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2024 DIGILAW 442 (GUJ)

Sonesh Ravjibhai Patel v. State of Gujarat

2024-03-05

M.K.THAKKER

body2024
JUDGMENT : M.K. THAKKER, J. 1. This appeal is filed under Section 378 of the Code of Criminal Procedure by the present appellant-original complainant challenging the judgment and order of acquittal dated 15.04.2023 passed by the learned 11th Additional Chief Judicial Magistrate, Vadodara in Criminal Case No. 20803 of 2020 acquitting the respondent-accused from the charges punishable under Section 138 of the Negotiable Instruments Act. 2. It is the case of the complainant that the complainant is the land broker and land developer and the accused was the retired Deputy Mamlatdar and Executive Magistrate. As the complainant was doing the business of developing the land and brokerage, he regularly visiting the village: Bhimpor, taluka: Choryasi, district: Surat. The complainant wanted to purchase the land bearing survey nos.53 and 54 situated at village: Bhimpor, taluka: Choryasi, district: Surat and at the relevant point of time, the respondent-accused was serving as a Mamlatdar, Surat, therefore, he was contacted for conversion of the agricultural land and for the other revenue proceedings and for that, the huge amount has been paid to him however, ultimately, that proceedings were not completed and, therefore, the police complaint came to be filed by the complainant against the respondent-accused as well as the other person. The respondent-accused has settled the dispute with the complainant and agreed to pay the amount of Rs. 50 lacs towards the settlement. As at a stretch, he was not having that much amount and, therefore, before the police, he issued the cheque in favour of the complainant for the amount of Rs. 25 lacs. On depositing the said cheque with the bank, the same was dishonoured, therefore, the complainant had again approached the police station where, the another cheque was issued by the respondent-accused as well as his own flat being flat no. 302 situated at Bhulabhai Park, Adajan village, Surat was handed over to the complainant. The assurance was given to the complainant that the cheque which was dishonoured earlier, would be honoured on re-depositing the same and in the event, if it is again dishonoured, then he would execute the sale deed in favour of the complainant. The possession of the flat was already handed over to the complainant by the respondent-accused before the police and as on the date when the complaint was filed, the said flat was in the possession of the complainant. The possession of the flat was already handed over to the complainant by the respondent-accused before the police and as on the date when the complaint was filed, the said flat was in the possession of the complainant. On re-depositing the cheque, again it was dishonoured and, therefore, the demand notice under Section 138 of the Negotiable Instruments Act was issued on 07.09.2020 which was received by the respondent-accused on 10.09.2020. The respondent-accused neither replied to the demand notice nor complied with the same, therefore, after following the due procedure under the Negotiable Instruments Act, the private complaint came to be filed before the learned trial Court. 3. On recording the verification, the summons came to be issued under Section 204 of the Code of Criminal Procedure on 26.10.2020. The respondent-accused appeared before the learned trial Court on 21.10.2021 and his plea came to be recorded below exh.8 on the same day. Thereafter, on few dates, the respondent-accused appeared before the learned trial Court but, as he remained absent on multiple dates before the learned trial Court, the stage of cross-examination of the complainant was closed on 30.11.2022. Thereafter also, he remained absent and, therefore, the stage of further statement was also closed and after considering the evidence placed on record by the complainant, the learned trial Court has passed the judgment and order of acquittal which is impugned before this Court. 4. Heard learned advocate Mr. Malaykumar Patel for the appellant-original complainant and as this appeal is decided at the admission stage finally, no notice is issued to the respondent-accused. 5. Learned advocate Mr. Patel submits that though the respondent-accused failed to discharge the onus to rebut the presumption which is in favour of the complainant and though he remained absent continuously during the trial, the judgment and order of acquittal was passed by the learned trial Court only on the ground that the complainant failed to establish the legally enforceable debt against the respondent-accused. The learned advocate submits that neither the signature was disputed nor issuance of the cheque was disputed and though the respondent-accused appeared and his plea was recorded, without complying with the provisions under Sections 118 and 139 of the Negotiable Instruments Act, the judgment and order of acquittal was passed by the learned trial Court acquitting the respondent-accused, without rebutting the evidence which was placed by the complainant. The learned advocate submits that even the reasons assigned for acquitting the respondent-accused are also against the provisions as it was not the case of the complainant that the complainant had paid any bribe amount to the respondent-accused, who was the retired Mamlatdar. The case of the complainant from the beginning is that as the respondent-accused was having the knowledge with regard to the procedure pertaining to the Land Revenue Code and being a retired Mamlatdar, he would help the complainant in converting the agriculture land to non-agriculture land and for that purpose, the amount was paid to the respondent-accused and in failing to complete the procedure, the respondent-accused had issued the cheque in favour of the complainant which was dishonored. Without considering the same, the learned trial Court come to the conclusion that the amount is paid for an illegal act and, therefore, the complainant is not entitled to recover the amount of debt towards the respondent-accused. The learned advocate submits that there was no any illegal act which was agreed to have been performed and for that, the amount was paid however, without considering the same in a proper perspective, the learned trial Court has passed the judgment and order of acquittal. The learned advocate submits that without assigning the cogent reasons, the judgment and order of acquittal was passed and, therefore, the same is required to be interfered with and the respondent-accused is required to be convicted for the charges levelled against him. 6. Considering the submissions advanced by the learned advocate, before entering into the merits, the relevant provisions of the Negotiable Instruments Act are to be referred, which are stated herein-below: “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. 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 - 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. (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.” 7. Therefore, the question which is to be determined before this Court is that the whether cheque, which was issued by the respondent-accused in favour of the complainant was for the discharge of any legal debt or any other liability? 8. The relevant sections of the relevant context are reproduced herein-below: Section 2 - Interpretation clause - In this Act the following words and expression are used in the following senses, unless a contrary intention appears from the context: (a) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (d) xxx xxx xxx (e) xxx xxx xxx (f) xxx xxx xxx (g) An agreement not enforceable by law is said to be void. (h) xxx xxx xxx (i) xxx xxx xxx (j) xxx xxx xxx Section 10 - What agreements are contracts - All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in [India] and not hereby expressly repealed, by which any contract is required to be made in writing 2 or in the presence of witnesses, or any law relating to the registration of documents. Nothing herein contained shall affect any law in force in [India] and not hereby expressly repealed, by which any contract is required to be made in writing 2 or in the presence of witnesses, or any law relating to the registration of documents. Section 23 - What consideration and objects are lawful, and what not - The consideration or object of an agreement is lawful, unless: it is forbidden by law. is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent. involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. Illustrations: (a) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (d) xxx xxx xxx (e) xxx xxx xxx (f) A promises to obtain for B an employment in the public service and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful. 9. From the aforesaid provisions, it transpired that the transaction, was for an illegal contract. Section-23 of the Indian Contract Act provides that any payment of money, which was made by the complainant to the accused was not lawful, then the accused is not binding to the contract. 10. The explanation to Section-138 of the N.I. Act makes it clear that the expression “debt or other liability” has reference only to legally enforceable debt or other liability. Conversely, if cheque is issued in respect of debt or liability, which is not legally enforceable, then the Section-138 of the Act would be applied. Section-23 of the Indian Act inter-alia stipulates that every agreement of which object or consideration is unlawful, is void. An agreement, which is void does not enforceable by law as per Section-2(g) and Section10 of the Indian Act. 11. On plain reading of Section-138 of the N.I. Act, it would indicate that the execution of the contract is not sufficient to constitute an offence punishable under section-138 of the Act, unless it is proved that the debt or other liability is legally enforceable one. 11. On plain reading of Section-138 of the N.I. Act, it would indicate that the execution of the contract is not sufficient to constitute an offence punishable under section-138 of the Act, unless it is proved that the debt or other liability is legally enforceable one. If any contract entered into between the parties without consideration or for a consideration, which would be an illegal consideration, that would not create any obligation or any liability. Any contract or agreement opposed to liability or forbidden by law, is not enforceable by law. Every debt or liability, upon which, the cheque is issued, is not enforceable. Hence, only claim arising out of enforceable debt or other liability, would not constitute an offence under Section-138 of the Act. In such a cases, neither party is a victim of contract, both have voluntarily and free consent join the contract. Therefore, this Court is of the view that the complainant cannot take the shelter of the law for the purpose of contract, which is not enforceable under the law. 12. Keeping in mind the above provisions now, if the case of the complainant is to be examined, then it is the case of the complainant that he is the land broker and doing the business of developing the land. The complainant wanted to purchase the land situated at village: Bhimpor, therefore, he contacted the respondent-accused, who was serving as a Mamlatdar, Surat where, the land is situated. Though, at the time of lodging the complaint, the respondent-accused was retired but, initially when the complainant contacted the respondent-accused, he was serving as a Mamlatdar and to covert the land into non-agriculture land, the amount was paid to the respondent-accused. The respondent-accused remained failed in completing the procedure and, therefore, the complainant had approached the concerned police station with a complaint that he was cheated by the respondent-accused. The respondent-accused was called by the police and under interference of the police, he handed over the keys of his flat and also the cheque with an assurance that if the cheque which was issued would be dishonored, then he would execute the sale deed in favour of the complainant. It is the case of the complainant that not only the respondent-accused has been approached as a Mamlatdar but, he had signed in the deed which was executed between the purchaser and the seller as a witness. It is the case of the complainant that not only the respondent-accused has been approached as a Mamlatdar but, he had signed in the deed which was executed between the purchaser and the seller as a witness. That being so, even if he had signed as a witness but, the witness cannot be held responsible for the amount which must have been paid to the seller by the complainant. Therefore, the case of the complainant appears to be of a debt which was given for the purpose of execution of the illegal thing. At the time of giving the huge amount i.e. Rs. 50 lacs, the complainant was aware and have a knowledge that for the unlawful agreement, the said amount is paid. 13. This Court has considered the similar case in the case of Bhavsar Vinodkumar Babulal vs. State of Gujarat in Criminal Appeal No. 1567 of 2023. 14. 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, (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 herein-below: “(1) An appellate Court has full power to review, re-appreciate 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. (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.” 15. In view of the same, the judgment and order passed by the learned trial Court is just and proper and, therefore, no interference is required to be called for. 16. In view of the forgoing reasons, the appeal fails. The judgment and order of acquittal dated 15.04.2023 passed by the learned 11th Additional Chief Judicial Magistrate, Vadodara in Criminal Case No. 20803 of 2020 is hereby confirmed. 17. Record and Proceedings be sent back to the concerned learned trial Court.