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2024 DIGILAW 288 (GUJ)

Jivanbhai Narsinhbhai Patel v. State Of Gujarat

2024-02-13

M.K.THAKKER

body2024
JUDGMENT : 1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ hereinafter) challenging the judgment and order passed by the learned 17th Additional Chief Judicial Magistrate, Vadodara in Criminal Case No.10829 of 2013 dated 05.09.2023. 2. The case of the complainant in the complaint is that the complainant had decided to sale the land bearing survey Nos.72 and 73 to the accused and the consideration of the aforesaid land per bigha was decided of Rs.16,00,000/. As per the case of the complainant, Banakhat which was executed wherein the condition mentioned is that the sale deed is to be executed in the name of the person, whose name would be suggested by the respondent-accused. As per the suggestion of the respondent-accused, the sale deed was executed in favour of Kantilal Ranchorbhai Tada and the amount of sale consideration was paid as per the jantri value. With regard to the amount beyond the jantri value, the cheque was issued of the amount of Rs.76,60,505/by the respondent-accused dated 18.02.2013 bearing cheque No.608610 of Bank of Baroda, Savali Branch. 2.1. It is further the case of the complainant that in addition to the aforesaid cheque, other cheques were also given with regard to the payment of the amount of sale consideration. The assurance was given at the time of issuance of cheque by the respondent-accused that on depositing the cheque, the same would be honored and the amount would be credited in the account of the complainant. 2.2. On depositing the cheque, it was dishonored with an endorsement of ‘Today’s refer to drawer “Insufficient Fund”. On 22.02.2013. On receiving the return memo from the Bank, the demand notice was issued on 04.03.2013 to the respondent-accused, which was refused by the accused and return on 07.03.2013. However, the respondent-accused neither complied with the demand notice nor replied to the same. As the amount was not paid therefore, private complaint came to be filed for the offence punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter) before the learned competent Court. On filing the private complaint, verification under Section 200 of the Cr.P.C. was recorded and thereafter process came to be issued under Section 204 of the Cr.P.C. 2.3. On filing the private complaint, verification under Section 200 of the Cr.P.C. was recorded and thereafter process came to be issued under Section 204 of the Cr.P.C. 2.3. On being appeared by the respondent-accused, the plea came to be recorded below Exhibit 7 wherein the respondent-accused had pleaded innocent and claimed to be tried. 2.4. To bring home the guilt of the respondent-accused, the complainant himself was examined below Exhibit 11 and produced the cheque below Exhibit 29, returned memo Exhibit 30, legal demand notice Exhibit 31, post acknowledgment slip Exhibit 31. On filing the closing pursis below Exhibit 35, statement of the respondent-accused was recorded under Section 313 of the Cr.P.C. The respondent-accused contended in the further statement that no offence is committed by him. The land was sold by the complainant to the other person. The complainant had received the amount of sale consideration, however with a view to avoid the payment of amount of Rs.7,51,000/i. e. the amount given at the time of execution of Banakhat, the cheque which is lying with the complainant was misused. 2.5. To prove his defence, the complainant had produced the evidence of son which was recorded in the private complaint being No.10830 of 2013 below Exhibit 39 and the sale deed which was executed by the present complainant i.e. Jivanbhai Patel in favour of Kantibhai Ranchorbhai Tada below Exhibit 34. 2.6. Learned trial Court after considering the evidence placed by both the parties and the arguments advanced by the learned advocates for the respective parties, passed the judgment and order of acquittal on 05.09.2023 which is impugned before this Court. 3. Heard the learned advocate Mr.Darshit Thakkar for the appellant. As this Court has decided this appeal at admission stage after perusing the record and proceedings, no notice was issued to the respondent-accused. 4. Learned advocate Mr.Darshit Thakkar for the appellant submits that the judgment and order of the trial Court was passed without considering the material placed by the complainant and without rebutting the presumption, which is in favour of the complainant by the respondent-accused. Learned advocate Mr.Thakkar submits that the learned trial Court disbelieved the case of the complainant only because the complainant failed to produce the copy of the Banakhat which was executed between the complainant and the respondent-accused. Learned advocate Mr.Thakkar submits that the learned trial Court disbelieved the case of the complainant only because the complainant failed to produce the copy of the Banakhat which was executed between the complainant and the respondent-accused. Learned advocate Mr.Thakkar submits that as the sale deed was executed in favour of Kantibhai Tada, whose name was suggested by the present respondent, the respondent had undertaken the payment of the amount, which is over and above of the Jantri value. Learned advocate Mr.Thakkar submits that for the payment of the said amount, the disputed cheque was issued. However, the learned trial Court has passed the judgment and order of the acquittal on the ground that the land for which the transaction was taken placed was the ownership of the father therefore, the complainant is not having authorization to file the complaint by the father neither any legally enforceable debt occurred qua the complainant by the respondent-accused. 4.1. Learned advocate Mr.Thakkar further submits that the learned trial Court had relied on the evidence which was recorded in the case registered by the son being Criminal Case No.10830 of 2013 below Exhibit 31 and passed the judgment and order of the acquittal. Learned advocate Mr.Thakkar submits that in fact the evidence, which was recorded in the present complaint, was discarded by the learned trial Court and it was observed by the learned trial Court in the impugned order that sale deed which was produced below Exhibit 34 by the respondent-accused is between Kantibhai Tada and the present complainant where the father admitted the amount which was received by him. 4.2. Learned advocate Mr.Thakkar submits that there was no any dispute with regard to the amount of the sale consideration mentioned in the sale deed, however, beyond the jantri value the amount was promised to have been paid by the respondent-accused, the respondent-accused had issued the cheque for the payment of the aforesaid amount which was dishonored. 4.3. Learned advocate Mr.Thakkar submits that the signature on cheque was not disputed by the accused. The notice was sent by the complainant, the accused had refused the notice. So, the notice was deemed served to the accused and the accused had accepted the version of the notice. 4.4. In support of his submissions, learned advocate Mr.Thakkar relies on the decision of the Apex Court rendered in case of Triyambak S. Hegde vs. Sripad, reported in 2022(1)SCC 742. So, the notice was deemed served to the accused and the accused had accepted the version of the notice. 4.4. In support of his submissions, learned advocate Mr.Thakkar relies on the decision of the Apex Court rendered in case of Triyambak S. Hegde vs. Sripad, reported in 2022(1)SCC 742. 4.5. Learned advocate Mr.Thakkar submits that though presumption which is in favour of the complainant under Sections 118 and 139 of the N.I.Act was not rebutted, the judgment and order of the acquittal which was passed and is required to be interfered with and the appeal is required to be allowed. 5. Considering the submissions advanced by the learned advocate Mr.Thakkar for the appellant, before going into the merits of the case, relevant provisions of the N.I.Act is required to be looked into. Sections 118, 138 and 139 are reproduced hereinbelow: “Section 118 – Presumptions as to negotiable instruments Until the contrary is proved, the following presumptions shall be made: of consideration; that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; as to date; that every negotiable instrument bearing a date was made or drawn on such date; as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; as to time of transfer; that every transfer of a negotiable instrument was made before its maturity; as to order of indorsements; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; as to stamp; that a lost promissory note, bill of exchange or cheque was duly stamped; that holder is a holder in due course; that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an SP offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burthen of proving that the holder is a holder in due course lies upon him. 138. Dishonour of cheque for insufficiency, etc., of funds in the account. 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 [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, [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.] Section 139- in The Negotiable Instruments Act, 1881 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. 6. 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. 6. Considering the above provisions, what is the presumption that is elaborated in the judgment rendered by the Hon’ble Apex Court in the case of M.S.Narayana Menon vs. State Of Kerala reported in (2006) 6 SCC 39 and a discussion with regard to the same is reproduced herein below. “40. “In P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd edition, at page 3697, the term 'presumption' has been defined as under: "A presumption is an inference as to the existence of a fact not actually known arising from its connection with another which is known. A presumption is a conclusion drawn from the proof of facts or circumstances and stands as establishing facts until overcome by contrary proof. A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged but of which there is no direct proof. It follows, therefore that a presumption of any fact is an inference of that fact from others that are known". (per ABBOTT, C.J., R. v. Burdett, 4 B. & Ald, 161) The word 'Presumption' inherently imports an act of reasoning a conclusion of the judgment; and it is applied to denote such facts or moral phenomena, as from experience we known to be invariably, or commonly, connected with some other related facts. (Wills on Circumstantial Evidence) A presumption is a probable inference which common sense draws from circumstances usually occurring in such cases. The slightest presumption is of the nature of probability, and there are almost infinite shades from slight probability to the highest moral certainty. A presumption, strictly speaking, results from a previously known and ascertained connection between the presumed fact and the fact from which the inference is made." Having noticed the effect of presumption which was required to be raised in terms of Section 118(a) of the Act, we may also notice a decision of this Court in regard to 'presumption' under Section 139 thereof”. 7. 7. Now keeping in mind the above settled position of law if the merits of instant is examined then in the complaint, it is the case of the complainant that the Banakhat was executed between the complainant and the respondent-accused for the sale of the land of survey Nos.72 and 73. As per the condition of the Banakhat the sale deed is to be executed in the name, which would be suggested by the respondent-accused. As per the suggestion of the respondent-accused, the sale deed was executed with one Kantibhai Ranchorbhai Tada and the amount of jantri value was received i.e. Rs.38,49,495/. For the payment of the amount which is beyond the jantri value, the cheque was issued by the respondent-accused for the amount of Rs.76,60,505/dated 18.02.2013. On dishonoring of the said cheque, the private complaint came to be filed. As per Section 118 of the N.I.Act, after proving the primary requirement, the burden is shifted on the respondent-accused to rebut the presumption which is in favour of the complainant. To rebut the presumption the complainant was cross examined by the respondent-accused wherein the following admission was made by the complainant. A. That Banakhat was executed between me and the accused. The accused had paid the earnest money of Rs.7,51,000/to me as the title clearance could not be procured therefore accused had dropped the idea to purchase the land. After the execution of the Banakhat with the accused, subsequent Banakhat was executed with Kantilal Ranchorbhai Tada. In the year 2012, the sale deed was executed with Kantilal Ranchorbhai Tada. Sale consideration amount Rs.30,49,495/is received by me. At the time of execution of sale deed inquiry was made with regard to payment of the sale consideration amount, which is noted in the document. The said sale deed is produced below Exhibit 34 wherein admission is reflected with regard to the receiving the amount of Rs.38 Lakh in cash as per the Banakhat No.568 of 2012 along with possession. The cheque bearing No.024067 of Rs.38 Lakh was received of the Karnataka Bank. In the sale deed, it is admitted that the amount of Rs.38,49,495/was received by me. In addition to the cheque, which was given at the the time of execution of Banakhat accused had given more cheques to me. The amount of Rs.7,51,000/which was given at the time of execution of the Banakhat by the accused is still lying with me. In the sale deed, it is admitted that the amount of Rs.38,49,495/was received by me. In addition to the cheque, which was given at the the time of execution of Banakhat accused had given more cheques to me. The amount of Rs.7,51,000/which was given at the time of execution of the Banakhat by the accused is still lying with me. On the question being asked that if anything remained i.e. to be recovered from the Kantibhai, the answer is given that, ‘yes it is true, but the undertaking was given by the Palakbhai therefore, the sale deed was executed. The amount of Rs.16 Lakh per Bigha which was fixed and the agreement to sell to the other person for that no any plea was executed.’ The writing whatever was done by my son. B. It is true that I have received the amount of Rs.7,51,000/from the respondent-accused. At the time of giving the cheque i.e. of Rs.7,51,000/, the accused had given the other cheque also. There is a civil case which is going before the Civil Court, Vadodara with regard to this survey number. Before the High Court also the cases are going wherein the High Court has granted status quo. C. After execution of the Banakhat in favour of the respondent-accused, one more Banakhat was executed in favour of Kantibhai Ranchorbhai on 30.04.2012 by my father. That Banakhat was registered before the authority. In the said Banakhat the amount of sale consideration was fixed for the survey Nos.72 and 73 is of Rs.38,49,495/. The said amount was paid by Kantibhai Tada. Sale deed was executed in favour of Kantibhai Tada on 28.05.2012, remaining amount as per the sale deed of Rs.49,495/was paid by Kantibhai Tada to my father. D. It is true that the amount of sale consideration as per the jantri value was received by us. There was no any signature of my father and the Kantibhai Tada as a purchaser and seller in the sale deed which was executed between them. E. It is true that there was no any deed produced before the Court, which was executed with regard to the sale of land between Palakbhai Patel and Kantibhai Tada. There was no any sale deed which was executed either with me or with my father. The Banakhat which was executed with the respondent-accused is not produced before the Court. E. It is true that there was no any deed produced before the Court, which was executed with regard to the sale of land between Palakbhai Patel and Kantibhai Tada. There was no any sale deed which was executed either with me or with my father. The Banakhat which was executed with the respondent-accused is not produced before the Court. The amount of Banakhat i.e. Rs.7,51,000/is still lying with me. The cheque which was issued by the respondent-accused in favour of my father and my father is legally authorized to use that cheque. My father had given one cheque to me after filling up the column of name, there was no any consent agreement which is produced before the Court. F. The amount of sale deed was paid to my father by Kantibhai Tada. The amount of Banakhat was paid by the respondent-accused to purchase the land bearing survey Nos.72 and 73. Thereafter, no sale deed was executed. The amount of Banakhat if, required to be repaid then that is to be paid by my father. G. It is true that the signature of the respondent-accused was not taken as a witness in the sale deed which was executed with Kantibhai Tada with a view that in future he may not raise any grievance. 8. One more aspect is required to be considered is that said the sale deed was executed on 28.05.2012 and the disputed cheque was issued on 18.02.2013 i.e. after nine months on execution of the sale deed. Even if, the case of the complainant believed to be true than also the cheque was issued for the payment of the amount over and above of the jantri value was after six months which is difficult to accept and that also in absence of any agreement between the complainant and the respondent-accused. 9. Considering this cross examination, it comes on the record that after execution of Banakhat with the complainant, the sale deed was executed by the complainant before execution of the sale deed and the amount of the Banakhat which was received from the accused i.e. Rs.7,51,000/is still lying with the complainant. It further transpires that the cheuqe in question is issued at the time of the execution of the Banakhat as it was admitted by the complainant in his cross examination. It further transpires that the cheuqe in question is issued at the time of the execution of the Banakhat as it was admitted by the complainant in his cross examination. As after execution of the Banakhat, the sale deed was executed with the other person, wherein no signature of the respondent-accused is obtained and with a view that amount which is lying with the complainant towards the execution of the Banakhat is not to be repaid, this false complaint is filed by the complainant. 10. Considering this cross examination and the evidence produced by the defence, this Court comes to the conclusion that the respondent-accused had successfully rebutted the presumption, which is in favour of the complainant. As per the settled provisions of law that on rebutting the presumption again the burden would shift on the complainant to prove his case beyond reasonable doubt, the onus to prove the case has not been discharged by the complainant and therefore, the learned trial Court has rightly acquitted to the respondent-accused from the charges. 11. It is held by the Apex in the case of Rohitbhai Jivanlal Patel vs. State of Gujarat, reported in (2019) 18 SCC 106 as under: “Appellate Court will not be upsetting judgment of acquittal, in view taken by trial Court is one of the possible views of matter and unless appellate court arrives at clear finding that judgment of acquittal is : (i) perverse that is not supported by evidence on record; or (ii) contrary to what is regarded as normal or reasonable; or(iii) wholly unsustainable in law-Such general restrictions are essentially to remind the appellate court that accused is presumed to be innocent unless proved guilty beyond reasonable doubt and judgment of acquittal further strengthens such presumption in favour of accused. Such restrictions needed to be visualised in the particular matter before the appellate court and the nature of the inquiry therein.” 12. Such restrictions needed to be visualised in the particular matter before the appellate court and the nature of the inquiry therein.” 12. This being a criminal appeal, as per the law laid down by the Apex Court in case of Chandrappa and others vs. State of Karnataka, reported in (2007) 4 SCC 415 wherein the general principles were laid down regarding the powers of the Appellate Court while dealing with the appeal against an order of the acquittal, which are reproduced hereinbelow: “(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. (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 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.” 13. This being an acquittal appeal as per the law laid down by the Apex Court unless the findings of the learned trial Court is found to have been perverse, illegal or without giving proper weightage to the evidence, the appellate court cannot interfere with. 14. This being an acquittal appeal as per the law laid down by the Apex Court unless the findings of the learned trial Court is found to have been perverse, illegal or without giving proper weightage to the evidence, the appellate court cannot interfere with. 14. Considering the above judgment and the overall circumstances of the case, this Court is of the view that the judgment and order of acquittal passed by the learned trial Court is in accordance with law and there is no any illegality, perversity or impropriety found in the judgment and, therefore, the same is required to be confirmed. 15. In view of the above discussion, this appeal is dismissed. The judgment and order passed by the learned 17th Additional Chief Judicial Magistrate, Vadodara in Criminal Case No.10829 of 2013 dated 05.09.2023 is hereby confirmed. 16. Record and Proceedings be sent back to the concerned learned trial Court.