Gujarat High Court
Shree Swaminarayan Traders Thro ... vs State Of Gujarat on 20 March, 2024
NEUTRAL CITATION
R/CR.MA/11402/2023 ORDER DATED: 20/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 11402
of 2023
In R/CRIMINAL APPEAL NO. 1548 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 11405 of 2023
In
R/CRIMINAL APPEAL NO. 1549 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 11408 of 2023
In
R/CRIMINAL APPEAL NO. 1552 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 12799 of 2023
In
R/CRIMINAL APPEAL NO. 1768 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 12800 of 2023
In
R/CRIMINAL APPEAL NO. 1769 of 2023
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SHREE SWAMINARAYAN TRADERS THRO MANSUKHBHAI KURJIBHAI
KHUNT
Versus
STATE OF GUJARAT & ANR.
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Appearance:
ADVOCATE NOTICE SERVED for the Applicant(s) No. 1
M S PADALIYA(7406) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR.HARDIK MEHTA ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 20/03/2024
COMMON ORAL ORDER
1. Since the issue raised in the these applications are similar, they are being decided by a common order. The Page 1 of 14 Downloaded on : Fri Mar 29 21:13:57 IST 2024 NEUTRAL CITATION R/CR.MA/11402/2023 ORDER DATED: 20/03/2024 undefined facts of Criminal Misc. Application No.11402 of 2023 are taken for the purpose of adjudication.
2. This application is filed seeking leave to prefer an appeal against the judgment and order of acquittal passed by Learned 9th Additional Chief Judicial Magistrate, negotiable Special Court, Rajkot in criminal case No. 5015 of 2018, whereby accused was acquitted from charges punishable under section 138 of the Negotiable Instruments Act, 1886 (hereinafter referred to as 'the NI Act').
3. The case of the complainant is that, the complainant is running the business in the name and style of Shri Swaminarayan Traders and doing the business of garlic as well as provisional items. The accused who is running the business in the name of Nageshwar Agro Unit had purchased certain articles/goods from the complainant. In due of the payment of the above said bill amount, the cheques bearing No. 065241, 065240, 036883, 036884 and 036882 each for an amount of Rs.1,00,000/- in criminal case No. 5015, 5016, 5017, 5018 & 5019 of 2018 respectively were issued in favor of the complainant. Page 2 of 14 Downloaded on : Fri Mar 29 21:13:57 IST 2024
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4. On dishonoring of the said cheque, a private complaint came to be filed and after considering the material produced on record and the submissions advanced by learned Advocate for the respective parties, learned Trial Court has acquitted the respondent-accused which is a subject matter of the challenge before this Court.
5. Heard learned Advocate Mr.M.S.Padaliya for the appellant
- complainant. It is submitted by the complainant that, on dishonoring the cheque demand notice was issued which was not replied, neither the cheque was disputed nor the signature was questioned by the respondent-accused and the communication which was addressed by the respondent-accused which was produced below Exh.16 whereby the admission was made by the respondent that, he has issued the cheque in favor of the complainant.
5.1. Learned Advocate Mr.M.S.Padaliya submits that, judgment and order of acquittal was passed by learned Trial Court on the ground that without obtaining the consent, due of another firm namely Green Basket was included in the cheque and therefore complainant fails Page 3 of 14 Downloaded on : Fri Mar 29 21:13:57 IST 2024 NEUTRAL CITATION R/CR.MA/11402/2023 ORDER DATED: 20/03/2024 undefined to prove the legally enforceable debt against the respondent-accused.
5.2. Learned Advocate Mr.M.S.Padaliya submits that in view of the presumption which is provided under sections 139 and 118 of the NI Act it is for the complainant to rebut the evidence which were produced along-with the complaint, however without considering the same, learned Trial Court has passed judgment and order of the acquittal and therefore learned Advocate prays to interfere with the impugned judgment and order and grant leave to prefer an appeal.
6. Considering the above submissions and the record and proceedings which is the part of the appeal, it transpires that as per the complaint, it was alleged by the complainant that for the payment of dues of Nageshwar Agro Unit a disputed cheque was issued by the respondent-accused wherein the respondent-accused had signed as a proprietor. Once there is admission of the execution of instrument, the presumption under section 118(a) is raised that is supported by consideration. To Page 4 of 14 Downloaded on : Fri Mar 29 21:13:57 IST 2024 NEUTRAL CITATION R/CR.MA/11402/2023 ORDER DATED: 20/03/2024 undefined rebut this statutory presumption, complainant was cross examined by the respondent-accused wherein the following admissions were made by the complainant:
I. There was a due to be recovered from the Green Basket firm owner of the Green basket firm is Mr.Sunil Dhole.
II. Accused had conveyed to recover the dues by depositing the cheque along with the accused firm. III. There was no written consent given by the accused to add the due amount, in the cheque alongwith the due of Nageshwar Agro Unit.
IV.I had done business with Mr.Sunil Dhole for seven years and Mr.Sunil Dhole had deposited the amount from the firm namely Green Basket in my account. V. Before entering into the transaction with any firm, we are taking advance security cheque after obtaining the signature on the same cheque and on receiving the goods, cheque is to be returned to the person. VI.The amount which was paid by the accused in the firm of the complainant is produced below Exh.54 to Exh.59.
VII. Complainant said that I did not recollect that Page 5 of 14 Downloaded on : Fri Mar 29 21:13:57 IST 2024 NEUTRAL CITATION R/CR.MA/11402/2023 ORDER DATED: 20/03/2024 undefined whether the security cheque was sent in the year 2015 through the courier or not.
VIII. On showing marks 26/2, complainant affirm that this is the envelope showing the name of the firm of the complainant and showing the name of the party who sent it through the courier and the same was sent through DTDC courier service.
7. At this stage the provision for the presumptions provided under sections 118 and 139 is required to be referred, which is reproduced herein below:
Section 118 - Presumptions as to negotiable instruments Until the contrary is proved, the following presumptions shall be made:
I. 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; II. as to date; that every negotiable instrument bearing a date was made or drawn on such date;
III. as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
IV. as to time of transfer; that every transfer of a negotiable instrument was made before its maturity; V. as to order of indorsements; that the indorsements Page 6 of 14 Downloaded on : Fri Mar 29 21:13:57 IST 2024 NEUTRAL CITATION R/CR.MA/11402/2023 ORDER DATED: 20/03/2024 undefined appearing upon a negotiable instrument were made in the order in which they appear thereon; VI. as to stamp; that a lost promissory note, bill of exchange or cheque was duly stamped; VII.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 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 - 138 Dishonour of cheque for insufficiency, etc., of funds in the account. -- 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 provisions 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 Page 7 of 14 Downloaded on : Fri Mar 29 21:13:57 IST 2024 NEUTRAL CITATION R/CR.MA/11402/2023 ORDER DATED: 20/03/2024 undefined shall apply unless--
(a) 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;
(b) 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
(c) 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.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.] 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. Page 8 of 14 Downloaded on : Fri Mar 29 21:13:57 IST 2024
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8. The use of phrase "until the contrary is proved" under section 118 of the Act and use of phrase "unless the contrary is proved" under section 199 of the Act read with the definition of "may presume" and "shall presume" as given under section 4 of the evidence Act, makes it at once clear that presumption to be raised under both the provisions are rebuttable. When a presumption is rebuttable it only points out that the party on whom lies the duty of going forward with the evidence, on the facts presumed and when the party has produced evidence fairly and reasonably intending to show that the real fact is not as presumed, the purpose of presumption is over. The accused under the trial of NI Act has two options, one is that he could either show that the consideration and debt do not exist or that the under particular circumstances of the case the non-existence of consideration and debt is so probable that prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption, the accused is not expected to prove his defence beyond reasonable doubt as is expected from the complainant in a criminal trial. When accused had adduced the evidence that cheque in Page 9 of 14 Downloaded on : Fri Mar 29 21:13:57 IST 2024 NEUTRAL CITATION R/CR.MA/11402/2023 ORDER DATED: 20/03/2024 undefined question was not supported by the consideration and there was no debt or liability to be discharged as stated in the complaint by him, the purpose of presumption is over.
9. In the fact in the instant case when the complainant was cross examined and certain admissions were made from which it can be averred that the debt which is mentioned in the cheque is not the debt which is to be recovered from the firm of the accused. On rebuttal of the evidence the evidential burden shifted back to the complainant and the complainant in the instant case fails to discharge that burden to prove his case beyond reasonable doubt.
10. This Court has also the decision rendered by the Hon'ble 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: Page 10 of 14 Downloaded on : Fri Mar 29 21:13:57 IST 2024
NEUTRAL CITATION R/CR.MA/11402/2023 ORDER DATED: 20/03/2024 undefined 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is 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."
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11. Keeping in mind the above ratio, cross examining the complainant reveals that, accused proved probable defence about security cheque sent through courier, and debt of Green Basket added in the cheque which is deposited in the account of Nageshwar Agro Unit and Green Basket owned by Mr.Sunil Dhole. On rebutting the evidence which was produced by the complainant in support of his complaint, the burden as per the law again shifted on the complainant to prove his case by way of positive evidence. Complainant failed in discharging that onus by way of examining Mr.Sunil Dhole to prove the contention of the complainant that Nageshwar Agro Unit and the Green Basket both are owned by the respondent- accused.
12. As per the settled law, the accused should disprove the non-existence of consideration or debt by creating the circumstances or by leading through independent evidence. When the accused had produced evidence or created the circumstances to show that real fact is not as presumed the purpose of presumption is over. Accused can either show that consideration and debt did not exist Page 12 of 14 Downloaded on : Fri Mar 29 21:13:57 IST 2024 NEUTRAL CITATION R/CR.MA/11402/2023 ORDER DATED: 20/03/2024 undefined in order to rebut the presumption or created the circumstances to show that non existence of the consideration and debt is so probable that prudent man ought to suppose that no consideration and debt is existing. To rebut the statutory presumption an accused is not expected to prove the defence beyond reasonable doubt as it is expected from the complainant in a criminal trial. The accused may adduce the direct evidence to prove that the note in question was not supported by the consideration and that there was no debt or liability to be discharged by him.
13. By proving that the debt of another firm was included in the cheque which was issued for the security purpose accused has discharged his burden to rebut the presumption and thereafter complainant did not prove the case further beyond reasonable doubt by leading the evidence and therefore learned Trial Court has rightly acquitted the respondent-accused from the charges and therefore, this Court deems it fit not to grant leave to prefer an appeal against the impugned judgment and order dated 12-04-2023 passed by the learned 9 th Additional Chief Judicial Magistrate, Negotiable Special Page 13 of 14 Downloaded on : Fri Mar 29 21:13:57 IST 2024 NEUTRAL CITATION R/CR.MA/11402/2023 ORDER DATED: 20/03/2024 undefined Court, Rajkot.
14. In view of the same, this Court opines that there was no infirmity or illegality found in the impugned judgment and order of the acquittal and therefore the judgment and order of acquittal requires to be confirmed.
15. In view of the above, applications for seeking leave to prefer appeal are disposed of accordingly. ORDER IN R/CRIMINAL APPEAL NO's.1548, 1549, 1552, 1768 & 1769 of 2023.
1. In view of refusal of leave to prefer an appeal, these appeals are dismissed.
(M. K. THAKKER,J) NIVYA A. NAIR Page 14 of 14 Downloaded on : Fri Mar 29 21:13:57 IST 2024