Bombay High Court
Punjabrao Bhagwanrao Ghuge vs Shri Rajkumar Son Of Kamalkishor on 13 April, 2010
Author: A.H. Joshi
Bench: A.H. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 302 of 2009
Punjabrao Bhagwanrao Ghuge,
aged about 50 years,
occupation - Business and
Agriculturist,
resident of Ward No.4, Malegaon,
Distt. Washim. .... Appellant.
Versus
Shri Rajkumar son of Kamalkishor
Agrawal, aged about 40 years,
occupation - business,
resident of in front of
Dr. Mane's Hospital, Malegaon,
Tq. Malegaon,
Distt. Washim. .... Respondent.
*****
Mr. A.S. Killedar, Adv., with Mr. N.B. Kalwaghe, Adv.,
for the appellant.
J.B. Kasat, Adv., for respondent [absent].
*****
CORAM : A.H. JOSHI, J.
Date : 13th April, 2010.
ORAL JUDGMENT :
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1. This is an appeal against acquittal preferred by original complainant.
2. The accused was prosecuted for offence under Section 138 of the Negotiable Instruments Act.
3. According to the complainant:-
[1] He has friendly relations with the accused.[2]
The accused was in need of amount of Rs.90,000-00 for his business and repayment of loans, for which the accused demanded from the complainant said amount by way of loan.
[3] Due to friendly relations between the parties, complainant advanced to the accused on 1st July, 2007 by cash the amount of Rs.90,000-00.
[4] The accused promised repayment and issued a cheque dated 18th January, 2008 for Rs.90,000/- drawn on Akola Urban Co-operative Bank Ltd.
[5] On presentation, the cheque was dishonoured on 21st January, 2008 for want of sufficient funds.
[6] On 16th February, 2008, complainant ::: Downloaded on - 09/06/2013 15:50:41 ::: 3 served on the accused a Demand Notice.
[7] The accused replied the notice and denied the liability, which gave rise to filing of a Criminal Complaint.
4. Record shows that copy of reply given by the accused to the notice served by the complainant is on record at Exh.29 [page nos. 52 to 54 of the appeal paper-book]. It is seen that in the said reply, the accused had adopted and disclosed following line of defence:-
[1] Notice / reply was issued by the drawer (accused) to one Suresh Madhukar Belokar as addressee no.1 and complainant Punjabrao Bhagwanrao Ghuge as addressee no.2. It was alleged therein that:-
[a] Suresh Belokar, an employee of Police Department, was doing money lending.
[b] Accused had taken a
loan of Rs.1,00,000/- from
Suresh Belokar on 26th July,
2005 with interest at the rate
of 3 per cent per month.
[c] By way of security, Mr.
Belokar had obtained a sale-
deed of Plot No.5 from Survey
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No.39 of Malegaon held by
accused and his wife.
[d] On 13th September, 2005,
accused took another loan of
Rs.1,00,000-00 from Mr. Belokar and again executed another sale
- deed of Plot No.6 from Survey No. 39 aforesaid belonging to sister of the accused in the name of Sau.
Sonisingh Mahendrasingh Thakur, ig wife employee.
of another police
[e] Mr. Belokar had secured
from the accused various
cheques in the names of
different persons, namely
Suresh Tukaram Arbate, Kundalik Shamrao Shinde and Dinkar Kashinath Ukalkar; and, [f] Mr. Belokar had also obtained from the accused one blank cheque as a security against the loan.
[2] On the say of the lender Shri Belokar, the accused had deposited in the grocery shop of Shri Gore at Malegaon, every day, a sum of Rs.340/-. This daily deposit was made between 24th September, 2005 and 30th January, 2005, excluding few ::: Downloaded on - 09/06/2013 15:50:41 ::: 5 days. Said deposit was acknowledged by the shopkeeper Mr. Gore in the note-book. As such total deposit of Rs.22,100/- was made by him to the grocer for said Shri Belokar.
[3] The goods, such as electric motor, pipe fittings etc., were supplied by the accused to Shri Belokar, and also gave an amount of Rs.10,000-00 in cash to Shri Gore on said count.
[4] The complainant was acting in proxy for Mr. Belokar.
[5] The blank cheque given to Shri Suresh Belokar was being used by the complainant though there did not exist any transaction or commercial relations between the accused and the complainant.
5. In the aforesaid background, the complainant was required to pursue the criminal case filed by him.
6. The complainant adduced evidence on affidavit [Exh.19], wherein he has reiterated the story as alleged in notice of demand served by him on the accused and in the complaint.
7. The complainant's Examination-in-Chief on affidavit contains three paragraphs. Paragraph Nos. 1 ::: Downloaded on - 09/06/2013 15:50:41 ::: 6 and 2 are ad verbatim copy of the corresponding paras of the complaint. Paragraph 3 pertains to dishonoured cheque, dishonour memo, notice served on the accused etc.
8. In the cross-examination, certain statements are made by the complainant, which are quoted as follows:-
".......................................... .......In my tax-return I did not x omission x the amount of Rs.90,000/- given by me to the accused and did not pay Income-tax in that regard."
".......................................... .......I did not obtain a written document from the accused in respect of giving money. I have the evidence in respect of having this much amount with me and I can produce it. Prior to it, I was not required to submit the said documents."
"I am unable to state about my annual turnover in the year 2007 and approximate income or expenses of that year.
I do not remember as to how many other people besides the accused I had given money in the year 2007. I did not give money to anybody except the accused that year.
Including this matter, there are two matters pending against me. No such matters are filed before any other court besides the Malegaon court.
In the year 2007, I had given an amount of Rs.67,000/- to a person named Ashpaque Baig. Hence the S.C.C. No. 63/02 is pending.
In that matter I want to say, that I had given an amount of Rs.67,000/- to the ::: Downloaded on - 09/06/2013 15:50:41 ::: 7 accused in the year 2007."
[Quoted from page nos. 39 and 40 of the appeal paper- book. Sub-paragraphing is done for convenience].
9. The accused has led evidence of defence witnesses, namely one Ashok Shankar Ayya Todkar and Vishwanath Ramrao Ghuge.
10. Defence Witness No.1 - Ashok has stated in the Examination-in-Chief that Shri Suresh Belokar deals in the money lending business, and including blank cheques towards repayment.
obtains cheques, This witness has also attempted to prove a tape recording of conversation which was done by producing transcription, in order to prove some admissions by said Shri Belokar regarding the lending by him to the accused. This witness is cross-examined to suggest his falsehood.
11. Defence Witness No.2 - Vishwanath Ghuge has also deposed to support the defence of the accused. This witness is also cross-examined by the complainant to suggest that these are got up witnesses.
12. The learned Trial Court decided the case by Judgment and Order dated 4th March, 2009 and acquitted ::: Downloaded on - 09/06/2013 15:50:41 ::: 8 the accused.
13. The learned Magistrate has formulated a point for determination in the body of judgment, which reads as follows:-
"1) Does the complainant prove that the cheque number 290714, dated 18-01-2008 of Rs.90,000/- of The Akola Urban Co-
operative Bank Limited, Akola, Branch Malegaon issued by the accused on 1/7/2007 was for the discharge of Lawful liability and it was dishonoured for want of insufficient funds and even after issuing the Notice in writing and giving 15 days time for the repayment of amount, the accused has not returned the amount to the complainant and thereby the accused has committed offence punishable under Section 138 of the Negotiable Instruments Act?"
[Quoted from Page No. 94 of the appeal paper-book].
14. The point framed by the Court is an omnibus formulation. For convenience, the points incorporated therein are segregated and those are as follows:-
[a] Does the complainant prove that cheque no. 290714 was given by the accused on 1st July, 2007?
[b] Was the cheque delivered by the
accused for discharge of lawful
liability dishonoured for
insufficient funds?
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[c] Did the accused fail to pay the
amount in spite of notice?
[d] Has the accused committed an offence
punishable under Section 138 of the Negotiable Instruments Act?
15. It appears that it was urged on behalf of the accused in Trial Court that:-
[a] The ig complainant had admitted in the cross-examination that he had lent in cash amount of Rs.67,000-00 to other persons in that year.
[b] Total lending by complainant in cash in the year 2007 had gone to Rs.1,57,000-00.
[c] In view of denial by accused and admissions in cross-examination, the Complainant was under obligation to prove that he had means and liquidity to lend such a huge amount.
[d] It was further obligatory on the complainant to prove actual lending to the accused; and;
[e] That the amount referred to in the cheque was yet due and recoverable from the accused.::: Downloaded on - 09/06/2013 15:50:41 ::: 10
16. The complainant had put entire thrust on the presumption under Section 139 of the Negotiable Instruments Act. It is urged that since the signature of the drawer was not denied or disputed, the onus of proving that accused was not responsible to honour the cheque is on the accused. Reliance was placed by complainant on the cases of [1] K.N. Beena Vs. Muniyappan [ (2001) 8 SCC 458], and [2] Hiten Dalal Vs. Bratindranath Banerjee [(2001) 6 SCC 16].
17. Relying on various judgments, and in particular the judgment in case of Krishna Bhat Vs. Dattatraya Hegde [2008 ALL MR (Cri) 1164 (S.C.)], the accused had argued before the Trial Court that:-
[a] It was not necessary for the accused to step into witness box.
[b] The standard of proof required to be brought by the accused is in the nature of preponderance of probabilities and not the strict proof.
[c] The burden on the accused is in the nature of negative and it is not required to be of the same standard as is required to be discharged by the ::: Downloaded on - 09/06/2013 15:50:41 ::: 11 complainant or the prosecution.
18. The learned trial Judge, after appreciating rival contentions and evidence, found that the defence of the accused that Suresh Belokar is the main person who does the money lending activity, and that there is no transaction between the complainant and the accused is proved to the extent of preponderance of probability.
19. While arguing this appeal, learned Adv., for the appellant has placed reliance on the reported judgment of Hon'ble Supreme Court in case of K.N. Beena Vs. Muniyappan [ (2001) 8 SCC 458] mainly, and, inter alia, other judgments already relied by Trial Court.
20. Perused record and the citations relied upon.
21. After scrutiny of facts of the case and various judgments relied upon, this Court finds that:-
[a] The law as laid down in case of Hiten Dalal Vs. Bratindranath Banerjee [(2001) 6 SCC 16] as followed in case of K.N. Beena [cited supra], is discussed in various judgments thereafter, and in particular in case of Krishna Bhat [supra].::: Downloaded on - 09/06/2013 15:50:41 ::: 12
[b] It is seen that law as laid down in case of Hiten P. Dalal [cited supra] also clarifies the nature of burden that is fastened on the accused.
[c] Now, it is well recognized and settled that the burden on the accused is not on par or equal to the burden which the prosecution / complainant has to discharge.
22. These aspects have been amplified by Hon'ble Supreme Court in paras 21 to 27 of its reported Judgment in case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde [2008 AIR SCW 738], which read as follows:-
"21. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter.
Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act.
It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.
22. The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for ::: Downloaded on - 09/06/2013 15:50:41 ::: 13 proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.
23. An accused for discharging the burden of proof placed upon him under a statute need not examine himself.
He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.
24. ig In Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal [(1999) 3 SCC 35] interpreting Section 118 (a) of the Act, this Court opined:
"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, ::: Downloaded on - 09/06/2013 15:50:41 ::: 14 the plaintiff is entitled under law to rely upon all the evidence led in the case including that 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 disprove 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...."
ig [Emphasis supplied]
25. 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 an accused is "preponderance of probabilities". Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies.
26. A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative.
In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration.::: Downloaded on - 09/06/2013 15:50:41 ::: 15
27. In M.S. Narayana Menon alias Mani v. State of Kerala and Another [(2006) 6 SCC 39], it was held that once the accused is found to discharge his initial burden, it shifts to the complainant."
[Quoted from 2008 AIR SCW from its page nos. 744 and
745. Sub-paragraphing is done for convenience of emphasis which is supplied. This sub-paragraphing is not in original reported judgment].
23. Now, it would be evident from the above referred quotations that the presumption under Section 139 is not in the nature of an indelible obligation on the accused in the nature of an un-removable clog.
In view of the law as spelt, said presumption can be re-spelt for easy understanding and application, as follows:-
[a] There is presumption of existence of discharge of part or full liability where a negotiable instrument is drawn and delivered.
[b] There is no presumption that
liability to pay the amount
mentioned in the cheque is in
existence on the date when the
cheque was dishonoured.
24. Above quoted re-definition is unambiguously
spelt out from Para 22 quoted in foregoing paragraph from the judgment of Hon'ble Supreme Court in case of ::: Downloaded on - 09/06/2013 15:50:41 ::: 16 Krishna Bhat [supra].
25. Therefore, the drawee or holder in due course has to prove that on the date of presentation of the cheque, the drawer had legal liability to pay and the holder had an existing debt legally recoverable from the drawer.
26. Now the scope and extent of the burden which complainant shoulders does not have particularly when the defence of the accused is very any ambiguity, well disclosed.
27. On the facts of the present case, as the defence of the accused was fully disclosed well before lodgement of the criminal case, the complainant very well knew as to what he was going to face and what was the probable result.
28. Almost on the similar facts as in case of Krishna Bhat, in the present case also, lending of a huge amount of Rs.90,000-00 was done by the complainant. Any document in support of lending was not executed. The transaction was not recorded in the books of account of the complainant.::: Downloaded on - 09/06/2013 15:50:41 ::: 17
29. Admittedly, complainant was an unlicensed trader of food-grains, while accused is a small businessman dealing in pipe fittings and water pumps etc.
30. Complainant pleads friendship with the accused for twenty years, while the accused denies the acquaintance, and pleads that the complainant is a proxy of money lender Shri Belokar.
acquaintance with Belokar and does not choose to summon Complainant denies him. Summoning such a witness would have been a positive act, since burden which the complainant or the prosecution shoulders is to prove facts to the test of actual proof of facts, while the burden, which accused shoulders, is only to create preponderance of probability of his defence. Even a single witness is not brought by the complainant to prove his friendship with the accused.
31. The transaction between the complainant and the accused was not a routine business transaction, except what accused has paid or delivered to tender Mr. Belokar by way of or towards repayment.
::: Downloaded on - 09/06/2013 15:50:41 ::: 1832. In the given situation, the complainant had a choice to exercise to elect between:-
[a] To be content with presumption or had to lead evidence, if any, about the loan transaction;
OR [b] To proactively bring evidence to overcome the probable or disclosed defence.
33. If the complainant chooses to be satisfied with presumption, he has to be a fait accompli to:-
[a] Any thing which may fall out in the cross-examination;
[b] The defence that crops up in the form of eliciting statements and admissions in the cross-examination of prosecution witnesses and some other evidence;
[c] The preponderance of probabilities of existence or non-existence of facts as may be elicited from prosecution witnesses, or brought on record in any other manner by the accused.
34. If a complainant elects to rely barely on presumption, he games like in wagering.
::: Downloaded on - 09/06/2013 15:50:41 ::: 1935. If the complainant has best evidence to prove existing and enforceable liability corresponding the amount of cheque being in part or full of discharge thereof, he may preferably and desirably bring such evidence, if he wants to succeed. If he fails in proving the liability of accused, legally enforceable, the result may be as indicated in case of Krishna Bhat [supra].
36. The nature of proof of being a criminal case, is not of the same standard of defence by accused, proof as would be required in civil cases, or of the standard as required to be brought by prosecution in a criminal case.
It suffices if an accused brings the evidence in the form of proof of facts by way of statements made in cross-examination of complainant's witness which would result in proof of fact contrary to presumption about truthfulness in respect of the case of the complainant by raising the defence upto preponderance of probabilities.
37. This Court finds that once the probable defence of the accused is disclosed, and it was in the nature of denial of existence of civil liability, ::: Downloaded on - 09/06/2013 15:50:41 ::: 20 unlike in a civil suit, in the criminal trial, a prudent complainant has to bring every possible proof of facts beforehand. A complainant in criminal case does not have a right of rebuttal or right not to begin etc. like a plaintiff in a civil suit. In a criminal case, the evidence of the complainant - prosecution has to come at a stretch and not in installments or stages.
Such procedure of rebuttal by prosecution after closing by accused his side of evidence is not recognized in criminal trial.
38. Moreover, it cannot be ignored that the trial of offence under Section 138 of the Negotiable Instruments Act is a summary trial. The complainant has, therefore, to bring everything and evidence at a stretch.
39. In present case, the complainant has to elect to be content on the plea of presumption or to prove his case by positive evidence.
He has chosen to sail in ambiguity in spite of intimation of probable defence.
40. Record shows that any additional documents were not filed and the case proceeded on the cheque, notice ::: Downloaded on - 09/06/2013 15:50:41 ::: 21 and its reply as sole evidence of transaction and of liability of the accused. The complainant has not taken any step or efforts to corroborate transaction of advancing loan of Rs.90,000/- to the accused to support the complainant's own testimony.
41. Admittedly, the complainant does not have any document to prove the fact of lending the sum of Rs.90,000/- in cash, and it was, therefore, it is most probable that there was no lending transaction between the complainant and the accused for which the cheque -
subject-matter - was to be encashed.
42. The Trial Court rightly found that the accused had proved his defence to the extent of preponderance of probabilities.
43. The Judgment of acquittal under challenge is, thus, seen to be very well founded on appreciation of evidence, duly supported by record.
44. Being an appeal against acquittal, second opinion of the evidence cannot be resorted to on re-
appreciation thereof, barely for asking. It has to be shown that totally untenable view has been taken and ::: Downloaded on - 09/06/2013 15:50:41 ::: 22 the judgment is perverse or patently illegal.
45. It is evident from what is seen and discussed that no such error or illegality is seen in the judgment under appeal.
46. In the circumstances, the appeal has no merit, and is dismissed.
ig JUDGE
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