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2022 DIGILAW 610 (GUJ)

Rao Maheshkumar Govindbhai v. State Of Gujarat

2022-04-28

RAJENDRA M.SAREEN

body2022
JUDGMENT : 1. This Appeal is filed by the appellant under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 13.08.2015 passed by the learned 7th Judicial Magistrate, First Class, Kalol in Criminal Case No.2272 of 2014, acquitting the private respondent No. 2 – original accused from the offence punishable under sections 138 of Negotiable Instrument Act. 2. The brief facts of the prosecution case is that the respondent No. 2 came upfront before the appellant to sell his house and the deal was made for 4,00,000/- The appellant lend the below amount by cheques. 1st cheque was issued on 9/3/2013 for Rs. 80,000/- 2nd cheque was issued on 19/3/2013 for Rs. 80,000/- and 3rd cheque was issued on 26/7/2013 for Rs. 28,000/- and the rest of the amount of Rs.2,25,000/- was given in cash to hand by the appellant to the respondent No.2. In return the appellant asked to do the registered banakhat of the house of the respondent no 2, for which he denied and changed his mind for not selling his home and gave a cheque of Rs. 4,00,000/- to clear the debt. 2.1. The said cheque given by the respondent No.2 was presented in Bank of India by the appellant and the same was bounced on 28/1/2014. Therefore, the appellant send a legal notice to the respondent No. 2 on 14/2/2014 through R.P.AD. The said notice was received by the respondent No.2 on 15/2/2014. 2.2. As there was no reply from the respondent No.2, the appellant - filed a complaint on 24/3/2014 u/s. 138 of The Negotiable Instruments Act in against of the respondent No. 2 for the disputed amount of Rs. 4,00,000/- before the JMFC Court of Kalol. 2.3. The respondent No. 2 has been acquitted by the learned trial court. Being aggrieved and dissatisfied by the aforesaid judgement and order of acquittal, the appellant has preferred the present Appeal. 3. Mr.Harik Barot, learned advocate for the appellant – original complainant has submitted that the impugned judgement and order passed by the trial court is illegal, erroneous, contrary to law and against the evidence. 3.1. Mr.Harik Barot, learned advocate for the appellant has submitted that the accused wanted to sell his small 1 BHK Flat (kapileshwar Aapartment, Kalol (N.G.) - District - Gandhinagar) to the appellant amounting Rs. 11 lakhs. 3.1. Mr.Harik Barot, learned advocate for the appellant has submitted that the accused wanted to sell his small 1 BHK Flat (kapileshwar Aapartment, Kalol (N.G.) - District - Gandhinagar) to the appellant amounting Rs. 11 lakhs. Therefore, Banakhat was to be done and so the appellant had given Rs. 9,41,000/- to the accused with mentioned below entries - - By 1st cheque on 9/3/2013 for Rs.50,000/- - By 2nd cheque on 19/3/2013 for Rs.50,000/- - By 3rd cheque on 26/7/2013 for Rs. 25,000/- - By Cash Rs. 2,25,000/- Later on the accused denied to sell the house, so no Banakhat was executed and therefore, the appellant demanded his money back. 3.2. Mr.Harik Barot, learned advocate for the appellant has submitted that accused gave the disputed cheque with his own specimen signature being the sole signatory to the disputed cheque Cheque bounced due to insufficient funds. No dispute of signature & body initials was raised. Cheque was not sent before hand-writing expert and no opinion of expert was obtained and no expert is examined. 3.3. Mr.Harik Barot, learned advocate for the appellant has submitted that Legal notice was served, but there was no reply to it from accused, therefore, by default, it is presumed, the contents of notice and story are rightly proved. 3.4. Mr.Harik Barot, learned advocate for the appellant has submitted that Appellant’s source of income clean and clear being SBI bank officer and not required to produce his income documents, however, application made before the court for submitting appellants income-tax documents and bank statements and those were referred in the trial and given mark but they were not exhibited as the Hon’ble court instructed to give them exhibit at the time of final arguments and henceforth, remained as mark till the end of the trial. As a matter of fact, in reference to the above aspect, the appellant does not requires to submit any such evidence pertaining to his income as he himself is a Bank Officer in nationalized bank of SBI. 3.5. Mr.Harik Barot, learned advocate for the appellant has submitted that Rs.1,25,000/- given through cheque proves the case of the appellant by default to make the remaining nexus of Rs.2,,75,000/-. 3.6. 3.5. Mr.Harik Barot, learned advocate for the appellant has submitted that Rs.1,25,000/- given through cheque proves the case of the appellant by default to make the remaining nexus of Rs.2,,75,000/-. 3.6. Mr.Harik Barot, learned advocate for the appellant has submitted that Accused has taken simple denial with an excuse that the cheque is misused and the said story not proved and not acceptable in the eyes of law. 3.7. Mr.Harik Barot, learned advocate for the appellant has submitted that for what security purpose he had given the cheque to the appellant is not mentioned and no reason, disclosure or explanations is shown on the records. 3.8. Mr.Harik Barot, learned advocate for the appellant has submitted that looking on the whole case, there is not a single evidence on the records which can establish that the appellant has misused the cheque of the respondent No. 2 and if he had misused it, then when, why and how? The same is not proved. 3.9. Mr.Harik Barot, learned advocate for the appellant has submitted that no complaint made before concerned police station or court by the accused for lost, stolen or theft of the cheque or demanding the cheque back. 3.10. Mr.Harik Barot, learned advocate for the appellant has submitted that the accused had failed with cogent evidence and has not rebutted the presumption as per section 139 of the Negotiable Instruments Act. 3.11. Mr.Harik Barot, learned advocate for the appellant has relied upon the decision in the case of Rangappa Vs. Mohan, reported in 2010 (3) Crimes (SC) 40 in support of his submission that in the offence under section Negotiable Instruments Act, 1881 Sec 138, 139 where there was dishonour of check under section 138, the Hon’ble Court considered the applicability and presumption in favour of holder and held that the accused had failed to repay loan and allegation that check issued by accused was dishonoured as accused had given instructions of stop payment and the defence of accused was that check was blank and it was lost and that complainant had misused and the accused did not give reply to notice, however, in cross-examination it was revealed that accused was aware that check was with complainant. On interpretation of section 139 of Act which shifts burden of proof on to accused in respect of check bouncing cases, the Hon’ble Court held that the accused failed to rebut accused could have rebutted statutory presumption presumption from material produced by complainant and held that the orders of High Court calls for no interference and disposed off the appeal. 3.12. Mr.Harik Barot, learned advocate for the appellant has relied upon the decision reported in the case of R. Mohan Vs. A.K. Vijaya Kumar, reported in 2013 (1) GLR 222 in support of the case that in the offence under section 138 of N.I. Act contention was raised by accused that blank cheque was given by way of security is misused by complainant and considering on facts that facts taken by accused is absent in his reply to notice, the Hon’ble Court rejected the contention and confirmed the conviction. 3.13. It is submitted by Mr.Barot that looking to the facts, merits, circumstances and evidences of the case available on the records, the judgement passed by the Hon’ble JMFC court needs to be quashed and set aside and the original complainant deserves to be awarded with the compensation of the disputed cheque amount of Rs. 4 lakhs along with the interest. 4. Mr.Neeraj Soni, learned advocate for the respondent No.2 original accused has submitted that once it is admitted by the accused that the cheque is signed by the accused, the accused has to bring on record facts and circumstances upon consideration of which the Court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would act upon plea that it did not exist. Said fact and circumstance emerges from following details: 4.1. Mr.Neeraj Soni has submitted that according to the appellant, he has paid Rs. 4,00,000/-, Rs. 1,25,000/- by cheque and Rs. 2,75,000/- in cash. The appellant needs to prove that the same is received by the accused. However, following facts categorically establish that the appellant has not discharged his burden to prove his case. 4.2. Mr.Neeraj Soni has submitted that the appellant ought to have placed on record bank entry of alleged three cheques given by him to the accused and the same is debited from the account of the appellant. It can be examined from two sets of evidence, namely, income tax returns, account statement. 4.3. 4.2. Mr.Neeraj Soni has submitted that the appellant ought to have placed on record bank entry of alleged three cheques given by him to the accused and the same is debited from the account of the appellant. It can be examined from two sets of evidence, namely, income tax returns, account statement. 4.3. Mr.Neeraj Soni has submitted that Income-tax Return does not depict any debt much less of the amount lent to the accused. 4.4. Mr.Neeraj Soni has submitted that secondly, account statements produced by the appellant do not reflect any amount borrowed by the applicant except page 141. However, said account is probably in the name of the wife of the appellant and the statement does not mention anything to reflect that the same was even a joint account of the appellant and of his wife. 4.5. Mr.Neeraj Soni, learned advocate for the respondent No.2 original accused has submitted that the appellant has stated that he has kept a record of the amount paid to the accused by cash. It is stated by the appellant in his cross examination that Bachubhai Pandya is his accountant. However, no independent witness is examined, not even his accountant. Therefore, the appellant has failed to prove the fact that any amount is paid by the appellant to the accused. 4.6. Mr.Neeraj Soni, learned advocate for the respondent No.2 original accused has submitted that since learned trial court has referred and listed aforementioned documents in judgment, the accused is required to explain it. However, the appellant has not proved the aforesaid documents - mark 19/1, 19/2, 19/3, therefore, the same are not exhibited and may not be considered. 4.7. Mr.Neeraj Soni, learned advocate for the respondent No.2 has submitted that the appellant has admitted few facts in his cross examination which categorically prove that the appellant does not have specific knowledge about mode of payment and few facts are self-contradictory and inconsistent to the facts mentioned by the appellant in the complaint and notice. 4.8. Mr.Neeraj Soni, learned advocate for the respondent No.2 original accused has submitted that it is the case of the appellant that the accused was in need of money and wanted to sell his house to the appellant. The appellant wanted to purchase the same and had paid Rs. 4,00,000/-. 4.8. Mr.Neeraj Soni, learned advocate for the respondent No.2 original accused has submitted that it is the case of the appellant that the accused was in need of money and wanted to sell his house to the appellant. The appellant wanted to purchase the same and had paid Rs. 4,00,000/-. It is respectfully stated that it is a concocted story by the appellant as the appellant has admitted few facts in his cross examination. The cheque was given by the accused to the appellant was for security purpose, which is misused by the appellant 4.9. Mr.Neeraj Soni, learned advocate for the respondent No.2 original accused has relied upon the decision in the case of Basalingapa Vs. Mudibasappa, reported in 2019 (5) SCC 418 in support of his submission that the presumption u/s 139 is a rebuttable presumption; the onus is not heavy upon the accused; when the accused is entitled for acquittal; the burden can be discharged by direct evidence or by bringing on record the preponderance of probability and the accused can rely upon material submitted by the complainant. 4.10. Mr.Neeraj Soni, learned advocate for the respondent No.2 original accused has relied upon the decision reported in Anss Rajashekar Vs. Augustus Jeba Ananth, reported in 2020 15 SCC 348 in support of his submission that the presumption is rebuttable; and on the issue of preponderance of probabilities and legal debt. 4.11. Mr.Neeraj Soni, learned advocate for the respondent No.2 original accused has relied upon the decision in the case of M.S. Narayana Menon @ Mani Versus State of Kerala, reported in 2006 (6) SCC 39 in support of his submission that the cheque is issued for security or for any other purpose, the same would not come within the purview of Sec. 138 of the Act; where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below. 5. By making above submissions and relying upon above decisions, Mr.Neeraj Soni, learned advocate for the respondent has requested not to disturb the impugned judgement and order and dismiss the appeal. 5. Heard the learned advocates for the respective parties and gone through the impugned judgement and order of the trial court as well as the entire material on record. 6. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. 5. Heard the learned advocates for the respective parties and gone through the impugned judgement and order of the trial court as well as the entire material on record. 6. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice in favour of the Accused, firstly, the presumption of innocence is available to him under the Fundamental Principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of Law. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court. 7. On perusal of the record it appears that the court below has acquitted the respondent No.2 – accused on the following grounds; (a) As per the case of the complainant, for purchase of the house of the accused, he paid cheques and cash totalling to Rs.4,00,000/- to the accused and in that connection, the complainant had issued the cheque. The complainant has not produced any documentary evidence, such as bank pass book, banakhat or deposition of any third party. (b) The appellant has produced the extract of account but the person who has prepared the account is not examined. It has also not come on record that on what basis the said account is prepared. Any statement or account accompanying the Income tax Verification Form has not been produced on record. (c) The complainant has admitted in his deposition that he was aware that the House bearing no.B/8, Kapileshvar Apartment was not in the name of the accused. He has further admitted that no banakhat has been registered for sale of the aforesaid house with the accused. He also admitted that no suit for recovery of the amount has been filed by the complainant against the accused. (d) There is no writing with respect to cash payment of Rs.2,75,000/- by the complainant to the accused, though he is aware that the payment more than Rs.50,000/- is required to be made by cheque or draft. 8. He also admitted that no suit for recovery of the amount has been filed by the complainant against the accused. (d) There is no writing with respect to cash payment of Rs.2,75,000/- by the complainant to the accused, though he is aware that the payment more than Rs.50,000/- is required to be made by cheque or draft. 8. I have gone through the material on record and on thoughtful consideration I am also of the opinion that the findings recorded by the trial court is just and proper and in consonance with the evidence on record and no other conclusion is possible. 9. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:- “6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 : “8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808 , this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed: "27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition: "I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos." 28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793 , as is clear from the following observations: "Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations." “9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court." 8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under: “36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.” 10. In that view of the matter, the Criminal Appeal being devoid of merits is dismissed.