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2024 DIGILAW 707 (GUJ)

Dhanjibhai Nathaji Makwana v. State Of Gujarat

2024-04-02

M.K.THAKKER

body2024
ORDER : 1. This is an application filed by the appellant-original complainant praying to grant leave to prefer an appeal against the judgment and order of acquittal passed by learned 5th Additional Chief Judicial Magistrate, Gandhinagar in Criminal Case No. 5992 of 2019 dated 09.06.2023 whereby, the respondent-accused were acquitted for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”). 2. It is the case of the complainant that complainant and the accused are residents of adjoining villages and accused was running a hospital at Rajasthan and on demand being raised, amount of Rs.8,00,000/- was lent to the respondent-accused and for the payment of the aforesaid amount cheque bearing no. 000019 was given, which was dishonoured and thereafter, on following the due procedure, a private complaint came to be filed under the N.I. Act. 2.1. On being summoned, respondent-accused appeared before the learned trial court and his plea came to be recorded below Exh.6 wherein, he pleaded that amount of Rs.8,00,000/- was borrowed from the complainant and thereafter, settlement was arrived between the parties which was executed below Exh.18 and pursuant to the settlement, the respondent-accused had paid the amount directly in the loan account of the complainant and for that he produced the payment slips below Exh.19 and submitted that the security cheque which was given at the time of borrowing the amount was misused and though the amount which was borrowed was repaid, a false case was filed. 2.2. After considering the material placed on record and the arguments advanced by the learned advocate for the respective parties, learned trial court was pleased to acquit the respondent-accused from the charges leveled against him which is the subject matter of challenge before this court. 3. Heard learned advocate Mr.Yogesh Kanade for the applicant. Learned advocate Mr.Kanade submits that the judgment and order of acquittal was passed by the learned trial court mainly on the ground that part payment which was made was not endorsed and therefore, it was held that the complainant fails to establish the legally enforceable debt against the respondent-accused. 4. 3. Heard learned advocate Mr.Yogesh Kanade for the applicant. Learned advocate Mr.Kanade submits that the judgment and order of acquittal was passed by the learned trial court mainly on the ground that part payment which was made was not endorsed and therefore, it was held that the complainant fails to establish the legally enforceable debt against the respondent-accused. 4. Learned advocate Mr.Kanade submits that the applicant was not in the knowledge with regard to the payment which was made directly in the loan account of the complainant running in Bank of Baroda and therefore, no question arises for endorsement of part payment under section 56 of the N.I. Act. However, learned trial court, without considering the same, has passed judgment and order of acquittal. 5. Learned advocate Mr.Kanade submits that though demand notice was issued and served, the same was not replied to, neither the signature on the cheque was disputed and without rebutting the presumption which is in favour of the complainant under section 118 and 139 of the N.I.Act, the learned trial court has acquitted the respondent-accused from the charges and therefore, the leave which is prayed, is required to be granted. 6. Considering the submissions advanced by the learned advocate as well as the record and proceedings, it transpires from the record that initially the agreement came to be executed between the complainant and the respondent-accused which was produced by the complainant below Exh.14 on 28.02.2013. It reveals from this document that the amount of Rs.8,00,000/- was lent to the respondent-accused by the complainant and at the time of execution of deed, cheque bearing no. 000019 for the amount of Rs.8,00,000/- was issued by the respondent accused in favour of the complainant. 6.1. During the cross-examination of the complainant, another agreement i.e settlement agreement below Exh.18 was admitted to have been issued on 03.04.2016 wherein, the complainant and the accused agreed to pay the remaining amount of loan i.e.Rs.3,54,000/- and both had shared their liability and the respondent-accused agreed to pay Rs.1,55,000/- directly to the bank. To establish that as per this agreement the amount is paid, the respondent-accused had produced the bank slips of Bank of Baroda showing that he had complied with the terms of agreement and paid the amount to the bank in the loan account of the complainant. 7. To establish that as per this agreement the amount is paid, the respondent-accused had produced the bank slips of Bank of Baroda showing that he had complied with the terms of agreement and paid the amount to the bank in the loan account of the complainant. 7. The settlement which was executed in presence of the witness was also examined by the respondent-accused namely Alkaben Hemantkumar Damor below Exh. 14, Teren Hemantkumar Damor below Exh.33, Bhimji Narvaji Ninama below Exh 46, Shivabhai Ramabhai Parmar below Exh 48, Lakshmanbhai Katara below Exh.50 who deposed in their testimony that as per the settlement it was agreed between the parties that 50% of the remaining loan amount is to be paid by the respondent-accused directly to the bank. 8. The Bank officer was also examined by the respondent- accused, in addition to the above evidence, below Exh 38 who also testified in his evidence that loan which was obtained was paid and the disputed cheque below Exh.12 was a barer cheque. 9. At this stage, the provisions under section 118 and 139 regarding presumption is required to be referred at this stage, which is reproduced 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. 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. 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. 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. It transpires from the record that accused had rebutted the presumption by establishing the defence that he borrowed the money from the complainant and complainant had taken loan to lend this amount from Bank of Baroda. Thereafter, settlement arrived between the parties and pursuant to the settlement, 50% of remaining loan amount is directly paid by the respondent-accused to the bank and the cheque which was referred in the bahedari karaar below Exh.14 was misused by the complainant. 11. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of phrase "unless contrary is proved" in Section 139 of the Act is required to be read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act. It makes clear that once that presumptions to be raised under both the provisions are rebuttable, then again, the burden would be shifted on the complainant to prove his case. It makes clear that once that presumptions to be raised under both the provisions are rebuttable, then again, the burden would be shifted on the complainant to prove his case. When the presumption is rebuttable, it only points out that the party on whom, lies the duty of going forward with the evidence, on the facts presumed and when the party has produced the evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of presumption is over. 12. The accused in trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt is existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration and that, there was no any debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should prove the non-existence of consideration and the debt by leading direct evidence because, the existence of negative evidence is neither possible nor contemplated. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that did not exist. 13. For foregoing reason, this Court deems it fit to dismiss this application by not granting the leave to prefer and appeal against the impugned judgment and order dated 09.06.2023 passed in Criminal Case No. 5992 of 2019. Hence, this application is dismissed. ORDER IN R/CRIMINAL APPEAL NO. 1780 of 2023: In view of the order passed by this Court in the application for seeking leave to prefer an appeal, the appeal is dismissed.