Gujarat High Court
Kumari Kantaben P Patel vs State Of Gujarat on 12 December, 2024
NEUTRAL CITATION
R/CR.A/187/2009 JUDGMENT DATED: 12/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 187 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
YES
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KUMARI KANTABEN P PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR SURAJ MATEIDA FOR MR P P MAJMUDAR(5284) for the Appellant(s)
No. 1
MR CHINMAY M GANDHI(3979) for the Opponent(s)/Respondent(s) No. 2
MS JYOTI BHATT, ADDL. PUBLIC PROSECUTOR 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. The present appeal is filed by the appellant - original complainant under Section 378 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") against the judgment and order of acquittal dated 03/10/2008 passed by the learned Additional Sessions Judge, Court No.6, Ahmedabad (hereinafter referred to as "the first appellate court") in Criminal Appeal Page 1 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:28 IST 2024 NEUTRAL CITATION R/CR.A/187/2009 JUDGMENT DATED: 12/12/2024 undefined No.149 of 2007, whereby, the learned Judge has acquitted the original accused respondent No.2 herein for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short "the N.I. Act").
2. The brief facts giving rise to the present appeal are that, the appellant had advanced an amount of Rs.33,000/- top the respondent accused way back in the year 1992, against which, the respondent accused had issued a cheque to the tune of Rs.25,000/- on 10/02/2001. On being presented before the bank, the said cheque returned with an endorsement 'insufficient funds' and therefore, on 01/08/2001, the appellant had issued a statutory legal notice to the respondent accused under the provisions of Section 138 of the N.I. Act., one by U.P.C. and another by Registered Post A.D. The notice sent by Registered Post A.D. returned on 09/08/2001 with an endorsement 'the owner is not found' and the notice sent by U.P.C. was served upon the respondent accused, however, the respondent accused had neither given any reply to the notice nor he had made payment of the cheque amount, and therefore, the appellant had filed a criminal complaint before the Metropolitan Magistrate, Court No.3, Ahmedabad, being Page 2 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:28 IST 2024 NEUTRAL CITATION R/CR.A/187/2009 JUDGMENT DATED: 12/12/2024 undefined Criminal Case No.1649 of 2001, whereby, the competent court had convicted the respondent accused for the alleged offence under Section 138 of the N.I. Act vide judgment dated 12/10/2007, and he was ordered to undergo simple imprisonment for a period of one year and also imposed fine of Rs.5,000/- and in default of payment of fine, further three months' simple imprisonment was imposed. Being aggrieved and dissatisfied with the said judgment of conviction, the respondent accused had preferred Criminal Appeal No.149 of 2007 before the learned City Sessions Judge, Ahmedabad, which came to be allowed vide judgment and order dated 03/10/2008 and the respondent accused was acquitted from the charges levelled against him.
2.1 Being aggrieved and dissatisfied with the impugned judgment and order of acquittal dated 03/10/2008 passed by the learned Additional Sessions Judge, Court No.6, Ahmedabad in Criminal Appeal No.149 of 2007, the appellant complainant has preferred present Criminal Appeal under Section 378 of the Criminal Procedure Code, 1973.
3. Heard learned advocate Mr.Suraj Mateida, appearing on Page 3 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:28 IST 2024 NEUTRAL CITATION R/CR.A/187/2009 JUDGMENT DATED: 12/12/2024 undefined behalf of Mr.P.P. Majmudar, learned advocate for the appellant
- original complainant, learned APP Ms.Jyoti Bhatt, appearing on behalf of the respondent No.1 - State of Gujarat and learned advocate Mr.Chinmay Gandhi, appearing on behalf of the respondent No.2 - original accused.
4. Learned advocate Mr.Mateida has submitted that the first appellate court has committed a serious error of law and on facts while passing the impugned judgment and order of acquittal. He has submitted that the first appellate court has disbelieved the case of the present appellant on the ground that the appellant has failed to establish that the impugned cheque was drawn against the legal enforceable debt. He has submitted that the said fact was not properly appreciated by the first appellate court and the findings recorded based upon such facts is completely erroneous, illegal and unjust. He has further submitted that the documentary evidence viz., the diary maintained by the appellant was completely ignored and overlooked by the first appellate court which was in nature of evidence in which the entry was made for advancing hand loan to the respondent accused, however, the first appellate court has failed to appreciate the same while passing the impugned Page 4 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:28 IST 2024 NEUTRAL CITATION R/CR.A/187/2009 JUDGMENT DATED: 12/12/2024 undefined judgment and order of acquittal. Over and above the grounds agitated in the memo of appeal, learned advocate Mr.Mateida has urged that the present appeal be allowed and the impugned judgment and order of acquittal be quashed and set aside.
5. As against that, learned advocate Mr.Chinmay Gandhi, appearing on behalf of the respondent accused has submitted that the first appellate court while passing the impugned judgment and order has considered the evidence led by the complainant including his cross-examination and the fact was established before the first appellate court that the complainant has failed to establish that it was a legal enforceable debt and therefore, the findings recorded by the trial court was rightly reversed by the first appellate court while passing the impugned judgment and order of acquittal in favour of the present respondent. He has further submitted that, in fact except the so called evidence in nature of diary produced by the complainant was also not believed by the first appellate court and therefore, relying upon the said document, the first appellate court has rightly discarded the said evidence and not considered while passing the impugned judgment and Page 5 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:28 IST 2024 NEUTRAL CITATION R/CR.A/187/2009 JUDGMENT DATED: 12/12/2024 undefined order of acquittal as it was not a legal and valid evidence and there was no any corroborative piece of evidence produced by the complainant to prove the chain of diary and therefore, the first appellate court has rightly disbelieved the said diary as a legal piece of evidence so far as the legal enforceable debt against the respondent is concerned. Learned advocate Mr.Gandhi has therefore, urged that the present appeal be dismissed and the impugned judgment and order of acquittal passed by the first appellate court be confirmed.
6. I have heard learned advocates appearing for the respective parties and perused the material placed on record. I have also personally examined the records of the trial court as well as the first appellate court and the oral as well as documentary evidence and I am satisfied that the findings recorded by the first appellate court is on consonance with the settled legal principles and there is no any illegality or any irregularity or any perversity found in the impugned judgment and order of acquittal and therefore, the present appeal filed by the appellant complainant deserves to be dismissed as it is against the order of acquittal recorded by the first appellate court.
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NEUTRAL CITATION R/CR.A/187/2009 JUDGMENT DATED: 12/12/2024 undefined 6.1 In view of the settled legal principles enunciated by the Hon'ble Apex Court that while exercising jurisdiction under Section 378 of Cr.P.C. against an order of acquittal passed by the trial court, the appellate court has ample power to reappreciate the evidence, review and also reconsider the evidence and on perusal of the same, if the Court is satisfied that there is any infirmity or any perversity committed by the trial court while passing the impugned order, then the appellate court can certainly reverse the findings recorded by the trial court, however, in the present case, there is no any infirmity or any perversity found in the impugned judgment and order of acquittal passed by the trial court and therefore, the present appeal deserves to be dismissed. So far as the ambit and scope of entering into an acquittal appeal under Section 378 of Cr.P.C. is concerned, the Hon'ble Apex Court has time and again considered from 2007 onwards 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 Page 7 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:28 IST 2024 NEUTRAL CITATION R/CR.A/187/2009 JUDGMENT DATED: 12/12/2024 undefined 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. Hence, I am in complete agreement with the findings recorded by the trial court.
6.2 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 :-
"Head Note B. - Criminal Procedure Code, 1973 - S.378 - Appeal against acquittal - General principles regarding the power and duty of the appellate court, reiterated - Nagrik Suraksha Sanhita, 2023, S.419
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 Page 8 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:28 IST 2024 NEUTRAL CITATION R/CR.A/187/2009 JUDGMENT DATED: 12/12/2024 undefined 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 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."
6.3 It is also fruitful to refer to the recent decision of the Hon'ble Apex Court rendered in case of Shri Dattatraya vs. Sharanappa, reported in [2024] 8 SCC 573, wherein, it has been observed and held 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 Page 9 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:28 IST 2024 NEUTRAL CITATION R/CR.A/187/2009 JUDGMENT DATED: 12/12/2024 undefined 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;
(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 Page 10 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:28 IST 2024 NEUTRAL CITATION R/CR.A/187/2009 JUDGMENT DATED: 12/12/2024 undefined 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, of 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 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 Others5, 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 Page 11 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:28 IST 2024 NEUTRAL CITATION R/CR.A/187/2009 JUDGMENT DATED: 12/12/2024 undefined 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, 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 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, 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." Page 12 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:28 IST 2024
NEUTRAL CITATION R/CR.A/187/2009 JUDGMENT DATED: 12/12/2024 undefined 6.4 In view of above referred facts and the decisions of the Hon'ble Apex Court, the findings recorded by the first appellate court, more particularly, the discussions made in paragraph 6 onwards, the court has discussed all the facts relevant to the present case and also the settled principles of law and referred and relied upon the judgments of the Hon'ble Apex Court.
7. For the foregoing reasons, the present appeal fails and is hereby dismissed. The judgment and order of acquittal dated 03/10/2008 passed by the learned Additional Sessions Judge, Court No.6, Ahmedabad in Criminal Appeal No.149 of 2007 is hereby confirmed. Bail bond, if any, furnished by the respondent accused stands cancelled.
Record and Proceedings, if any, be sent back to the concerned Trial Court forthwith.
(HEMANT M. PRACHCHHAK,J) Dolly Page 13 of 13 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Mon Dec 23 2024 Downloaded on : Fri Dec 27 22:19:28 IST 2024