Bombay High Court
Deepak Madhukar Wadwekar vs Vinay Balkrishna Sawalpurkar & Anor on 28 June, 2018
Author: Manish Pitale
Bench: Manish Pitale
1 Apeal17-07.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.17 of 2007
...
Deepak Madhukar Wadwekar,
Aged 35 years, R/o Shreyas
Sidhi Apartments, Flat No.201,
Plot No.180, Bajaj Nagar,
Nagpur. .. APPELLANT
.. Versus ..
1. Vinay Balkrishna Sawlapurkar,
"Nath Krupa", Plot No.199,
Near Water Tank, Laxmi Nagar,
Nagpur.
2. The State of Maharashtra,
through Government Pleader,
High Court of Judicature at
Bombay, Nagpur Bench,
Nagpur. .. RESPONDENTS
Mr. Anurag Gharote, Advocate for Appellant
Mr. R.S. Deo, Advocate for Respondent No.1.
Mrs. Swati Kolhe, APP for Respondent No.2.
....
CORAM : MANISH PITALE, J.
DATED : JUNE 28, 2018.
ORAL JUDGMENT
1. By this appeal, the appellant (original complainant) has challenged judgment and order dated 09.10.2006 passed ::: Uploaded on - 30/06/2018 ::: Downloaded on - 01/07/2018 01:57:08 ::: 2 Apeal17-07.odt by the Court of Judicial Magistrate First Class and Special Court for 138 of the Negotiable Instruments Act, Nagpur (trial Court) in Summary Criminal Case No. 1532 of 2005, whereby the respondent no.1 has been acquitted of having committed an offence under Section 138 of the Negotiable Instruments Act, 1881.
2. The appellant filed a complaint against the respondent no.1 under the aforesaid provision contending that a cheque dated 10.01.2005 was issued by the respondent no.1 to the appellant for repayment of cash amounts given by the appellant to the respondent no.1 between May,2004 and December, 2004. The amount stated in the cheque was Rs.90300/- which was the total amount of cash given as loan during the aforesaid period by the appellant to the respondent. It was the case of the appellant that when the aforesaid cheque was deposited, it was dishonoured on the ground that the account had been closed. On this basis, the appellant issued notice to the respondent no.1, to which there was no reply and eventually, the appellant was constrained to file the aforesaid complaint.
3. The defence of the respondent no.1 (accused) was ::: Uploaded on - 30/06/2018 ::: Downloaded on - 01/07/2018 01:57:08 ::: 3 Apeal17-07.odt that the cheque in question might have been stolen or it might have been taken from Manish Sawalapurkar, being the cousin of respondent no.1 and that it was misused. It was the stand of respondent no.1 that he had not taken any loan as claimed by the appellant.
4. In support of his complaint, the appellant examined himself while in his defence the respondent no.1 examined himself (DW1), his father (DW2), Dr. Shailesh Pangaonkar (DW3) and one Sushma Suryavanshi (DW4).
5. On the basis of the evidence and material on record, it was contended on behalf of the appellant that since the signature on the cheque was not denied by the respondent no.1, presumption under Section 139 of the aforesaid Act operated and that it was for the respondent no.1 to prove that the cheque was not issued for discharge of legal debt or liability. The appellant placed reliance on the cheque in question, the memo received from the Bank regarding dishonour thereof and acknowledgment (Exh.40) purportedly issued by the respondent no.1 on 31.12.2004 when the cheque in question was handed over, wherein it was acknowledged by the respondent no.1 that he had indeed received amounts ::: Uploaded on - 30/06/2018 ::: Downloaded on - 01/07/2018 01:57:08 ::: 4 Apeal17-07.odt totalling Rs.90300/- during the period of May, 2004 and December, 2004 from the appellant and that the cheque in question was being issued for repayment of the said amount. The respondent no.1 relied upon the evidence of Doctor (DW3) to contend that he was suffering from behavioural problems, for which he had undergone treatment of Psychiatrist, including the said Doctor DW3. It was contended that since he had behavioural problems and personality issues, the cheque in question and the said acknowledgment at Exh.40 might have been signed by him during the influence of medicines taken for such ailment. It was also contended that the appellant had failed to give details of when and in what manner were the cash amounts advanced to the respondent no.1. The father of the respondent no.1 (DW2) also deposed in respect of the behavioural difficulties faced by the respondent no.1 and the fact that he was under treatment since long period of time, including the period when the appellant claimed to have advanced loan to the respondent no.1 and when the cheque was allegedly issued by the respondent no.1 for discharge of such liability.
6. The trial Court took into consideration the aforesaid evidence and material on record and it came to the conclusion ::: Uploaded on - 30/06/2018 ::: Downloaded on - 01/07/2018 01:57:08 ::: 5 Apeal17-07.odt that the respondent no.1 had been able to establish the fact he was having behavioural problems and that during such period he had been advised not to carry out financial responsibility. On this basis, the trial Court came to the conclusion that the respondent no.1 had been able to rebut the presumption operating against him. Apart from this, the trial Court found that the appellant had failed to independently prove the fact that he had advanced cash amounts between May, 2004 and December, 2004 to the respondent no.1. On this basis, the trial Court acquitted the respondent no.1 by the impugned judgment and order.
7. Mr. Anurag Gharote, learned counsel appearing on behalf of the appellant, submitted in support of this appeal that the trial Court committed a grave error in appreciating the evidence and material on record while acquitting the respondent no.1. It was submitted that the evidence of Doctor DW3 itself demonstrated that the respondent no.1 could not place reliance on his alleged medical condition to escape the liability in the present case. It was pointed out that Doctor DW3 had specifically stated that the respondent no.1 would not have been in position to make proper calculation and to take financial decision when he would be under the influence of the ::: Uploaded on - 30/06/2018 ::: Downloaded on - 01/07/2018 01:57:08 ::: 6 Apeal17-07.odt drug or medicine prescribed to him. The said witness had also stated that the respondent no.1 had not followed the treatment plan regularly, which indicated that the condition or the treatment for the same could not be used as an excuse by the respondent no.1 to escape liability. It was further submitted that the trial Court erred in placing the burden on the appellant (complainant) to prove as to what was the urgent household need for which the respondent no.1 had taken loan amounts from him. According to the learned counsel, the burden was squarely on the respondent no.1 in that regard, particularly when presumption under Section 139 of the aforesaid Act operated against the respondent no.1. It was also contended that if the defence of the respondent no.1 was that the cheque in question had been stolen or misplaced, he ought to have taken some action in that regard for the said contention to be accepted. The learned counsel placed reliance on number of judgments for the propositions that the burden is squarely on the accused in such cases when the presumption under Sections 118 and 139 of the aforesaid Act operates, that the accused ought to have taken some positive steps in regard to the allegedly stolen or misplaced cheque in question, that the defence in rebuttal on behalf of the accused cannot be mere denial but it has to be supported by sufficient proof and that ::: Uploaded on - 30/06/2018 ::: Downloaded on - 01/07/2018 01:57:08 ::: 7 Apeal17-07.odt the complainant cannot be expected to prove his case when the presumption operates against the accused.
8. On the other hand, Mr. R.S. Deo, learned counsel appearing on behalf of respondent no.1 submitted that the evidence on record sufficiently proved that the respondent no.1 was suffering from behavioural problems, for which he was undergoing treatment and that it can be inferred that the cheque in question was signed in such a state of mind. It was submitted that the acknowledgment at Exh.40 was not a document on which the complainant could prove his case because it was dated 31.12.2004 when the cheque in question was purportedly handed over to the appellant -complainant and that acknowledgment of alleged receipt of loans between the period May, 2004 and December, 2004 in the said document was of no consequence. It was submitted that the presumption in the present case would operate when the complainant in the first place would establish his case about advancing of hand loan to the respondent no.1 and that in the facts and circumstances of the present case, the appellant had failed to prove such fact. It was submitted that the evidence of the Doctor DW3 along with that of the respondent no.1 and his father DW2 was sufficient to demonstrate that the ::: Uploaded on - 30/06/2018 ::: Downloaded on - 01/07/2018 01:57:08 ::: 8 Apeal17-07.odt respondent no.1 could not be said to be a person mentally fit to have issued a cheque in question and that in the absence of proof of legal debt or liability, the case of the appellant could not be said to have been proved. On this basis it was submitted that the appeal deserved to be dismissed.
9. Mrs. Swati Kolhe, learned APP has appeared on behalf of the Sate, which is a formal party.
10. Having heard the counsel for the parties, it is settled law that when the evidence and material on record shows that the cheque in question was indeed signed by the accused, the burden lay upon him to prove that the said cheque was not issued in discharge of legal debt or liability, as the presumption under Section 139 of the aforesaid Act operated. It is equally true that such a presumption would be triggered upon the complainant proving the foundational facts in the first place. In the present case, the allegation of the appellant-complainant is that the cheque in question was issued for repayment of hand loans given in cash by the appellant to the respondent no.1 between May, 2004 and December, 2004. In order that the presumption operates in the present case, these foundational facts regarding hand loan advanced to respondent no.1 was ::: Uploaded on - 30/06/2018 ::: Downloaded on - 01/07/2018 01:57:08 ::: 9 Apeal17-07.odt first required to be proved by the appellant. It was the specific case of the appellant that during the aforesaid period various amounts of cash were advanced to the respondent no.1, coming to a total of Rs. 90,300/-. The main document on which the appellant relies in support of the said allegation is the acknowledgment issued by the respondent no.1 dated 31.12.2004 at Exh.40. A perusal of the contents of the said document shows that it acknowledges receipt of amounts from the appellant between May 2004 and December, 2004 and further states that the specific cheque in question was issued by the respondent no.1 towards repayment of the said amounts. It is also stated in the said document that the appellant could encash the said cheque. The contents of the said document purportedly issued on the day on which the cheque in question was issued does not appear to be in natural course of human conduct. An acknowledgment of receipt of cash amounts during the period between May, 2004 and December, 2004 if acknowledged by documents prepared on the dates on which such amounts were advanced, would have been a natural human conduct. The tenor of the said document at Exh.40 appears to be strange and it acknowledges receipt of certain amounts and the issuance of the cheque in question which could be encashed. Normally ::: Uploaded on - 30/06/2018 ::: Downloaded on - 01/07/2018 01:57:08 ::: 10 Apeal17-07.odt issuance of such a cheque itself would be enough and such a detailed document would not be required. It is also significant that the said document is not in the handwriting of the respondent no.1. Therefore, this document cannot be said to be reliable proof of the claim of the appellant that cash amount was advanced by him to the respondent no.1 during the aforesaid period.
11. It would have been appropriate that the appellant would have brought on record contemporaneous material to show that he had indeed advanced the said amounts to respondent no.1. It was his case that he had withdrawn amounts from his bank account and then given the same to the respondent no.1 during the said period. But, the account statement of such a bank account was not placed on record by the appellant. As a result, the very source of such amounts was not on record. It has also come in the evidence that despite being an advocate having considerable years of practice, the appellant was not an income tax payee and that he had not paid professional tax. Therefore, there could be no contemporaneous document to show that the appellant had indeed advanced cash amounts to the respondent no.1 as claimed by him. This creates a serious doubt about the ::: Uploaded on - 30/06/2018 ::: Downloaded on - 01/07/2018 01:57:08 ::: 11 Apeal17-07.odt foundational facts of the appellant's case.
12. In this backdrop, the evidence and material on record pertaining to the medical condition of respondent no.1 assumes significance. Documents on record at Exhs. 65 to 73 show that the respondent no.1 was indeed facing behavioural problems for which he was under treatment of the Doctor DW3, a Psychiatrist. These documents show that the respondent no.1 was suffering from bouts of anxiety, sleeplessness, complexes of conflict and compulsive disorder, for which the doctor DW3 had prescribed him drugs. The certificate issued by the Doctor DW3 at Exh.73 shows that the respondent no.1 had been advised to avoid taking responsibility of finances etc. The said doctor DW3 has appeared as a witness for defence and he has stated that although the respondent no.1 was neither insane nor of unsound mind, but he has been advised bed rest and not to drive or to carry out any financial responsibility. In cross- examination, this witness has indeed stated that such advice was during the period when the respondent no.1 was taking the medicines or drugs, but the respondent no.1 had not followed the treatment plan regularly. It is also stated by the said witness that during the phase of such treatment, there was more possibility of committing error by the respondent no.1 as ::: Uploaded on - 30/06/2018 ::: Downloaded on - 01/07/2018 01:57:08 ::: 12 Apeal17-07.odt he would be prone to affix his signature without proper calculation . The father of the respondent no.1 examined as DW2 has also stated in his evidence regarding the continuous treatment given to the respondent no.1 for his behavioural problems. It is stated by the said witness that respondent no.1 had an inferiority complex from the beginning and that he had bouts of anxiety.
13. Although the evidence of the doctor DW3 and the evidence of the father DW2 does not specifically bring out in detail that the respondent no.1 was indeed suffering from bouts of behavioural problems leading to difficulty in understanding and decision making when the cheque in question was signed, the evidence of the said witnesses does bring on record the fact that the respondent no.1 was suffering from such a medical condition during the period when the appellant claims to have advanced cash loan amounts to respondent no.1. Although the respondent no.1 has claimed that the cheque in question might have been stolen or lost or that it was part of the 13 cheques handed over to his cousin, there is a scant evidence on record to support such a contention. But, it is crucial that the appellant has failed to place on record cogent evidence to first prove the essential foundational facts of ::: Uploaded on - 30/06/2018 ::: Downloaded on - 01/07/2018 01:57:08 ::: 13 Apeal17-07.odt having advanced cash loan amounts to the respondent no.1 between May, 2004 and December, 2004. As noted above, the only document is the acknowledgment at Exh.40 purportedly executed by the respondent no.1, which is not reliable. The absence of proof of such a foundational facts shows that the presumption in the present case was not triggered against the respondent no.1. Even otherwise, if such a presumption did get triggered , it was certainly rebuttable. There cannot be any doubt about the proposition such a presumption is rebuttable on the touchstone of preponderance of probabilities. In the present case, the evidence and material on record, particularly the documents pertaining to the medical condition of the respondent no.1 at Exhs.65 to 73, along with the evidence of the doctor DW3 and that of the father DW2 shows that sufficient material was placed on record on behalf of the respondent no.1 to rebut the presumption on preponderance of probabilities.
14. The trial Court has taken into consideration both the aspects i.e. absence of cogent evidence and proof on behalf of the appellant to demonstrate that cash loan amounts were indeed advanced to the respondent no.1 and that the evidence and material on record did indicate the behavioural problems ::: Uploaded on - 30/06/2018 ::: Downloaded on - 01/07/2018 01:57:08 ::: 14 Apeal17-07.odt suffered by the respondent no.1, raising serious doubt about the respondent no.1 having signed the cheque and the acknowledgment at Exh.40 consciously and with the realization of its implications. The view taken by the trial Court is a possible view and it cannot be said to be based on erroneous appreciation of the evidence and material on record. There cannot be any quarrel with the propositions in support of which the learned counsel appearing for the appellant has placed reliance on numerous judgments, but in the facts and circumstances of the present case, it becomes clear that the appellant has failed to prove foundational facts necessary for conviction of the respondent no.1 under Section 138 of the Act. The cheque in question does not appear to have been issued in discharge of any legal debt or liability and, therefore, the respondent no.1 cannot be held guilty of having committed offence under Section 138 of the aforesaid Act.
15. In the light of the above, the instant appeal is dismissed and the judgment and order of the trial Court acquitting the respondent no.1 is confirmed.
(Manish Pitale, J. ) ...
halwai/p.s.
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