Bombay High Court
Igholder Kamalkishore Maniklal ... vs Respondents : 1. Smt Sushila Wife Of ... on 24 February, 2010
Equivalent citations: AIR 2010 (NOC) 778 (BOM), AIR 2010 (NOC) 778 (BOM.)(NAGPUR BENCH), 2010 CRI. L. J. 2705, 2010 (3) AIR BOM R 44, (2010) 2 MH LJ (CRI) 126, (2011) 2 RECCIVR 456, (2011) 2 RECCRIR 10, (2011) 1 NIJ 587, (2010) 3 BOMCR(CRI) 214, (2010) 4 CURCC 112, 2011 ACD 93 (BOM), (2010) 3 BANKCAS 569, (2011) 3 BANKCAS 498, 2010 ALL MR (CRI)1147
Author: A.P. Bhangale
Bench: A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 528 of 2009
Appellant : Smt Kiran w/o Yugalkishore Bhattad,
aged about 49 years, occ: business,
resident of Tekdi Road, Sitabuldi,
Nagpur, through Power of Attorney
igHolder Kamalkishore Maniklal Bhattad
versus
Respondents : 1. Smt Sushila wife of Ramcharan
Kattamwar, aged Major, occ: business, resident of 903, Laxmi Apartments, Khare Town, Dharampeth, Nagpur
2. The State of Maharashtra Mr C.F. Bhagwani, Advocate for appellant Mr D.S. Shrimali, Advocate for respondent Coram : A.P. Bhangale, J Dated : 24th February 2010 Oral Judgment
1. The present appeal is directed against judgment and order passed by learned 7th Judicial Magistrate, First ::: Downloaded on - 09/06/2013 15:38:52 ::: 2 Class, Nagpur (Special Court under the Negotiable Instruments Act) whereby learned Magistrate acquitted accused of an offence under Section 138 of the Negotiable Instruments Act in Criminal Complaint Case No. 4334 of 05.
2. According to the complainant (appellant) hand-
loan in the sum of Rs. 50,000/- was advanced by him to the accused on her request for her business on or about 21 st January 2002. ig In order to discharge the said debt or liability, cheque bearing no. 039654 dated 22.4.2002 in the sum of Rs. 50,000/- drawn on Bank of India, Sitabuldi branch, Nagpur was issued as per exhibit 52 on or about 22nd April 2002. The cheque was presented within the period of its validity in June 2002, but on 5.6.2002 it returned dishonoured with remarks "funds insufficient" vide exhibits 53 and 54. The complainant had demanded the amount of Rs. 50,000/- by demand notice in writing dated 10.6.2002 (exhibit 55). Although the notice was sent by registered post with A/d and served upon the accused, accused failed to comply and according to complainant, gave false reply to avoid repayment due on the cheque in question (exhibit 58). As such, complaint came to be filed ::: Downloaded on - 09/06/2013 15:38:52 ::: 3 on 4.7.2002.
3. The evidence was led in support of the complaint by affidavit of the Kamalkishor Bhattad who was also cross-
examined with reference to the contentions in the evidence on affidavit and documents on record. It appears that in the course of cross-examination, the deponent on behalf of the complainant was questioned about one case filed against Nandkishor Harsh.ig It is also questioned as to whether amount paid to the accused was shown in the income-tax return. The witness on behalf of the complainant admitted that no receipt was obtained from the accused in token of receiving sum of Rs. 50,000/- as also the fact that no income-tax returns were filed. The witness on behalf of complainant also denied suggestion that disputed cheque was given to Nandkishor Harsh to arrange finance.
4. Under these circumstances, it is contended that when it was specific defence pleaded by the accused in her reply notice that she had cordial relations with Nandkishor Harsh and he had requested the accused to allow him to request some smaller amount of money in business and took ::: Downloaded on - 09/06/2013 15:38:52 ::: 4 away blank cheque which, according to the accused, was misused by the complainant. To substantiate this defence, the material witness Nandkishor Harsh was not summoned although his evidence may have supported the defence contention had he been examined by the accused. Further, it is contended on behalf of the complainant that the accused is admittedly having business in the name of M/s Ambika Enterprises at Khare Town, Dharampeth, Nagpur.
Further, it is contended
ig that during the pendency of
proceedings before learned Magistrate on behalf of the
accused, her husband applied before learned Magistrate
informing that the matter has been settled by proposing payment of Rs. 40,000/- only out of which sum of Rs.
10,000/- was paid on 24.7.2008 which appears to have been acknowledged by the complainant vide exhibit 72 along with acknowledgment in writing.
5. Thus, according to learned counsel for complainant in view of the statutory presumptions under Sections 118 and 139 of the Act, learned trial Magistrate ought to have concluded in the facts and circumstances of the case that the accused was liable to pay the amount due ::: Downloaded on - 09/06/2013 15:38:52 ::: 5 on cheque which was dishonoured by non-payment on account of insufficient funds since the complainant had also led evidence of a bank employee to bring the fact of dishonour of cheque on record by documentary as well as oral evidence indicating that the accused had no intention to honour the cheque as cheque in question was presented for encashment, balance in her account was meagre at Rs. 1450.13 ps.
Learned Advocate for complainant submitted that the complainant has igproved all ingredients of offence punishable under Section 138 of the Negotiable Instruments Act.
6. To counter these submissions, learned counsel for accused submitted with reference to ruling in Mrs Sayeeda Iqbal v. Mr Javed Abdul and anr reported in 2008 All MR (Cri) 2743 to argue that view of the learned Magistrate was reasonable and possible and, therefore, there shall be no interference in the impugned judgment and order. Reference is also made to ruling in Rajaram Gulabi Naik v. Vithal Appa and anr reported in 2008 All MR (Cri) 3462 to substantiate the above submission. As against this contention, learned Advocate for the complainant has ::: Downloaded on - 09/06/2013 15:38:52 ::: 6 pressed into service judgment of this Court in Devidas v.
Harishchandra reported in 2009 (3) Bom C.R.(Cri) 458. In the said case, learned Magistrate concluded that it could not be accepted that such huge amount of Rs. 1,80,000/- was advanced by complainant. It has been held by this Court in the said case that this amounts to reading in law a provision which does not exist and also overlooks presumption of liability in Section 139 of the Act. It is further held that ig such an approach amounts to perversity warranting interference and judgment of acquittal was set aside and the Court convicted the accused for offence punishable under Section 138 of the Act.
7. Looking to the impugned judgment and order it appears that learned Magistrate framed a solitary cumulative point for determination and proceeded to deliver judgment. In my view, the points for determination in such case must involve at least five ingredients which are required to be dealt with preferably by separate points for determinations. There are five vital ingredients of the offence punishable under Section 138 of the Act as laid down by the Supreme Court in Kusum Ingots v. Pannar ::: Downloaded on - 09/06/2013 15:38:52 ::: 7 reported in 2002 (2) SCC 745. Ingredients laid down by the Apex Court are as under :
"(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any legally enforceable debt or other liability;
(ii) that cheque has beeen 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;
(iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the 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 the bank;
(iv) the payee or the holder in due course of the cheque makes demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) the drawer of such cheque fails to make payment of the said amount of money to the payer or the holder in due course of the cheque within 30 days of the receipt of the said notice."
8. These ingredients are required to be considered ::: Downloaded on - 09/06/2013 15:38:52 ::: 8 with reference to Sections 118 and 139 of the Act. In this case cheque no. 039654 dated 22.4.2002 was issued by accused drawn on Bank of India, Sitabuldi Branch, Nagpur.
Cheque in question was returned by Bank of India to UCO Bank (banker of complainant) under memo dated 5.6.2002. It is thus obvious that the cheque was presented to the Bank within a validity period of six months. In its memo, bankers of accused have assigned the reason of insufficiency ofig funds in the account of accused for dishonour of cheque. It is evident from record that complainant who received intimation dated 5.6.2002 from his bankers, issued notice dated 10.6.2002, within fifteen days. It is a matter of record that accused did not make payment within fifteen days of the receipt of notice and sent reply notice dated 20.6.2002 denying his liability as provided under Section 138 (c) of the Act. Thus, all the five ingredients laid down by the Apex Court appear to have been satisfied in this case.
9. The trial Court is required to start with statutory presumption until the contrary is proved that the cheque was issued or drawn for consideration. It was ::: Downloaded on - 09/06/2013 15:38:52 ::: 9 bearing the same date on which it was made or drawn; that the holder of the negotiable instrument is holder in due course etc. under Section 118 of the Act and that the holder of a cheque had received it for the discharge of whole or part of any debt or liability. Under these circumstances, learned trial Magistrate ought to have observed that since signature on cheque was not disputed as that of the accused, the presumption envisaged in Section 118 of the Negotiable Instruments Act, as stated above, ought to have been raised that the cheque in question was made or drawn for consideration on the date which the cheque bears and further under Section 139 of the Act to raise a presumption that the complainant had received it for the discharge of existing debt or liability. The burden in such case is on the accused in view of the statutory presumption to rebut the presumption by leading adequate and satisfactory evidence to substantiate contention in defence to the prosecution. Although it is not necessary for the accused to enter into a witness box, the burden of proof is required to be discharged by adducing satisfactory evidence by bringing on record ::: Downloaded on - 09/06/2013 15:38:52 ::: 10 admission or documents in the course of cross=examination of witnesses examined on behalf of complainant. If that cannot be done, it may become necessary for the accused to lead evidence that the cheque in question was not issued for discharge of any legally enforceable debt or other liability. It is true that accused is not required to lead evidence beyond all reasonable doubts, but satisfactory evidence of rebuttal must be such which would satisfy the minds of prudent person upon preponderance of probability in respect of case in defence. As defined under Section 3 of the Evidence Act, a fact is said to be proved when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
10. In the facts and circumstances revealed in this case, the learned trial Magistrate appears to have misled herself, first of all, by framing an all-inclusive point for determination and secondly, by overlooking statutory presumption as also the relevant provisions of the Evidence ::: Downloaded on - 09/06/2013 15:38:52 ::: 11 Act as to when the fact is said to be "proved". In fact, in paragraph 12 of the impugned judgment and order, learned Magistrate is making a passing reference to presumptions under Sections 118 and 139 of the Act in favour of the complainant, but failed to consider their value in the requirement of proof from the accused in rebuttal which can satisfy a prudent person about the probability of defence for to dislodge the said statutory presumption. Merely because the complainant did not file copy of income-tax return, one cannot jump to the conclusion that complainant who was businessman had no financial ability to advance hand-loan in the sum of Rs. 50,000/-. Further more, the accused alleged that complainant's family indulged into illegal business of money-lending without licence.
However, there was no evidence led by the accused nor any material could be elicited during the course of cross-
examination of witnesses on behalf of the complainant to substantiate such defence contention. The accused cannot succeed to defeat the prosecution merely by raising such courageous but bald or baseless contention. For these reasons it appears that the trial Magistrate misled herself to believe that Bhattad family was doing business of ::: Downloaded on - 09/06/2013 15:38:52 ::: 12 money-lending. Such conclusion cannot be reached without any rational basis from record. Learned trial Magistrate ought to have considered that in fact the application was made on behalf of accused during the pendency of proceedings about having settled the case by express willingness to pay sum of Rs. 40,000/- out of which amount of Rs. 10,000/- was already acknowledged by the complainant. For all these reasons the impugned judgment and order is indefensible and has resulted in miscarriage of justice. Necessarily, therefore, impugned judgment and order will have to be set aside looking to the above ingredients which have been satisfied in the facts and circumstances of the case and evidence led on behalf of the complainant, the accused is liable under Section 138 of the Negotiable Instruments Act for dishonoured cheque in the sum of Rs. 50,000/- which remained unpaid despite demand notice in writing issued against the accused which the accused duly received, but continued to avoid payment as against the cheque. The accused is, therefore, found guilty for offence punishable under Section 138 of the Act.
11. Learned counsel for accused contends that this Court is sitting in appeal and, therefore, it should not ::: Downloaded on - 09/06/2013 15:38:52 ::: 13 allow the complaint only because another view is possible.
12. In Arun v. State of Tamilnadu reported in (2009) 3 SCC (Cri) 1097, the Apex Court has held as under :
"It is true that appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded and its power to review and re-appreciate the evidence and come to its own conclusion is not controlled by any provisions of the Code of Criminal Procedure, 1973. This Court is in more than one case cautioned that an appellate court, however, must always bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is 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 innocence is further reinforced, reaffirmed and ::: Downloaded on - 09/06/2013 15:38:52 ::: 14 strengthened by the trial court. If two reasonable views are possible on the basis of the evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed."
13. The Apex Court has also held in Bhagwan Singh v.
State of MP reported in (2002) 4 SCC 85 that paramount consideration of the Court is to ensure that miscarriage of justice is avoided. ig A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. The Apex Court further holds that where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. In the present case, I find that the trial Court has not taken a view which is based on legal and admissible evidence. View taken by the trial court needs to be interfered with and acquittal of respondent/ ::: Downloaded on - 09/06/2013 15:38:52 ::: 15 accused will have to be set aside.
14. In the result, accused is held guilty for the offence under Section 138 of the Negotiable Instruments Act. On the point of sentence, it would not be just and proper to insist upon incarceration of accused in jail, but she shall suffer simple imprisonment until rising of the Court and pay fine in the sum of Rs. 60,000/- payable within two months from the date of this order, failing which the amount shall be recovered by learned trial Court by following procedure for recovery of fine. The amount of fine when recovered shall be paid to the complainant as compensation in view of Section 357 (3) Cr.P.C. The accused appear before learned Magistrate within two months and surrender herself to the custody of the Court to undergo simple imprisonment till rising of the Court on the date to be fixed by the trial Court. Appeal disposed of accordingly.
A.P. BHANGALE, J hsj ::: Downloaded on - 09/06/2013 15:38:52 :::