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Gujarat High Court · body

2023 DIGILAW 1173 (GUJ)

Bhavsar Vinodkumar Babulal v. State Of Gujarat

2023-12-20

M.K.THAKKER

body2023
JUDGMENT : M. K. Thakker, J. 1. This is an appeal filed by the appellant – original complainant under section-378 of the Code of Criminal Procedure challenging the judgment and order of acquittal dated 27.04.2023 below Exh.76 passed by the learned 4th Judicial Magistrate First Class, Mehsana in Criminal Case No.4545 of 2018, wherein, the learned trial Judge has acquitted the respondent – accused from the charges levelled against him under Section-138 of the N.I. Act. 2. It is the case of the complainant that the complainant is doing the business in the name and style of ‘Harikrushna Dresses’. As the complainant and the accused are the friends and relatives, they were knowing to each-other. It was conveyed by the respondent - accused that he is a Press Reporter and as the complainant is having son, who had completed the B.E. Mechanical in the year 2016, to get the job in O.N.G.C., it was conveyed by the accused to provide all the educational certificates and promise to give job within a period of six months. Under the guise to give job in the O.N.G.C., an amount of Rs.80,000/- was taken through the cheque on 23.06.2017; Rs.40,000/- was taken on 14.07.2017 and further Rs.40,000/- was taken on the same day i.e.14.07.2017, by way of cheque of different bank, in all, it is alleged in the complaint that Rs.1,60,000/- was withdrawn by the complainant through the aforesaid cheque and it was given to the respondent – accused. On completion of six months period, an inquiry was made with regard to the job as per promise, however, no satisfactory answer was given, therefore, money was demanded back and to repay the amount, the accused had issued a cheque for the amount of Rs.80,000/- being cheuqe no.000002 and an amount of Rs.80,000/- being a cheque no.000004 of dated 19.05.2018. An assurance was given that on depositing of the cheque, the amount would be credited in the bank account, however, on depositing the same, it was returned with endorsement of ‘stop payment’ on 01.06.2018. The complainant has issued notice on 07.06.2018 below Exh.16. As the accused neither replied to the notice nor complied with the notice, therefore, a private complaint came to be filed being Criminal Case No.4545 of 2018 before the competent court. 3. The complainant has issued notice on 07.06.2018 below Exh.16. As the accused neither replied to the notice nor complied with the notice, therefore, a private complaint came to be filed being Criminal Case No.4545 of 2018 before the competent court. 3. The learned trial Court after recording the verification of the complainant issue process under section-204 of the Cr.P.C. wherein, on appearance of the accused, plea below Exh.9 was recorded, wherein, the respondent – accused had pleaded not guilty and claimed to be tried. 4. To prove the case against the accused, the complainant examined himself below Exh.5 and also, examined one witness viz.Mukeshbhai Babaldas Rathod below Exh.36, in addition of aforesaid evidence, the documentary evidence, which is in the nature of cheque below Exh.13; return memo Exh.14; bank slip Exh.15; Post receipt of notice Exh.16; copy of the notice Exh.17; acknowledgment slip Exh.18 were produced. On filing the closing pursis, statement under Section-313 of Cr.P.C. was recorded, wherein, the respondent – accused has stated that the cheque, which was lying towards the security with the complainant, was misused and false complaint has been filed. 5. To rebut the presumption, which is in favour of the complainant in addition to the cross-examination of the complainant, the accused himself was examined below Exh.58 and produced documentary evidence, which is in the nature of application of stop payment below Exh.59; abstract of register Exh.60; identity card Exh.61; copy of the cheque book Exh.62 were produced. After considering the documents and the arguments advanced by the learned advocates for the respective parties, the learned trial Court comes to the conclusion that the complainant fails to prove the case and therefore, the respondent – accused is required to be acquitted. Hence, the judgment and order of acquittal was passed, which is impugned before this Court. 6. Heard learned advocate Mr. N.D. Songara for the appellant – original complainant; Mr. Kamlesh Kotai, learned advocate for the respondent no.2 – accused and Ms. Divyangna Jhala, learned APP for the respondent no.1 – State. 7. Mr. N. D. Songara, learned advocate for the appellant – original complainant submits that though the issuance of the cheque or the signature on the cheque was not disputed by the respondent – accused, the learned trial Court had passed the judgment and order of acquittal. Divyangna Jhala, learned APP for the respondent no.1 – State. 7. Mr. N. D. Songara, learned advocate for the appellant – original complainant submits that though the issuance of the cheque or the signature on the cheque was not disputed by the respondent – accused, the learned trial Court had passed the judgment and order of acquittal. Learned advocate further submits that in the cases, which is arising from the offence under Section-138 of the N.I. Act, wherein the presumption, which is in favour of the complainant under Sections-118 and 139 of the Act is available, learned trial Court ought to have shifted the burden to rebut the presumption and as the respondent – accused had failed to rebut the presumption, the learned trial Court ought to have convicted the respondent – accused from the charges. Learned advocate submits that with regard to the amount, which was given by the complainant, no denial was made by the respondent – accused and therefore, the complainant though had proved the legally enforceable debt against the respondent – accused, the learned trial Court passed the judgment and order of the acquittal. 8. Mr. Songara, learned advocate further submits that in addition to the evidence of the complainant, the complainant had also examined one witness viz.Mukeshbhai Babaldas Rathod below Exh.36 in whose presence the amount was given to the respondent – accused to have the job for son and the said witness was not cross-examined by the respondent – accused, the learned trial Court had discarded the evidence of this witness without any cogent reason and acquitted the respondent – accused. Learned advocate further submits that the learned trial Court had believed the evidence of the accused witness, who was examined below Exh.58 viz.Ashokkumar Popatlal Shah, the bank officer of Sarvodaya Co.operative Bank, who stated in his evidence that initially the disputed cheque was mentioned as ‘self’ and subsequently, there was over written and for that, signature was also made by the respondent accused and the name of the complainant was mentioned. Learned advocate submits that the respondent – accused had not denied the said signature and the bank officer had stated that there was no any difference in the signature, which was compared with the specimen signature card lying at the bank. Learned advocate submits that the respondent – accused had not denied the said signature and the bank officer had stated that there was no any difference in the signature, which was compared with the specimen signature card lying at the bank. Learned advocate submit that while acquitting the respondent – accused, the learned trial Court had held that the complainant failed to prove legally enforceable debt against the respondent – accused and therefore, he is not liable to be convicted for returning of the cheque. 9. Learned advocate Mr. Songara submits that the judgment and order of acquittal passed by the learned trial Court is without any cogent reason and against the material and evidence, which was produced before the learned trial court and hence, the same deserves to be interfered with and the appeal is required to be allowed and it was prayed that the respondent – accused be convicted for the alleged charged. 10. Considering the submissions made by the learned advocate for the complainant and considering the records, which is part of the appeal, it transpired that during the cross-examination of the complainant, it was admitted by the complainant that the amount was given to have the job of the son in the O.N.G.C. In the cross-examination, it was admitted by the complainant that the accused is Press-Reporter and that fact was in the knowledge of the complainant. The complainant was knowing that the accused is not the Director in the O.N.G.C. It is admitted that he had not inquired with regard to the fact that the accused is having any connection with the O.N.G.C. It is admitted by the complainant that on putting the trust on respondent – accused, the documents were given as it was conveyed by the respondent – accused that today is the last date. It is further admitted by the complainant that there was no any inquiry, which is made with regard to the fact that the respondent – accused had given the job in the O.N.G.C. to any other person or not. It is admitted by the complainant that there was no application, which is preferred by the son to get job in the O.N.G.C. 11. It is admitted by the complainant that there was no application, which is preferred by the son to get job in the O.N.G.C. 11. Therefore, the question which is to be determined before this Court is that the cheque, which is issued by the respondent – accused in favour of the complainant was for the discharge of any legal debt or any other liability? 12. The relevant sections of the relevant context are reproduced herein below:- Section-2 – Interpretation clause. – In this Act the following words and expression are used in the following senses, unless a contrary intention appears from the context:- (a) xxxx (b) xxxx (c) xxxx (d) xxxx (e) xxxx (f) xxxx (g) An agreement not enforceable by law is said to be void; (h) xxxx (i) xxxx (j) xxxx Section-10. What agreements are contracts.– All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any lawin force in 1[India], and not hereby expressly repealed, by which any contract is required to be made in writing 2 or in the presence of witnesses, or any law relating to the registration of documents. Section-23 What consideration and objects are lawful, and what not. – The consideration or object of an agreement is lawful, unless – it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. Illustrations:- (a) xxxx (b) xxxx (c) xxxx (d) xxxx (e) xxxx (f) A promises to obtain for B an employment in the public service and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful. 13. From the aforesaid provisions, it transpired that the transaction, which was taken place, was for an illegal contract. 13. From the aforesaid provisions, it transpired that the transaction, which was taken place, was for an illegal contract. Section-23 of the Indian Contract Act provides that any payment of money, which was made by the complainant to the accused was not lawful, then the accused is not binding to the contract. 14. Section-138 of the N.I. Act provides as under:- 138 Dishonour of cheque for insufficiency, etc., of funds in the account. — Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19[a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.] 15. Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.] 15. The explanation to Section-138 of the N.I. Act makes it clear that the expression “debt or other liability” has reference only to legally enforceable debt or other liability. Conversely, if cheque is issued in respect of debt or liability, which is not legally enforceable, then the Section -138 of the Act would be applied. Section-23 of the Indian Act interalia stipulates that every agreement of which object or consideration is unlawful, is void. An agreement, which is void does not enforceable by law as per Section-2(g) and Section-10 of the Indian Act. 16. On plain reading of Section-138 of the N.I. Act, it would indicate that the execution of the contract is not sufficient to constitute an offence punishable under section-138 of the Act, unless it is proved that the debt or other liability is legally enforceable one. If any contract entered into between the parties without consideration or for a consideration, which would be an illegal consideration, that would not create any obligation or any liability. Any contract or agreement opposed to liability or forbidden by law, is not enforceable by law. Every debt or liability, upon which, the cheque is issued, is not enforceable. Hence, only claim arising out of enforceable debt or other liability, would not constitute an offence under Section-138 of the Act. In the instant case, a promise was made by the respondent – accused to give the job in the O.N.G.C. and for that, amount was taken and for the repayment of the same, a cheque in question was issued. The parties were aware of and have a knowledge that the said promise or agreement is unlawful and despite this, they go ahead with the said agreement. Therefore, the parties would not be able to take recourse of the provisions either under the Contract Act or under the N.I. Act. Securing a job in the O.N.G.C. is an unlawful object. What is unlawful is a consideration paid for it. In such a cases, neither party is a victim of contract, both have voluntarily and free consent join the contract. Therefore, this Court is of the view that the complainant cannot take the shelter of the law for the purpose of contract, which is not enforceable under the law. 17. What is unlawful is a consideration paid for it. In such a cases, neither party is a victim of contract, both have voluntarily and free consent join the contract. Therefore, this Court is of the view that the complainant cannot take the shelter of the law for the purpose of contract, which is not enforceable under the law. 17. Therefore, this Court is agreed with the conclusion of the learned trial Court that the complainant was aware with the illegality of the agreement, when it was entered into and therefore, he cannot take shelter of any legal provision. 18. This being an acquittal appeal, as per the judgment rendered by the Hon’ble High Court of Gujarat Court in the case of State of Gujarat V/s. Jitendra C. Thakkar reported in 2017 (4) GLR 3200 wherein it is held that when two views are possible, the view which is in favour of the accused is to be considered. 6.10 That in an appeal against acquittal filed under Section 378 of the Code, 1973, as such there is no limitation on the Appellate Court to review the evidence. But at the same time, if on fact as well as on law, conclusion drawn by the trial Court based on appreciation of evidence unless compelling, cogent and substantial reasons appear for interference and when findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable, acquittal is not to be reversed or disturbed. When acquittal is based on the surmises and conjectures and not substantiated by law and evidence on record, an Appellate Court may re-appreciate and review the entire evidence to see that undue benefit is not given to the accused. Now, it is well settled that even if two views are possible, the Appellate Court shall not ordinarily interfere with the judgment of acquittal in a routine manner unless the judgment of the trial Court is per se wrong on facts and on law or perverse, substituting its own views by the High Court is not permissible. Now, it is well settled that even if two views are possible, the Appellate Court shall not ordinarily interfere with the judgment of acquittal in a routine manner unless the judgment of the trial Court is per se wrong on facts and on law or perverse, substituting its own views by the High Court is not permissible. That in case of acquittal, it is to be borne into mind by the Appellate Court that there is double presumption in favour of the accused that firstly, presumption of innocence in favour of a guilty on the premise that every person should be presumed to be innocent unless he is proved to be guilty by the Court of Law, and secondly, when accused secures an acquittal, such presumption of innocence is reinforced and reaffirmed by the trial Court. 19. In view of the same, the judgment and order of acquittal dated 27.04.2023 below Exh.76 passed by the learned 4th Judicial Magistrate First Class, Mehsana in Criminal Case No.4545 of 2018 is just and proper and therefore, there is no interference is called for. Hence, the present appeal is dismissed. Record and proceedings be sent back to the concerned Court forthwith. ORDER IN CRIMINAL MISC. APPLICATION (DIRECTION) NO.1 of 2023:- In view of the order passed in main appeal, the Criminal Misc. Application for direction does not survive and hence, the same is disposed of accordingly.