Gujarat High Court
Anilkumar Jayantilal Sathwara vs State Of Gujarat on 18 June, 2024
NEUTRAL CITATION
R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1145 of 2023
With
R/CRIMINAL APPEAL NO. 1596 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No
2 To be referred to the Reporter or not ?
Yes
3 Whether their Lordships wish to see the fair copy
of the judgment ? No
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
Yes
of India or any order made thereunder ?
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ANILKUMAR JAYANTILAL SATHWARA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS.DILBUR CONTRACTOR with MR NIKUNT K RAVAL(5558) for the
Appellant(s) No. 1
MR.F.B.BRAHMBHATT with MR. VISHAL P THAKKER(7079) for the
Opponent(s)/Respondent(s) No. 2
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 18/06/2024
ORAL JUDGMENT
1. RULE. Learned APP waives service of rule for the respondent-State.
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2. With the consent of the respective learned advocates, this matter was heard finally.
3. This appeal is filed challenging the judgment and order dated 18.01.2023 of acquittal passed by the learned Special Metropolitan Magistrate, Negotiable Instrument Court, Ahmedabad in Criminal Case No. 3103173 of 2015 and Criminal Case No. 3103172 of 2015 whereby, the accused came to be acquitted for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "N.I. Act").
4. It is the case of the complainant that complainant and the accused are friends and for the business of construction, the accused had demanded the amount of Rs.1,33,20,000/- which was lent by the complainant after borrowing the same from his relatives and from his personal savings. For repayment of the aforesaid amount, four cheques were issued in favour of the complainant. The details of the cheques are mentioned hereinbelow:
Date Cheque No Bank Amount Page 2 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined 12.08.2010 028631 The Mahesana 18,50,000/- Nagrik Sahakari Bank Ltd. 23.08.2010 028632 The Mahesana 19,50,000/- Nagrik Sahakari Bank Ltd. 08.09.2010 028633 The Mahesana 22,85,000/- Nagrik Sahakari Bank Ltd. 10.10.2010 028634 The Mahesana 27,40,000/- Nagrik Sahakari Bank Ltd.
4.1. On depositing the said cheque, it was returned with an endorsement of "account closed" on 03.01.2011 and therefore, after following the procedure prescribed under the N.I.Act, private complaint came to be filed before the competent court. 4.2. On recording the verification, summons came to be issued against the accused and on appearance of the accused, plea was recorded under section 251 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C") on 09.07.2019. The accused pleaded not guilty and claimed to be tried. Therefore, the complainant to prove the guilt of the Page 3 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined accused, has filed his examination-in-chief below Exh. 6 and produced 13 documentary evidences. 4.3. On filing the closing pursis, further statement under section 313 of Cr.P.C. came to be recorded on 22.12.2022 wherein, the accused pleaded to be innocent and submitted that reply to the demand notice which was given is true and correct and on misusing of the cheque, false complaint is filed. 4.4. Learned trial court, after considering the material placed on record and the arguments submitted by the learned advocate for the respective parties has acquitted the respondent-accused from the charges which is subject matter of challenge before this Court.
5. Heard learned advocate Ms.Dilbur Contractor for learned advocate Mr.Nikunt Raval for the applicant and learned advocate Mr.F.B.Brahmabhatt for the respondent no.2.
5.1. Learned advocate Ms.Contractor for the applicant has submitted that learned trial court has committed grave error in acquitting the respondent accused in absence of rebuttal of presumption which is in favour Page 4 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined of the complainant and though complainant by filing his affidavit in form of chief examination has placed on record all materials which were not disputed by the respondent-accused as there was no cross examination held by the respondent-accused learned trial court has acquitted the respondent-accused. Learned advocate Ms.Contractor submit that on 03.08.2012 affidavit in form of examination in chief was filed and as the complainant was unable to remain present, the stage of cross examination was closed on 17.10.2022 and though accused also not entered into the witness box not produced any evidence in his defence, the learned trial court has kept the matter for final arguments on 22.12.2022 after filing of the written submissions by both the parties.
5.2. Learned advocate Ms.Contractor submits that additional documents which were produced along with the written submissions by the respondent- accused were considered as evidence though same were never produced or proved by following the procedure prescribed under the Evidence Act. Page 5 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024
NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined Learned advocate Ms.Contractor submits that copy of the written submissions were never shared with the complainant and therefore, the complainant was not having the opportunity to controvert the documents which were produced with the written submissions. However, learned trial court has considered all the documents which are part of the written submission as evidence and acquitted the respondent-accused from the charges.
5.3. Learned advocate Ms.Contractor further submits that unexhibited documents were given weightage and formed the basis for acquittal by the learned trial court and therefore also, the impugned judgment and order requires to be interfered with. 5.4. Learned advocate Ms.Contractor for the submits that even the Rojkam also not reflect the correct entries as the entry mentioned in the Rojkam dated 05.12.2022 does not reflect the absence of the complainant. On 01.12.2022 learned trial court was on leave, however, learned trial court has observed in the impugned judgment that due to repeated absence Page 6 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined of the complainant the cross-examination could not take place and therefore, adverse inference was drawn against the complaint for disbelieving the case under the N.I.Act.
5.5. Learned advocate Ms.Contractor submits that though the criminal case was filed in the year 2012, the matter was put on dormant file vide order dated 08.09.2018 because of non-appearance of the accused. However, without considering the said order, learned trial court has passed impugned judgment and order of acquittal.
5.6. Learned advocate Ms.Contractor submits that the presumption is provided in favour of the complainant under section 118 and 139 of the N.I.Act and in absence of any defence or cross-examination of the complainant, affidavit of the examination-in-chief filed by the complainant stands unrebutted and uncontroverted. However, without restricting the averments made in the chief-examination, learned trial court has believed the case of the respondent- accused on the basis of unexhibited documents which Page 7 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined are produced along with written submissions and therefore, also the impugned judgment and order of acquittal deserves to be interfered with. 5.7. Learner advocate Ms.Contractor further submit that in the impugned judgment and order of acquittal, the learned trial court has observed that there are many complaints filed against the complainant under section 138 of the N.I.Act. The copies of the complaints which are placed on record by the respondent-accused are believed by the learned trial court without examining the said complaint in detail as most of the complaints have been dismissed for non-prosecution. Learned trial court has committed error in disbelieving the case on the ground of source of fund to lend the amount of the complainant on the ground that complainant himself was convicted for the offence punishable under section 138 of the N.I.Act for dishonour of two cheques and without considering the fact that when the presumption is not rebutted by the respondent-accused and without considering that each case is to be decided on the basis of evidence lead before the court of law Page 8 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined independently. However, the learned trial court has acquitted the respondent-accused from the charges. 5.8. Learned advocate Ms.Contractor further submits that trial court has passed the judgment and order of acquittal without following the principle laid by the Hon'ble Apex Court in catena of decisions wherein, it is provided that in the cases related to the N.I.Act the presumption is provided in favour of the complainant and unless and until the aforesaid presumption is rebutted by leading cogent and convincing evidence, the burden would not shift on the complainant to prove his case. Learned advocate Ms.Contractor in absence of the rebuttal of presumption learned trial court has acquitted the respondent-accused and therefore also the judgment and order deserves to be quashed and the accused is required to be convicted for the offence.
6. On the other hand, learned advocate Mr.F.B. Brahmabhatt has submitted that pursuant to the directions issued by the Hon'ble Apex Court dated 19.12.2022 for expeditious trial of the cases under the Page 9 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined N.I.Act, the instant case was conducted by the learned Special Court under the pilot project. 6.1. Learned advocate Mr.F.B. Brahmabhatt submits that on receiving the demand notice under section 138 of the N.I.Act, the respondent-accused had replied and challenged the financial capacity to lend the huge amount i.e Rs.1,33,20,000/- and it was further stated in the reply to the demand notice that accused was working with the complainant and was taking care of management of the business of the accused. The complainant started misappropriating the goods and when this fact came into the knowledge of the accused, complainant was fired from the job and at that point of time, he took all the materials with him like books of accounts and signed cheque book etc. and the said cheques were misused by depositing in the bank. However, though aforesaid said reply was received by the respondent-accused, same was not controverted neither any further reply was given by the complainant and straight away filed the complaint before the court of law. The aforesaid reply was produced by complainant himself which was Page 10 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined exhibited below Exh.15 and after considering the aforesaid reply the learned trial court has acquitted respondent-accused by giving detailed reasons and therefore, no interference is required. 6.2. Learned advocate Mr.F.B. Brahmabhatt further submits that though examination-in-chief is filed in the year 2012 complainant was not remaining present and therefore, previously also an application was filed to close the right of cross-examination, however, thereafter the case was transferred to Mehsana court in light of the decision rendered by the Hon'ble Apex Court in the case of Dashrath Roopsingh Rathore thereafter, again in 2015 criminal case came to be transferred from Mehsana to Ahmedabad. 6.3. Learned advocate Mr.F.B. Brahmabhatt submitted that in the year 2019 i.e on 17.10.2019 the application was preferred under section 143A of the N.I.Act for depositing 20% of the cheque amount thereafter, complainant continuously remained absent and though said application was pending another application was preferred on 13.09.2022 for the same Page 11 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined purpose wherein also the despite several adjournments were granted same remained undecided due to the absence of the compliment. 6.4. Learned advocate Mr.F.B. Brahmabhatt submits that as complainant has not offered himself for cross- examination, accused was not having any opportunity to rebut the presumption which is in favour of the complainant and therefore, he submitted the written arguments alongwith the certified copies of the case filed under section 138 of the N.I.Act for the period of 2009 and 2010 which is the period when the complainant has alleged to have lent the amount to the accused. From the aforesaid certified copies of the cases it was revealed that he was not able to make the payment of Rs.40,000/- and therefore, the complaint under section 138 of the N.I.Act was filed and he was convicted against which appeal was preferred which was dismissed and as on date jail warrant is in operation against the accused in conviction of two cases. As the warrants were already in operation, he did not remain present before the learned trial court and did not offer himself for cross-examination and Page 12 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined therefore, learned trial court has rightly drawn inference that he is not in capacity to land huge amount in cash.
6.5. Learned advocate Mr.F.B. Brahmabhatt submits that the certified copies and the jail warrants which were produced before the learned trial court along with the arguments are the public documents defined under section 79 of the Evidence Act and therefore, there was no further proof required for reliance upon the aforesaid documents and in those circumstances learned trial court has rightly acquitted the respondent-accused and therefore also no interference is required.
6.6. Learned advocate Mr.F.B. Brahmabhatt submits that for rebuttal of the presumption as per the law laid down by the Hon'ble Apex Court in the various decisions that it is open for the accused to rely on the evidence led by him or the accused can also rely on the material submitted by the complainant in order to raise probable defence. Inference of preponderance of probabilities can be drawn not only from the material Page 13 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined brought on the record by the parties but also by reference to the circumstances upon which they rely. Therefore, it is not necessary for the accused to come in the witness box in support of his defence as section 139 impose evidentary burden not a persuasive burden. The complainant fails to produce any relevant document in support of source for advancing the money to the accused and therefore, learned trial court has rightly acquitted the respondent-accused after considering the serious lacuna in the evidence of the complainant.
6.7. Learned advocate Mr.F.B. Brahmabhatt submits that onus of proof on the accused is not as heavy as that of prosecution. Complainant neither established his case by producing the statutory books of accounts or any relevant material to show his financial capacity nor named any relative from whom the amount was borrowed and therefore, the learned trial court has rightly observed that in absence of cross-examination and any convincing evidence, it is difficult to believe the source of income to lend the huge amount of Rs.1,33,20,000/- in cash.
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NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined 6.8. Learned advocate Mr.F.B. Brahmabhatt submits that even from the chief examination also there was no averment regarding whether the accused is doing the business of serving somewhere and what is his monthly or yearly income, more particularly when accused has challenge the financial capacity in reply to the demand notice and therefore also it is prayed that the appeal challenging the impugned judgment and order deserves to be dismissed.
6.9. Learned advocate Mr.F.B. Brahmabhatt lastly submits that when two views are possible the view which is in favour of the accused must be adopted and in absence of any perversity in finding recorded by the learned trial court the appellate court may not interfere and on that ground also appeal deserves to be dismissed and the judgement and order of acquittal requires to be confirmed.
7. Considering the lengthy arguments advanced by the learned advocate for respective parties and the record and proceedings thoroughly, it transpires that complaint is filed before the learned trial court on Page 15 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined 08.03.2011 and Exh.6 i.e the chief examination is filed by the complainant on 03.08.2012.
7.1. It is the case of the complainant that complainant has lent the amount of Rs.1,33,20,000/- in cash to the accused and for repayment the cheques which are mentioned complaint is issued in favour of the complainant.
7.2. After recording the verification learned trial court passed an order below Exh.8 on 18.09.2012 wherein, the documents produced along with the complaint is mark 7/9 the xerox copy of the notice, were given the tentative Exhibit in view of the objections raised by the accused. The other documents were given final Exhibits.
7.3. The complainant has also produced the reply to the demand notice below Exh.15 wherein, it is contended by the accused that complainant was serving in the office of the accused and managing all affairs of the business of the accused. When the accused came to know about the misappropriation of the goods, complainant was terminated by the respondent- Page 16 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024
NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined accused and at that point of time, the books of accounts, account ledger, cheque books were taken away by the complainant without the knowledge of the accused. On receiving the notice, the accused came into the knowledge that the complainant has misused the cheque of the account maintained at the time of doing the business which was shut down long back by the accused and therefore, accounts were also closed many years ago and accused has further stated that the complainant does not have any financial capacity to lend the huge amount in cash and has issued the false notice under section 138 of the N.I.Act.
7.4. On being summoned by the learned trial court, the accused appeared, however, Rojkam which is the part of the record and proceedings reflects the entry from 2015 onwards, therefore, on which date the accused appear does not reflect from any record. From the judgment it transpires that the application was filed which is part of the record and proceedings below Exh.5 in Criminal Case No.178 of 2011 (new case 3172 of 2015) on 29.06.2012 to close the stage of the Page 17 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined cross-examination due to continuous absence of the complainant. During the pendency of the aforesaid applications the judgment was rendered by the Hon'ble Apex Court in the case of Dashrat Roopsingh Rathore to transfer the case at Mehsana as the accused was residing at Mahesana. Thereafter, the amendment came into force in the year 2015 and the territorial jurisdiction of the trial was again changed where the branch of the bank situated where the cheque has been deposited is to be considered. Therefore, the same was re-transferred to the learned trial court at Ahmedabad. Thereafter, the case was sent to dormant file on 01.09.2018 on the ground that process to the accused is not served.
7.5. On 28.06.2019 the accused appeared and case was taken on board. On 09.07.2019 plea of the accused came to be recorded and the criminal case was adjourned for cross-examination of the complainant. On 07.09.2019 to 19.10.2019 the vakalatnama on behalf of the learned advocate for the complainant was filed and case was again adjourned. Thereafter, on 13.01.2020 it is noted in the Rojkam in the Page 18 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined Criminal Case No.3172 of 2015 that complainant is absent and it was adjourned for cross-examination of complainant. Thereafter, it transpires that application was sent by the complainant to adjourn the case. On 14.10.2021 the application was given by the respondent-accused and Criminal Case No.3172 of 2015 to close the stage of the cross-examination due to absence of the complainant. It appears that on late hours the complainant remained present and therefore, aforesaid application was rejected. Thereafter, again the application dated 27.04.2022 was sent through the son of the complainant in Criminal Case No.3172 of 2015 that complainant and his advocate is out of station and the application for depositing 20% of the cheque amount which was given was not pressed without the consent of the complainant and as he wants to send this application to the FSL wherein, the allegation of false signature is made by the complainant, time was sought by the son of the complainant. Thereafter, again the application was filed in Criminal Case No.3173 of 2015 praying to deposit 20% amount on 28.09.2022. The complainant Page 19 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined did not remain present on 17.10.2022, therefore, application was given by the learned advocate for the accused in Criminal Case No. 3172 of 2015 to close the stage of cross-examination of the complainant. The learned trial Court has passed order on 17.10. 2022 observing that accused remain present on each date and the complainant did not remain present for cross-examination and therefore, right of cross- examination came to be closed which remain unchallenged till date of final judgement. 7.6. Thereafter, the case came to be adjourned on 05.11.2022, 01.12.2022, 22.12.2022, 30.12.2022 and 11.01.2023. On these days, neither the complainant remained present nor any application was given to reopen the stage of cross-examination and thereafter final arguments were submitted by learned advocates for the complaint and the accused. Along with the final arguments, respondent-accused has placed on record the certified copy of the judgment of conviction and jail warrant wherein, he was convicted for the offence punishable under section 138 of the N.I.Act, wherein the cheque amount involved is Rs.1,50,000/- Page 20 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024
NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined in Criminal Case No. 2440 of 2011 and Rs.40,000/- in Criminal Case No. 6 of 2009. The certified copy of the criminal case filed before the learned Judicial Magistrate First Class at Mehsana by the complainant against the accused for the offence punishable under section 406, 420, 323, 390, 392, 114, 120b, 506(2) of IPC and 135 of the Bombay Police Act was filed on 14.09.2000 which was dismissed on 03.10.2012 is filed along with written arguments. The certified copy of the Regular Civil Suit being number 109 of 2021 is also filed along with the written argument which was dismissed by the learned Civil Court on 28.07.2022. It was observed by the learned trial court that Criminal Case No.3172 of 2015 containing four cheques and as per section 219 of Cr.P.C the learned trial court can try three cases together. By giving detailed reasons, the learned trial court has dismissed the complaint and acquitted the respondent-accused. 7.7. The mute question arise for consideration before this Court in background of aforesaid facts are: Page 21 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024
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(a) In absence of the cross examination what will be the evidentary value of chief examination?
(b) Whether the certified copy of the warrants and judgment passed by the court of law can be considered as public document?
(c) What would be the mode of rebuttal of presumption provided under the N.I.Act?
8. For consideration of the first question necessary provisions under the N.I.Act is required to be looked into:
135. Law of place of payment governs dishonour Where a promissory note, bill of exchange or cheque is made payable in a different place from that in which it is made or indorsed, the law of the place where it is made payable determines what constitutes dishonour and what notice of dishonour is sufficient.
Section. 137 - Presumption as to foreign law The law of any foreign country regarding promissory notes, bills of exchange and cheques shall be presumed to be the same as that of India, unless and until the contrary is proved.
Section 138 - Dishonour of cheque for insufficiency, etc., of funds in the account.
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NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined 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 provision 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:
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;
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; and 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.Page 23 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024
NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined S. 143 Power of Court to try cases summarily (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:
Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:
Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.Page 24 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024
NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.
S. 145 - Evidence on Affidavit (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.
Section 262 - Procedure for summary trials (1) In trial under this Chapter, the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned.
(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.
Section 265 - Language of record and judgment (1) Every such record and judgment shall be written in the language of the Court.
(2) The High Court may authorise any Magistrate empowered to try offences summarily to prepare the aforesaid record or judgment or both by means of an Page 25 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined officer appointed in this behalf by the Chief Judicial Magistrate, and the record or judgment so prepared shall be signed by such Magistrate.
9. Section 145 was amended for the purpose to save the considerable time usually spent for recording the statement of complainant. Section 145 of the Act gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. The court has to accept the same even if it is given by way of affidavit. Second part of section 145(1) provides that complainant's statement on affidavit may subject to all exceptions be read in evidence in any inquiry, trial or other proceeding. Section 145 is rule of procedure which lays down the manner in which evidence of the complainant may be recorded and once the court issues the summons and the presence of the accused is secured, the court may fix the case at an early and ensure date for day to day trial. Section 143 empowers the court to try the cases for dishonour of cheque summarily in accordance with the proceedings of section 262 to 265 of Cr.P.C. Considering the scheme of the Acts, it cannot be said Page 26 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined that simply because complainant is permitted to give evidence by way of an affidavit, the right of the accused to a fair trial is denied in any manner. The accused is entitled to cross-examine the said witness on such affidavit.
10. The object of cross-examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of the evidence of witnesses who have already given evidence in person or to elicit something in favour of the party which he has not stated to or discredit him by showing from his past history or present demeanour that he is unworthy of credit. It exposes bias, detects falsehood and show mental and moral condition of the witnesses.
11. The Hon'ble Apex Court in the case of Gopal Sharan versus Satyanarayan AIR 9 SC 1141 has held that party not subjecting himself to cross-examination inspite of the order of the court is unsafe to rely on examination-in-chief. The relevant observations made is reproduced here in below:
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NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined "On the basis of the aforesaid, it was contended that it was the definite case of the defendant in Examination-in- chief, that the board belonged to him and that the defendant was carrying on his own business and that there was no dispute as to the same by the plaintiff. It may be mentioned that the plaintiff had not subjected himself to crossexami- nation in spite of the order of the Court after the remand, therefore, it would not be safe to rely on the examination- in-chief recorded which was not subjected to cross-examina- tion before the remand was made. If that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint. This position appears estab- lished from the facts on record. When the plaintiff appeared for evidence in rebuttal he could have been cross- examined on these points. It was submitted that in rebuttal the plaintiff had stated only with regard to the default in payment of rent but the Plaintiff had not chosen to support his plaint case, before the defendant went to the witness box. There was no question of cross-examining the plaintiff travelling beyond the evidence of the plaintiff given in examinationin--chief and thereby giving an opportunity to make out a case in crossexamination. It, therefore, appears from the pleadings and the evidence that the respondent did not make out any case of the appellant parting with posses- sion by putting up the hoarding. In examinationin- chief also he did not make out such a case and on the contrary his case was that it was that it was the defendent- appellant who had put up the hoarding. The plaintiff did not allege that the defendant-appellant was not carrying on also advertising business. It was submitted on behalf of the Page 28 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined appellant that having refused to submit to crossexamination the plaintiff has made the evidence in examination-in-chief non est. It was the case of the defendant that he was carrying on the business of advertisement by putting up the hoardings of different parties. The board was made by him, paintings and writings were also done by him and for putting the hoarding the charged from his customers. Therefore, it appears to us that there are no clear findings that anybody was given lease or anybody was given the right to put up the hoarding and there was parting of possession in favour of anyone else. It was, however, argued that even if the appellant had put the advertisement board hoarding he was earning a huge amount by the same and this was a factor which would indi- cate that there was parting of possession by him. It was, however, submitted on behalf of the appellant that when the shop had been let out to the defendantappellant for carrying on business it was the fight of the defendantappellant to carry on the business. It was legally permissible to use the said shop room and also use the roof thereof and earn as much as could be done and as such it is not parting with possession."
12. The same principle is reiterated by the Hon'ble Apex Court in the case of Ishwarbhai.C.Patel and others versus Harihar bhai Mehra the observations made by the Hon'ble Apex Court is reproduced herein below:
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NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined "As early as in 1927, the Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh and another, AIR 1927 Privy Council 230, took note of a practice prevalent in those days of not examining the parties as a witness in the case and leaving it to the other party to call that party so that the other party may be treated as the witness of the first party. Their Lordships of the Privy Council observed as under:- "Notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party's, own witness. This is thought to be clever, but it is a bad and degrading practice. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal (1), calling it "a vicious practice, unworthy of a high-toned or reputable system of advocacy." They further observed as under:- "But in any view her non-appearance as a witness, she being present in Court, would be the strongest possible circumstance going to discredit the truth of her case." Their Lordships also took note of the High Court finding which was to the following effect:- "It is true that she has not gone into the witness box, but she made a full statement before Chaudhri Kesar Ram, and it does not seem likely that her evidence before the Subordinate Judge would have added materially to what she had said in the statement." They observed:-
"Their lordships disapprove of such reasoning. The true object to be achieved by a Court of justice can only be furthered with propriety by the testimony of the party who Page 30 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross-examination. This decision has since been relied upon practically by all the High Courts. The Lahore High Court in Kirpa Singh vs. Ajaipal Singh and others, AIR 1930 Lahore 1, observed as under:- "It is significant that while the plaintiffs put the defendant in the witness-box they themselves had not the courage to go into the witness-box. Plaintiffs were the best persons to give evidence as to the "interest" possessed by them in the institution and their failure to go into the witness-box must in the circumstances go strongly against them. The Allahabad High Court in Arjun Singh vs. Virender Nath and another, AIR 1971 Allahabad 29, held that :- "the explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the court would not imagine an explanation which a party himself has not chosen to give."
It was further observed that:- "If such a party abstains from entering the witness box it must give rise to an inference adverse against him.""
13. The Hon'ble Apex Court in the case of Lakshmi Bai through legal as and others Vs Bhagwant bua through legal heirs and others reported in AIR 2013 SC 1204 has held as under:
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NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined "31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity.
Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226; State of U.P. v. Nahar Singh (dead) & Ors., AIR 1998 SC 1328; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207; and Sunil Kumar & Anr. v. Page 32 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024
NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined State of Rajasthan, AIR 2005 SC 1096 (2005 AIR SCW
589)."
14. There maybe cases where complainant though remained present, accused failed to grab the opportunity to cross-examine because of his absence or non-cooperation or there would be cases where the complainant did not remain present and tender himself for cross-examination despite the presence of the accused.
14.1. In those cases no prejudice would cause to them if those witnesses did not enter in to the witness box. In case where the complainant did not appear and offer himself for cross-examination, the Hon'ble Apex Court in the case of Vidyadhar Vs Manik Rao reported in AIR 1991 SC 1441 has observed as under:
"16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 Page 33 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box."
15. There would be situation where on account of less favourable answer given in the initial stage of the cross-examination witness may avoid the box on subsequent occasions in those circumstances learned trial court is justified in forming an opinion about the probative value of such evidence in peculiar factual background. In all, when there was a deliberate attempt on the part of the witness to avoid the cross- examination, evidence has to be eschewed from consideration.
15.1. The right of cross examination not only referable to section 138 of the Evidence Act but is one of the Page 34 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined principle of natural justice that evidence may not be read against the party until the same has not been subjected to cross-examination or atleast an opportunity has not been given for cross-examination. Section 138 of the Evidence Act impliedly lays down that statement of a witness would be read as evidence against the party only if it had been tested on the envil of cross-examination or opportunity was offered for the purpose.
15.2. In the case of Vasilidas Vs reported in AIR 1945 Privy Council 38 the Hon'ble Apex Court observes that cross-examination is one of the most important process for elicitation of the facts of the case. The provisions for cross-examination is not merely a technical rule of evidence, it is rule of essential justice. It serves to prevent surprise at the trial and miscarriage of the justice because it gives notice to other side of the actual case i.e going to be made when the turn of the party on whose behalf the cross- examination is made, comes to give and lead evidence by producing witness. The accused must be given a fair chance to cross-examine the witness. Page 35 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024
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16. In the instant case, though stage of the cross-
examination was closed vide order dated 17.10.2022 and thereafter, learned advocate for the complainant appeared and filed the written arguments but no applications were given to reopen the stage of cross- examination. It is argued by the learned advocate for the complainant that the evidence placed on record along with the chief examination is to be accepted as a gospel truth. In the opinion of this Court, the stage of such evidence cannot be considered as legal testimony and would not be basis for judicial pronouncement. Non-appearance of the complainant for cross examination would lead to adverse inference against the trustworthiness of his statement made in examination-in-chief.
17. In view of the above, this Court is of the view that the learned trial court has rightly disbelieved the evidence of the complainant which was placed on record along with the chief examination in the form of affidavit provided under section 145 of the N.I. Act in absence of the cross-examination.
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18. The next question which comes for consideration of this Court is that whether the certified copy of the warrant and judgment can be considered as a public document:
19. Before discussing into the merits with regard to the aforesaid issues the relevant provisions under the Evidence Act is required to be re-looked into:
S. 74 Public documents The following documents are public documents--
(1) Documents forming the acts, or records of the acts--
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country;
(2) Public records kept in any State of private documents.
S. 75 Private documents All other documents are private.
S.76 Certified copies of public documents Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is true copy of such document or part thereof, as the case may be and such Page 37 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal; and such copies so certified shall be called certified copies.
S.77 Proof of documents by production of certified copies Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. S.78 Proof of other offical documents The following public documents may be proved as follows:-
(1)Acts, orders or notifications of the Central Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government--
by the records of the departments, certified by the head of those departments respectively, or by any document purporting to be printed by order of any such Government or as the case may be, of the Crown Representative; (2)The proceedings of the Legislatures--by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed by order of the Government concerned;
(3)Proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any department of Her Majesty's Government--
by copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's printer; Page 38 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024
NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined (4) the acts of the Executive or the proceedings of the Legislature of a foreign country--by journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act;
(5) The proceedings of a municipal body in a State-- by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body; (6) Public documents of any other class in a foreign country--
by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public, or of an Indian Consul or diplomatic agent that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country. S.79 Presumption as to genuineness of certified copies The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by an officer of the Central Government or of a State Government, or by any officer in the Slate of Jammu and Kashmir who is duly authorized thereto by the Central Government;
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NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
The Court shall also presume that any officer by whom any such document purports to be signed or certified held when he signed it, the official character which he claims in such paper.
20. Along with the written arguments accused has produced following documents:
(i) certified copies of the complaint under the N.I.Act filed before the Mahesana Police Station wherein the accused was convicted and jail warrant is under operation.
(ii) certified copies of the private complaint filed under section 406, 420, 323, 390, 392, 114, 120B, 506(2) of Indian Penal Code, 1860 and section 135 of the Bombay Police Act filed by the complainant against the accused on 14.09.2010 which was dismissed under section 203 of the Code of Criminal Procedure on 03.10.2012.
(iii) certified copy of the Regular Civil Suit No. 109 of 2010 filed before the learned Principal Senior Civil Judge, Mahesana on 13.07.2010 which was dismissed on 28.07.2010.Page 40 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024
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21. This court has considered the decision rendered by the Hon'ble Apex Court in the case of Anita Malhotra vs Apparel Export Promotion Council and another reported in (2012) 1 SCC 520. The relevant portion is reproduced herein below:
"16.A reading of the above provisions make it clear that there is a statutory requirement under Section 159 of the Companies Act that every Company having a share capital shall have to file with the Registrar of Companies an annual return which include details of the existing Directors. The provisions of the Companies Act require annual return to be made available by a company for inspection (S. 163) as well as Section 610 which entitles any person to inspect documents kept by the Registrar of Companies. The High Court committed an error in ignoring Section 74 of the Indian Evidence Act, 1872. Sub-section (1) of Section 74 refers to public documents and sub-
section (2) provides that public documents include "public records kept in any State of private documents". A conjoint reading of Sections 159, 163 and 610(3) of the Companies Act, 1956 read with sub-section (2) of Section 74 of the Indian Evidence Act, 1872 make it clear that a certified copy of annual return is a public document and the contrary conclusion arrived at by the High Court cannot be sustained.
19.In Harshendra Kumar D. vs. Rebatilata Koley and Others, (2011) 3 SCC 351, while considering the very same provisions coupled with the power of the High Court under Page 41 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined Section 482 of the Code of Criminal Procedure, 1973 (in short `the Code') for quashing of the criminal proceedings, this Court held:"25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents -- which are beyond suspicion or doubt -- placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage."
20.As rightly stated so, though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merit of the Page 42 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined accusation, but if on the face of the document which is beyond suspicion or doubt placed by the accused and if it is considered the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code.
21.Inasmuch as the certified copy of the annual return dated 30.09.1999 is a public document, more particularly, in view of the provisions of the Companies Act, 1956 read with Section 74(2) of the Indian Evidence Act, 1872, we hold that the appellant has validly resigned from the Directorship of the Company even in the year 1998 and she cannot be held responsible for the dishonour of the cheques issued in the year 2004."
22. This Court has also considered the judgment reported in AIR 1968 Gujarat 100 in the case of Kantilal Ambalal and Ors. Vs State of Gujarat wherein, the Apex Court held that "Both these appeals are allowed and the convictions and sentences of both the appellants are set aside, because there is no evidence to prove the warrant in question. A warrant is a public document, and the only way to prove such a document is by production of certified copy of the same. A certified copy is not produced in this case. The Page 43 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined appeals are, therefore, allowed and the convictions and sentences of the appellants are set aside."
23. This Court has also considered the judgment reported in 1989 (1) G.L.H. 82 in the case of Jagdishchandra Chandulal Shah vs State of Gujarat and Ors., wherein the Apex Court held that:
"Further, it may be mentioned that Section 17 of the Registration Act inter alia provides that when there is any document of sale of immoveable property for the value of more than Rs. 100/- it requires compulsory registration. Section 51 of the Registration Act provides that the following books shall be kept in the several offices:
A-in all registration offices Book 1 "register of non-testamentary documents relating to immovable property", Book 2 "record of reasons for refusal to register, Book 3 "Register of wills and authorities to adopt", and Book 4 "Miscellaneous Register. Section 52 of the Registration Act provides for the duties of the registering officer when the document is presented for registration. Section 52 also inter alia provides that subject to the provisions of Section 62 every document admitted to registration shall without unnecessary delay be copies in the book appropriated thereforaccording to the order of its admission. Section 57 of the Registration Act provides that the books Nos. 1 and 2 and the index relating thereto relating to Book No. 1 shall be at all times open to inspection by any person applying to inspect the same and subject to provisions of Section 62 copies of entries in such Page 44 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined books shall be given to all persons applying for such copies. Sub-section (5) of Section 57 provides that all copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purposes of proving the contents of the original document. When that is the legal position the document at Sr. No. 6 which is the certified copy of the sale deed in respect of the disputed land would be a "public document" and therefore, admissible for the purpose of proving the contents of the original document. However, it is clarified that whenever the question of execution of same arises it will be required to be proved according to law."
24. According to the respondent-accused the documents which are placed along with the written arguments suggests that complainant was convicted for the offence punishable under section 138 of the Negotiable Instruments Act, 1881, wherein, the cheque amount is Rs.40,000/- and the jail warrant were issued against him. The documents produced are the certified copies of the order of the Court of law. A public document is a document which is prepared by public servant in the discharge of his official duty. The reference of Courts of justice and other judicial writings constitute public documents and therefore, all the documents which are Page 45 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined produced by the accused are the documents within the meaning of section 74 of the Evidence Act. As per section 76 of the Evidence Act, certified copy of public documents can be issued by anybody and as per section 77 certified copy of the public document can be produced in proof thereof. The formal proof of those documents would needed only if those are private documents. Since all the documents produced by the accused are public documents within the meaning of section 74 of the Evidence Act, in considered opinion of this Court no formal proof of those documents are necessary and same can be admitted in evidence by virtue of section 77 of the Indian Evidence Act. Therefore, the contention of the complainant that these documents were not proved by witness, putting himself in the box cannot be considered as all the documents produced are public documents under section 74 of the Evidence Act. Therefore, learned trial court has committed no error in relying upon the certified copies of the documents which are issued by the court of law and acquitting the respondent-accused from the charges.
25. The last question which comes before this Court for Page 46 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined consideration is what would be the mode of rebuttal of presumption under the N.I.Act and to consider this, relevant provisions under section 118 and 139 of the 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:
(a) 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;
(b) as to date; that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer; that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsements; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamp; that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) 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 Page 47 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined 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.
26. This Court has also considered the judgment rendered by the Apex Court in the case of Basalingappa V/s. Mudibasappa reported in (2019) 5 SCC 418 where summarize the principle enumerated in paragraph No.25, which reads as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of theAct mandates a presumption that the cheque was for the discharge of any debt or other liability.Page 48 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024
NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined 25.2. The presumption under Section 139is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden."
25.5. It is not necessary for the accused to come in the witness box to support his defence."
27. Therefore, it can be averred from the above provisions that once the execution of the cheque is admitted section 139 of the N.I.Act mandates a presumption that cheque was for discharge of any debt or other liability. Section 139 holds that presumption is a rebuttable presumption and the onus is on the accused Page 49 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined to raise probable defence. The standard of proof of rebutting a presumption is that of preponderance of probability. It is further averred that to rebut the presumption, it is open for the accused to rely on the evidence laid by him or the accused can rely on the material submitted by the complainant in order to raise probable defence. Thus, it is averred that inference of preponderance of probability can be drawn not only from the material brought on record by the parties but also by reference to the circumstances upon which they relied.
28. In the instant case, it is true that the respondent-
accused had not come in the box to lead his evidence, however, the evidence which was lead by the complainant, more particularly, the reply to the demand notice which is produced below Exh.15 he had successfully rebutted the presumption by showing that from the beginning, the case of the respondent is that cheque was misused by the complainant as he was working with the respondent-accused in his office and he had no financial capacity to lend amount of Rs.1,33,20,000/- in cash.
29. Though reply to the demand notice is received by the Page 50 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined complainant no reply was given, neither any case was put up before the learned trial court to show his financial capacity. Therefore, in the considered opinion of this Court accused has rightly been acquitted by the learned trial court on the ground that complainant fails to establish his source of fund to lend the amount as well as the legally enforceable debt.
30. One more crucial aspect which is required to be noted is that various cases are filed against the complainant under section 138 of the N.I.Act for the same period when the so called amount has been stated to lent wherein, the judgment and order of conviction was passed, appeal dismissed and jail warrants are under operation. The conduct of the complainant for not offering himself for cross-examination is because of these jail warrants which are in operation. However, though sufficient opportunity was provided by the learned trial court, neither application to reopen the stage of cross-examination, which was closed by the learned trial court was made nor any evidence was lead to show his financial capacity to lend the amount. Learned trial court has considered all these Page 51 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined circumstances and acquitted the respondent-accused from the charges. Therefore, this Court does not find any illegality, infirmity or perversity in the impugned judgment and order of acquittal.
31. This being an acquittal appeal, as per the law laid down by the Apex Court in case of Chandrappa and others vs. State of Karnataka, reported in (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 hereinbelow:
"(1) An appellate Court has full power to review, reappreciate 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 Page 52 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024 NEUTRAL CITATION R/CR.A/1145/2023 JUDGMENT DATED: 18/06/2024 undefined 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. 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."
32. In view of the above discussions, this Court deems it fit to dismiss this appeal due lack of merits and the impugned and judgment and order dated 18.01.2023 of acquittal passed by the learned Special Metropolitan Magistrate, Negotiable Instrument Court, Ahmedabad in Criminal Case No. 3103173 of 2015 and Criminal Case No. 3103172 of 2015 acquitting the respondent-accused is hereby confirmed.
33. Resultantly, this appeal is dismissed.
(M. K. THAKKER,J) ARCHANA S. PILLAI Page 53 of 53 Downloaded on : Wed Jun 19 21:32:21 IST 2024