutting the presumption that the cheque at Exhibit 37 was not drawn by him for discharge of any legal liability. The complaint was accordingly dismissed and the accused came to be acquitted. Being aggrieved, the complainant has filed the present appeal. 4. The learned counsel for the appellant submitted that the learned Magistrate erred in dismissing the complaint. It was submitted that the complainant had led sufficient evidence on record to indicate that the cheque at Exhibit 37 was issued by the accused towards discharge of legal liability. An amount of Rs. 1,00,000/- ( Rupees One Lakh) was advanced to the accused by way of hand loan and for the purposes of repaying the same, the said cheque came to be issued. An amount of Rs. 1,00,000/- ( Rupees One Lakh) was advanced to the accused by way of hand loan and for the purposes of repaying the same, the said cheque came to be issued. It was submitted that the accused had admitted his signature on the cheque at Exhibit 37. Having admitted that signature, the burden shifted on the accused to disprove that the said cheque was not issued for discharge of any legal liability. The defence as sought to be raised was vague and it was denied by the complainant that said Wasudeo Gangwani was his father. The learned counsel then submitted that the trial Court gave undue importance to the corrections made in the complaint by the use of whitener. Said fact was not relevant while deciding the complaint but undue importance had been given to the same by the learned Magistrate. Infact, said corrections were made prior to filing of the complaint but said fact was ignored while deciding the same. Though it was the case of the accused that his two cheques were misused, there was no complaint or report lodged by the accused in that regard. It was thus submitted that the learned Magistrate by taking into consideration irrelevant factors has proceeded to dismiss the complaint and acquit the accused. He submitted that a clear case for convicting the accused under Section 138 of the said Act was made out. 5. The respondent no.1 though served has not chosen to contest the appeal. The learned Additional Public Prosecutor appeared for the respondent no. 2. 6. I have heard the learned counsel for the appellant at length and I have also perused the records of the case. According to the complainant, he had on 09.12.1999 and thereafter from time to time advanced an amount of Rs. 1,00,000/- ( Rupees One Lakh) to the accused. To repay that amount, the cheque at Exhibit 37 dated 06.07.2000 came to be issued. In the reply to the notice issued by the complainant, a stand has been taken by the accused that one Wasudeo Gangwani was looking after his business and during the absence of the accused, said Wasudeo Gangwani was entrusted with a blank chequebook duly signed by the accused. Two blank cheques including the one which was the subject matter of the present proceedings came to be misused. Two blank cheques including the one which was the subject matter of the present proceedings came to be misused. In the light of the aforesaid, the parties led their evidence before the trial Court. The factors which weighed with the trial Court while acquitting the accused and dismissing the complaint are that the complainant was aware about the defence being raised by the accused in view of the reply given to the notice at Exhibit 42. According to the trial Court, said Wasudeo Gangwani was a relative of the complainant but he was not his father. The accused had examined DW2 Ram Narayan to prove the relationship of the complainant with Wasudeo Gangwani. This witness had stated that Wasudeo Gangwani was the real father of the complainant and that the complainant was subsequently adopted by one Harnamdas. The trial Court found that this part of the evidence remained unchallenged. Thereafter the trial Court found that the complaint was intended to be filed by the complainant through his duly constituted Power of Attorney holder Wasudeo Gangwani. This conclusion was drawn from the fact that said matter was duly typed in the complaint and was subsequently erased by using a whitener. The fact that the complainant did not produce his account books to indicate payment of Rs. 1,00,000/- ( Rupees One Lakh) to the accused and date of payment of Rs. 50,000/- ( Rupees Fifty Thousand) not being mentioned in the complaint was another factor found against the complainant. It is on that basis that the trial Court found that this material was sufficient for discharging the burden under Section 139 of the said Act on the part of the accused. 7. Before appreciating the evidence on record, it would be necessary to keep in mind the following legal position as laid down in paragraphs 12 and 13 of the decision of the Hon''ble Supreme Court in the case of K. Prakashan vs. P.K. Surenderan (2008 (2) Mh.L.J. 771). "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." 8. The cheque at Exhibit 37 is admitted to be signed by the accused. The initial presumption that arises is that the cheque was issued for discharge of legal liability and therefore the burden was on the accused to raise a probable defence that said cheque was not issued for any legal liability. As can be seen from the aforesaid legal position, that the standard of proof for the prosecution is proof of guilt beyond all reasonable doubt while that on the accused is only preponderance of probability. In the reply to the notice issued to the complainant, it is the stand of the accused that whenever the accused was required to leave Nagpur in connection with his business, said Wasudeo Gangwani used to assist him. To enable the business affairs being conducted smoothly, a blank chequebook signed by the accused was given to said Wasudeo Gangwani who thereafter misused two blank cheques. The accused has admitted that two cases under Section 138 of the said Act were filed against him, one by said Wasudeo Gangwani and the other being the present case. According to the complainant, said Wasudeo Gangwani was his relative. DW2Ram Narayan at Exhibit 55 was the person from the community of the parties and he had deposed that the complainants real father was Wasudeo Gangwani and that the complainant was subsequently adopted. It can be seen that this specific statement is not challenged in the cross-examination of the said witness. If in the light of aforesaid material, the complaint is perused, it is evident to the naked eye that the complaint was sought to be presented by the complainant through his constituted Power of Attorney holder Wasudeo Gangwani. It can be seen that this specific statement is not challenged in the cross-examination of the said witness. If in the light of aforesaid material, the complaint is perused, it is evident to the naked eye that the complaint was sought to be presented by the complainant through his constituted Power of Attorney holder Wasudeo Gangwani. It can be seen that the complaint was also signed by said Power of Attorney holder. Thereafter with the use of whitener, said statements and signatures have been sought to be erased. In the light of the aforesaid evidence on record, I do not find that the learned Magistrate committed any error in noting the manner in which the complaint was sought to be presented. Said fact merely fortifies the stand taken by the accused that Wasudeo Gangwani was the father of the complainant and that while working with him, two cheques were misused at his instance. The erasures on the complaint being evident, the same can be considered as an additional factor while weighing the evidence on record. 9. In the complaint it was stated by the complainant that on 09.12.1999 and thereafter from time to time, amounts were paid to the accused making a total of Rs. 1,00,000/-( Rupees One Lakh). In his cross-examination, the complainant has stated that on 09.12.1999, Rs. 50,000/- ( Rupees Fifty Thousand) were advanced and thereafter on 15.02.2000, another amount of Rs. 50,000/- ( Rupees Fifty Thousand) was advanced. If these details were available with the complainant, same could have been mentioned in the complaint. Moreover, despite admitting that the amount of Rs. 1,00,000/- ( Rupees One Lakh) advanced by him was shown in his account books, the complainant failed to produce the same. He was also not having any acknowledgment or receipt to indicate such amount being paid to the accused. It cannot be lost light of that the parties being businessmen, if the hand loan was advanced in cash, it was normally expected that the repayment would also be made in the same manner. It is not the case of the complainant that the hand loan was advanced by way of cheque and that he received back the repayment in the same manner. Another vital admission of the complainant is that he was not having any business transactions with the Roop Varsha Textorium which was the firm of the accused. It is not the case of the complainant that the hand loan was advanced by way of cheque and that he received back the repayment in the same manner. Another vital admission of the complainant is that he was not having any business transactions with the Roop Varsha Textorium which was the firm of the accused. In the light of aforesaid material on record, it is found that the accused has succeeded in raising a defence based on preponderance of probability. When the entire material on record is taken into consideration, it is found that the accused has succeeded in raising the said defence warranting his acquittal. Needless to state that what is under challenge is the judgment of acquittal and merely because two views are possible, it would not be a ground to reverse a judgment of acquittal. The scope in that regard is limited. In the light of aforesaid discussion, no fault can be found with the view taken by the trial Court while acquitting the accused. The trial Court was justified in dismissing the complaint. 10. Accordingly, the appeal fails and the same is therefore dismissed leaving the parties to bear their own costs.