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2024 DIGILAW 2220 (GUJ)

Amaratji Bhathiji Parmar v. State Of Gujarat

2024-12-18

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : (Hemant M. Prachchhak, J.) 1. Present appeal is filed by the appellant – original complainant under Section 378(1)(3) of the Criminal Procedure Code, 1973 against the impugned judgment and order dated 13.11.2006 passed by the learned Judicial Magistrate First Class, Idar in Criminal Case No. 797 of 2001 whereby the learned Magistrate has acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter be referred to as “the N.I. Act”. 2. Brief facts of the present case, in nutshell, are that on 24.02.2001, the respondent – accused had borrowed Rs.83,000/- from the appellant – original complainant. It is alleged that after two months, the complainant demanded the said amount, accused had given a cheque bearing No.42969 dated 02.06.2001 drawn on Dena Bank, Jadar Branch, which came to be deposited by the appellant in his bank account and the same was returned with an endorsement “insufficient fund”. It is also alleged that the appellant had given notice to the respondent - accused and, thereafter, filed a complaint under Section 138 of the N.I. Act before the learned Magistrate. 2.1 After hearing the learned counsel appearing for the respective parties and considering the evidence available on record, the learned Magistrate acquitted the respondent – accused for the charges levelled against him. 3. Being aggrieved by and dissatisfied with the aforesaid judgment and order of acquittal the appellant has preferred this Appeal. 4. Heard Mr.Himanish Japee, learned counsel for Mr.J. V. Japee, learned counsel for the appellant, Ms.Megha Chitalia, learned Additional Public Prosecutor for the respondent – State of Gujarat and Mr.P. B. Odedra, learned counsel for Mr.Ashish Dagli, learned counsel for the respondent - accused at length. 5. Mr.Japee, learned counsel for the appellant, while referring to the entire oral as well as documentary evidence, has assailed the impugned judgment and order and has submitted that the learned Magistrate has not taken into consideration the evidence connecting the accused to the alleged offence in its proper perspective. He has submitted that the learned Magistrate ought to have believed that the appellant has been able to prove the charges levelled against the accused. He has submitted that the appellant has produced the evidence in support of the case, however, the learned Magistrate has discarded and disbelieved the same and passed the impugned judgment and order. He has submitted that the learned Magistrate ought to have believed that the appellant has been able to prove the charges levelled against the accused. He has submitted that the appellant has produced the evidence in support of the case, however, the learned Magistrate has discarded and disbelieved the same and passed the impugned judgment and order. He has submitted that the accused has not disputed the issuance of the cheque and the signature and, therefore, he has not objected such fact. He has submitted that so far as the finding recorded by the learned Magistrate with regard to the service of notice to the accused is concerned, the accused has also not disputed the fact that the notice was not served upon him and hence, the learned Magistrate has overlooked this aspect and misread the provision of the law. He has submitted that the accused has not raised the dispute with regard to enforceable debt before the learned Magistrate and therefore the impugned judgment and order passed by the learned Magistrate is erroneous. According to his submission, the learned Magistrate ought to have convicted the accused and ought to have imposed necessary sentence. He has prayed to allow the present appeal and to quash and set aside the impugned judgment and order of acquittal. 6. Mr.Odedra, learned counsel for the respondent – accused has submitted that the learned Magistrate has not committed any error of fact and law in passing the impugned judgment and order of acquittal. He has submitted that the appellant has failed to establish the fact that he was having sufficient fund but advance the hand-loan to the accused in the year 2001. He has submitted that the appellant has not examined his father and brother as in whose presence the amount was advanced to the respondent and, therefore, the learned Magistrate has rightly discussed in para-9 of the judgment that the appellant has failed to established the fact that he was having sufficient fund to advance huge amount of Rs.83,000/-. He has submitted that the appeal being meritless deserves to be dismissed and the impugned judgment and order of the learned Magistrate deserves to be confirmed. 7. At this juncture, it is required to be noted that the present appellant was working as driver. He has submitted that the appeal being meritless deserves to be dismissed and the impugned judgment and order of the learned Magistrate deserves to be confirmed. 7. At this juncture, it is required to be noted that the present appellant was working as driver. Even in his deposition, the appellant has admitted that he was not having any bank account so from where he collected the amount of Rs.83,000/- and no any document was produced by the appellant with regard to his salary and out of his salary how he has saved money. In those days being a driver of the truck, whether it was possible to earn and save the amount to advance to the others and this fact was not replied by the appellant before the Court. It was specific contention of the appellant that the amount of Rs.83,000/- containing bundle of Rs.100/- each plus Rs.3,000/-, in presence of his father and brother, he has advanced to the accused as hand-loan. But the reason best known to the appellant, as to why he has not examined his father and brother as witness before the Court to prove the fact that he has advanced the amount to the accused. So far as the capacity of the person is required to be seen, while deciding the complaint filed under Section 138 of the N.I. Act that whether the appellant is able to advance the amount at that relevant point of time or not. For the said reason, it is worthwhile to refer to the decision of the Hon’ble Supreme Court in the case of Sri Dattatraya Vs. Sharanappa reported in AIR 2024 SC 4103 wherein the Hon’ble Supreme Court has held and observed in para – 30 as under:- “30. Moreover, affirming the findings of the Trial Court, the High Court observed that while the signature of the Respondent on the cheque drawn by him as well as on the agreement between the parties herein stands admitted, in case where the concern of financial capacity of the creditor is raised on behalf of an accused, the same is to be discharged by the complainant through leading of cogent evidence.” 8. This Court has perused the judgment and order of acquittal rendered by the trial Court and carefully considered the rival contentions, evidence and material placed on record. 9. This Court has perused the judgment and order of acquittal rendered by the trial Court and carefully considered the rival contentions, evidence and material placed on record. 9. This Court is of the opinion that the learned Magistrate has recorded the findings on the basis of the oral as well as documentary evidence and the impugned judgment and order is just and proper and in consonance with the settled principles of law. When the Court has considered the basic facts of Section 138 of the N.I. Act to prove legal enforceable debt and with regard to the financial capacity of the person, whether the complainant is able to advance hand-loan to the others or not, however, he was silent on this aspect and even he has not produced any document in this regard. In the cross-examination, the complainant has admitted that he was not having any bank account and earning Rs.3,000/- per month from the transportation work. If the complainant was earning Rs.3,000/- per month, for which he has not produced any relevant document to the said aspect at that relevant point of time. Under such circumstances, the observation made by the learned Magistrate is in consonance with the settled principle of law and sustainable in the eyes of law. On perusal of the cross-examination of the complainant, it appears that he has admitted that he was working with the accused as driver and driving the truck bearing registration No.GJ-9-5000 and even prior to 2001, he was driving the truck of the accused. It is also revealed from the deposition of the complainant that there was dispute relating to the account as the appellant was serving as driver on the said truck and after completing trip he had not furnished any account details to the respondent. Therefore, there are all probabilities that the appellant has filed the complaint wherein there are so many facts stated, which fact is admitted by the appellant before the Court. Therefore, the story put forward by the appellant was rightly disbelieved by the trial Court and after examining oral as well as documentary evidence, the learned Magistrate has right passed the impugned judgment and order of acquittal. Therefore, the story put forward by the appellant was rightly disbelieved by the trial Court and after examining oral as well as documentary evidence, the learned Magistrate has right passed the impugned judgment and order of acquittal. Considering the overall facts and circumstances of the case and perusing the impugned judgment and order of the learned Magistrate, it transpires that the learned Magistrate has not committed any error of facts and law in passing the impugned judgment and order of acquittal. 10. It is pertinent to refer to the decision of the Hon’ble Supreme Court in the case of Jugesh Sehgal Vs Shamsher Singh Gogi reported in 2009 (14) SCC 683 wherein the Hon’ble Supreme Court has held and observed in para – 9 as under:- “9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; (ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that 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; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank; (v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;” 11. It is well settled by catena of decisions that the an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption 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 reinforced, reaffirmed and strengthened by the trial Court. 12. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused are connected with the commission of the crime with which he is charged. 13. The scope and principles are enunciated by the Hon’ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415 , more particularly paragraph Nos. 42 and 43, which was subsequently reaffirmed by the Hon’ble Apex Court Rajesh Prasad Vs. 13. The scope and principles are enunciated by the Hon’ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415 , more particularly paragraph Nos. 42 and 43, which was subsequently reaffirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State of Bihar and another, reported in [2022] 3 SCC 471, wherein, the Hon’ble Apex Court has enunciated the general principles in case of acquittal, more particularly in paragraph No. 26 the general principles are set out by the Hon’ble Apex Court based upon various decisions of the Hon’ble Apex Court. Then in case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149 , the Hon'ble Apex Court has dealt with the similar issue, more particularly, in paragraph Nos. 37 to 40. Hence, I am in complete agreement with the findings recorded by the trial Court. 14. It is also worthwhile to refer to the recent decision of the Hon’ble Supreme Court in the case of Ramesh vs. State of Karnataka, reported in [2024] 9 SCC 169, wherein the Hon’ble Supreme Court has held and observed in paras-20 and 21 as under:- “20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa and others vs. State of Karnataka , regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal. The principles read thus: “42. …. (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption 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 reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice. Viewed in this light, the brusque approach of the High Court in dealing with the appeal, resulting in the conviction of Appellant Nos. 1 and 2, reversing the cogent and well-considered judgment of acquittal by the Trial Court giving them the benefit of doubt, cannot be sustained.” 15. Considering the entire evidence on record, it clearly appears that there is no credible evidence to connect the present accused with the alleged crime and the evidence on record is not so convincing to prove beyond reasonable doubt that the accused has committed the alleged crime. Considering the entire evidence on record, it clearly appears that there is no credible evidence to connect the present accused with the alleged crime and the evidence on record is not so convincing to prove beyond reasonable doubt that the accused has committed the alleged crime. Therefore, the accused cannot be convicted on the evidence on record. 16. On perusal of the impugned judgment and order, it clearly transpires that the trial Court has not committed any error of fact and law in appreciating the evidence on record and in acquitting the accused from the charges levelled against him. Even on reappreciation of the evidence, it clearly transpires that the prosecution has miserably failed to prove the charge levelled against the accused beyond reasonable doubt. Therefore, the impugned judgment and order of the trial Court is sustainable and the present appeal is liable to be dismissed. 17. In view of the above, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, it is dismissed. The impugned judgment and order of acquittal passed by the learned Judicial Magistrate First Class is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.