Jharkhand High Court
Hari Ram Sariwala @ Hari Ram vs State Of Jharkhand & Anr on 2 December, 2011
Equivalent citations: 2012 ACD 431 (JHAR), 2012 (2) AIR JHAR R 324, 2012 ACD 431 (JHA), (2012) 109 ALLINDCAS 805 (JHA), (2012) 2 BANKCAS 687, 2012 (76) ACC (SOC) 9 (JHA)
Author: H. C. Mishra
Bench: H. C. Mishra
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ACQUITTAL APPEAL NO. 27 OF 2008
Against the Judgment dated 14.12.2007 passed by Judicial Magistrate,
Jamshedpur in C/1 Case No. 379 of 2000 (Trial No. 1328 of 2007).
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Hari Ram Sariwala @ Hari Ram ..... ... Appellant
Versus
1. The State of Jharkhand
2. Sri S.K.Bhaggaria ..... ... Respondents
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For the Appellant : Mr. S.L.Agrawal, Advocate
For the State : Mr. Amresh Kumar, Advocate
For the Respondent no. 2 : Mr. P.P.N. Roy, Sr. Advocate
& P.A.N. Roy, Advocate
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PRESENT : HON'BLE MR. JUSTICE H. C. MISHRA
C.A.V. On 22.11.2011 PRONOUNCED ON: 02.12.2011
H.C.Mishra, J. Heard learned counsels for both the sides and perused the record.
2. This Acquittal Appeal is directed against the Judgment of acquittal
dated 14th December 2007 passed by Sri Uttam Anand, Judicial Magistrate,
Jamshedpur in C/1 Case no. 379 of 2000 / Trial No.1328 of 2007, whereby, upon
adjudication of the case, the Court below has found that the complainant has not
been able to prove the case and bring home the acquisition under Section 138 of
the Negotiable Instrument Act against the accused beyond all reasonable doubts
and has acquitted the accused of the acquisition.
3. According to the complainant's case, as made out in the complaint
petition filed by him, it appears that the complainant is a businessman having a
proprietorship business of medicines. The complainant sold medicines to the
accused vide Bill No. 24 dated 17.3.1999 amounting to Rs. 18,398.86/- and Bill
No. 001 dated 10.5.1999 amounting to Rs. 55,197.66/- total being
Rs. 73,596.52/-, on credit and said medicines were delivered to the accused, who
promised to repay the credited amount after one month. After several reminders,
the accused issued a cheque drawn upon Vijaya Bank, Dhanbad Branch for an
amount of Rs. 73,596.52/- which the accused had issued as the proprietor of
Ritika Enterprises, Dhanbad in favour of the complainant, being cheque No.
0104386 dated 1.2.2000. The complainant deposited the said cheque in his
account in UCO Bank , Bistupur Main Branch at Jamshedpur but the same was
dishonored showing the reason "insufficient fund", which was intimated to the
complainant by the Bank on 19.3.2000. The complainant thereafter sent Legal
Notice under registered post and Under Certificate of Posting, through his
lawyer, requesting to pay the amount within 15 days, but in spite thereof, the
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amount was not paid and hence the complaint petition was filed in the Court of
Chief Judicial Magistrate, Jamshedpur, which was registered as C/1 Case no. 379
of 2000.
4. It appears that the statement of the complainant was recorded on
solemn affirmation, in which, it is inter-alia stated that the accused had given
him an undated cheque in the month of March 1999, in which, the complainant
himself had put the date with the consent of the accused. However, it may
pointed out that this fact was not stated in the complaint petition. It appears that
upon recording the statement of the complainant on solemn affirmation and
finding the case prima-facie true against the accused, summons were issued to
the accused. In course of trial, evidences were adduced by both the sides and
ultimately, upon adjudication, the Judgment of acquittal was passed by the Court
below, which has been impugned in the present appeal.
5. From perusal of the record, it appears that the defence of the
accused is that the complainant was the Stockist of Combat Drugs Limited and
the accused's firm Ritika Enterprises was also appointed as Institutional Supplier
at Dhanbad vide letter no.5.2.1997, in which, one of the terms was that the
accused had to send one blank cheque with the first order to be placed with
Combat Drugs Limited. The defence of the accused is that the said blank cheque,
which was given by the accused to Combat Drugs Limited, somehow came in the
hands of the complainant and the same cheque has been used by the complainant
by filling it in his own pen and presenting in the Bank.
6. From the evidence of the complainant, who has examined himself
as C.W.1, it is apparent that the complainant has stated in his examination-in-
chief itself that the complainant himself had filled up the cheque in his own
handwriting. He has proved the cheque, which was marked as Exhibit 3. The
complainant has also stated that he is the Super Stockist of Combat Drugs
Limited, Hyderabad. In his cross examination, this witness has further admitted
that he had deposited the cheque in the month of February 2000, the cheque was
undated and the cheque was given to him in the month of March 1999 itself.
7. The accused has adduced one witness in defence, who is D.W.1
Ajay Kumar Bhagat, who has inter alia proved the letter, whereby, the accused
was appointed as Institutional Supplier at Dhanbad with the condition that with
the first order a blank cheque had to be given, which has been marked as
Exhibit-F, after rectification. The said witness has also proved a letter dated
6.6.1997which shows that in order to fulfill the condition of submitting the blank cheque as is mentioned in the letter Exhibit-F, a blank cheque was given to the Combat Drugs Limited by Ritika Enterprises, which belonged to the accused, 3 clearly mentioning therein that a blank cheque No. 0104386, drawn upon Vijaya Bank without date was being sent. The acknowledgement of the said cheque is there on this letter itself, wherein, it is clearly mentioned that cheque No.0104386 of Vijaya Bank was received on 6.6.1997 by Combat Drugs Limited.
8. The said cheque, in question, which was allegedly given by the accused to the complainant has been proved as Exhibit-3 by the complainant. The said cheque bears the same number i.e. 0104386, which is mentioned in the letter dated 6.6.1997, whereby the said undated blank cheque was given to Combat Drugs Limited. Even the complainant has admitted in his evidence that the said cheque was blank and the complainant had himself filled up the cheque including the date. The cheque Exhibit-3 clearly shows that the name of the complainant's company, the amount and the date have been filled up in one pen, which the complainant admitted to be in his own pen. However, this is not the case of the complainant in the complaint petition, rather, his case is that the cheque for Rs.73,596.52/- was given to him by the accused being cheque No.0104386 dated 1.2.2000. It is nowhere stated that the said cheque was a blank and the same was filled up by this complainant.
9. Learned counsel for the appellant complainant has placed reliance upon a Notes of Cases of the Hon'ble Gujrat High Court in Hitenbhai Parekh Vs. State of Gujrat &Anr., as reported in 2010 Cri.L.J (NOC) 455 (Guj.), wherein it has been held that when a cheque bearing only signature of the drawer is delivered and received by a payee for the discharge, in whole or in part, of any debt or liability, there is an implied authority for the person receiving such cheque to complete it by filling the blanks and the amount having been filled up under such implied authority would be the amount intended by him to be paid thereunder. In my considered view this NOC is of no help to the appellant in the facts of this case, as the accused has brought the evidence on record to show that the cheque was never given to the complainant, rather the same was given as security to Combat Drugs Ltd.
10. Learned counsel for the respondent accused on the other hand, has placed reliance upon the decision of the Hon'ble Andhra Pradesh High Court in Avon Organics Ltd. Vs. Poineer Products Ltd. & Ors., as reported in 2004 (1) Crimes 567, holding that if the cheque is not drawn for a specified amount it would not fall within definition of bill of exchange and the act of complainant in filling up the amount portion and date was a material change and it could not be enforced even though it was issued for legal liability. It has also been held that alteration without consent of party who issued the cheque, rendered the cheque 4 invalid.
11. In the present case, the respondent accused has been able to make out a reasonable defence during trial in the Court below by bringing the evidence on record to show that the said blank cheque was given by him to Combat Drugs Limited and not to this complainant. It is a settled principle of law that once the defence is able to rebut the presumption under the Negotiable Instruments Act, it is for the complainant to prove the case beyond all reasonable doubts. The responsibility of the defence is over by creating a reasonable doubt in the prosecution case and the defence is not required to prove its case beyond all reasonable doubts. Once a reasonable doubt in the prosecution case is created by the defence and the prosecution fails to prove its case beyond all reasonable doubts, the accused becomes entitled to the benefit of doubt and to be acquitted of the acquisition.
12. In this context, the law has been laid down by the Hon'ble Supreme Court of India in Bharat Barrel & Drum Manufacturing Company Vrs. Amin Chand Pyarelal, reported in (1993) 3 SCC 35, which reads as follows:-
"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 non-existence 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 consideration was improbable 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 non-existence 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 of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence 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 disapprove 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 5 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)
13. The aforesaid decision has been relied upon again by the Hon'ble Suprme Court of India in Krishna Janardhan Bhat Vrs. Dattatraya G Hegde, reported in (2008) 4 SCC 54, which reads as follows:-
"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".
* * * * * * * * ".
Both the aforementioned decisions have been approvingly cited by the Hon'ble Supreme Court of India in Rangappa Vrs. Sri Mohan, as reported in 2010 (3) JCR 16 (SC).
14. In view of the aforementioned discussions, I find that the appellant complainant failed to prove his case that the cheque was ever given to him by the accused in settlement of his legal debts, rather the respondent accused has been able to make out a case that the blank cheque was given by him to Combat Drugs Ltd. as security, which somehow came in the hands of the complainant. Accordingly, the accused was rightly acquitted by the Court below. There is no illegality in the impugned Judgment and the same cannot be interfered with.
15. Consequently, I do not find any merit in this appeal and the same is, hereby, dismissed.
( H. C. Mishra, J.)
Jharkhand High Court, Ranchi
Dated the 02.12.2011
N.A.F.R./ R.Kr.