Gujarat High Court
Kadir Alamkhan Habibkhan vs Abdul Ajij @ Bannekhan Pathan & on 16 January, 2017
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.RA/782/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ACQUITTAL -
NEGOTIABLE INSTRUMENT ACT) NO. 782 of 2015
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KADIR ALAMKHAN HABIBKHAN....Applicant(s)
Versus
ABDUL AJIJ @ BANNEKHAN PATHAN & 1....Respondent(s)
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Appearance:
MR SANDIP M PATEL, ADVOCATE for the Applicant(s) No. 1
MR SHUSHIL R SHUKLA, ADVOCATE for the Respondent(s) No. 1
MS. MONALI BHATT, APP, for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 16/01/2017
ORAL ORDER
1. By way of present Criminal Revision Application, the applicant has prayed to quash and set aside the order of acquittal dated 30.10.2015 passed in Criminal Appeal No.108 of 2014 by the learned 12th Additional District Judge and further be pleased to confirm the judgment and order dated 22.09.2014 passed in Criminal Case (New) No.41903 of 2007, whereby the respondent No.1 was convicted for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 and sentenced to undergo six months simple imprisonment and fine of Rs.70,000/-, in default, further simple imprisonment of one month. Further, directed to pay compensation of Rs.57,000/- to the complainant, out of fine amount of Rs.70,000/-.
2. Brief facts of the case are that the applicant contended that respondent-accused get the money from the present applicant for handy cash on credit sum amount of Rs.1.20 lacs on 21.03.2006. He further submitted that after numbers of request and demand, the respondent-accused gave four Page 1 of 7 HC-NIC Page 1 of 7 Created On Sat Aug 12 11:03:58 IST 2017 R/CR.RA/782/2015 ORDER cheques of Canara Bank of Baragen Branch being cheque No.359261 dated 10.08.2004 for Rs.12,000/-, No.359262 dated 23.11.2006 for Rs.11,000/-, No.359263 dated 06.01.2007 for Rs.40,000/-and cheque No.359264 dated 17.03.2007 for Rs.57,000/- by that way, respondent-accused repaid the amount of the applicant and gave trust and surety for encash of cheque. He then submitted that out of four cheques, one cheque was presented before the Bank, the same was returned. Thereafter, the respondent-accused gave surety and two cheques would pass thereafter. The present application deposited the last cheque No.359264 for Rs.57,000/- dated 17.03.2007, which was returned on 09.04.2007 with an endorsement of account closed.
2.1 It is the case of the applicant that the applicant issued notice, however, the same was returned with endorsement that receiver was outside and respondent-accused did not pay the amount of Rs.57,000/- which was demanded by notice dated 03.05.2007. Therefore, the applicant preferred criminal complaint under Section 138 of the NI Act before the learned Senior Civil Judge and Chief JMFC, Baroda. The learned trial Court vide order dated 22.09.2014, convicted the respondent- accused and sentence to undergo six months with fine of Rs.70,000/-,in default, simple imprisonment for further one month. The said order was challenged before the learned District and Sessions Court, Vadodara by way of Criminal Appeal No.108 of 2014. The said appeal came to be allowed by quashing and setting side an order dated 20.09.2014. Hence, this revision application.
3. Heard Mr. Sandip Patel, learned advocate for the applicant, Mr. Shushil Shukla, learned advocate for Page 2 of 7 HC-NIC Page 2 of 7 Created On Sat Aug 12 11:03:58 IST 2017 R/CR.RA/782/2015 ORDER respondent No.1 and Ms.Monali Bhatt, learned Additional Prosecutor for respondent No.2.
4. Mr. Patel, contended that the judgment and order of acquittal passed by the learned trial Court is absolutely illegal, unreasonable, perverse and against the law and evidence on record. He then contended that signature on the cheque is not in dispute and the amount given by the applicant to the respondent-accused as a partner. He then contended that the learned trial Judge has wrongly considered that legal dues and transactions are not proved beyond reasonable doubt. The ingredients of Section 138 of the NI Act are also proved beyond reasonable doubt through oral and documentary evidence. He then contended that the learned Sessions Court has erred in misreading and misconstruing the documentary evidence on record of the case. Lastly, he contended that learned trial Judge committed grave error and wrongly set aside the order of conviction.
5. Mr. Shukla, learned advocate for respondent No.1 drew attention of the Court to observations made by the learned trial Judge in paras 17 to 19 and contended that learned trial Judge has rightly considered the cross-examination and oral version of the complainant. Further, from the document at Exh.39 to 51, it is not crystal clear that respondent-accused has taken amount on credit and therefore, on perusal of the documentary evidence, it appears that the learned trial Judge has rightly acquitted the present respondent No.1-accused from the charges levelled against him.
6. Ms. Monali Bhatt, learned APP for the respondent-State argued that from the evidence itself, the respondent-accused Page 3 of 7 HC-NIC Page 3 of 7 Created On Sat Aug 12 11:03:58 IST 2017 R/CR.RA/782/2015 ORDER has rebutted the presumption under the provisions of law and therefore, the learned trial Court has not committed any error in acquitting the respondent-accused.
7. Heard the submissions advanced by learned advocates. Observations made by the learned trial Judge in paras-17 to 19, which read as under:-
"17) Upon making further evaluation of entire evidence of the complainant and from the fact admitted by the complainant during the cross examination, it is clearly proved that evidence in respect of list at exhibit no. 54 (exhibit no. 39 to 50) was in the possession of the complainant. It was not lost or missing. He has not stated in the complaint, notice and affidavit that there is a voucher in respect of lending of money on 21/03/2006.
He has not stated that the money was given in instalment on different dates and facts contained in the documents from exhibit no. 39 to 50 have not been mentioned in the complaint, notice and affidavit. There is no document showing alleged amount of Rs. 1,30,000/- in the exhibit no. 39. He has also admitted that it has not been mentioned in the documents at exhibit no. 39 to exhibit no. 51 that accused has borrowed money. The Defence has raised clear question that all the vouchers are false and bogus and they have been fabricated. If vouchers of exhibit no. 39, 44, 47, 50 are minutely evaluated, all the writing such as cheque number, date, amount, in words, in figure, etc. have been written with blue ink ball-pen. There is no change in the voucher of the said ink and these vouchers are of different dates in 2000, 2004, 2003 and 2004. But, it is clearly proved that same blue ink pen has been used to write in the said vouchers. The ink does not appear to be slight different.
Looking to this, it clearly appears that vouchers were written on the same day. Though it is undisputed that vouchers were in the custody of the complainant, it has not been mentioned about these vouchers in the complaint, notice and affidavit. The accused has taken defence of having fabricated these bogus vouchers later on. Under these circumstances, the aforesaid vouchers are not believable vouchers. The defence of accused does not get corroboration. Looking to the writing of the voucher, defence of accused gets corroboration. It is Page 4 of 7 HC-NIC Page 4 of 7 Created On Sat Aug 12 11:03:58 IST 2017 R/CR.RA/782/2015 ORDER clearly proved that amount of aforesaid voucher is not transaction amount mentioned in the complaint.
18) It becomes clear from the evidence of the complainant that complainant has not produced any evidence in respect of lending of Rs. 1,20,000/- on 21/03/2006. It does not become clear that complainant received present cheque in respect of lending Rs. 57,000/- vide voucher at exhibit no. 50. The voucher at exhibit no. 50 is of 17/06/2004 and accused has not given cheque at exhibit no. 16 to the complainant towards the aforesaid amount. Looking to this, transaction mentioned in the complaint and voucher of exhibit no. 50 are different transaction matters. It is not consistent with complaint. The complainant has not stated anywhere in the complaint, notice or affidavit that when Rs. 1,20,000/- was lent, accused gave voucher bearing his signature. As discussed above, it has been mentioned in the voucher that amount was given through cheque wherein it has been mentioned with different ball-pen that money was lent in cash. Under these circumstances, aforesaid voucher clearly creates doubt. The accused has not stated as to in whose presence, on which date and time, Rs. 1,20,000/- was lent to him. The source of income has not been produced. The complainant has not shown the said amount in the books of account or income tax. Under these circumstances, it is not proved that Rs. 1,20,000/- was lent. It is not proved from the evidence of the complainant that the accused legally owes Rs. 1,20,000/- to the complainant.
19) The complainant has admitted during his cross examination that accused gave Rs. 1,20,000/- by way of demand draft and the said amount was credited in his bank account. The fact that accused gave Rs. 1,20,000/- to the complainant for the business of bricks gets corroboration. The complainant was doing business of bricks. He had been running business by name of Sona Trading and the said fact is acceptable. Under these circumstances, it becomes clear that accused gave Rs. 1,20,000/- to the complainant for the business. It can be believed that blank cheque bearing signature is required to be given in partnership, if required. As discussed above, it is not proved that accused legally owes something to the complainant. It does not appear that aforesaid cheque was given towards legal liability. The Page 5 of 7 HC-NIC Page 5 of 7 Created On Sat Aug 12 11:03:58 IST 2017 R/CR.RA/782/2015 ORDER Defence has succeeded in rebutting presumption through cross examination. The complainant has admitted most significant fact. When Defence has rebutted presumption through cross examination, Prosecution is required to prove its case beyond reasonable doubt without the help of presumption. The Prosecution has not succeeded in proving its case. It is not proved that accused legally owes something to the complainant. The learned Magistrate has erred in evaluation of evidence of the complainant. The Prosecution has not proved that the aforesaid cheque was given for legal debt. It has been established that accused is required to give evidence to rebut presumption u/s 139. The presumption can be rebutted with the facts and through cross examination of complainant. It is revealed in the present case that rebuttal of section 139 is done through cross examination. The complainant has not proved that he received the said cheque towards legal debt. Looking to the cheque of exhibit no. 16, the person issuing the said cheque has put signature in Hindi, whereas name, amount, figure and date are written in different ink in English. Under these circumstances, it is clearly proved that possibility of defence that the aforesaid cheque bearing signature was given blank does not get corroboration. In the present case, accused has denied that cheque bearing writing, date and amount is written in his own handwriting and he has stated that he gave blank cheque bearing signature. Under these circumstances, the complainant should prove that details of the cheque, date and amount have been written as per the instruction and consent of the accused. It cannot be considered that it is proved that said cheque has been received towards legal debt as it bears signature. It is proved through cross examination that the cheque has not been issued for payment of Rs. 1,20,000/- which is mentioned in the complaint. The learned Magistrate has not properly evaluated cross examination and evidence of the complainant. He has erred in evaluation of the same. Therefore, there are sufficient, justified and reasonable reasons for interfering in the findings and reasoning of learned Magistrate. Under these circumstances, following final order is passed giving affirmative reply to issue no. 1 and 2. "
8. I have minutely perused the oral and documentary evidence produced on record and also gone through the Page 6 of 7 HC-NIC Page 6 of 7 Created On Sat Aug 12 11:03:58 IST 2017 R/CR.RA/782/2015 ORDER observations made by the learned trial Court in paras-17 to
19. The learned trial Judge has rightly acquitted the respondent-accused from the alleged offence. I am in full agreement with the judgment and order of acquittal passed by the learned District and Sessions Court, Vadodara. In result, present Criminal Revision fails both on law and facts and the same deserves fate of rejection only. Hence, present application is hereby dismissed.
(Z.K.SAIYED, J.) siddharth Page 7 of 7 HC-NIC Page 7 of 7 Created On Sat Aug 12 11:03:58 IST 2017