Gujarat High Court
Jayantilal Dharamshibhai Parmar vs State Of Gujarat on 12 February, 2020
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
R/CR.MA/429/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 429 of 2020
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JAYANTILAL DHARAMSHIBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR. HJ KARATHIYA(7012) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MOXA THAKKAR APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE UMESH A. TRIVEDI
Date : 12/02/2020
ORAL ORDER
Vide an order dated 20th January, 2020, Record and proceedings was called for in this case and it is received.
The applicant, original complainant has filed this application seeking leave under Sub-Section (4) of Section 378 of the Code of Criminal Procedure, 1973 (for short, 'the Code') challenging the order of acquittal passed by learned 3rd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Rajkot dated 21.11.2019 in Criminal Case No.4148 of 2016 whereby, Respondent No.2 herein came to be acquitted of the charge under Section 138 of the Negotiable Instruments Act.
The case of the complainant, as pleaded, was that, the complainant-accused are father in-law and son in-law Page 1 of 7 Downloaded on : Sun Jun 14 17:38:06 IST 2020 R/CR.MA/429/2020 ORDER respectively. Because of the said relationship, the accused had obtained hand loan, to meet with the financial need, of Rs.3,05,000/- for 2 years in February, 2014 from the complainant. It is further the case of the complainant that accused issued cheque of Rs.3,05,000/- dtd. 02.02.2016 bearing No.497496 drawn on ICICI Bank, Rajkot. According to the complainant, the accused assured that the cheque will be honored on presentation in the Bank and the complainant will get money. Pursuant thereto, the complainant deposited the said cheque in Bank being Bank of India, Main Branch, Rajkot dated 15.02.2016. Thereafter, the complainant issued legal demand notice dated 21.2.2016 through an advocate by RPAD, which is duly served to the accused. According to him, the accused gave evasive reply to the notice by reply dated 8.3.2016 and did not pay the amount of cheque as demanded by the complainant and therefore, the impugned complaint has come to be filed against the Respondent No.2 - original accused.
To prove the case before the trial Court, the complainant examined himself, as also one bank witness, Pratik Vaghela vide Exh.36. He has produced and proved nearly 7 documents in support of his case. On the other hand, the accused has also entered the witness box and examined two of the witnesses including Bank Official vide Exh.37. While leading his defence, he has also produced and proved nearly 6 documents before the trial Court. After conclusion of trial and hearing of the parties, the trial Court has acquitted the accused of the charges leveled against him. Hence, the present Page 2 of 7 Downloaded on : Sun Jun 14 17:38:06 IST 2020 R/CR.MA/429/2020 ORDER application for special leave to appeal under Sub-Section (4) of Section 378 of 'the Code'.
Mr.H.J.Karathiya, learned advocate for the applicant submitted that the trial Court has failed to raise presumption under Sections 139 and 118 of the Negotiable Instruments Act as complainant had led the evidence to the effect that the said cheque came to be issued by the accused towards the money lent to him in February, 2014. He has further submitted that accused has failed to rebut that presumption and therefore, learned trial Judge should not have gone into the issue of capacity to lend the money to the accused. He has further submitted that the defence raised by the accused is not probable and he has filed a complaint about his cheque book missing subsequent to the issuance of notice for returned cheque. Therefore, according to the submission of Mr.Karathiya, it is not believable at all. He has further submitted that even prior thereto, accused has never said that, his cheque book is missing and out of which, the present cheque is being misused. Therefore, learned trial Judge has wrongly shifted the burden on the complainant to prove his case against the applicant so far as legally enforceable debt and his capacity to lend the money. In support of his submission, learned advocate, Mr.Karathiya, relied on the decision of the Supreme Court in the case of Uttam Ram V/s. Devinder Singh Hudan reported in 2019 (10) SCC 287 more particularly, para-20 thereof. Relying on it, he has submitted it is not that the complainant has to prove a debt before the Civil Court wherein, the plaintiff is required to prove his Page 3 of 7 Downloaded on : Sun Jun 14 17:38:06 IST 2020 R/CR.MA/429/2020 ORDER case on the basis of evidence to be laid in support of his claim for the recovery of the amount due. Since statutory presumption is provided for the prosecution under the offence, no such standard of proof as required in the Civil Court be expected from the complainant. Relying on the said decision, he has submitted that there is a presumption in law of consideration to be raised under Section 139 of the Negotiable Instrument Act and the accused is required to rebut that presumption. According to him, in the present case, the accused has failed to rebut that presumption and therefore, he could not have been acquitted.
Another decision relied on by the learned advocate for the applicant in the case of Shree Daneshwari Traders V/s. Sanjay Jain reported in AIR 2019 SC 4003 more particularly, para 20 thereof and submitted that, if accused is able to show that consideration and debt did not exist or that under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed then only, presumption can be said to have rebutted. He has contended that accused has not disputed his signature over the cheque and therefore, presumption has to be raised with regard to the consideration and the legally enforceable debt.
Heard Mr.Karathiya, learned advocate for the applicant. He has taken me through the impugned judgment and the copy of the evidence, which he has produced by separate compilation. From the evidence led before the Page 4 of 7 Downloaded on : Sun Jun 14 17:38:06 IST 2020 R/CR.MA/429/2020 ORDER Court, it is clear that the accused was driven out of the house where daughter of the complainant and the accused resided together leaving behind him all his belongings. Thereafter, since June, 2014, the daughter of the complainant has started initiating legal action against husband i.e. accused, under the Penal Code, as also under the Protection of Women from Domestic Violence Act. According to the complainant, the said amount of Rs.3,05,000/- lent to the accused somewhere in February, 2014. However, as recorded by the learned trial Judge in para-16 of the impugned judgment, vide Exh.32, the deposition of the present complainant recorded in Domestic Violence Application filed by his daughter, there is a clear cut admission to the effect that, disputed cheque was given to the complainant by the accused in December, 2013. If that is so, it is irreconcilable that for the amount which is lent in February, 2014 in advance in December, 2013 anyone would issue a post dated cheque prior thereto. The learned trial Judge has further recorded that the complainant has failed to state in his application, notice or even in deposition the date, time and place when the said cheque came to be issued by the accused. Over and above that, as recorded by the learned trial Judge, no person of a normal prudence will believe that cheque came to be issued even subsequent to 2014 when serious disputes arose between the husband and wife which led to the litigations inter-se, even if husband has borrowed money from father in-law. It does not stand to the reason that somebody would repay the amount of issuance of cheque after such a serious matrimonial dispute with the Page 5 of 7 Downloaded on : Sun Jun 14 17:38:06 IST 2020 R/CR.MA/429/2020 ORDER daughter of the complainant. Furthermore, as recorded by the trial Court, the Bank Official examined on behalf of the accused deposed to that the impugned cheque is non CTS Cheque and that cheque book issued reflects two names i.e. Manish Kanubhai Vora and Dhara Manish Vora. Dhara Manish Vora appears to be ex-wife of the present accused and the disputed cheque leaf from the cheque book appears to have been issued in the year 2012. Therefore, by leading evidence through the cross examination of the complainant, as also producing his own witnesses, the accused has been successful to rebut the presumption. By leading evidence, as aforesaid, the accused is successful in showing that the consideration and debt did not exist or under the peculiar circumstance of the case, the non- existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed.
Since the accused is successful in rebutting the presumption then it is for the complainant to prove that existence of the debt and he is capable of lending money to the tune of Rs.3,05,000/-, as claimed by him. Considering the evidence brought on record, the complainant is working as Security Guard and earning Rs.6,000/- per month. While cross examining the complainant, the complainant has tried to explain that he had borrowed the money from his brother and other relatives and then it was lent to the accused. However, it is nothing but an afterthought which is not reflected either in the complaint or in the notice or even in the examination in-chief of the complainant. Thus, it is Page 6 of 7 Downloaded on : Sun Jun 14 17:38:06 IST 2020 R/CR.MA/429/2020 ORDER clear that the judgment of acquittal recorded by the learned trial Judge after considering the evidence minutely, requires no interference under any circumstance.
Hence, this application seeking special leave to appeal stands rejected.
In view of rejection of special leave to appeal, the Record and proceedings be sent back to trial Court forthwith.
(UMESH A. TRIVEDI, J) ASHISH M. GADHIYA Page 7 of 7 Downloaded on : Sun Jun 14 17:38:06 IST 2020