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2024 DIGILAW 842 (GUJ)

Rupabhai Akhmabhai Damor v. State Of Gujarat

2024-04-12

M.K.THAKKER

body2024
JUDGMENT : 1. This revision application is filed by the applicant-original accused challenging the judgment and order passed by the learned Judicial Magistrate First Class, Thasra in Criminal Case No. 982 of 2009 dated 26.11.2014 whereby, the applicant-original accused was convicted for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”) and was ordered to undergo the sentence of simple imprisonment of two years and was ordered to pay compensation of Rs.1,38,000/- within a period of three months from the date of the order. 2. The applicant has also challenged the judgment and order passed by the learned appellate court in Criminal Appeal No. 95 of 2014 dated 06.04.2015 confirming the judgment and order of conviction passed by the learned trial court. 3. It is the case of the complainant that complainant is serving at Vanakbori Thermal Power Station, Taluka:Thasra and the accused is also serving at the Thermal Power Station, therefore, they were known to each other. The applicant was in need of money, therefore, the complainant lent the amount of Rs.1,38,000/- on 02.03.2024. On the same day the applicant has given the cheque bearing no.142427 dated 06.09.2009 in favour of the complainant with an assurance that on depositing the said cheque the amount would be credited in the account of the complainant. On depositing the cheque, it was dishonoured with an endorsement of “funds insufficient” on 24.10.2009 and therefore, after following the procedure under the N.I.Act, the private complaint came to be filed before the learned competent court. 3.1. Learned trial court, after recording the verification, issued the process under section 204 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C) and thereafter, the accused appeared before the learned trial court and his plea was recorded. Accused had pleaded not guilty and claimed to be tried. Therefore, in order to prove the case of the accused, the complainant has produced evidence in the nature of cheque, return memo, demand notice, copy of the complaint which was filed by the applicant against the complainant being Special Case No. 75 of 2010 and in addition to above documents complainant was examined below Exh 10 before the learned trial court. 3.2. On filing the closing pursis, statement under section 313 of Cr.P.C came to be recorded wherein, the applicant has pleaded false implication. 3.2. On filing the closing pursis, statement under section 313 of Cr.P.C came to be recorded wherein, the applicant has pleaded false implication. To prove the defence, accused had produced the copy of the reply to the demand notice below Exh.29, communication dated 06.06.2009 demanding the cheque book and ATM card from the complainant below Exh.33, statement of HDFC Bank below Exh.35, Copy of the FIR being I-Cr. No.138 of 2009 below Exh.36, Bail Application below Exh.37, salary slip for the month of July 2009 below Exh 38, copy of the judgment rendered by the Special Court below Exh.39, communication addressed to HDFC Bank below Exh.40, instructions to HDFC Bank to close the accounts below Exh.41 and thereafter, filed closing pursis below Exh.53. 4. After considering the evidence led by the complainant and the accused as well as arguments advanced by the learned advocates for the respective parties, learned trial court has convicted the applicant – original accused for the offence punishable under section 138 of N.I Act. Being aggrieved and dissatisfied by the aforesaid judgment and order, the present applicant has preferred the appeal before the learned District and Sessions Court, Kheda at Nadiad being Criminal Appeal No.95 of 2014 which was dismissed by the learned appellate court vide judgment and order dated 06.04.2015 which is the subject matter of challenge before this Court. 5. Heard learned advocate Mr.Prabhakar Upadyay for the applicant – original accused and though respondent- complainant was represented through learned advocate Mr B.P.Purohit, however, he did not remained present at the time of hearing. 6. Learned advocate Mr.Prabhakar Upadyay for the applicant – original accused had submitted that though the respondent – accused had dislodged the presumption which was in favour of the complainant by producing reply to the demand notice below Exh.29 wherein, the specific contention was raised that amount of Rs.30,000/- was borrowed by the applicant from the complainant, at that time, the respondent-accused had taken the whole cheque book having two signed checks as well as ATM card and though the same was demanded back after making payment of the borrowed amount by communication dated 06.06.2009 which was produced below Exh.33, the learned trial court, without discussing this evidence, has passed the judgment and order of acquittal. 7. 7. Learned advocate Mr.Prabhakar Upadyay submits that the FIR was lodged by the wife of the present applicant on 09.09.2009 for the offences punishable under sections 323, 452, 354 of Indian Penal Code, 1860 (hereinafter referred to as “IPC”) as well as section 3(1) (10) of the Atrocities Act against the respondent no.2- complainant and though the said fact was admitted in the cross-examination by the complainant as well as it was further admitted that complainant was convicted for the said offence and was ordered to undergo the sentence of 3 months, to take the revenge, the cheque which was lying with the complainant towards the security of the amount which was borrowed, was deposited and impugned complaint was filed. 8. Learned advocate Mr.Prabhakar Upadyay further submits that in the application for seeking bail, the respondent- complainant has specifically averred that the false case is filed with a view to avoid repayment of Rs.30,000/- which was borrowed from the complainant. The learned trial court has discarded the self-contradictory statement and passed judgment and order of conviction. 9. Learned advocate Mr.Prabhakar Upadyay further submits that during the cross-examination also the respondent-accused had successfully created circumstances and the complainant has admitted the fact that cheque book and ATM card was taken at the time of lending amount. He used to lend the amount by taking the market rate interest. Accused was having account in the HDFC bank and through ATM card complainant was recovering the amount. It is further admitted that demand notice was replied, Exh.33 communication was received by him and he did not reply to that communication. The learned trial court without considering this admission in proper spirit passed judgment and order of conviction. 10. Learned advocate Mr.Prabhakar Upadyay submits that though by ample evidence applicant-accused had rebutted the presumption which was in favour of the complainant and though thereafter, complainant has failed to prove his case beyond reasonable doubt, the judgment and order of conviction was passed by the learned trial court and was confirmed by the learned appellate Court. 11. Learned advocate Mr.Prabhakar Upadyay submits that judgment and order of both the courts below suffers from perversity and without giving proper weightage to the evidence and to prevent miscarriage of justice prays to exercise the power under section 397 of the Code and to quash the impugned judgment and order of conviction. 12. 11. Learned advocate Mr.Prabhakar Upadyay submits that judgment and order of both the courts below suffers from perversity and without giving proper weightage to the evidence and to prevent miscarriage of justice prays to exercise the power under section 397 of the Code and to quash the impugned judgment and order of conviction. 12. This Court in the revisional jurisdiction would have very limited scope in interference with the concurrent judgment of two learned courts below. In the catena of decisions rendered by the Apex Court broad prepositions has been narrated for interference with the judgment and order of conviction. It was held by the Apex Court that “the High Court will exercise its power where there is a material error or defect in law or procedure, misconception or misleading of evidence, failure to exercise or wrong exercise of jurisdiction or where facts admitted or proved did not disclose any offence. Ordinarily, concurrent findings of facts recorded by both the courts below would not be interfered by the High Court. However, if the court arrives at finding without properly considering the evidence on record and without applying the principle of law correctly, it can never be called a finding of fact in an accepted sense, as in that case it will amount to perverse and illegal appreciation of evidence, finding of fact given on this background even if the concurrent, can never be binding on the revisional court. While exercising its revisional powers under section 397 read with section 401 the court has full power (of satisfying itself or himself) as to correctness, legality or propriety of any finding”. An illegal finding does not become legal only because it is concurrent. 13. Keeping in mind the above principle, if the merits of the case is to be examined, then it is the case of the complainant that complainant had lent the amount of Rs.1,38,000/- on 02.03.2009. At that time, the cheque of Rs.1,38,000/- dated 06.09.2009 bearing cheque number 142427 is issued in favour of the complainant and on depositing the cheque on 12.10.2009 it was dishonoured with an endorsement of “funds insufficient”. With the aforesaid allegations, the complaint came to be filed before the learned trial court being Criminal Case No.982 of 2009. 14. At that time, the cheque of Rs.1,38,000/- dated 06.09.2009 bearing cheque number 142427 is issued in favour of the complainant and on depositing the cheque on 12.10.2009 it was dishonoured with an endorsement of “funds insufficient”. With the aforesaid allegations, the complaint came to be filed before the learned trial court being Criminal Case No.982 of 2009. 14. After filing the complaint, the respondent-accused appeared before the learned trial court and pleaded not guilty as well as produced several evidence on record which is in the nature of reply of demand notice below Exh.29 wherein, it is contended that to secure the debt of Rs.30,000/- the cheque book having two signed cheques as well as ATM card was taken by the complainant. The applicant- accused had also produced the communication dated 06.06.2009 below Exh.33 wherein, the demand was made to return the cheque book as well as ATM card. 15. The accused had also produced the copy of the complaint below Exh.36 lodged by the wife of the applicant against the complainant for the offences punishable under sections 323, 452, 354 of IPC as well as section 3(1)(10) of the Atrocities Act dated 09.09.2009. 16. The contents of the complaint, if considered, then it transpires that complainant went to the house of the applicant to demand amount of Rs.30,000/- and has tried to outrage the modesty of the wife of the applicant. The bail application preferred by the complainant which was considered by the learned trial court on 11.09.2009 wherein, it was contended that on the occasion of the marriage of the daughter, the amount of Rs.30,000/- was lent and with a view to not repay the said amount this false FIR was filed. 16.1. Complainant in his complaint has stated that amount of Rs.1,38,000/- was lent and the cheque was deposited on 12.10.2009 which is subsequent to this FIR lodged by the wife against the complainant. During the cross examination of the complainant, it is admitted by the complainant that complainant is lending the amount to various people and charging market rate of interest. He used to take the cheque at the time of lending the amount. From applicant also he took the cheque book as well as ATM card and used to recover the said amount from the HDFC ATM card of the applicant-accused. He used to take the cheque at the time of lending the amount. From applicant also he took the cheque book as well as ATM card and used to recover the said amount from the HDFC ATM card of the applicant-accused. He admitted that he received the reply to demand notice as well as the communication dated 06.06.2009 wherein, the demand of cheque book and ATM card was made by the applicant. He admits that he did not reply to the communication dated 06.06.2009 below Exh.33. He also admits that in the bail application which was preferred the contentions were made as per his instructions. He admits that offence which was lodged by the wife of the applicant was ultimately converted into conviction and he was convicted for 3 months imprisonment. 17. At this stage, the provisions under section 118 and 139 of N.I Act is required to be re-looked 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. 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. 18. In the trial which is initiated for the offence punishable under section 138 of the N.I. Act, the accused is having two options to rebut the presumption which is in favour of the complainant. He can either show that consideration and debt did not exist or that under particular circumstances of the case non-existence of the consideration and debt is so probable that a prudent man ought to support that no consideration and debt is existed. To rebut the presumption the accused is not expected to prove defence beyond reasonable doubt as is expected of the complainant in a criminal case. Accused has to lead the evidence or to create the circumstance to show that consideration and debt did not exist and case is not as projected by the complainant. 19. In the instant case, in order to rebut the presumption the applicant had successfully led evidence and created circumstances which suggest that amount of Rs.30,000/- was borrowed by the applicant and at that time, blank cheque book having two signed cheques and ATM card was taken by the respondent-complainant and amount was recovered through ATM card of HDFC Bank. It is further established by the applicant-accused that when the complainant went to recover the amount at the house of the applicant he tried to outrage the modesty of the wife of the applicant and for that FIR was lodged and he was convicted for the offence punishable under section under sections 323, 452, 354 of IPC as well as section 3(1)(10) of the Atrocities Act. Exhibit 33 which was produced dated 06.06.2009 which is much before the depositing the cheque with the bank suggests that the amount which was borrowed is of Rs.30,000/- and in lieu of repayment the cheque book and ATM card were taken by the complainant. 20. Exhibit 33 which was produced dated 06.06.2009 which is much before the depositing the cheque with the bank suggests that the amount which was borrowed is of Rs.30,000/- and in lieu of repayment the cheque book and ATM card were taken by the complainant. 20. On examining the reasons assigned by the learned both the court below, it transpires that all these evidences which were produced by the applicant-accused were absolutely discarded and without making any discussion on this evidence the learned trial court came to the conclusion that applicant is liable for the offence punishable under section 138 of the N.I.Act. 21. This Court is of the view that though the applicant- accused successfully rebutted the presumption and thereafter, the complainant fails to establish his case beyond reasonable doubt the judgment and order of conviction was passed by the learned trial court without giving proper weightage to the evidence of the applicant-accused and therefore, this Court held that impugned judgment and order deserves to be quashed and set side and applicant is required to be acquitted from the offence punishable under section 138 of the N.I.Act and the concurrent finding of fact arrived by both the courts below is based on illegal appreciation of evidence and therefore, this Court deems it fit to interfere under its revisional jurisdiction granted under section 397 of the Code. 22. Resultantly, this revision application is allowed. The judgment and order of conviction passed by learned Judicial Magistrate First Class, Thasra in Criminal Case No. 982 of 2009 dated 26.11.2014 confirmed by learned 2nd Additional Sessions Judge, Nadiad in Criminal Appeal No. 95 of 2014 dated 06.04.2015 is quashed and set aside and accused is acquitted from the offence punishable under section 138 of the N.I.Act. Record and proceedings be sent back.