Gujarat High Court
Babubhai Ambalal Patel vs State Of Gujarat on 24 April, 2023
NEUTRAL CITATION
R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 199 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
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 of India or NO
any order made thereunder ?
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BABUBHAI AMBALAL PATEL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR MEHUL M MEHTA(3416) for the Appellant(s) No. 1
APPEARANCE DELETED for the Opponent(s)/Respondent(s) No. 2
MR. BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 24/04/2023
ORAL JUDGMENT
1. The appellant is the original complainant, who is aggrieved by the judgment and order dated 30.10.2009 passed by learned Principal Judicial Magistrate First Class, Kapadvanj in Criminal Case No.2452 of Page 1 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined 2006, whereby the order of acquittal of respondent No.2, has been recorded for the offence punishable under Section 138 of the N.I. Act.
2. This Court vide order dated 08.02.2010, had admitted the present appeal and had directed issuance of bailable warrant against the respondent No.2. The record indicates that bailable warrant has been duly executed upon the respondent No.2, however, respondent No.2 has chosen not to appear before this Court or to contest the criminal appeal. No appearance has been put forward on behalf of respondent No.2 despite being served with the bailable warrant. Considering the fact that present appeal relates to year-2009, this Court has proceeded for final hearing of the appeal in absence of respondent No.2.
3. The gist of the complaint of the present appellant is that the complainant and the accused were residing at the respective addresses shown in the cause title and were engaged in the agricultural activity. Since both the parties belong to the same community, they were known to each other and used to meet frequently because of which friendly relations existed between the parties.
3.1 It is the case of the complainant that the accused had approached the complainant before 9 to 10 months from the lodging Page 2 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined of the complaint seeking financial help for the purpose of agricultural activity. It is contended by the complainant that an amount of Rs.1,70,000/- was sought for and the accused had also assured to repay such amount at the end of seasonal crop being sold by the accused.
3.2 It is further contended that the complainant had handed over such amount in cash to the accused. Since the complainant was in need of the money, the accused had given disputed cheque bearing No.5615165 of Dena Bank, Kapadvanj Branch for an amount of Rs.1,70,000/-. The complainant under bona finde belief of realization of the amount, had presented such cheque on 20.06.2006, which was not realized on the ground of "insufficient funds". It is the case of the complainant that he had once again, approached the accused who had assured the complainant to present the cheque again after lapse of 15 days and he was assured of repayment of the aforesaid amount. In such circumstances, the complainant claims to have presented the cheque on 10.07.2006. It was once again dishonored on the ground of "insufficient funds". The return memo was received from the bank mentioning the aforesaid reason. The complainant was, therefore, constrained to give legal notice under Section 138 of the N.I. Act dated 13.07.2006 which was duly served upon the accused. The complainant has placed on record the supporting documents in the Page 3 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined nature of RPAD slip and the UPC slip. The accused had given vague reply to such legal notice and had raised defence of "lost" cheque. In absence of the realization of the amount, the complainant proceeded with lodging of the complaint under Section 138 of the N.I. Act before the court of learned Principal Judicial Magistrate First Class, Kapadvanj. The aforesaid complaint was registered as Criminal Case No.2452 of 2006.
3.3 The complainant was examined for the verification of the complaint. The summons were issued upon the respondent-accused, who had appeared before the trial court. The plea of accused was recorded, where he had denied the contents of the complaint. The case was treated as summary case. The learned Magistrate proceeded with the trial and the accused was tried for the offence punishable under Section 138 of the N.I. Act. Issue was framed by the learned Magistrate. The complainant had laid oral evidence as well as documentary evidence. The list of such evidence is reproduced as under:
Oral Evidence on behalf of the prosecution Sr. Exhibit Name no. no.
1 Examination-in-Chief on Affidavit of the Complainant -8
Babu Ambalal Patel Page 4 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined 2 Deposition on Oath of - Hasmukh Jashu Patel 21 3 Deposition on Oath of - Hasmukh Fulchand Patel 29 Documentary Evidence on behalf of the prosecution Sr. Exhibit Type of Documents no. no.
1 Original Cheque. 102 Original Counter Foil of the Cheque filled by the 11 Complainant.
3Original Memorandum of Bank. 12 4 Office copy of the notice issued to the accused through 13 R.P.A.D. and U.P.C. 5 Provisional Receipt issued through the Advocate. 14 6 Original Notice form of U.P.C. given by Advocate. 15 7 Original Cover returned with the endorsement of 'Refusal' as the accused has denied to accept the notice 16 forwarded through Reg. Po. A.D. 8 Office copy of reply of Notice given by the accused. 17 9 Authority given to the witness by The Manager. 22 10 Original Certificate about verification of statement. 23 11 True Copy of the specimen signature of the accused taken 24 from the Original.
12Copy of Register of Issuance of Cheque Book. 25 13 Copy of Out ward Register regarding Return of Cheque. 26 14 True Copy of the Statement of the account of accused from 27 Page 5 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined dt. 04/03/2006 to 29/03/2007.
15 Authority issued by the Manager of Peoples Bank to the 30 witness.
16Certificate regarding verification of the Bank Statement. 31 17 True copy of the Account of Complainant. 32 18 Copy of Abstract of Register of Outward Clearing about the 33 Complainant being an account holder of Peoples Bank. 19 Copy of Register of Peoples Bank after returning of the 34 Cheque given by the Complainant to he accused. 3.4 The complainant had also examined witness namely Hasmukhbhai Jashubhai Patel, who is the Bank Officer of the concerned Bank vide Exh.21. The complainant had also examined one witness namely Hasmukhbahi Phoolchandbhai Patel vide Exh.29. 3.5 On the other hand, the accused had given his oral evidence vide Exh.67 and had also placed on record documentary evidence. The details of which, are reproduced as under:
Oral Evidence on behalf of the accused.
Sr. no. Name Exhibit no.
1 Examination-in-Chief on Affidavit of the accused
67
- Narsinh Naran Patel
Documentary Evidence on behalf of the accused.
Sr. Exhibit
Type of Documents
no. no.
Page 6 of 18
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NEUTRAL CITATION
R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023
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1 Certificate issued by the P.S.I. of Kapadvanj Rural Police
69
Station.
2 Copy of Application given by the accused to the Manager of
The Kheda District M.S. Bank to Stop the payment of 70
Cheques.
3 Receipt of Post regarding forwarding the above application
71
through Reg. A.D.
4
Original Receipt of Acknowledgment about delivery of the 72 above application to the Manager.
5 Copy of Application given by the accused to Stop the Payment of Cheques issued from Account no. 7692 given to 73 The Manager of Dakor branch of the Bank.6
Original Receipt of the Post regarding the application as per 74 detail no. 6 forwarded through Reg.A.D. 7 Original Copy of the Acknowledgment of Post about the 75 application of detail no.-6 received by the Manager. 8 Copy of Application given to the Manager of Dena Bank -
Kapadvanj to make Stop Payment of the Cheques of Account 76 no. 4317.
9 Receipt about acknowledgment about the application of 77 detail no.-9 which was forwarded through Reg. A.D. 10 Copy of Acknowledgment of post about receipt of 78 application of detail no.-9 by the Manager of Dena Bank. 11 Copy of Notice issued by the accused against false Cheque Return Memos given by the Manager of Dena Bank regarding 79 the disputed cheques as mentioned in the Complaint. 12 Receipt about receiving of the notice of detail no. -12 80 forwarded through Reg. A.D. to the Manager of Dena Bank, Page 7 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined Kapadvaj 13 Original Acknowledgment of Post about receipt of Notice about detail no. -12 which has been received by the Manager 81 of Dena Bank.
14 Copy of Complaint filed by the accused against the 82 Complainant.
15 Original Acknowledgment of the complaint of detail no.-15 83 received by the P.S.I..
16 Copy about informing through written complaint about missing of the Cheque books of the accused and his forms of 84 farm labourers.
17 Office copy of the Complaint filed in Kapadvanj Rural Police Station by the accused against the Complainant and the 85 Manager of Dena Bank.
3.6 Further statement of the accused was recorded under Section 313 of Cr.P.C., which has come on record vide Exh.41. The accused has raised specific defence of the disputed cheque forming part of the missing cheque book. The learned advocates appearing for the respective parties were heard and after considering the submissions made by learned advocates on record as well as considering the evidence which has emerged on record, the learned Magistrate proceeded to record the order of acquittal of respondent No.2- original accused for the offence under Section 138 of the N.I. Act. Hence, this appeal at the instance of the original complainant under Section 378 read with Section 378(4) of Cr.P.C. Page 8 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023
NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined
4. Heard Mr. Mehul M. Mehta, learned advocate on record for the appellant and Mr. Bhargav Pandya, learned APP appearing for the respondent-State.
5. This Court vide order dated 01.02.2010, noticing the prima facie case, had granted leave to appeal.
6. Mr. Mehul M. Mehta, learned advocate on record for the appellant-original complainant, has invited attention of this Court to the findings and reasons recorded by the trial court while passing the impugned order of acquittal. At the outset, he has submitted that learned Magistrate committed gross error by accepting the defence of "lost" cheque being raised by the accused. He has further submitted that aforesaid defence was an afterthought of the accused. At this stage, he has invited attention of this Court to the reply given by the accused to the legal notice of the complainant and has submitted that it was only when the notice was issued upon the accused calling upon him to make good the payment of the disputed cheque, the accused had come out with a case of cheque being lost. He has further submitted that no FIR was registered by the complainant with regard to the "lost" cheque.
6.1 He has further submitted that the learned Magistrate ought to have appreciated that respondent No.2 had at no point of time Page 9 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined disputed the signature on the cheque. In such circumstances, the presumption available under Section 118 (a) read with Section 139 of the Act, was available in favour of the complainant. Once the presumption was drawn in favour of the complainant, the burden was upon the accused to establish the fact that at no stage, the accused had handed over the disputed cheque towards the discharge of the debt in respect of the transaction between the parties. He has further submitted that the learned Magistrate without appreciating the fact that the defence raised by accused at the most could have been treated as plausible explanation and not probable defence. He therefore, submitted that the learned Magistrate failed in error in shifting the burden upon the complainant to prove his case beyond reasonable doubt. He has further submitted that the evidence brought on record by the accused in no manner, had rebutted the statutory presumption, which has arisen in favour of the complainant. 6.2 He has further invited attention of this court to the cross- examination of the complainant. He had also further taken this Court through the documents in the nature of the disputed cheque, which has come on record vide Exh.35, the reply given to the notice vide Exh.99. He has further invited attention of this Court to the evidence of witness namely Hasmukhbhai Jashubhai Patel, who has appeared for the prosecution. He has further submitted that the said witness Page 10 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined was the Manager of the concerned Bank and has submitted that said witness has supported the case of the complainant and through his evidence, it has come on record that the such cheque belong to the accused and the said cheque was dishonoured on account of "insufficient funds" of the accused. The statement of the account of accused has been brought on record through the said witness, which is exhibited as Exh. 27. It has also come on record that though the letter dated 04.05.2006 given by the accused was received by the Bank, which mention about "lost" of cheque. But at no stage, the instructions with regard to stop payment was issued by the accused. By relying upon the aforesaid documents, learned advocate Mr. Mehta has submitted that the basic ingredients having been complied with, the offence under Section 138 of the N.I. Act was attracted. He therefore, submitted that only with an oblique motive to avoid the payment of the money borrowed by the accused, a false story was got up, which could not have been accepted by the learned Magistrate as a "probable defence" in absence of any cogent material being placed on record by the accused. In support of his submissions, he has relied upon the decisions of the Hon'ble Apex Court in the case of Tedhi Singh. vs. Narayan Das Mahant reported in (2022) 4 S.C.R. 442 and Uttam Ram vs. Devinder Singh Hudan and Anr. reported in (2019) 10 SCC 287. He therefore, urged this Court to quash and set aside the Page 11 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined order of acquittal of respondent No.2.
7. The only question which falls for consideration of this Court is whether the learned Magistrate has committed any error in fact or in law while passing the impugned order of acquittal?
8. The Negotiable Instruments Act including the cheque carries presumption of consideration as provided under Sections 118(a) and 139 of the Act, which reads as under:
Section 118 in The Negotiable Instruments Act, 1881
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;
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.
9. The trial court upon appreciation of the evidence which has come on record, more particularly, the cross-examination of the Page 12 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined complainant, the trial court has doubted the very existence of the transaction between the parties. The trial court has noticed the discrepancies in the disputed cheque, more particularly, column of the date mentioned in the disputed cheque relates to the year starting with "19". In the cross-examination of the complainant, the question is put to the complainant, wherein the complainant has admitted the aforesaid fact that disputed cheque must have been issued to the accused in the year 1999 or prior to that. He has further admitted in his cross- examination that except for signature, the rest of the details are filled by the accused. He has also accepted the suggestion that fonts and the contents of the cheque and the signature defers. With such admission, in my opinion, the incriminating material has emerged on record supporting the probable defence of accused questioning the issuance of such cheque in favour of the complainant, has been brought on record by the accused.
10. Additionally, the trial court on appreciation of the evidence of the complainant, has examined the question of financial capacity of the complainant. It has come on record that the complainant is engaged in the agricultural activity. He has also admitted that no IT returns are filed by him and the agricultural lands belongs to the joint family. He has further admitted in his cross-examination that his annual income is Rs.3 Lakhs, out of which, Rs.1 Lakh is utilized for the expenses. In such circumstances, the trial court has doubted the fact Page 13 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined of lending the loan of an amount of Rs.1,70,000/- as claimed by the complainant. The trial court has additionally taken into consideration the conduct of the accused noticing the evidence of the complainant , which has emerged on record in his cross-examination, wherein the complainant has admitted the fact that around 13 different complaints are filed by him. It has transpired on record that the complainant is also engaged in giving amount by loan and is not holding any license in this regard. The trial court has noticed contradictions in the original complaint and the deposition of the complainant. On overall appreciation of the evidence, which has come on record, the trial court has accepted the probable defence raised by the accused. At the same time, in absence of any material being placed on record by the complainant, the trial court has concluded that complainant has failed to prove his case thereby recording the order of acquittal.
11. I have carefully examined the submissions of learned advocate of complainant in light of the evidence, which has come on record. On the aspect of lost cheque, in my opinion, the trial court having noticed the evidence of accused Exh.67 had strong reason to take note of the variation with regard to the fonts of the contents of the cheque and the signature. On bare perusal of the disputed cheque, the Court notices that the accused is a farmer, who seems to be not well versed Page 14 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined the writing as compared to his hand written signature appearing on the cheque. There is variance noted in the contents of the cheque and the signature of the cheque. It has come on record that the accused had also given complaint to the concerned police station with regard to the loss of cheque books, which included the disputed cheque. The accused has also admitted in his cross-examination of being called by the concerned police station for recording statement. In such circumstances, the statements made by learned advocate of non- registration of the FIR, in my view, would not be of significance inasmuch as that on receipt of the legal notice dated 13.07.2006, the accused had given reply to such notice on 20.07.2006, which was within in the prescribed period of 15 days mentioning in the legal notice. The accused had in uncertain terms raised specific defence about the cheque being lost and had also raised defence of misuse of cheque at the instance of the complainant.
12. It has transpired in evidence of the witness namely Hasmukhbhai Jashubhai Patel, who is the Bank Manager of the concerned Bank, that the letter dated 04.05.2006 was addressed by the accused to the concerned bank about cheque being lost. Though the statutory presumption under Sections 118 (a) and 139 of the Act, is available in favour of the complainant, the burden was upon the accused. However, with specific defence of loss of cheque, the Page 15 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined presumption drawn in favour of the complainant , in my opinion, stood rebutted. At one stage, in the cross-examination of the Bank Manager who has entered the witness box, has admitted that the details entered in the cheque and the signature put in the disputed cheuqe varies. So far as the submissions made by learned advocate for the appellant with regard to shifting of the burden to establish the case beyond reasonable doubt by the complainant is concerned, the Court finds support from the decision of the Hon'ble Supreme Court in the case of Tedhi Singh (supra) as relied upon by learned advocate for the appellant. The relevant observations of the aforesaid decision, has reproduced as under:
"9. The Trial Court and the First Appellate Court have noted that in the case under Section 138 of the N. I. Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the N. I. Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent the Courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same Page 16 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence."
13. It is settled legal position that in a case under Section 138 of the N.I. Act, Section 118(a) read with Section 139 of the Act, puts the Court under obligation to raise presumption in favour of the holder of the cheque. That such cheque has been received in whole or in part towards discharge of any debt or other legal liability, however, such presumption exist until the contrary is brought on record. There cannot be any iota of doubt with regard to the fact that it is for the accused to establish that there is no consideration received, however, the presumption goes once the probable defence comes on record. On overall appreciation of the evidence, which has come on record, the Court finds that this is case where the accused has been successful in bringing on record the probable defence, which has ultimately resulted into shifting of the burden upon the complainant. By putting questions in the cross-examination to the complainant with regard to financial capacity, the accused has been successful in dislodging the Page 17 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023 NEUTRAL CITATION R/CR.A/199/2010 JUDGMENT DATED: 24/04/2023 undefined burden upon the complainant to establish his case beyond reasonable doubt. The Court cannot ignore the attending circumstances, which has come on record, which raises serious doubts about the existence of the transactions between the parties. Even in the statement under Section 313 of Cr.P.C., the respondent-accused has stated that his cheque book containing the disputed cheuqe was lost. The variation notice in the contents of the cheque and the signature puts a strong support to the defence raised by the accused, in absence of any evidence to show with regard to the disputed amount being given to the accused. The very existence of legally enforceable debt as on date of presentation of cheque, has not been proved.
14. In my opinion, no error can be found with the impugned order of acquittal. Hence, the present appeal fails and stands dismissed. The order dated 30.10.2009 passed by learned Principal Judicial Magistrate First Class, Kapadvanj in Criminal Case No.2452 of 2006 recording the order of acquittal of respondent No.2 for the offence punishable under Section 138 of the N.I. Act, is hereby confirmed.
15. Bailable warrant, if any, stands cancelled. Record and proceeding be sent back to the concerned court forthwith.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 18 of 18 Downloaded on : Sun Sep 17 18:49:23 IST 2023