Gujarat High Court
Patel Jayantibhai Mafatlal vs State Of Gujarat on 15 March, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.A/1140/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1140 of 2017
With
R/CRIMINAL REVISION APPLICATION NO. 808 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
===========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?
================================================================ PATEL JAYANTIBHAI MAFATLAL Versus STATE OF GUJARAT ================================================================ Appearance:
MS SM AHUJA(118) for the PETITIONER(s) No. 1 MR SA BAQUI(141) for the RESPONDENT(s) No. 2MR. H.K. PATEL, ADDL. PUBLIC PROSECUTOR(2) for the RESPONDENT(s) No. 1 ================================================================ CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 15/03/2018 ORAL COMMON JUDGMENT
1. Aggrieved by the judgment and order dated 02.06.2017 passed by the learned Additional Sessions Judge, City Sessions Court No.27 in Criminal Appeal No.92 of 2015, arising from the prosecution under Section 138 of the Negotiable Instruments Act, 1881 (the 'NI Act' herein after) the present appeal has been preferred.Page 1 of 58
R/CR.A/1140/2017 JUDGMENT :: Factual Scenario ::
2. The facts in a capsulized form as presented in the memo of Appeal deserve reproduction herein below :
:: Genesis of litigation ::
2.1 The appellant is the original complainant who chose to initiate prosecution for the dishonor of cheque on due completion of requisite mandatory requirements and preferred Criminal Case No.1373 of 2002 on 10.12.2002. It is the case of the complainant that he belongs to village Parbatpura, situated at Taluka Mansa, District Gandhinagar, whereas the respondent No.2 is the resident of village Jamda, District Taluka Kalol, District Gandhinagar. Since both the villages are at a distance of about two kilometers, the complainant shared fairly good acquaintance and relationship with the respondent original accused. Brotherinlaw of the complainant and the respondent No.2, worked as agents under one Development Officer Shri Kachrabhai Patel in L.I.C. Office; that is how the complainant had met the respondent No.2 and they had developed notable social relationship which had led to their entering into the said transaction.
3. It is the case of the prosecution as revealed in the complaint that the respondent had taken the complainant into confidence by impressing upon him that he had a big name in the office of Page 2 of 58 R/CR.A/1140/2017 JUDGMENT L.I.C. He also had a side businesses of real estate and land; a process house in the name of S.B. Fabric.
Under the pretext that he needed to initiate a business in partnership, he had shown the need of Rs.36 lakh. While promising partnership to the appellant in the new business with equal percentage, he procured from the appellant a sum of Rs.36 lakh. A promissory note was given in lieu of the amount parted by the complainant.
4. It is the grievance of the appellant that after obtaining this huge sum, the respondent had left his native and despite the best endeavors on the part of the appellant, his whereabouts were not found. When eventually he returned, on a persistent demand of the complainant, he had ensured to give the complainant a parcel of land situated at Ghuma, Tal. City and District Ahmedabad, bearing Survey Nos.506 and 507 with Block No.633 admeasuring 238 Gunntha and hector 11938 H.A.G. He had also ensured to clear the bank dues for clearing the charge over the said land which was hypothecated with the bank for a huge sum lent to him by the Bank, within a period of six months. However, he failed to adhere to his words, therefore, it could not be come possible to carry out the Registered Sale Deed nor had the same made his debt cleared.
5. It is further the case of the appellant that for settling his outstanding dues, the cheque of Rs.36lakh had been given by the respondent drawn of Page 3 of 58 R/CR.A/1140/2017 JUDGMENT the State Bank of India, Girdharnagar Branch, Ahmedabad in favour of the appellant, bearing a cheque No.514147. He had been ensured by the respondent that the same would be honored. The cheque when presented on 30.10.2002, in the account of Kukarwada People's Cooperative Bank Limited, the same was dishonored on the ground of "insufficient balance" and returned to him with the memo of Bank on 1.11.2002.
6. According to the appellant, an attempt when was made to contact the respondent, instead of being apologetic, he threatened him and also denied any possibility of his getting the amount.
7. The appellant, therefore, issued a notice by way of Registered Post AD on 12.11.2002, through his advocate and another notice through U.P.C. was also sent. This came to be served upon the respondent on 13.11.2002, which has not even replied to. After allowing the statutory period to pass, the appellant decided to prefer the criminal complaint and initiated the prosecution under section 138 of the Negotiable Instruments Act (hereinafter referred to as 'N.I. Act').
:: Proceedings before the Trial Court::
8. The incharge learned Chief Metropolitan Magistrate issued process on 10.12.2002.
9. The respondent No.2 also moved an Page 4 of 58 R/CR.A/1140/2017 JUDGMENT application for discharge below Exh.3 taking the defense that on the date of issuance of the cheque, the account of the respondent whether was operating or not, deserves to be established firstly. The request for discharge was made on 13.4.2004, which was rejected by the Court on 13.4.2004 itself. His case was numbered subsequently as Criminal Case No.590 of 2004, since the cases above the sum of Rs.10 lakh were to be tried by the Court other than the Court which was conducting the matter. Subsequently, when the Special Court was constituted to try the case under the N.I. Act, it was numbered being Criminal Case No.1829 of 2010 and once again thereafter, it was transferred to the Court No.2 and numbered as Criminal Case No.521 of 2011 on 28.4.2011. It was thereafter transferred to the Court conducting matters under the N.I. Act specially, being Court No.28, and the criminal case number remained the same i.e Criminal Case No.521 of 2017.
10. After allowing the parties to adduce oral evidence as well as documentary evidence, the further statement of the accused on the evidence adduced came to be recorded where the defense raised in his further statement under section 313 of the Code, is that of denial of any legally enforceable debt. Considering incriminating oral as well as documentary evidence, the respondent was held guilty under section 138 of the N.I. Act and he had been convicted by the trial Court for a period of two years with simple imprisonment and fine of Rs.5000/ and in Page 5 of 58 R/CR.A/1140/2017 JUDGMENT default, four months of further simple imprisonment.
:: Appeal before the Court of Sessions ::
11. Aggrieved respondent No.2 approached the Appellate forum against the judgment and order of conviction, by way of Criminal Appeal No.92 of 2015 read with Criminal Appeal No.486 of 2015 and the Court after elaborate discussion of the evidence quashed and set aside the judgment and order of learned Additional Chief Metropolitan Magistrate, Court No.28. The Court also directed the amount of fine and compensation to be refunded to the respondent herein.
11.1 The complainant had challenged the very decision seeking enhancement of compensation and the Court after hearing both the sides, disallowed the plea of the present Appellant (original complainant) while quashing and setting aside the judgment and order of learned Additional Chief Metropolitan Magistrate.
12. Aggrieved original complainant is before this Court as an appellant. After admission of this appeal, with the consent of both the sides, bearing in mind the year of transaction and initiation of prosecution, which was nearly before 16 years, this Court decided to hear final submissions of the learned advocates on both the sides and adjudicate the appeal.
Page 6 of 58R/CR.A/1140/2017 JUDGMENT :: Submissions of learned counsels of parties ::
13. Learned advocate Ms.S.M. Ahuja appearing with learned advocate Mr.Jitendra H. Singh, has made fervent submissions in respect of the alleged serious error and illegality committed by the Appellate Court, by taking this Court through the entire set of record and also by relying upon various decisions to substantiate the respective version of the complainant, which are as follows:
a. Sampelly Satyanarayana Rao Versus Indian Renewable Energy development Agency Limited reported in (2016)10 SCC 458;
b. Krishna Janardhan Bhat Versus Dattatraya G. Hedge reported in AIR 2008 SC 1325; c. Rangappa Versus Mohan reported in Criminal Appeal No.1020 of 2010
14. Learned advocate Mr. Baqui appearing with learned advocate Mr.Pathan also has strenuously and forcefully submitted that the punishment of two years has been prescribed by way of an amendment under section 138 of the N.I. Act with effect from 6.2.2003 and hence, it cannot be made applicable as this case has been registered in December, 2002 and substantive provision under the criminal prosecution cannot be made retrospectively effective. He has taken this Court through various depositions and other evidences to urge that the Appellate Court has rightly quashed and set aside the judgment and order of the trial Court by giving detailed judgment on each point.
Page 7 of 58R/CR.A/1140/2017 JUDGMENT There will not be any requirement of the interference at the end of this Court. It is further his case that the appellant has failed to prove as to how he could give loan of huge amount i.e. Rs.36 lakh to the present respondent.
15. He has also sought to rely upon the following judgments in his support :
1. T. Vasanthakumar Versus Vijaykumari reported in (2015) 8 SCC 378;
2. Sabitha Ramamurthy Versus R.B.S. Channabasavaradhya reported in Laws (SC)2006926 decided on September 13, 2006;
3. Amarnath Baijnath Gupta Versus Mohini Organics Pvt. Ltd. reported in Laws (BOM)20081279 decided on December 11, 2008;
4. Arun Tikekar Versus Sanatan Santha reported in LAWS (BOM)2009640 decided on June 25, 2009;
5. Patel Jayantibhai Mafatlal Versus State of Gujarat and other reported in Special Criminal Application (Quashing) No.3894 of 2013 decided on December 23, 2013;
6. Shri Ramesh J. Chauhan Versus Shri Merwan K. Irani and others reported in Criminal Writ Petition No.1046 of 2002 decided on June 9, 2016.
16. Learned APP Mr. H.K. Patel appearing for the State has supported the case of the complainant to urge this Court that the appreciation of evidence shall have to be regarded thoroughly. It is the case Page 8 of 58 R/CR.A/1140/2017 JUDGMENT were the Trial Court had convicted the respondent whereas the Appellate Forum has quashed and set aside such judgment and order.
:: Questions/issues for consideration ::
17. In view of the aforesaid submissions based on pleadings and the material on record, the following questions would arise for this Court to adjudicate upon issues raised in this appeal :
(i) Whether the Appellate Court committed any error or illegality which would warrant interference or the view taken by the Appellate Court is a possible view and hence, in appellate jurisdiction deserves no interference?
(ii) The appellantoriginal complainant whether succeeded in proving the initial burden of existence of legally enforceable debt?
If the answer is in affirmation, whether the respondent was in a position to assail/rebut that positive proof?
(iii) Whether the amendment made in law in the year 2003 would have applicability to the case of applicant so far as enhancement of punishment is concerned ?
(iv) Whether appellant has made out the case
Page 9 of 58
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to allow him the compensation under the N.I. Act?
:: Power of Appellate Court (Issue No.1) ::
18. Firstly, at the outset, the question of law that deserves to be addressed is as to when the Appellate Court needs to interfere in the findings and conclusion of the trial Court and it is a trite law that if the view taken by the Appellate Court is a possible view with the evidence, oral and documentary, adduced in the matter, no interference is desirable by the Appellate Court.
18.1 The Apex Court in case of C. Antony Versus K.G. Raghavan Nair reported in (2003) 1 SCC 1, has held that even if the other view is possible, from the very set of evidence, to arrive at, that also is not the ground to interfere by the Appellate Court.
:: Legally enforceable debt, whether proved (Issue No.2)::
19. So far as the question of proving legally enforceable debt by the complainant is concerned, the law has been laid down by the three Judges Bench of the Hon'ble Apex Court in case of Rangappa Versus Sri Mohan, reported in (2010) 11 SCC 441, wherein it is held that presumption mandated by Section 139 of the Act include the existence of legally enforceable debt or liability and this being a rebuttal presumption, of course, such presumption can be Page 10 of 58 R/CR.A/1140/2017 JUDGMENT rebutted by the accused by raising the defence and on contesting liability.
20. It, of course, is in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, what can be undoubtedly said is that there is an initial presumption that favours the complainant and Section 139 is an example of a reverse onus clause, which has been included in furtherance of the legitimate objection of improving the credibility of the negotiable instruments. To that extent the Apex Court held that the observations made in case of 'Krishna Janardhan Bhatt Vs.Dattatraya G. Hedge, AIR 2008 SC 1325 would not be correct. The relevant observations read as under:
"7. However, on appeal against acquittal, the High Court reversed the findings and convicted the appellantaccused. The High Court in its order noted that in the course of the trial proceedings, the accused had admitted that the signature on the impugned cheque (No. 886322, dated 822001) was indeed his own. Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. With regard to the present facts, the High Court found that the defence raised by the accused was not probable. In respect of the accused's stand that he had lost a blank cheque bearing his signature, the High Court noted that in the instructions sent Page 11 of 58 R/CR.A/1140/2017 JUDGMENT by the accused to his Bank for stopping payment, there is a reference to cheque No. 0886322, dated 2071999. This is in conflict with the complainant's version wherein the accused had given instructions for stopping payment in respect of the same cheque, albeit one which was dated 82 2001. The High Court also noted that if the accused had indeed lost a blank cheque bearing his signature, the question of his mentioning the date of the cheque as 207 1999 could not arise. At a later point in the order, it has been noted that the instructions sent by the accused to his bank for stopping payment on the cheque do not mention that the same had been lost. However, the correspondence does refer to the cheque being dated 2071999. Furthermore, during the crossexamination of the complainant, it was suggested on behalf of the accused that the complainant had the custody of the cheque since 1998. This suggestion indicates that the accused was aware of the fact that the complainant had the cheque, thereby weakening his claim of having lost a blank cheque. Furthermore, a perusal of the record shows that the accused had belatedly taken up the defence of having lost a blank cheque at the time of his examination during trial. Prior to the filing of the complaint, the accused had not even replied to the notice sent by the complainant since that would have afforded an opportunity to raise the defence at an earlier stage. All of these circumstances led the High Court to conclude that the accused had not raised a probable defence to rebut the statutory presumption. It was held that:
"6. Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Page 12 of 58 R/CR.A/1140/2017 JUDGMENT Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered. ...' Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act.
Accordingly, the High Court recorded a finding of conviction.
8. In the course of the proceedings before this Court, the contentions related to the proper interpretation of Sections 118(a), 138 and 139 of the Act. Before addressing them, it would be useful to quote the language of the relevant provisions:
118. Presumptions as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made:Page 13 of 58
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(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration; ...
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 provision of this Act, be punished with imprisonment for a term which may extend 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
(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 Page 14 of 58 R/CR.A/1140/2017 JUDGMENT
(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.
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. Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act.
With respect to the facts of the present case, it must be clarified that contrary to the trial court's finding, Section 138 of the Act can indeed be attracted when a cheque is dishonoured on account of `stop payment' instructions sent by the accused to his bank in respect of a postdated cheque, irrespective of insufficiency of funds in the account. This position was clarified by this Court in Goa Plast (Pvt.) Ltd. v. Chico Ursula D'Souza, (2003) 3 SCC 232, wherein it was held:
"Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable Page 15 of 58 R/CR.A/1140/2017 JUDGMENT instruments in business transactions. These provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. The court should lean in favour of an interpretation which serves the object of the statute. A postdated cheque will lose its credibility and acceptability if its payment can be stopped routinely.
The purpose of a postdated cheque is to provide some accommodation to the drawer of the cheque. Therefore, it is all the more necessary that the drawer of the cheque should not be allowed to abuse the accommodation given to him by a creditor by way of acceptance of a postdated cheque. In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act leads to the conclusion that by countermanding payment of a postdated cheque, a party should not be allowed to get away from the penal provision of Section 138. A contrary view would render S. 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong. ..."
10. It has been contended on behalf of the appellantaccused that the presumption mandated by Section 139 of the Act does not extend to the existence of a legally enforceable debt or liability and that the same stood rebutted in this case, keeping in mind the discrepancies in the complainant's version. It was reasoned that it is open to the accused to rely on the Page 16 of 58 R/CR.A/1140/2017 JUDGMENT materials produced by the complainant for disproving the existence of a legally enforceable debt or liability. It has been contended that since the complainant did not conclusively show whether a debt was owed to him in respect of a hand loan or in relation to expenditure incurred during the construction of the accused's house, the existence of a legally enforceable debt or liability had not been shown, thereby creating a probable defence for the accused. Counsel appearing for the appellant accused has relied on a decision given by a division bench of this Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54, the operative observations from which are reproduced below (S.B. Sinha, J. at Paras. 2932, 34 and 45):
"29. Section 138 of the Act has three ingredients viz.:
(i) that there is a legally enforceable debt
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law.
Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of Page 17 of 58 R/CR.A/1140/2017 JUDGMENT a holder of the cheque that the same has been issued for discharge of any debt or other liability.
31. The courts below, as noticed herein before, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.
32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different.
...
34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is `preponderance of probabilities'. 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 he relies."
(emphasis supplied) Specifically in relation to the nature of the presumption contemplated by Section 139 of the Act, it was observed;
"45. We are not oblivious of the fact that the said provision has been inserted to Page 18 of 58 R/CR.A/1140/2017 JUDGMENT regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have been rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as a human right and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
(emphasis supplied)
11. With respect to the decision cited above, counsel appearing for the respondentclaimant has submitted that the observations to the effect that the `existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act' and that `it merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability' [See Para. 30 in Krishna Janardhan Bhat (supra)] are in conflict with the statutory provisions as well as an established line of precedents of this Court. It will thus be necessary to examine some of the extracts cited by the respondentclaimant. For instance, in Hiten P. Dalal v.
Bratindranath Banerjee
, (2001) 6 SCC 16, it
was held (Ruma Pal, J. at Paras. 2223):
Page 19 of 58R/CR.A/1140/2017 JUDGMENT "22. Because both Sections 138 and 139 require that the Court `shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn, ..., it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (...). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the nonexistence of the presumed fact.
23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe Page 20 of 58 R/CR.A/1140/2017 JUDGMENT the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man."
(emphasis supplied)
12. The respondentclaimant has also referred to the decision reported as Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm & Ors., 2008 (8) SCALE 680, wherein it was observed:
"Under Section 118(a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the nonexistence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. ..."
This decision then proceeded to cite an extract from the earlier decision in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35 (Para. 12):
"Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of Page 21 of 58 R/CR.A/1140/2017 JUDGMENT consideration was improbably or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist."
(emphasis supplied) Interestingly, the very same extract has Page 22 of 58 R/CR.A/1140/2017 JUDGMENT also been approvingly cited in Krishna Janardhan Bhat (supra).
13. With regard to the facts in the present case, we can also refer to the following observations in M.M.T.C. Ltd. and Anr. v. Medchl Chemicals & Pharma (P) Ltd., (2002) 1 SCC 234 (Para. 19):
"... The authority shows that even when the cheque is dishonoured by reason of stop payment instruction, by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the `stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. ..."
(emphasis supplied)
14. In light of these extracts, we are in agreement with the respondentclaimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances Page 23 of 58 R/CR.A/1140/2017 JUDGMENT therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.
(emphasis supplied) Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the Page 24 of 58 R/CR.A/1140/2017 JUDGMENT citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
15. Coming back to the facts in the present case, we are in agreement with the High Court's view that the accused did not raise a probable defence. As noted earlier, the defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the `stop payment' instructions to his bank. Furthermore, the instructions to `stop payment' had not even mentioned that the cheque had been lost. A perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant.
Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant accused was not able to contest the existence of a legally enforceable debt or liability. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his Page 25 of 58 R/CR.A/1140/2017 JUDGMENT money was used for the construction expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant."
(emphasis supplied)
21. Apt would be also to refer to the Chapter 13 of the NI Act under the heading 'Special Rules of Evidence' which provides for the Presumptions available under Section 118 of the NI Act, until the contrary is proved, certain presumptions are made available under this Section 118 of the NI Act which reads thus:
"118. Presumptions as to negotiable instruments.
(a) of consideration;
(b) as to date;
(c) as to time of acceptance;
(d) as to time of transfer;
(e) as to order of endorsements;
(f) as to stamp;
(g) that holder is a holder in due course;"
22. This provision subject to the rule of evidence is applicable to the matters under the NI Act. The presumption made available is one of law and the Court is obliged to presume that the instrument has been endorsed for consideration. The initial burden, hence, lies on the person to prove that there exists legally enforceable debt and once that is proved by the Payee, it would be upon the otherside, i.e. the drawer, to prove nonexistence of the Page 26 of 58 R/CR.A/1140/2017 JUDGMENT consideration, which would lead the Court to believe either from direct evidence or from preponderance and probabilities that the existence of consideration was improbable, doubtful or illegal, as held by the Apex Court in 'MALLAVARAPU KASIVISWESWARA RAO VS. THADIKONDA RAMULU FIRM AND ORS', (2008) 7 SCC 655.
23. Section 139 of the Act would also require reference at this stage. This is also a presumption, which is a rebuttable presumption when unless the accused proves to the contrary, this legal presumption of Section 139 of the NI Act is to the effect that the cheque is issued in discharge of an existing liability and that presumption can be rebutted only by the person, who drew the cheque. Section 139 of the NI Act reads as under:
"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."
24. Thus, the presumption is in favour of the holder of the cheque, as held by the Apex Court in 'M/S.MANDVI COOP BANK LTD VS NIMESH B.THAKORE', (2010)3SCC83. Rebuttable presumption has emerged under Section 139 of the NI Act that the cheque was issued by the drawer in discharge of any debt or liability to its holder. Undoubtedly, the presumption available under Section 139 of the NI Act can be rebutted by the accused by adducing evidence and once Page 27 of 58 R/CR.A/1140/2017 JUDGMENT the initial burden is discharged of proving the legally enforceable debt, it would be upon the accused to discharge that burden that there exists no debt or liability upon him.
25. In 'T. VASANTHAKUMAR VS. VIJAYAKUMARI', (2015) 8 SCC 378, the Apex Court was considering the issue of the dishonour of the cheque and while discussing the presumption under Section 139 of the NI Act, it noticed that the Court below had convicted the defendant for dishonour of cheque of Rs.5 lakh given as consideration of a land given to him by the complainant. The High Court had acquitted the defendant on the ground that the appellantoriginal complainant had not proved legally enforceable debt or liability. The Apex Court held that the High Court was misplaced in not considering the presumption in favour of the complainant as provided under Section139 of the Act, the burden had shifted on the accused, which she failed to discharge. The signature of the cheque had been accepted by the accused respondent. The Apex Court held that the presumption under Section 139 of the NI Act would operate and it is irrelevant that the complainant had withdrawn the amount of Rs.5 lakh two days prior to the giving of the cheque, which he failed to bring on record, such withdrawal of money from the bank. The story of the accused was that the cheque was given to the complainant long back in the year 1999 and the loan was repaid. However, the complainant did not return the cheque and the same was misused by him to implead Page 28 of 58 R/CR.A/1140/2017 JUDGMENT the respondent as an accused. The cheque was dishonored because the payment was stopped. The Court held that the respondentaccused knew all throughout about the cheque, else how could have he asked the Bank to stop the payment. In this background, apt would be to reproduce some of the observations and findings of the Apex Court, which read thus:
"We have heard the learned counsel appearing for the appellant as also the learned counsel appearing for the respondent. The complainant has alleged that the money (loan) was advanced to the defendant on 20052006 in relation to which the cheque was issued to him by the defendant on 16012007. The cheque was for Rs.5 lakhs only, bearing No.822408. It is of great significance that the cheque has not been disputed nor the signature of the defendant on it. There has been some controversy before us with respect to Section 139 of Negotiable Instruments Act as to whether complainant has to prove existence of a legally enforceable debt before the presumption under Section139 of the Negotiable Instruments Act starts operating and burden shifts to the accused. Section139 reads as follows:
"139. Presumption in favour of the 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." This Court has held in its three judge bench judgment in Rangappa v. Sri Mohan (2010) 11 SCC 441:
"The presumption mandated by Section139 includes a presumption that there exists a Page 29 of 58 R/CR.A/1140/2017 JUDGMENT legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the respondent complainant."
Therefore, in the present case since the cheque as well as the signature has been accepted by the accused respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. To this effect, the accused has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque. According to the accused, it was that very cheque used by the complainant to implicate the accused. However, it may be noted that the cheque was dishonoured because the payment was stopped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupported by any evidence."
26. The ratio laid down in case of Vijay Vs. Laxman and Another, (2013) 3 SCC 86, at this juncture would be necessary to reproduce, where the Apex Court has held that When cheque is issued by a person who has signed on the cheque and the complainant reasonably discharges the burden that the cheque had been issued towards a lawful payment, it is for the accused to discharge the burden under Section 118 and Page 30 of 58 R/CR.A/1140/2017 JUDGMENT 139 of the N.I. Act that the cheque had not been issued towards discharge of a legal debt, but, was issued by way of security or any other reason on account of same business transaction as was obtained unlawfully. Profitable it would be to reproduce the relevant observations of the Apex Court in the said decision which read as under :
"9. It is undoubtedly true that when a cheque is issued by a person who has signed on the cheque and the complainant reasonably discharges the burden that the cheque had been issued towards a lawful payment, it is for the accused to discharge the burden under Section 118 and 139 of the N.I. Act that the cheque had not been issued towards discharge of a legal debt but was issued by way of security or any other reason on account of some business transaction or was obtained unlawfully. The purpose of the N.I. Act is clearly to provide a speedy remedy to curb and to keep check on the economic offence of duping or cheating a person to whom a cheque is issued towards discharge of a debt and if the complainant reasonably discharges the burden that the payment was towards a lawful debt, it is not open for the accused/signatory of the cheque to set up a defence that although the cheque had been signed by him, which had bounced, the same would not constitute an offence.
10. However, the Negotiable Instruments Act incorporates two presumptions in this regard: one containing in Section 118 of the Act and other in Section 139 thereof. Section 118 (a) reads as under: "118. Presumption as to negotiable instruments. Until the contrary is proved, the following presumptions shall Page 31 of 58 R/CR.A/1140/2017 JUDGMENT 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;"
(emphasis supplied) 10.2 Section 139 of the Act reads as under: "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."
11. While dealing with the aforesaid two presumptions, learned Judges of this Court in the matter of P. Venugopal vs. Madan P. Sarathi[2] had been pleased to hold that under Sections 139, 118 (a) and 138 of the N.I. Act existence of debt or other liabilities has to be proved in the first instance by the complainant but thereafter the burden of proving to the contrary shifts to the accused. Thus, the plea that the instrument/cheque had been obtained from its lawful owner or from any person in lawful custody thereof by means of an offence or fraud or had been obtained from the maker or acceptor thereof by means of an offence or fraud or for unlawful consideration, the burden of disproving that the holder is a holder in due course lies upon him. Hence, this Court observed therein, that indisputably, the initial burden was on the complainant but the presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. Thereafter, the presumption raised Page 32 of 58 R/CR.A/1140/2017 JUDGMENT does not extend to the extent that the cheque was not issued for the discharge of any debt or liability which is not required to be proved by the complainant as this is essentially a question of fact and it is the defence which has to prove that the cheque was not issued towards discharge of a lawful debt.
12. Applying the ratio of the aforesaid case as also the case of K.N. Beena vs. Muniyappan And Anr. (supra), when we examine the facts of this case, we have noticed that although the respondent might have failed to discharge the burden that the cheque which the respondent had issued was not signed by him, yet there appears to be a glaring loophole in the case of the complainant who failed to establish that the cheque in fact had been issued by the respondent towards repayment of personal loan since the complaint was lodged by the complainant without even specifying the date on which the loan was advanced nor the complaint indicates the date of its lodgement as the date column indicates nil although as per the complainants own story, the respondent had assured the complainant that he will return the money within two months for which he had issued a post dated cheque No.119582 dated 14.8.2007 amounting to Rs.1,15,000/ drawn on Vikramaditya Nagrik Sahkari Bank Ltd., Ujjain. Further case of the complainant is that when the cheque was presented in the bank on 14.8.2007 for getting it deposited in his savings account No.1368 in Vikarmaditya Nagrik Sahkari Bank Ltd. Fazalpura, Ujjain, the said cheque was returned being dishonoured by the bank with a note insufficient amount on 14.8.2007. In the first place, the respondentaccused is alleged to have issued a postdated cheque dated 14.8.2007 but the complainant/appellant has conveniently omitted to mention the date on which the Page 33 of 58 R/CR.A/1140/2017 JUDGMENT loan was advanced which is fatal to the complainants case as from this vital omission it can reasonably be inferred that the cheque was issued on 14.8.2007 and was meant to be encashed at a later date within two months from the date of issuance which was 14.8.2007. But it is evident that the cheque was presented before the bank on the date of issuance itself which was 14.8.2007 and on the same date i.e. 14.8.2007, a written memo was received by the complainant indicating insufficient fund. In the first place if the cheque was towards repayment of the loan amount, the same was clearly meant to be encashed at a later date within two months or at least a little later than the date on which the cheque was issued: If the cheque was issued towards repayment of loan it is beyond comprehension as to why the cheque was presented by the complainant on the same date when it was issued and the complainant was also lodged without specifying on which date the amount of loan was advanced as also the date on which compliant was lodged as the date is conveniently missing. Under the background that just one day prior to 14.8.2007 i.e. 13.8.2007 an altercation had taken place between the respondentaccused and the complainantdairy owner for which a case also had been lodged by the respondentaccused against the complainants father/dairy owner, missing of the date on which loan was advanced and the date on which complaint was lodged, casts a serious doubt on the complainants plea. It is, therefore, difficult to appreciate as to why the cheque which even as per the case of the complainant was towards repayment of loan which was meant to be encashed within two months, was deposited on the date of issuance itself."
27. In wake of settled position of law as to how to appreciate the duly signed cheque in the hands Page 34 of 58 R/CR.A/1140/2017 JUDGMENT of holder in due course or a drawee, on adverting to the facts of the instant case, the question needs to be addressed as to whether proof of existence of legally enforceable debt, could be established by the Appellant?
28. In the examinationinchief, the complainant has given all the details which have been specified in the complaint itself, which may not be required to be reiterated. The case of the prosecution, in sum and substance, as emerged in oral evidence is that an amount of Rs.36 lakh had been advanced to the respondent which he needed for his business, which was to be set up and for which the complainant appellant was also offered partnership. When the respondent No.2 did not fulfill his promise, he firstly attempted to give back the amount by transferring a parcel of his land. A promissory note also was written by the respondent No.2 accused. However, on account of his not clearing the land from the bank where it was mortgaged, he issued the cheque which eventually got dishonored. The cheque issued by him was of State Bank of India, Girdharnagar Branch, Ahmedabad. However, due to 'insufficient opening balance', the same was returned as per the memo sent by the Bank.
29. The factum of issuance of notice under section 138 of the N.I. Act, as is mandatory, prior to the lodgment of complaint has also come on record which is dated 12.11.2002. Respondent No.2 has chosen Page 35 of 58 R/CR.A/1140/2017 JUDGMENT not to reply to the said notice nor has he paid back the amount pursuant to such notice and that paved a way for lodgment of complaint.
30. In the exhaustive cross examination of the complainant, he maintained that his acquaintance with the respondent was through his brotherinlaw Shri Pravinbhai Ambabhai Patel. In the year 198586, the respondent was also working under the Development Officer Shri Kachrabhai and so was the complainant. Thus, when both of them were working as L.I.C. agents, the relationship had strengthened. He agreed to the suggestion that the respondent was development officer of L.I.C. He denied the suggestion that insurance agent cannot transact any other business. He maintained that it was the business developed for his sons. In the year 2001, the respondent had met him at his resident being 3, Shimla Avenue, Near Navroji Hall, Dafnada, Shahibaug, and had confided in him that in the village Chanchadwadi, in the name and style of S.B. Process House, a family business was set up and the same was to be operated by his sons.
31. The complainant himself was carrying on the business of Iron and Steel in the name and style of Ramkrishna Hardware and Sales, which was an independent business and which had a turn over of about Rs.40 lakh. The profit in the business was to the tune of about 10%. He maintained his books of accounts. He and the respondent No.2 used to meet on a regular basis and that is how this sum of Rs.36 Page 36 of 58 R/CR.A/1140/2017 JUDGMENT lakh had been given to respondent No.2 on a promise on the part of the respondent No.2 to make the appellant a partner. He had advanced amount in the month of December, 2001. Since, the demand of the respondent No.2 was of cash, accordingly, it was managed. It is the case of the complainant that it was under the pretext of carrying out the partnership that he had asked for advanced sum of Rs.36 lakh. He, of course, was unable to give exact dates of advancement of money, but according to him, periodically such amount had been given and a promissory note was issued by the respondent.
32. The source of amount of Rs.36 lakh has been questioned seriously by the learned advocate for the respondent, and a consistent reply of the complainant was that the same was earned from the agricultural income of his relatives. The complainant collected the said amount from various relatives, the details whereof are as under : Sr. Source of fund from : Amount No. 1 His agricultural income Rs.3.50 Lakh 2 His maternal uncle (Masa) Madhabhai Ramanbhai Rs.4 Lakh 3 Dashrathbhai Madhabhai (maternal cousins) (Masi's son) Rs.4 Lakh 4 Ramanbhai Madhabhai Shankardas (Cousin brother) Rs.4 Lakh 5 Dwarkadas Madhavlal Shankardas Patel (cousin and Rs.3 Lakh brother of Ramanbhai) 6 Bhikhabhai Hathidas Patel @ Gandabhai Patel (paternal Rs.6.5 Lakh uncle) (who expired 18 months prior to his deposition) 7 Narandas Motidas Patel (paternal uncle) (fua) Rs.3 Lakh 8 Ambalal Vandas Patel (father of his daughter-in-law) Rs.5 Lakh 9 Janakbhai Babubhai Patel (son of his maternal uncle) Rs.3.5 Lakh Total Amount Rs.36.50 Lakh Page 37 of 58 R/CR.A/1140/2017 JUDGMENT
33. Thus, the details of names and amount of his collection of total sum of money advanced to the respondent, has been confirmed. This was borrowed by him with a promise to pay interest to those persons. To some of those relatives, he needed to pay the interest and to others, he had returned the principal amount.
34. Respondent No.2 has three sons and the complainant had not inquired in detail in connection with their business of process house under the name and style of S.B. Fabric.
34.1 The complainant also was unaware that the S.B. Fabric means Shantilal Bhudarlal Adani who was a father of Mr.Gautam Adani, the known businessman of the State. He also pleaded ignorance of this fabric house having been purchased by the respondent's son from Shri Shantilal Adani. He also pleaded ignorance that against the S.B. Fabric, the complaint came to be filed by various persons, which included the present respondent No.2 and his sons.
34.2 This Court also notices that in the cross examination of the complainant, the reference comes of the respondent No.2 having agreed to transfer the portion of his immovable property being Survey No.506 and 507, Block No.633 situated at Taluka Ghuma, City Ahmedabad, admeasuring 2 acre 38 gunthas and hector 11938 HectorAreSq.Mtrs., which is nearly 14,278sq. yards. The half of the portion he had shown willingness to transfer in the name of three persons Page 38 of 58 R/CR.A/1140/2017 JUDGMENT namely 1) Patel Baldevbhai Dahyabhai, President of Mansha 2) Patel Amrutbhai Narayandas, President of Charada and 3) Patel Jayantibhai Mafatlal i.e. present appellant, president of Parvatpura. Calculating Rs.1100/per sq.yard and for 50% of the land i.e. 7139 sq.yards, the value of the land had been fixed at Rs.78,52,900/. The amount of Rs.25lakh was due to Patel Baldevbhai Dahyabhai, Rs.22lakh to Amrutbhai Narandas and the amount of Rs.31,52,900/ to Jayantibhai i.e. to the present appellant. As has been agreed to by the respondent, this was given in writing towards the outstanding dues of these persons.
34.3 The outstanding dues, of course, is Rs.36lakh, however, parcel of land was valued at Rs.31,52,900/ since the complainant also had agreed to take lesser value than the actual amount due.
34.4 The stamp paper has been purchased by his paternal cousin namely Mr. Bharatbhai Kachrabhai Patel, three to four days prior to the execution of the said writing dated 12.2.2002, the community leader had also met, since, there was no power of attorney executed pursuant to the amount lent to the respondent, which according to the complainant had been given by 23.12.2001, by way of his bonafide gesture, he had agreed to transfer him the part of his land. It is also the case of the complainant that the property of respondent was mortgaged with the bank and hence the sale deed could not be executed in Page 39 of 58 R/CR.A/1140/2017 JUDGMENT favor of the complainant for a long time and hence, entire deal could not sail through and eventually, the respondent issued a cheque dated 13.10.2002 drawn on State Bank of India signed by the respondent himself and the cheque returned memo indicates that due to insufficient funds on 1.11.2002 the cheque could not be honored.
35. This Court notices that on the part of the appellantoriginal complainant, regard has been made to the promissory note averred to have been written by the respondent No.2. This note would be required to be proved as the primary evidence and in absence thereof, the principle of admissibility of the secondary evidence shall be regarded.
35.1 Thus, in absence of the original promissory note, which the complainant could not produce and in wake of the deposition of the complainant, both examinationinchief as well as the cross examination, it could be said that the complainant had succeeded in proving the legally enforceable debt.
35.2 This Court is also aware of the fact that so far as the promissory note is concerned, according to the complainantappellant, it was given by the respondent herein. However, the original promissory note, at no point of time, was brought on record. At the fag end of trial, a request was made by the appellant before the Court concerned to permit the original promissory note to be brought on record and Page 40 of 58 R/CR.A/1140/2017 JUDGMENT further allow the affidavit of two persons, viz. Mr.Natvarlal Gandalal and Mr.Jagdishbhai Mafatlal.
35.3 The trial Court denied such a request on the ground that this being a private complaint, the complainant ought to have shown those persons as his their witnesses. If they had not been shown as witnesses, the permission of the Court ought to have been taken. However, directly no person can be permitted the production of affidavit. So far as the promissory note is concerned, the Court held that if such document was in the custody of the complainant from the beginning, the same ought to have been produced at the stage of recordance of the evidence. When it was asked for at the stage of making final submissions, the same was denied vide order dated 7.6.2013.
35.4 This order was challenged before the City Civil and Sessions Court by way of Criminal Revision Application No.311 of 2013.
35.5 After hearing both the sides, the City Sessions Court on referring to Section 255 of the Criminal Procedure Code held that the said provision makes it clear that the learned Magistrate on its own or on an application, may issue summons to any witness directing him to produce any document. However, it was the third party which was seeking permission to submit affidavits, and under which provision they were seeking the same, was unclear. The Court rejected the said application upholding the Page 41 of 58 R/CR.A/1140/2017 JUDGMENT order passed by the learned Magistrate. And, aggrieved appellant approached this Court by way of Special Criminal Application No.3894 of 2013.
35.6 This Court (Coram : Honourable Mr. Justice G.R. Udhwani, J.) notices that such an application (Exh.66) was made after recording the statement of accused under Section 313 of the Criminal Procedure Code. It was also noted that the respondent No.2 had alleged of kidnapping and of his signatures having been obtained on an agreement for sale of his properties forcefully and he also alleged that the cheque was stolen from the office of his brother. The Court held that in the further statement recorded under section 313 if the allegations are made therein, the burden to make such allegations good is upon the accused. Therefore, the statement made under Section 313 of Cr.P.C. cannot be considered as independent evidence and there can not be any rebuttal of such statement. Referring to the decision of the Apex Court in the case of Natasha versus Central Investigation Bureau, reported in (2013) 5 SCC 741, the Court reiterated the principle in relation to the power under section 313 of the Cr.P.C. Furthermore, on the ground that the case under section 138 of the Negotiable Instruments Act, was tried in a summary way and the petitioner had all the opportunities to place on the record the evidence during the trial, the Court rejected summarily the petition of the appellant. Thus, it can be said that a request of rebutting the details which have come on Page 42 of 58 R/CR.A/1140/2017 JUDGMENT the record in further statement under section 313 of the Code, did not succeed.
35.7 The appellant because of some reasons could not produce the promissory note, which according to him, had reflected the promise from the respondent of paying back the amount of Rs.36 lakh. As the other two witnesses, whose affidavits were sought to be brought on record, were also not permitted as they did not fit into the scheme of Section 255 nor under section 311 of the Cr.P.C., they were not called. Therefore, the evidence that the appellant could adduce before the Court through his oral deposition and promise on the part of the respondent to transfer portion of his immovable properties, it gets established that the outstanding due, out of Rs.36lakh, is reflected and valued Rs.31,52,900/. The statement is for some more or less amount than the amount of the cheque which has been dishonored. The statement also did not said through as the property had been mortgaged with some of the banks, from which the present respondent had taken advance. The appellantoriginal complainant is not aware as to whether two persons in whose favour the writing was executed along with the promise transfer the land, whether any criminal case was pending, however, according to the learned advocate Mr.Baqui who is representing the respondent, no criminal case in relation to the amount specified for both these persons respectively Rs.25 lakh and Rs.22 lakh, is pending.
Page 43 of 58R/CR.A/1140/2017 JUDGMENT
36. It is pointed out to this Court that the respondent is facing various litigations, since, he had borrowed the amounts from many persons. The application given to the police by the North Gujarat Association through Shri.Jayantilal Mafatlal Patel is forming the part of the record of the trial Court. Exhibit--59 speaks of the respondent having manipulated from various persons and also defrauded them by alluring them to park their money in S.B.Fabrics, which, according to him, is the biggest private limited company with the promise of doubling their money, if invested, within three years.
37. It is this manipulation, which generated trust and the investment of crores of rupees had been obtained by him. A list is also produced consisting names of about 33 persons with amount, varying from Rs.1lakh to Rs.4.46crore. A request is made to the Police Officer to investigate into this economic offence. A copy of this also had been sent to the LIC, Branch Manager and the respondent, therefore, had addressed a communication to the present Respondent, where, he was required to submits his explanation and on 04.07.2017, he had stated that he had no partnership nor any share in or directorship in the said S.B.Fabrics and if, any one has engaged and parked his money in S.B. Fabrics, he has nothing to do with the same. Because, this Company or the partnership is of his two sons, who are independently looking after the business and he, as a father, has no role to play. So far as the present complainant is Page 44 of 58 R/CR.A/1140/2017 JUDGMENT concerned, whose letter had initiated this inquiry, he had stated that it was the complainant and others, who have invested their amounts in the Company. However, it is only to cause damage to his reputation, he had written such a letter to the LIC. One witness, namely Mukesh Shah, who was working as Asst. Director in the office of the LIC, Ahmedabad on 30.07.2012 had deposed on the basis of various documents, which had been tendered before the LIC Branch. After this reply, the proceedings had been woundup. It is also worthwhile, at this stage, to refer to the list of documents produced vide Exhibit 7 before the trial Court, whereby, the details of the various quashing petitions and criminal cases registered against this respondent No.2 have been detailed. The application was fixed for hearing. These documents had been produced along with written submissions under Section 314 of the Code and a request was made to take judicial notice of those documents on the ground that merely taking the same on record would not prejudice, in any manner, the defence of the respondent and that, with an objection of the part of the respondent, were taken on record before this Court (AnnexureE).
Sr. Name and Address Relation with Complai cheque Date of Amount Status
No. the nt date No. and Presenta
Complainant and the Bank tion of
Court cheque
1 Jayantilal Mafatlal Complainant 13/4/04 574147 30/10/02 Rs.36,00,000 Present
Patel himself Court SBI Case
3 Simla Avenue No.2 Girdhar
Shahibaug Meghani nagar
Ahmedabad nagar
2 Kachra Soma Patel Uncle 13/4/04 574136 31/10/02 Rs.39,00,000 Pending
2 Shahi Shivam Soc. SBI
Shahibaug Girdhar
Ahmedabad nagar
Page 45 of 58
R/CR.A/1140/2017 JUDGMENT
3 Bharat Kachra Uncle's Son 13/4/04 574145 03/01/03 Rs.45,00,000 Pending
83 Prabhu Nagar Court SBI
Soc. No.2 Girdhar
Asarva, Meghani nagar
Ahmedabad nagar
4 Ashwin Kachra Uncle's Son 13/4/04 171233 28/10/02 Rs.15,00,000 Settled and
2 Shahi Shivam Soc. Court CBI withdrawn
Shahibaug No.2 Tilak
Ahmedabad Meghani Road
nagar
5 Jagdish Kachra Uncle's Son 25/11/02 028519 29/10/02 Rs.2,00,000 Acquitted
2 Shahi Shivam Soc. A'bad CBI
Shahibaug (Rural) Tilak
Ahmedabad Road
6 Bhikha Vithal Patel Friend 25.11.02 574143 31/10/02 Rs.61,00,000 Settled and
11 C Punit Park A'bad SBI withdrawn
Shahibaug (Rural) Girdhar
Ahmedabad nagar
7 Joita jividas Patel Relative 24/1/03 574144 23/11/02 Rs.11,00,000 Convicted
At & Post Ridrol Mansa SBI and
Mansa, Gandhinagar Court Girdhar revision
nagar pending
8 Ambalal Shivram Uncle 27/1/02 574146 27/11/02 Rs.10,00,000 Convicted
Patel (Mama) Mansa SBI and
Post Court Girdhar revision
Shabdalpura,Mansa, nagar pending
Gandhinagar
9 Sankalchand S Patel Cousin 9/12/02 028518 31/10/02 Rs.7,00,000 Convicted
Parbatpura, Mansa, Brother Mansa CBI and
Gandhinagar Court Tilak revision
Road pending
10 Ranchod Motidas Cousin 16/12/02 115663 08/11/02 Rs.10,00,000 Settled and
Patel Brother Mansa Navnir withdrawn
At & Post Court man
Parbatpura, ansa, Bank
Gandhinagar Megha
ninagar
11 Teja Baba Rabari Friend 20/12/02 222332 30/10/02 Rs.2,00,000 Acquitted
Chandumana Patan CBI
Patan Court Tilak
Road,
12 Ishwar Baba Desai, Friend 27/11/02 028504 28/10/02 Rs.6,00,000 Dismissed
D 3/9 Julie Court CBI for non
Apartment No.2 Tilak prosecution
Shahibaug Road
Ahmedabad
13 Mohan Keshav Friend 22/1/03 028513 03/11/03 Rs.5,00,000 Withdrawn
Lakhia Lathi CBI
Ramapur, Lathi, Court Tilak
Dist. Amreli Road
14 Mukesh Becharbhai Friend Court 030974 03/10/01 Rs.8,75,000 Settled and
Patel, No.12 Navnir withdrawn
Bhargav Society, Ahmeda man
Kubernagar, Saijpur, bad Bank
Ahmedabad Megha
ninagr
15 Jagdish Kantibhai Friend Court 240092 20.12.01 Rs.9,05,000 Settled and
Patel No.7 CBI withdrawn
C-3, Monrepause A'bad
Apt, Opp. (Rural)
Chandralok Tower,
Shahibaug
Ahmedabad
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R/CR.A/1140/2017 JUDGMENT
37.1 List of the cases, which is in a tabular
form, thus gives the details of the cases, as shown above which includes the case of the present complainant before the Meghaninagar Court. As indicated above, (i) the cases at Sr. Nos.2 and 3 are pending for adjudication; (ii) the cases at Sr. Nos.4,6,10,13,14 and 15 have been settled and those complaints have been withdrawn; (iii) the cases at Sr. Nos.5 and 11, he has been acquitted; (iv) the cases at Sr.Nos.7,8 and 9, where, the revision petitions are pending before this Court.
37.2 It would be apt to refer in connection with the case at Sr.No.12, which is Criminal Case No. 1702 of 2002, pending before the Court of the learned Metropolitan Magistrate, Ahmedabad, for an offence under Section 138 of the N.I. Act, the present Respondent had preferred a petition under Article 226 of the Constitution of India read with Section 482 of the Code for quashing and setting aside the said criminal case. The Court has recorded relevant paragraphs of the affidavitinreply filed by the complainant, who was respondent in that matter, stating therein that respondent had been doing business "in the benami name of his three sons, namely Chirag Patel, Sachin Patel and Alpesh Patel by starting S.B. Fabrics' at Changodar, wherein, all the three sons of the respondent were directors and the money was required by the petitioner for his sons in the business of process house in the name of S.B. Fabrics Private Limited." It is, further, contended Page 47 of 58 R/CR.A/1140/2017 JUDGMENT in the affidavit that "petitioner had mortgaged his bungalow obtaining the loan from Cooperative Bank for financing benami business of his sons in the name of S.B. Fabrics." The affidavit further shows that "The petitioner had obtained the loan of Rs.10 lakh on the basis of the original documents of his bungalow. The petitioner had also sold off his bungalow by creating duplicate documents of the original documents without obtaining release of the mortgage from the Cooperative Bank of Ahmedabad. When the Cooperative Bank of Ahmedabad came to know through its officers about the aforesaid fraud committed by the petitioner with the Bank, the officers of the Bank had filed an FIR being I-C.R. No.17 of 2003 for the offence under Section 400, 420, 465, 467 etc. of the Indian Penal Code against the petitioner and other accused at Karjan Police Station."
37.3 These details were held to be sufficient by the Court not to interfere in exercise of inherent powers conferred upon this Court under Section 482 of the Code. Hence, such petition was not entertained. These are some of the circumstances, which had been presented before the trial Court by the appellant, herein, to indicate the overall conduct and the antecedents of the respondent. Undoubtedly, on the main issue, as to whether, the appellant can establish the guilt of the respondent accused in committing the offence punishable under Section 138 of the N.I. Act is an area, where, over and above the deposition of the complainant, deposition of other witnesses, who have been examined by the complainant also are vital to be considered for establishing the required ingredients of proving the case under section 138 of NI Act.
37.4 This discussion in the opinion of this
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Court was essentially to point out that the complainant could establish his transactions with the respondent, where, he had furnished the details as to how he has collected the amount from his different relatives and eventually had shown the respondent having agreed to pay back the amount in the very year by transferring half of the portion of his land. Of course, he had to get the land cleared, which was mortgaged with the Bank, which since, he could not do, as stated in the examinationinchief and has stood up in the crossexamination. The complainant was handed over the cheque, which was dishonored.
38. At this stage, the deposition of the bank Officer, Vishnubhai Somabhai Patel is to be considered who had stated that he knew the complainant and his Saving Account number is SB / 1000 and the cheque bearing No.574147 was deposited in his account on 30.10.2002, was dishonored, as there was no sufficient balance and hence, return memo dated 01.01.2002 reflects 'Insufficient Funds'(Exhibit20).
38.1 Another Bank Officer, Exhibit30, namely, Parmeshwari Bhagwandin Sharma, stated that cheque (Exhibit19) is of their Bank and the account of the respondent had been closed on 25.12.2002. The impugned cheque (Exhibit19) which was presented to the Bank for clearance on 01.11.2002, the same was returned due to insufficient funds. He had also shown the account opening form and the account closing Page 49 of 58 R/CR.A/1140/2017 JUDGMENT form.
39. It would be apt to refer to Exhibit43, which is an application by Respondent No.2 under his signature, making a request to call some of the persons as defence witnesses. This included the handwriting expert, a responsible officer from LIC, Ahmedabad Branch No.4/841, Tejabhai Bababhai.
40. The Court after hearing both the sides, had ordered, wherein, it denied the request of examining handwriting expert. The defence on the part of the respondent is of the cheque having been stolen from his bag, since, he was working as Development Officer in LIC. The Court, since, did not find any complaint having been made by the respondent in that regard and as in the case of the complainant, he had stated that all the details have been filled in by the respondent No.2, in his presence, in the cheque, the Court deemed it fit not to refer the cheque to the handwriting expert. It, however, permitted someone familiar, from the office of LIC to be examined. Since, some of the documents produced at Annexures A, B, and C were denied by the complainant. He has an application tendered by the complainant to the LIC Branch and hence, the officer concerned was permitted.
41. It is, thus, very clear that all the documents were made on the part of the respondent to bring home his defence of the cheque having been stolen and the signature not being that of his.
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42. It would be to also refer to the notice, which has been issued by the complainant, after the cheque had been dishonored. There is no reply by the respondent to the said notice.
43. It is since mandatory for any party to issue notice as provided under the provisions of the NI Act, before he prosecutes a person for dishonor of the cheque, a notice has been issued within a period of 30 days from the date of receipt of the information from the bank with regard to the return of the cheque, and thus, such requirement has been duly fulfilled by the present applicant. The drawer of the cheque being the respondent, herein, not only failed to make the payment of the said amount to the payeeappellant within a period of 15 days from the date of receipt of such notice, but, he also chose not to reply to the same. On expiry of the period of 30 days, the appellant preferred the criminal complaint before the trial Court concerned, the details of which have already been mentioned herein above. It is also not in dispute that the cheque had returned, as per the Bank memo on account of insufficient balance in the account of the drawer. The cheque bearing No.574147 for the sum of Rs.36 lakh had returned due to insufficient balance.
44. Considering the ratio, which has been laid down in the above referred decisions and also particularly in the decisions of the 'RANGAPPA VS. MOHAN'(Supra) and also in the case of 'T. Page 51 of 58 R/CR.A/1140/2017 JUDGMENT VASANTHAKUMAR VS. VIJAYAKUMARI' (Supra), it can be conclusively held that presumption included under Section 139 of the NI Act does include the existence of a legally enforceable debt or liability. Issuance of notice of demand and its non reply by the respondent with specific proof of issuance of cheque by the respondent No.2 can conclude as per the decision of Vijay Vs. Laxman and others (supra) that the appellant, original complainant reasonably discharged the burden that the cheque had been issued towards a lawful payment.
45. It can be also concluded reiteratively that the complainant has succeeded before the trial Court in proving the existence of a legally enforceable debt or liability. Even if the withdrawal of the amounts from various relatives has not come directly from the bank accounts, the complainant succeeded in proving the same through the oral evidence and also by providing accurate details of various relatives from whom, he had collected the amount to be handed over to the respondentaccused. As a result of which, the respondent No.2 had agreed to make the payment to the tune of Rs.31 lakh and odd by giving a portion of his land of the property to the complainant in the event of his nonfulfillment of his promise of making the appellant a partner in the business for which the complainant had trusted him and handed over the huge sum. It is a matter of record that on the failure of the respondentaccused to even honour the obligation by getting the land cleared from the Bank, where, it Page 52 of 58 R/CR.A/1140/2017 JUDGMENT was mortgaged, he had chosen to issue a cheque for Rs.36 lakh. This was done in the month of October/November, when the entire transaction failed and the same when was presented to the Bank, it resulted into dishonor of the cheque. The overall circumstances, which thus emerged on record, and which the complainant succeeded in proving from the oral as well as documentary evidence lead to the conclusion of existing of legally enforceable debt. Number of complainants have been filed against the respondentaccused and which also resulted into his conviction in some of the matters. Although, these are additional factors and grounds they also are substantiating the say of the complainant. This Court holds firmly that the trial Court committed no error in believing that the complainant succeeded in discharging the burden that there exists a legally enforceable debt or liability, and thereafter, the legal presumption was required to be dislodged or rebutted by the accusedrespondent, which he miserably failed to do with preponderance of probabilities, and therefore, findings and the conclusions arrived at by the Sessions Court deserve to be quashed and set aside. The judgment and order of the appellate Court, as can be seen from appreciation of evidence that the view taken by the Appellate Court is unsustainable being contrary to the well settled cannon of law on the subject as also established by various decisions of the Apex Court.
46. The respondent No.2 was required to Page 53 of 58 R/CR.A/1140/2017 JUDGMENT discharge the burden under Section 118 and 139 of the N.I. Act that the cheque he issued of Rs.36 lakh was not issued towards discharge of legal debt but was issued in view of security or was obtained unlawfully or was issued otherwise, since the appellant succeeded in proving the initial burden reasonably existence of legal debt as was required under the law.
46.1 With no reply to the notice of demand initially and in absence of any complaint to the police or otherwise in connection with his version that the impugned cheque having been stolen from his brother, the respondent No.2 cannot be said to have discharged his burden as required of him by the law.
46.2 His attempt to bring on record theory of stolen cheque in his further statement after many years is nothing but a calculative chance or an afterthought, however, neither that attempt nor his detailed cross examination comes nowhere nearer even to discharge his burden, even with a comparatively lighter scale of proof i.e. preponderance of probabilities.
46.3 His line of crossexamination also reveals clearly that the business of S.B. Fabrics (process house) was purchased from father of Mr. Gautam Adani and his sons were looking after this business. He attempted to say that he was not involved personally Page 54 of 58 R/CR.A/1140/2017 JUDGMENT in running the business and there were certain litigations in respect of the said process house, however, that version, on the contrary, as held by the trial Court, favours the complainant's story. His aspirations for his family and his purchase of a huge business is the cause of his facing various litigations under Section 138 of the N.I. Act. Respondent No.2, in fact, as can be held unhesitantly, failed to dislodge the positive proof.
46.4 Section 139 of the N.I. Act stipulates that the Court shall presume unless the contrary is proved, that the holder of the cheque received the cheque of the nature referred to in Section 138 for discharge of debt or liability.
46.5 Section 3 when read with Section 4 of the Evidence Act, it can be said that Whenever it is directed by the Court that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. Section 3 defines the expression 'disproved' that a fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its nonexistence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. Word 'proved' under the very section stipulates the converse that 'A fact is said to be proved when after considering the matters before it, the Court either believes it to exist, or considers Page 55 of 58 R/CR.A/1140/2017 JUDGMENT its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
47. Apt it would be to reproduce the relevant findings and observations of the Apex Court in the case Hiten P. Dalal v. Bratindranath Banerjee, reported in (2001) 6 SCC 16, which have been quoted and considered by the Apex Court in the case of Rangappa (supra), which are as under :
"22. Because both Sections 138 and 139 require that the Court 'shall presume' the liability of the drawer of the cheques for the amounts for which the cheques are drawn, ..., it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (...). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable probability of the nonexistence of the presumed fact.
23. In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the Page 56 of 58 R/CR.A/1140/2017 JUDGMENT presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man."
48. None of the matters brought on record either by way of crossexamination or by further statement or otherwise, are such which can make the existence of those facts so probable that their existence would be believed by a prudent man so as to displace and dislodge the positive proof available on record.
49. Resultantly, this appeal succeeds and the same is ALLOWED. The judgment and order passed by the learned Additional Sessions Judge, City Sessions Court No.27, Ahmedabad City, Dated 02.06.2017, rendered in Criminal Appeal No.92 of 2015 and Criminal Appeal No.486 of 2015 is QUASHED and set aside.
50. Further, as the transaction between the parties is of the year 2002 and the complaint was also filed in the year 2002, when the amendment in the law having come about of enhancement of punishment for two years with effect from 06.02.2003, Page 57 of 58 R/CR.A/1140/2017 JUDGMENT where, the maximum punishment prescribed is of one year. Hence, the respondentaccused is sentenced to undergo simple imprisonment for one year and he shall also pay RS.72 Lakh(SEVENTY TWO LAKH). Out of the same, the complainant shall be paid towards compensation an amount of RS.71 Lakh(SEVENTY ONE LAKH), whereas, the remaining RS.1 Lakh(ONE LAKH) shall go to the State exchequer. In case of default, the same shall be recovered in accordance with law. The judgment and order passed by the learned Chief Metropolitan Magistrate, Court No.28, Dated 13.02.2015, in Criminal Case No.521 of 2011 stands MODIFIED to the aforesaid extent.
51. Considering the huge amount, the respondentaccused is given four weeks time to deposit the same. On completion of four weeks, the respondentaccused shall surrender before the concerned jail authority immediate to serve the sentence and in case of failure on his part, non bailable warrant shall be issued against him for execution and implementation of order of this Court. Disposed of, accordingly.
In view of the order passed in the appeal, Criminal Revision Application No.808 of 2017 shall not survive and it also stands DISPOSED OF, accordingly. Direct service is permitted.
(MS. SONIA GOKANI, J.) PALLAVI Page 58 of 58