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2024 DIGILAW 313 (GUJ)

Abdur Razzak Saiyed v. Zainab Asfak Saiyed

2024-02-15

M.K.THAKKER

body2024
JUDGMENT : 1. This appeal is filed under Section 378 of the Code of Criminal Procedure challenging the judgment and order passed by the learned 3rd Additional Judicial Magistrate First Class, Bharuch dated 17.06.2023 in Criminal Case No.1051 of 2018. 2. The appellant is the original complainant, who lodged the private complaint against the four accused persons wherein, accused no.4 – Zainab Asfak Saiyad is the daughter of the complainant, accused no.3 – Asfakali Noorali Saiyad is the husband of accused no.4 and accused no.1 – Noorali Gulamnabi Saiyad and accused no.2 – Noorjahan Noorali Saiyad are the father-in-law and mother-in-law of the respondent no.4. 3. It is the case of the complainant that the complainant is the resident of Bharuch and doing the business of ready-made garment in the name and style of ‘Orange Collection’. The complainant is having one son and three daughters. It is the case of the complainant that the marriage of the accused no.4 solemnized with the accused no.3 on 16.09.2017 and the accused nos.1 and 2 are the father-in-law and mother-in-law of the accused no.4. The accused no.4 was used to handle the cash counter of the shop and the financial aspect was managed by the accused no.3 and accused no.4. As there was loss in the ready-made business, therefore, sale was organized on 01.01.2017 and during that time, one shop situated at Ankleshwar was fired off. 4. It is the case of the complainant that on 05.03.2017, the accused nos.1 to 4 came to the house of the complainant and conveyed that they want to purchase the big house wherein, all the family members including his daughter can stay peacefully. For purchasing the said house, financial assistance of Rs.23,50,000/- was sought. As the accused no.4 was the daughter of the complainant, the complainant had arranged the funds and lent the money on assurance to pay the same within a short period. After some time, when the demand was made with regard to the said amount, it was conveyed that the property which is situated at Mumbai is already sold off and two cheques were issued of Rs.12,50,000/- each on 20.11.2017 with assurance that on depositing the same, the amount would be credited in his account. On depositing the cheques, the same were dishonoured with an endorsement of ‘insufficient fund’. On depositing the cheques, the same were dishonoured with an endorsement of ‘insufficient fund’. Therefore, the complainant had informed the accused nos.1 to 4 however, the accused nos.1 to 3 had issued threats that they would harass his daughter. 5. The notice came to be issued on 29.11.2017 which was replied by the respondents – accused on 06.12.2017 and thereafter, the private complaint came to be filed before the learned competent Court on 09.04.2018 against all the four accused. After recording the verification, the process came to be issued against signatory of the cheque i.e. accused no.4 and the plea was recorded of Zainab Asfak Saiyad - accused no.4 wherein, she denied the allegation. To prove the guilt of the accused, the complainant had examined himself below Exh.6 and produced 9 documentary evidence and on filing the closing purshish below Exh.44, further statement under Section 313 of the Code of Criminal Procedure was recorded. In the statement, the accused no.4 had stated that the complainant is the father and the marriage of daughter i.e. accused no.4, which was solemnized with Asfakali Noorali Saiyad did not like to the complainant and, therefore, to harass the husband and the family members and to see that the divorce of the accused no.4 is taken place, by misusing the cheques which were lying with the father, false complaint came to be filed. It is further contended that she had not received a single pie from the father nor issued any cheques. 6. After considering the material placed on record and the arguments advanced by the learned advocates for the respective parties, the learned trial Court acquitted the respondents – accused from the charges under Section 138 of the Negotiable Instruments Act, which is impugned before this Court. 7. Heard learned advocate Mr.Mohammed Musaib Shaikh for the appellant. 8. The learned advocate submits that the respondents – accused did not produce any evidence in support of their defense nor created any circumstances during the cross-examination however, without rebutting the presumption which is in favour of the complainant under Sections 118 and 139 of the Negotiable Instruments Act, the learned trial Court acquitted the respondents – accused. 8. The learned advocate submits that the respondents – accused did not produce any evidence in support of their defense nor created any circumstances during the cross-examination however, without rebutting the presumption which is in favour of the complainant under Sections 118 and 139 of the Negotiable Instruments Act, the learned trial Court acquitted the respondents – accused. The learned advocate submits that the learned trial Court made an observation in the impugned judgment that as the accused no.4 is a stepdaughter and the marriage which was solemnized with accused no.3 was not with the consent, the false case is filed. The learned advocate submits that in fact, the contrary aspect was proved that the marriage was solemnized with the consent of the father, therefore, there was no any question with regard to the disliking the marriage and, therefore, the false complaint. The learned advocate submits that the minor discrepancies were given much weightage. The learned advocate submits that Exh.42, the Income Tax return, which was produced by the complainant suggests that the amount was lent to accused no.1 – Noorali, who is the father-in-law of the accused no.4. However, on the ground that no any reference with regard to the lending of the amount to the accused no.4 is mentioned and, therefore, the said Income Tax return was discarded. The learned advocate submits that the learned trial Court also did not believe the legally enforceable debt and come to the conclusion that the complainant did not prove that the consideration amount is paid to the accused. The learned advocate further draws the attention of this Court that the learned trial Court has acquitted the accused on the ground that on the date, when the amount was lent, there was no any marriage which was solemnized of the respondent no.3 with the daughter of the complainant. By submitting the same, the learned advocate prays to quash the impugned order and to convict the respondents – accused for the charges and punish accordingly. 9. Considering the arguments advanced, before entering into the merits of the case, this Court deems it fit to relook the relevant provisions of the Negotiable Instruments Act. 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: 1. 9. Considering the arguments advanced, before entering into the merits of the case, this Court deems it fit to relook the relevant provisions of the Negotiable Instruments Act. 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: 1. 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; 2. as to date; that every negotiable instrument bearing a date was made or drawn on such date; 3. as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; 4. as to time of transfer; that every transfer of a negotiable instrument was made before its maturity; 5. as to order of indorsements; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; 6. as to stamp; that a lost promissory note, bill of exchange or cheque was duly stamped; 7. 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. 10. Considering the above provisions, what is the presumption, is required to be considered first. 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. 10. Considering the above provisions, what is the presumption, is required to be considered first. As per the law laid down by the Hon’ble Apex Court in the case of M.S.Narayana Menon vs . State Of Kerala reported in (2006) 6 SCC 39 , the presumption is defined as under:- “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”. 11. The presumption is a probable inference which common sense draws from the circumstances usually occurring in such cases. 11. The presumption is a probable inference which common sense draws from the 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. 12. Now, considering the above aspects, if we may look into the merits of the case, then from the complaint, it is averred that the accused no.4 is the step-daughter of the complainant whose marriage was solemnized with accused no.3 on 16.09.2017 and to purchase a big house, the amount was sought on 05.03.2017 which was lent by the complainant and to repay the same, two cheques were issued by the accused on 20.11.2017 which were dishonoured and for that, the complaint came to be filed. On dishonouring of the cheques, notice came to be issued below Exh.15 and on service of the said notice, reply came to be filed below Exh.20. The detailed reply suggests that the name of the real mother of the accused no.4 is Raziaben Zuzurbhai Soljar and on death of the father, the marriage of the mother was solemnized with the complainant in the year 2000. The previous marriage of accused no.4 was solemnized at Kosamba village in the year 2010 and thereafter, the mother, namely, Raziaben has taken divorce in the year 2010 from the complainant. The complainant had taken the benefit of immaturity of the accused no.4 and she was insisted to take the divorce on the ground that the complainant would take good care of the accused no.4 and there would not be any difficulty in future with the complainant. On being instigated, the divorce was taken by the accused no.4 and she started to stay with the father i.e. the complainant. From the earlier marriage, the father had taken the amount of Rs.2 lacs and utilized the same for his personal expenses. As the accused no.4 was the only girl in the house, staying with the father i.e. the complainant had taken undue advantage and she was mentally and physically harassed. The accused no.4 is not an educated girl and knowing that forge documents were created by the complainant and the loan was obtained from the bank on the basis of the said documents. The accused no.4 is not an educated girl and knowing that forge documents were created by the complainant and the loan was obtained from the bank on the basis of the said documents. 13. After tolerating the harassment for quite long time, the marriage of accused no.4 was solemnized with the accused no.3 on 16.09.2017, at that time, the condition was imposed by the father that after the marriage, on each Saturday and Sunday, she has to come alone and has to stay with the father and has to fulfill all the unreasonable demands. Prior to the marriage, she was taken to the shop, namely, ‘Orange Collection’ and forced to perform the job of sales girl and even she was forced to do the cleaning and household work as well. During this time, the bank account, which was opened and the cheque book which was issued by the bank was in the possession of the complainant and the complainant used the said cheques by making the false signature. The loan which was taken in the name of accused no.4, was also not repaid by the complainant and the said account was declared N.P.A. 14. In the reply to demand notice, it is stated that no any cheque was issued by the respondents – accused nor any amount was taken by any of the accused from the complainant. As the accused no.4 denied the unreasonable demand of the complainant, to see that her marriage is dissolved, this false case was filed. The aforesaid reply to the notice was admitted to have received in the cross-examination by the complainant. 15. In addition to the said reply to the demand notice, the complainant was cross-examined by the learned advocate for the respondents – accused wherein, the following admissions were made by the complainant:- i. The accused no.4 is the step-daughter and was taking care of the shop. ii. There was a partnership on paper between the accused and the complainant in the name of ‘Orange Collection.’ iii. There was a fire in the shop on 26.02.2017 situated at Ankleshwar. iv. No documents have been produced to show that on 05.03.2017, I was having the amount of Rs.23 lacs. v. It is not true that I was not knowing the accused before or on 05.03.2017. vi. The marriage of Zainab was solemnized with Asfakali on 16.09.2017. vii. There was a fire in the shop on 26.02.2017 situated at Ankleshwar. iv. No documents have been produced to show that on 05.03.2017, I was having the amount of Rs.23 lacs. v. It is not true that I was not knowing the accused before or on 05.03.2017. vi. The marriage of Zainab was solemnized with Asfakali on 16.09.2017. vii. On the day, when the amount was lent, there was no marriage between Zainab and Asfakali. viii. On which date and at which place, the amount was lent, is not mentioned in the complaint as well as in the examination-in-chief. ix. Reply to the notice was received, which is produced below Exh.20. x. In the said reply, it is mentioned that due to my instigation, earlier marriage of accused no.4 was dissolved which was solemnized at Kosamba. xi. There was no any further reply of Exh.20 nor any notice was given by me. xii. On perusing the cheque below Exhs.12 and 13, the handwriting is not of Zainab, only she has signed the same. xiii. In the ‘Orange Collection’, the accused no.4 is the partner. xiv. In the Income Tax returns below Exh.42, the reference of the amount lent to Noorali Gulamnabi is mentioned. xv. The ‘Orange Collection’ is a partnership firm and the partnership agreement is lying with the bank. xvi. The ‘Orange Collection’ was having the account with Syndicate Bank and that account was operated by me and the accused no.4. xvii. There is a suit which is pending at Bharuch Court between the accused no.4 and the Syndicate Bank. 16. From the aforesaid cross-examination, it can be averred that the relation between the complainant and the accused no.4 is of step-father and the step-daughter. The marriage was solemnized on 16.09.2017 and before that, the amount was lent i.e. on 05.03.2017. There is one civil suit filed by the Syndicate Bank which is pending before the Bharuch Court. The account in the name of ‘Orange Collection’ was operated by the complainant and the accused no.4. On the day, when the amount was lent, there was no any marriage solemnized with accused no.3. There was no any document suggesting that on the day, i.e. on 05.03.2017, the complainant was having the cash of Rs.23 lacs and the handwriting on the disputed cheque is not of Zainab. 17. On the day, when the amount was lent, there was no any marriage solemnized with accused no.3. There was no any document suggesting that on the day, i.e. on 05.03.2017, the complainant was having the cash of Rs.23 lacs and the handwriting on the disputed cheque is not of Zainab. 17. Considering the same, it transpired that the presumption which is in favour of the complainant was rebutted by the respondents – accused. The respondents – accused had shown that the cheque is not supported by any form of consideration and the debt which is alleged against the respondents – accused appears to be non-existence. 18. This Court is of the view that any prudent man under the circumstances, which was created during the crossexamination and the reply to the demand notice, would come to the conclusion that the case which is contemplated by the complainant in the complaint, is not the same as projected. Lending the amount under the guise that all the accused are the in-laws of the daughter and on the ground that they want to purchase the big house and to see that all the accused can stay peacefully, is falsified by the fact that on the day when the amount was lent, there was no any marriage. 19. This Court has also considered the decision rendered by the Hon’ble Apex Court in the case of Basalingappa V/s. Mudibasappa reported in (2019) 5 SCC 418 . Paragraph 25 is reproduced herein below:- 25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner: 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence." 20. 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. 21. In view of the above discussion, this appeal fails and the judgment and order passed by the learned 3rd Additional Judicial Magistrate First Class, Bharuch dated 17.06.2023 in Criminal Case No.1051 of 2018 is hereby confirmed. 22. Record and Proceedings be sent back to the concerned learned trial Court.