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2024 DIGILAW 371 (GUJ)

Panchal Maheshbhai Shantilal v. State Of Gujarat

2024-02-22

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 of acquittal passed by the Special Court (Negotiable Instruments Act) Vadodara in Criminal Case No.379 of 2015 (Old Criminal Case No.2512 of 2012) dated 03.06.2023, whereby the respondent-accused was acquitted from the charge under Section 138 of the Negotiable Instruments Act, 1886. 2. The case of the complainant is that the respondent-accused is doing the business as a land broker. The land which is situated at survey No.50/2 having area 01 Hector 66 Are and 93 Square meters was the ownership of the complainant. As the complainant intended to sale the land, the complainant contacted the respondent-accused. The respondent-accused had conveyed that if power of attorney would be executed in his favour then only he would help to the complainant for selling the land. Therefore, the power of attorney was executed on 03.08.2010 in favour of the respondent-accused. The respondent-accused had informed that as and when the buyer would be available he would call. Thereafter, the complainant was called by the respondent-accused at his office and informed that the buyer is available, on which rate he intended to sale the land. The rate was fixed per square feet of Rs.61. The Banakhat was executed on 27.07.2011 with the purchaser wherein the condition was imposed that the sale deed is to be executed at the rate of Rs.61 per square feet within a period of six months from the date of execution of Banakhat. On the same day, the possession receipt was also executed in the name of the purchaser, which was notarized before the advocate Mr.V.P.Shah. In the said Banakhat as well as in the possession receipt respondent-accused signed as a witness. 2.1. After 10 months of the execution of the Banakhat, the complainant was called at the office of the respondent-accused and informed that with a view to save money by evading the payment of stamp duty, the purchaser convey to execute the sale deed for the amount of Rs.74 Lakh and for the remaining amount the respondent-accused would issue the cheque in favour of the complainant and the said amount is not to be mentioned in the sale deed. As the total consideration would come to Rs.1,09,56,617/, the complainant was paid Rs.74 Lakh and for the remaining amount of Rs.33 Lakh the respondent-accused issued the cheque being the cheque No.047558 of Karnataka Bank, Vidhyutnagar, Vadodara Branch dated 05.07.2012. An assurance was given that on depositing the said cheque, the amount would be credited in the account of the complainant. 2.2. The complainant had deposited the said cheque in the account on 28.09.2012 which was dishonored with an endorsement of “Insufficient Fund” on 04.10.2012. On being contacted, the respondent-accused had given evasive reply, therefore the demand notice came to be issued on 30.10.2012, which was returned with an endorsement of refused. Therefore, private complaint came to be filed before the competent court under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ hereinafter). 2.3. After recording the verification, the summons came to be issued under Section 204 of the Cr.P.C. and on being appeared plea was recorded of the respondent-accused below Exhibit 4 on 12.03.2020. The respondent-accused pleaded innocent and claimed to be tried therefore, to prove the case against the respondent-accused the complainant examined himself at Exhibit 9 and produced the documentary evidence in the nature of power of attorney, which was given in favour of the respondent-accused dated 03.08.2010 below Exhibit 11. The Banakhat which was executed with the purchaser on 27.07.2011 below Exhibit 12, possession receipt dated 27.07.2011 below Exhibit 13, sale deed dated 11.05.2012 below Exhibit 14, original cheque of Rs.33 Lakh below Exhibit 15, return memo dated 04.10.2012 below Exhibit 16, copy of the delivery book of Vijiya Bank below Exhibit 17, legal notice below Exhibit 18, post receipt below Exhibit 19 and notice cover wherein endorsement of refuse is made Exhibit 20. 2.4. On filing the closing pursis below Exhibit 24, the statement under Section 313 of the Cr.P.C. came to be recorded of the accused, wherein the respondent-accused pleaded that the cheuqe which was given for the payment of premium amount for conversion of the land was altered and with a view to avoid payment of expenses which made for developing land, the cheque was misused. 2.5. It is further contended that there was no any sale transaction with the appellant and false complaint is filed. 3. Heard the learned advocate Mr.Jay Thakkar for the appellant. 2.5. It is further contended that there was no any sale transaction with the appellant and false complaint is filed. 3. Heard the learned advocate Mr.Jay 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.Jay Thakkar for the appellant submits that the respondent-accused did not enter into witness box neither lead any evidence to prove the defence and the bare words of the respondent-accused was accepted and the judgment and order of the acquittal was passed by the learned trial Court. Learned advocate Mr.Thakkar submits that there was no any dispute with regard to the signature, issuance and delivery of the cheque, however, the learned trial Court acquitted the respondent-accused though the presumption, which is favour of the complainant was not rebutted by the respondent-accused either during the cross examination or by leading the independent evidence. 4.1. Learned advocate Mr.Thakkar submits that notice which was returned with the endorsement of refuse, is a valid service in view of the decision rendered by the Apex Court in the case of C.C.Alavi Haji vs. Palapetty Muhammed and another, reported in (2007) 6 SCC 555 . Learned advocate Mr.Thakkar further relies on the decision rendered by the Apex Court in the case of K.N.Beena vs. Muniyappan and another, reported in (2001) 8 SCC 458 and submits that the respondent-accused had to prove in trial, by leading cogent evidence that there was no any debt or liability and when the accused failed to discharge the burden of proof that the cheque was not issued for a debt or liability, the respondent-accused is required to be convicted for the charges. 4.2. Learned advocate Mr.Thakkar further submits that by not following the settled principles, the learned trial Court has committed a grave error and therefore, the judgment and order of acquittal is required to be interfered with and appeal is required to be allowed. 5. Considering the submissions made 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. 5. Considering the submissions made 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. Keeping in mind the above settled position of law, now in the merit of the appeal is to be considered which is mentioned herein below. 7.1. 7. Keeping in mind the above settled position of law, now in the merit of the appeal is to be considered which is mentioned herein below. 7.1. It is the case of the complainant that initially the power of attorney was executed with the respondent-accused, who is the land broker on 03.08.2010. Thereafter, the Banakhat was executed with the purchaser namely Chandrakantbhai and possession receipt was also executed in favour of Chandrakantbhai. Both these documents were notarized before the Notary and after 10 months of the execution of these documents, the sale deed was executed in favour of Chandrakantbhai by the complainant wherein the amount of sale consideration was mentioned as Rs.74 Lakh. 7.2. It was alleged in the complaint that there was an understanding with the respondent-accused that with the remaining amount of Rs.33 Lakh, the respondent-accused issued the cheque from his account in favour of the complainant and as per that understanding the disputed cheque was issued on 05.07.2012, which was deposited by the complainant on 28.09.2012 and on dishonoring of the same, private complaint came to be filed. 7.3. To rebut the presumption which is in favour of the complainant, the complainant did not produce any evidence except to cross examine the complainant. During the cross examination following admissions were made by the complainant: A. The sale deed which was executed was the ownership of the complainant. I have evidence to show that the sale deed was executed with the accused. I have the copy of the Banakhat, which was executed with the respondent-accused. He shown readiness to produce the said Banakhat on record. B. He admitted that all the deeds which were executed qua the land were done with Chandrakantbhai. Sale deed was also executed in favour of Chandrakantbhai. In the said sale deed, the complainant has not signed as a witness. C. Chandrakantbhai belongs to the village of the complainant. D. Whatever the financial transactions done with Chandrakantbhai were done with him only. The jantri value was suppressed in the sale deed. The sale deed was executed as per the jantri value with Chandrakantbhai. In the sale deed, it is mentioned that amount of sale consideration is received by the complainant. Rs.74 Lakh was received towards the sale consideration. D. Whatever the financial transactions done with Chandrakantbhai were done with him only. The jantri value was suppressed in the sale deed. The sale deed was executed as per the jantri value with Chandrakantbhai. In the sale deed, it is mentioned that amount of sale consideration is received by the complainant. Rs.74 Lakh was received towards the sale consideration. E. The land is having the more value then the amount which is mentioned in the sale deed, but the less price is shown in the sale deed and the amount taken above the sale deed can be considered as black money. There is a written agreement which was executed by the respondent-accused to make the payment of the amount over and above the jantri value. F. In Exhibits 12 and 13 there is no name of the accused is mentioned either as a executor or executee. Exhibits 12 and 13 were notarized after being read by the complainant and copy was also provided to the complainant. G. Different rates are mentioned in the Banakhat and possession receipt with regard to the land. In the complaint and the notice there was no any reference with regard to the amount, which is due of Rs.35,56,617/. This cross examination was held on 05.01.2020 and it was adjourned for further cross examination on 30.06.2020. On being further cross examined, the complainant admitted that the purchaser namely Chandrakantbhai Chunilalbhai was belong to the same village and the complainant known him from his birth. Even today also Chandrakantbhai is staying in the same village and the complainant is having very good relations with the said Chandrakantbhai. He knows the accused from the year 2008. Accused is not belonging to his caste neither his friend. Normally for the transaction of the huge amount, there would be a written agreement. On last day the readiness which was shown to produce the documentary evidence against the accused, he did not procure that as he is not having the same. There is no any document to show that the respondent-accused executed the payment with regard to the cheque amount. H. There is no any written argument with Gopalbhai with regard to the cheque amount. The amount of the sale consideration was received from Chandrakantbhai. As and when he received the amount, he executed the deeds in favour of Chandrakantbhai. All the amounts are mentioned in the Exhibit 14. H. There is no any written argument with Gopalbhai with regard to the cheque amount. The amount of the sale consideration was received from Chandrakantbhai. As and when he received the amount, he executed the deeds in favour of Chandrakantbhai. All the amounts are mentioned in the Exhibit 14. On being perused Exhibit 14, the amount is stated of Rs.74 Lakh. Exhibit 12 reflects the name as executee Chandrakantbhai and executor as Maheshbhai Panchal i.e. the complainant. All the amount received from Chandrakantbhai. I. It is true that in Exhibit 12 the rate mentioned at Rs.52 per square feet, in the Exhibit 13 rate mentioned at Rs.61 per square feet. The reference of the amount received was not made either in Exhibit 18 or complaint or his chief examination. The land which was sold was of new tenure land. To transfer this new tenure land, it is converted to old tenure land and for that premium is to be paid before the Government. The premium is to be paid by the owner. The disputed cheque was given undated and was filled up by me. In the disputed cheque at Exhibit 15 there is an overwritten in the year 7 and 12. During the talks with Gopalbhai with regard to selling of land, I sold the land to Chandrakantbhai. Chandrakantbhai had paid the amount of premium of Rs.36,51,594/through me by way of cheque. There is no signature in this Exhibit 14 of the accused as a witness. No suit was filed to cancel the document at Exhibit 124. 8. After being cross examined by the learned advocate for the respondent-accused, it transpires on the record that initially the transaction was carried out with the respondent-accused to sale the land and thereafter the said land was sold to Chandrakantbhai, who is belonging to the same village and having good relations with the complainant. The story which was put by the complainant that the accused was the middleman and assurance was given at the time of execution of the sale deed with regard to the payment of the amount above the jantri value is unbelievable as in the sale deed there was no any signature of the respondent-accused as a witness. In the sale deed, it is mentioned that all amount is received by the complainant. In the sale deed, it is mentioned that all amount is received by the complainant. The amount which is paid was by the Chandrakantbhai therefore, there would not be any question to giving the assurance by the respondent-accused for making the payment of the excess amount. 9. It further transpires from the record that the amount of the premium is to be paid as the land belongs to new tenure land for the conversion of the old tenure land the payment is to be made and that was paid by Chandrakantbhai through the complainant on issuing the cheque. Therefore, the defence which was raised by the respondent-accused that at the time of execution of power of attorney the cheque was given for making the payment of premium appears to be a probable defence and One more aspect is required to be looked into that the disputed cheque below Exhibit 15 was appears to be overwritten as date and month is 07 and 12 were overwritten. There was no any explanation given by the complainant with regard to the overwriting of the said cheque though it is admitted that the blank cheque was received by the complainant. 10. It is settled law that initial burden is always on the plaintiff to prove the execution of the cheque. Only after discharging that burden statutory presumptions under Sections 118 and 139 of the N.I.Act would come into operation in favour of the complainant. To dislodge the presumption, the accused need not always to produce direct evidence even the circumstances or preponderance of probabilities itself is sufficient to dislodge the presumption attached to the complainant. Once the accused is able to show the preponderance of probabilities to dislodge the legal presumption, the burden again shift on the complainant to establish the passing of consideration. N.I. Act is having a special rule of evidence wherein the presumption is provided in favour of the complainant. 11. 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. 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. 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." 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. 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. In the instant case, after discharging the burden to dislodge legal presumption, the complainant fails to establish the case. After detailed reasons and consideration of the evidence the learned trial court has passed the judgment and order of acquittal. Therefore, this Court finds no illegality, perversity or impropriety found in the judgment and, therefore, the same is required to be confirmed. 14. In view of the above discussion, this appeal is dismissed. The judgment and order of acquittal passed by the Special Court (Negotiable Instruments Act) Vadodara in Criminal Case No.379 of 2015 (Old Criminal Case No.2512 of 2012) dated 03.06.2023 is hereby confirmed. 15. Record and Proceedings be sent back to the concerned learned trial Court.