Gujarat High Court
Kapadvanj vs Jayantibhai
CR.A/2344/2009 7/ 7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2344 of 2009 For Approval and Signature: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KAPADVANJ PEOPLES CO-OP BANK LTD - Appellant(s) Versus JAYANTIBHAI TALASAJI MARAWADI & 1 - Opponent(s) ========================================================= Appearance : MR AS ASTHAVADI for Appellant(s) : 1, MR TEJAS M BAROT for Opponent(s) : 1, MS. C.M. SHAH, APP, for Opponent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 01/03/2012 ORAL JUDGMENT
The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgement and order of acquittal passed by 3rd Additional Sessions Judge, Nadiad, on 31.3.2009 in Criminal Appeal No. 24 of 2007 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 ("the Act" for short).
2. According to the complainant, the accused had obtained loan for purchase of a motor vehicle and his vehicle H.P. A/c. Number is 641. The accused gave cheque No. 21812 dated 24.7.2002 for Rs. 5,48,231/- drawn on Kapadwanj Peoples Co-operative Bank Limited towards discharge of the amount payable by him. On presentation of the cheque in the bank, it returned unpaid on account of insufficient fund. Therefore, notice was served to the accused demanding the amount of unpaid cheque. Despite receipt of notice, the accused neither paid the amount of unpaid cheque nor gave reply to the notice. Therefore, complaint under Section 138 of the Act was filed in the Court of learned Judicial Magistrate, First Class, at Kapadwanj and it was registered as Criminal Case No. 1795 of 2002.
3. The trial Court issued summons to the respondent accused who appeared in the Court and denied having committed the offence and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to him. The accused explained incriminating circumstances in his further statement recorded under Section 313 of the Code of Criminal Procedure. The accused in his further statement explained that the Manager Hasmukhbhai Shankarbhai Patel had obtained the amount and motor vehicle was purchased by the said Manager and he had paid the amount of vehicle tax, insurance and RTO charges and some of the instalments were paid by said Hasmukhbhai. After hearing learned advocates for the parties, trial Court by judgement dated 18.4.2007 convicted the accused. Therefore, Criminal Appeal No. 24 of 2007 was preferred in the Court of learned Sessions Judge at Nadiad. The lower appellate Court after hearing learned advocates for the parties set aside conviction and acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
4. I have heard learned advocates for the parties at length and in great detail. I have also perused the record and proceedings of the trial Court.
5. Learned advocate Mr. Asthavadi submitted that the cheque in question was given towards discharge of debt and the prosecution was able to prove that the cheque was given towards legally recoverable debt. However, the lower appellate Court set aside the conviction on the ground that the debt is not proved. He also submitted that presumption under Section 139 of the Act is in favour of the complainant and the accused failed to rebut the presumption. Therefore, the trial Court was justified in convicting the accused but the lower appellate Court committed error in acquitting the accused. Therefore, the impugned judgement is required to be set aside. He relied on the decision in the case of U. PONNAPPA MOOTHAN SONS VS. CATHOLIC SYRIAN BANK LTD. reported in (1991) 1 SCC 113 and RANGAPPA VS. MOHAN reported in AIR 2010 SC 1898 = 2010 AIR SCW 2946 more particularly paragraph Nos. 7, 8 and 9.
6. Learned advocate Mr. Barot for the respondent accused submitted that presumption under Section 139 of the Act is rebuttable presumption and the complainant had no right to initiate proceedings under the Act as the complainant was not payee or holder in due course as required under law. He also submitted that the complainant did not produce any documentary evidence to show that there was existence of legally recoverable debt and the accused gave cheque towards discharge of such debt. Hence the trial Court committed error in convicting the accused but the lower appellate Court was justified in acquitting the accused. Hence no interference is warranted in the impugned judgement and the present appeal is required to be dismissed.
7. Under Section 138 of the Act 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, such person shall be deemed to have committed an offence. Section 142 of the Act provides that no Court shall take cognizance of any offence under Section 138 of the Act except upon a complaint in writing made by the payee or holder in due course of the cheque as the case may be.
8. The allegations in the complaint allege that the accused obtained loan for purchase of vehicle and gave cheque towards discharge of his debt. The prosecution produced cheque at Exh. 48. On perusal of the cheque it emerges that the cheque is drawn in favour of "self (Vehicle H.P. A/c. No. 641)". Therefore, complainant is not payee of the cheque. As the complainant was not the payee of the cheque, the Court could not have taken cognizance of the matter as the complaint was not filed as required under the law. Therefore, lower appellate Court was justified in acquitting the accused.
9. As regards contention that the cheque in question was given towards discharge of legally recoverable debt, it is settled proposition that presumption under Section 139 of the Act is rebuttable presumption and when an accused has to rebut the presumption the standard of proof is that of preponderance of probabilities. In order to raise probable defence it is not necessary that the accused has to enter into witness box or lead evidence. The accused can rely on the material submitted by the complainant in order to raise probable defence. If the accused is able to raise probable defence which creates doubts about the existence of a legally recoverable debt or liability, the prosecution can fail. It is also settled proposition that presumption raised in favour of a holder of a cheque does not extend to the extent that the cheque was issued for the discharge of any debt or liability. It is required to be proved by the complainant. If an accused is able to raise probable defence with regard to existence of a legally recoverable debt or liability, the burden shifts on the prosecution to prove that the cheque in question was given towards legally recoverable debt or liability.
10. In the light of above settled propositions, the evidence produced in the trial Court is required to be examined.
11. In order to prove that the accused gave the cheque towards discharge of his legally recoverable debt, the complainant examined himself at Exh. 38. In the cross-examination the complainant admitted that account statement was not produced before the trial Court and what amount was outstanding cannot be ascertained from the record. The complainant also admitted that the motor vehicle was sold away and the amount recovered from the sale was deposited in the bank. The complainant also admitted that what amount of loan was given to the accused cannot be ascertained from the record and also admitted that he cannot say as to how many instalments were paid by the accused.
12. It is not in dispute that the prosecution did not produce any statement of account to indicate the amount of loan given to the accused and the amount due and payable by the accused on the date of issuance of cheque in question. It also emerges that the vehicle purchased from the loan amount was sold away and the amount received was credited in the account but in absence of statement of account, it is difficult to ascertain the exact outstanding amount and hence it cannot be said that the cheque was given towards discharge of such debt or liability. Therefore, the accused was able to raise probable defence that there was no existence of legally recoverable debt on the day of issuance of the cheque. The prosecution failed to produce any evidence to show that the cheque amount was outstanding when the cheque in question was given to the complainant.
13. In the decision of U. PONNAPPA MOOTHAN SONS VS. CATHOLIC SYRIAN BANK LTD. (supra), Hon'ble Supreme Court has laid down law with regard to holder in due course of the cheque. In the facts of this case, this decision cannot be made applicable as the complaint is not filed as holder in due course. In the decision of RANGAPPA VS. MOHAN (supra) more particularly paragraph Nos. 7, 8 and 9 relied on by learned advocate for the appellant the decision is in respect of offence on account of dishonour of cheque on account of stop payment and presumption under Section 139 of the Act. As regards presumption under Section 139 of the act, it is settled proposition that it is rebuttable presumption. However, in the facts of this case, this decision does not render any assistance to the appellant.
14. In view of above, learned advocate for the appellant failed to point out any infirmity in the impugned judgement and hence the appeal is required to be dismissed. Accordingly, the appeal is dismissed. Judgement and order of acquittal passed by the lower appellate Court in Criminal Appeal No. 24 of 2007 is confirmed.
(BANKIM N. MEHTA, J) (pkn)