Gujarat High Court
Patel Ramjibhai Lavjibhai Becharbhai vs State Of Gujarat on 12 December, 2024
NEUTRAL CITATION
R/CR.A/2302/2009 JUDGMENT DATED: 12/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2302 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
x x
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PATEL RAMJIBHAI LAVJIBHAI BECHARBHAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. PANAM C SONI(7035) for the Appellant(s) No. 1
MR JV JAPEE(358) for the Opponent(s)/Respondent(s) No. 2
MS JYOTI BHATT APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 12/12/2024
ORAL JUDGMENT
1. Present appeal is filed by the appellant - original complainant under Section 378 of the Criminal Procedure Code, 1973 ("Cr. P.C." for short) against the impugned judgment and order dated 17.7.2009 passed by the learned Judicial Magistrate First Class, Idar (hereinafter be referred to as "the trial Court") in Criminal Case No. 1250 of 2005, whereby the trial Court has acquitted the Page 1 of 18 Uploaded by SURESH SOLANKI(HC00208) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 21:54:19 IST 2025 NEUTRAL CITATION R/CR.A/2302/2009 JUDGMENT DATED: 12/12/2024 undefined accused for the offences punishable under Section138 of the Negotiable Instrument Act, 1881 ("N.I. Act" for short).
2. It is the case of the present appellant that the appellant has advanced hand loan Rs.1,70,000/- to the respondent original accused and to reply the same the respondent No.2 had given a cheque No. 892067 dated 5.7.2005 drawn on State Bank of India, Khedbrahma. The said cheque was presented by the appellant in the Sabarkantha District Co. operative Bank Ltd., and the said cheque was dishonoured and sent back by State bank of India with intimation of 'Fund Insufficient',. 2.1 Thereafter, the appellant served legal notice through advocate to the respondent no.2 demanding amount of cheque and the said notice was served to the respondent no.2, however, the respondent no.2 neither replied the said notice nor made any payment pursuant to the said notice and has committed offence u/s 138 of the N.I. Act. Page 2 of 18 Uploaded by SURESH SOLANKI(HC00208) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 21:54:19 IST 2025
NEUTRAL CITATION R/CR.A/2302/2009 JUDGMENT DATED: 12/12/2024 undefined 2.2 Therefore, the appellant had instituted the proceedings against the respondent no.2 under Section 138 of the N.I. Act by way of filing a criminal complaint in the Court of Judicial Magistrate, Idar. After verification, the Court had issued summons against the respondent accused.
2.3 Pursuant to the said summons respondent no.2 appeared before the Court. After recording the statement as the respondent no. 2 has pleaded not guilty to the charge, the case was tried by the trial Court and after considering oral as well as documentary evidence and after considering the arguments advanced by both the sides, the trial Court acquitted the present respondent no. 2 from the charges levelled against him under Section 138 of the N.I. Act.
3. Being aggrieved and dissatisfied with the impugned judgment and order dated 17.7.2009 passed by the trial Court in Criminal Case No. 1250 of 2005, the appellant original complainant has preferred present appeal. Page 3 of 18 Uploaded by SURESH SOLANKI(HC00208) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 21:54:19 IST 2025
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4. Heard Mr. Panam Soni, learned Counsel appearing on behalf of the appellant and Mr. Imnish J. Japee, learned Counsel for Mr. J.V. Japee, learned Counsel for the respondent accused.
5. Mr. Panam Soni, learned Counsel appearing on behalf of the appellant has submitted that the findings recorded by the trial Court is not in consonance with the facts of the present case and the trial Court has failed to appreciate the fact that the transaction between the appellant and the respondent was not the earlier one, which was heavily referred and relied upon by the trial Court. He has submitted that in first point of time Rs.30,000/- hand loan was advanced by the another person to the present respondent and in that transaction, the respondent had issued a cheque, which was misused by the present appellant and the said fact is not properly appreciated by the trial Court, as it was not the same transaction, and therefore, trial Court has committed a serious error in passing the impugned judgment and order.
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NEUTRAL CITATION R/CR.A/2302/2009 JUDGMENT DATED: 12/12/2024 undefined 5.1 Mr. Panam Soni, learned Counsel appearing on behalf of the appellant has submitted that in fact the present appellant entered into transaction in the year 2005 only and had advanced Rs.1,70,000/- and therefore, the presumption and assumption made by the trial Court while recording the reasons is completely illegal and erroneous. It is also contended that so far as the signature on the cheque is concerned, the said fact was admitted by the respondent no.2 and it was proved that the cheque was issued by the respondent no.2. 5.2 Mr. Panam Soni, learned Counsel appearing on behalf of the appellant has submitted that the appellant had established the fact that he is having legally enforceable debt against present respondent no. 2 and therefore, the findings recorded by the trial Court that the appellant has not established the facts that he is having and legally enforceable debt against the respondent no. 2 is illegal, unjust and against the facts of the present case. Page 5 of 18 Uploaded by SURESH SOLANKI(HC00208) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 21:54:19 IST 2025
NEUTRAL CITATION R/CR.A/2302/2009 JUDGMENT DATED: 12/12/2024 undefined 5.3 Mr. Panam Soni, learned Counsel appearing on behalf of the appellant has submitted that the trial Court has not considered the evidence on record in its true and proper spirit while passing the impugned judgment and order and reference of the judgment of the Hon'ble Apex Court by the trial Court is completely misconception on the part of the trial Court and therefore, the trial Court has committed an error while appreciating the impugned judgment and order in the facts of present case. 5.4 In view of the above submission, learned Counsel for the appellant submits that the impugned judgment and order of trial Court is not in consonance with the settled legal principle and the same may quashed and set aside and present appeal filed against the acquittal of the respondent accused may be allowed.
6. As against that Mr. Imnish J. Japee, learned Counsel appearing for the respondent no.2 has submitted that the findings recorded by the trial Court is in consonance with the fact of the present case and it is in consonance with Page 6 of 18 Uploaded by SURESH SOLANKI(HC00208) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 21:54:19 IST 2025 NEUTRAL CITATION R/CR.A/2302/2009 JUDGMENT DATED: 12/12/2024 undefined the settle legal principle enunciated by this Court and the Hon'ble Apex Court and the trial Court has rightly discussed the evidence led by the original appellant/complainant and after considering the same and also considering the arguments advanced by the appellant and the respondent, the trial Court has rightly passed by the impugned judgment and order of acquittal, which is legal and correct interpretation of the law laid down by the Hon'ble Apex Court in series of judgments. 6.1 Mr. Japee, learned Counsel appearing for the respondent no. 2 has submitted that the present appellant original complainant has failed to establish through the oral evidence as well as the documentary, the basic ingredients relating to the fact that he is having any legally enforceable debt against the present respondent no. 2.
6.2 Mr. Japee, learned Counsel appearing for the respondent no. 2 has submitted that while appreciating the evidence oral as well as documentary the trial court Page 7 of 18 Uploaded by SURESH SOLANKI(HC00208) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 21:54:19 IST 2025 NEUTRAL CITATION R/CR.A/2302/2009 JUDGMENT DATED: 12/12/2024 undefined has not committed any error and therefore, there is no illegality or any perversity in the judgment, and thus the impugned judgment and order deserves to be confirmed. 6.3 Mr. Japee, learned Counsel for the respondent no. 2 accused has submitted the evidence of the independent witnesses was recorded by the trial court and from that evidence also the defense raised by the present respondent no. 2 is corroborate and thus, the trial court has rightly appreciated the evidence of the independent witnesses while passing the impugned judgment and order and therefore, under such circumstances, present appeal is devoid of any merit and the appeal deserves to be dismissed.
7. I have perused the material available on record as well as the documents appended thereto. I have also gone through the impugned judgment and order of acquittal passed by the trial Court. I have also examined the evidence recorded by the trial Court.
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8. It appears from the record that the basis fact about the legally enforceable debt was not proved by the appellant original complaint through cogent and material evidence before the trial Court. Even, in his cross examination also the appellant is unable to establish the said fact and therefore, the trial Court has rightly appreciated the evidence while passing the impugned judgment and order of acquittal in favour of the present respondent no. 2. After examination of the oral as well as the documentary evidence and the deposition of the witnesses, I am of the opinion that no interference is required to be called for in present appeal while exercising the power under Section 378 of the Cr.P.C.
9. Further, the trial Court has recorded the reasons in paragraph 10 onwards and discussed the same in nutshell and come to a conclusion that the appellant original complainant has failed to establish the fact that he is having legally enforceable debt against present respondent no. 2 and therefore, after considering the all the relevant material and the evidence on record the trial Page 9 of 18 Uploaded by SURESH SOLANKI(HC00208) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 21:54:19 IST 2025 NEUTRAL CITATION R/CR.A/2302/2009 JUDGMENT DATED: 12/12/2024 undefined Court has passed the impugned judgment and order in favour of present respondent no. 2, which, in my view is just and proper and no interference is required to be made in the impugned judgment and order of trial Court.
10. At this stage, it is appropriate to take into account the recent decision of the Hon'ble Apex Court in the case of Dattatraya vs. Sharanappa reported in 2024 LawSuit(SC) 669 wherein Hon'ble Apex Court has observed as under:-
"18. As the presumption contemplated by virtue of Section 118 of the NI Act 1881 entails, Section 139 was similarly introduced to provide for a presumption that the holder of cheque had received the concerned issued cheque towards discharging of the liability of the drawer, either in whole or in part. Therefore, at this juncture, it is ideal to make a reference to Section 118 of the NI Act 1881, which is reproduced as:
"118. Presumptions as to negotiable instruments Until the contrary is proved, the following presumptions shall be made:--
(a) of consideration:--that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date:--that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance:--that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer:--that every transfer of a negotiable instrument was made before its maturity;Page 10 of 18 Uploaded by SURESH SOLANKI(HC00208) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 21:54:19 IST 2025
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(e) as to order of indorsements:--that the indorsements appearing upon a negotiable instrument were made in the order in which they appear then on;
(f) as to stamp:-- that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course:--that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an 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 burden of proving that the holder is a holder in due course lies upon him." Chapter XIII of the NI Act 1881, of which Section 118 is a part, lays down special rules for evidence to be adduced within the scheme of the Act herein. As the text of the said provision showcases, it raises a rebuttable presumption as against the drawer to the extent that the concerned negotiable instrument was drawn and subsequently accepted, indorsed, negotiated, or transferred for an existing consideration, and the date so designated on such an instrument is the date when the concerned negotiable instrument was drawn. It is also further presumed that the same was transferred before its maturity and that the order in which multiple indorsements appear on such an instrument, that is the deemed order thereon. Lastly, the holder of a negotiable instrument is one in its due course, subject to a situation where the concerned instrument while being obtained from a lawful owner and from his or her lawful custody thereof through undertaking of an offence as contemplated under any statute or through the means of fraud, the burden to prove him or her being a holder in due course, instead, lies upon such a holder
19. Accordingly, to begin with, the bare provision of Section 139 of the NI Act 1881 is reproduced herein below:
"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 section138 for the discharge, in whole or in part, or any debt or other liability."
The aforesaid presumption entails an obligation on the court conducting the trial for an offence under Section 138 of the NI Act 1881 to presume that the cheque in question was issued by the drawer or accused for the discharge of a particular liability. The use of expression "shall presume"
ameliorates the conundrum pertaining to the right of the accused to present evidence for the purpose of rebutting the said presumption. Furthermore, the effect of such Page 11 of 18 Uploaded by SURESH SOLANKI(HC00208) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 21:54:19 IST 2025 NEUTRAL CITATION R/CR.A/2302/2009 JUDGMENT DATED: 12/12/2024 undefined presumption is that, upon filing of the complaint along with relevant documents, thereby prima facie establishing the case against the drawer, the onus of proof shifts on the drawer or accused to adduce cogent material and evidence for rebutting the said presumption, and as established in Laxmi Dyechem v. State of Gujarat and Others 2012 13 SCC 375 based on preponderance of probabilities
20. While describing the offence envisaged under Section 138 of the NI Act 1881 as a regulatory offence for largely being in the nature of a civil wrong with its impact confined to private parties within commercial transactions, the 3-Judge Bench in the decision of Rangappa (supra) highlighted Section 139 of the NI Act 1881 to be an example of a reverse onus clause. This is done so, as the Court expounds, in the light of Parliament's intent, which can be culled out from the peculiar placing of act of dishonour of cheque in a statute having criminal overtones. The underlying object of such deliberate placement is to inject and enhance credibility of negotiable instruments. Additionally, the reverse onus clause serves as an indispensable "device to prevent undue delay in the course of litigation". While acknowledging the test of proportionality and having laid the interpretation of Section 139 of the NI Act 1881 hereof, it was further held that an accused cannot be obligated to rebut the said presumption through an unduly high standard of proof. This is in light of the observations laid down by a co-ordinate Bench in Hiten P. Dalal v. Bratindranath Banerjee, 6 whereby it was clarified that the rebuttal ought not to be undertaken conclusively by an accused, which is reiterated as follows:
"23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but 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' [Section 3, Evidence Act]. 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'." Therefore, it may be said that the liability of the defence in cases under Section 138 of the NI Act 1881 is not that of proving its case beyond reasonable doubt.
22. Since a presumption only enables the holder to show a prima facie case, it can only survive before a court of law subject to contrary not having been proved to the effect that a cheque or Page 12 of 18 Uploaded by SURESH SOLANKI(HC00208) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 21:54:19 IST 2025 NEUTRAL CITATION R/CR.A/2302/2009 JUDGMENT DATED: 12/12/2024 undefined negotiable instrument was not issued for a consideration or for discharge of any existing or future debt or liability. In this backdrop, it is pertinent to make a reference to a decision of 3- Judge Bench in Bir Singh v. Mukesh Kumar, 8 which went on to hold that if a signature on a blank cheque stands admitted to having been inscribed voluntarily, it is sufficient to trigger a presumption under Section 139 of the NI Act 1881, even if there is no admission to the effect of execution of entire contents in the cheque."
11. From the aforesaid observations, it is clear that the Hon'ble Apex Court has held that prima facie facts are required to be proved by the applicant-original complainant before the Trial Court and if the applicant- original complainant produced cogent and material evidence to prove the said fact, then only it can be presumed against the accused that he has issued the cheque in favour of the drawer against the legally enforceable debt. Herein, present the trial Court has observed that the applicant-original complainant neither produced single document to support his case nor he has pleaded that from which source of income, he is having the said amount in his account and he has advanced such amount of Rs.1,70,000/- to the respondent no. 2. Hence, the complainant has also failed to prove the said aspect as well.
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12. After considering the above referred judgments and the order passed by the trial Court, it appears that the trial Court has not committed any error in passing the impugned judgment and orders. No illegality or perversity found in the judgment and order of the trial Court, hence I am of the opinion that all these applications for Leave to Appeals require to be dismissed.
13. It is also now well settled that while exercising powers under Section 378 of Cr. P.C., if the trial/Special Court while passing the order has committed any illegality or any perversity or has exceeded the jurisdiction, unless and until such facts come on record, the Court is very slow while dealing with an acquittal appeal. The Hon'ble Apex Court has in a series of judgments enunciated the principles while exercising jurisdiction under Section 378 against acquittal, the power of the Appellate Court is inasmuch as re- appreciate the evidence, view or re-consider the evidence and if the Court finds that there is any illegality or any Page 14 of 18 Uploaded by SURESH SOLANKI(HC00208) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 21:54:19 IST 2025 NEUTRAL CITATION R/CR.A/2302/2009 JUDGMENT DATED: 12/12/2024 undefined irregularity in the judgment then in that case only, the Court has power to entertain the appeal and interfere with the order of acquittal. The scope and principles are enunciated by the Hon'ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415, more particularly paragraphs 42 and 43, which was subsequently re- affirmed by the Hon'ble Apex Court Rajesh Prasad Vs. State of Bihar and another, reported in [2022] 3 SCC 471, wherein, the Hon'ble Apex Court has enunciated the general principles in case of acquittal, more particularly in paragraph 26 the general principles are set out by the Hon'ble Apex Court based upon various decisions of the Hon'ble Apex Court. Then in case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149, the Hon'ble Apex Court has dealt with the similar issue, more particularly, in paragraph Nos. 37 to 40. Hence, I am in complete agreement with the findings recorded by the trial Court.
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14. It is also worthwhile to refer to the recent decision of the Hon'ble Supreme Court in the case of Ramesh vs. State of Karnataka, reported in [2024] 9 SCC 169, wherein the Hon'ble Supreme Court has held and observed in paras-20 and 21 as under:-
"20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa and others vs. State of Karnataka , regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal. The principles read thus:
"42. .... (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his Page 16 of 18 Uploaded by SURESH SOLANKI(HC00208) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 21:54:19 IST 2025 NEUTRAL CITATION R/CR.A/2302/2009 JUDGMENT DATED: 12/12/2024 undefined acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice. Viewed in this light, the brusque approach of the High Court in dealing with the appeal, resulting in the conviction of Appellant Nos. 1 and 2, reversing the cogent and well-considered judgment of acquittal by the Trial Court giving them the benefit of doubt, cannot be sustained."
15. The Court has framed general guild lines and principles while exercising the power under Section 378 of the Cr. P.C. against the judgment and order of the acquittal and under the general guild lines issued by the Apex Court, this Court is of the opinion that present appeal does not deserve to be entertained and the same requires to be dismissed.
16. On perusal of the impugned judgment and order of the trial Court, it clearly transpires that the trial Court Page 17 of 18 Uploaded by SURESH SOLANKI(HC00208) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 21:54:19 IST 2025 NEUTRAL CITATION R/CR.A/2302/2009 JUDGMENT DATED: 12/12/2024 undefined has taken into consideration all the facts while acquitting the accused. It also appears from the impugned judgment and order that the trial Court has appreciated the entire evidence in its true perspective spirit and has come to the right conclusion in acquitting the accused.
17. For the foregoing reasons and in view of the aforesaid decisions of the Hon'ble Apex Court present appeal is hereby dismissed. Record and proceedings be sent back to the concerned trial Court forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 18 of 18 Uploaded by SURESH SOLANKI(HC00208) on Wed Jan 01 2025 Downloaded on : Fri Jan 03 21:54:19 IST 2025