Madhya Pradesh High Court
Man Singh vs Ranveer Singh on 20 January, 2020
Equivalent citations: AIRONLINE 2020 MP 23, 2020 ACD 241 (MPJ)
Author: Vishnu Pratap Singh Chauhan
Bench: Vishnu Pratap Singh Chauhan
HIGH COURT OF MADHYA PRADESH : JABALPUR
S.B : HON.SHRIJUSTICE VISHNU PRATAP SINGH CHAUHAN
Cr.A. No.3059/2017
Man Singh
Vs.
Ranveer Singh
--
Shri Abhijeet Awasthy, learned counsel for the
appellant.
Shri Amit Sahni, learned counsel for the respondent.
JUDGMENT
(20/01/2020) This appeal has been filed, after receiving the leave to file appeal under Section 378(4) of Cr.P.C. by the complainant who is appellant herein, being aggrieved by the order of acquittal passed vide judgment dated 12/04/2017 in Criminal Complaint Case No.1979/2015 by Additional Chief Judicial Magistrate, Damoh whereby the respondent has been acquitted for the offence under Section 138 of Negotiable Instruments Act (in short 'N.I. Act').
2. The facts giving rise to this appeal, in short, are that appellant-Man Singh filed a private complaint for the offence punishable under Section 138 of N.I. Act against the respondent alleging therein that respondent Ranveer 2 Singh and Mayank who is son of the appellant, worked together as a Contractor. In June, 2014 respondent asked for money of Rs.15,00,000/- with promise that he will return within 3-4 months. The appellant provided Rs.12,50,000/- to the respondent because at that time, appellant could have collected only Rs.12,50,000/-. The respondent received the said amount, but did not return to the appellant within 3-4 months. When appellant repeatedly asked for the money, then on 25/11/2014 respondent provided a cheque worth Rs.12,50,000/- of his account of the City Branch of Allahabad Bank, Jabalpur. When appellant submitted that cheque on 01/12/2014 for encashment in his account of State Bank of India, Branch, Raja Patna, Damoh, the said cheque had been dishonoured by the bank and returned with an endorsement dt. 09/12/2014 that no sufficient amount found in the account of respondent. Thereafter the appellant sent a demand notice through his Advocate to the respondent dt. 19/12/2014 by registered post, that notice received back with an endorsement that the 3 respondent refused to receive the notice. Notice received back on 22/12/2014. Thereafter the appellant submitted a criminal complaint against the respondent.
3. Learned trial Court after stating the particulars of the offence to respondent, recorded the evidence adduced by both parties. Respondent put a defence during examination under Section 313 of Cr.P.C. that the case is forged, he is innocent and has falsely been implicated in the matter. However, he examined Narendra Singh Salooja as defence witness, who is father of the respondent.
4. Learned trial Court after hearing both the parties delivered judgment on 12/04/2017 and has not found proved that the respondent received Rs.12,50,000/- from the appellant and also not found proved that the cheque provided by the respondent is for the legal enforceable debt, however, ultimately has not found proved the case beyond reasonable doubt against the respondent and extended the benefit of doubt in favour of the respondent, 4 acquitted the respondent of the offence of Section 138 of N.I.Act.
5. The appellant being aggrieved by that acquittal has filed this appeal assailing the impugned judgment on the ground that there was ample evidence available against the respondent (accused) to hold him guilty for the offence but learned Magistrate had not appreciated the evidence in accordance with law and not exercised his discretion in fair manner. There was a presumption under Sections 139 and 118 (a) of N.I. Act for existence of liabilities which are legally recoverable debt. The respondent has accepted that cheque had been issued by him. The finding of learned Court below is totally unfounded and arbitrary in the eyes of law. The trial Court has misconstrued itself in arriving an erroneous finding whereby the respondent has been exonerated of the charge.
6. Per contra, learned counsel for the respondent vehemently opposes the aforesaid prayer and submits that learned trial Court has correctly appreciated the evidence. 5 Presumption under Sections 139 and 118(a) of N.I. Act are rebutable and standard of proof requires for such rebuttal is not strict but based on preponderance of probabilities. The respondent submitted evidence and learned trial Court considered the defenc properly and not committed error in passing order of acquittal. Fuher submitted in the case of appeal against acquittal, appellate Court has limited jurisdiction and if the Court finds strong evidence against the respondent in that case, the Court may interfere in the order of acquittal, therefore, prays for dismissal of the appeal.
7. Having heard learned counsel for the parties, perused the Criminal Complaint Case No.1979/2015 and also perused the evidence adduced by both the parties. No doubt, the respondent who was accused before the trial Court has not entered into the witness box and not recorded his statement before the trial Court. Father of respondent, Narendra Singh Saluja (DW-1) has been examined on behalf of the respondent.
6
08. Perused the statement of appellant-Man Singh (PW1) who submitted an affidavit of the chief
-examination. This witness has been cross-examined by the counsel for the respondent. Appellant-Man Singh stated in affidavit that respondent is his friend. Respondent was doing the contractor work together with his son namely Mayank and in the month of June, 2014 requested for borrowing the money to the tune of Rs.15,00,000/- with a promise that the money would be returned within 3-4 months. This witness arranged for the money collected from his relatives and friends and could only arranged Rs.12,50,000/- in cash. Respondent agreed to receive that money, then this witness provided the money to the respondent. This witness further stated that when the respondent did not return the money after four months, then he insisted upon him, thereafter he provided a cheque of Rs.12,50,000/- of his account situated in City Office Branch of Allahabad Bank, Jabalpur bearing cheque No.49093482010001. When this witness presented the cheque for encashment in his 7 account No.10479641763 on 01/12/2014, this cheque returned back with an endorsement dated 09/12/2014 that sufficient amount was not available in the account of respondent. This witness immediately informed the respondent on mobile phone and sent a registered notice to the respondent. The respondent voluntarily not received the notice. This witness submitted a questioned cheque (Ex.P/1), receipt of deposit of cheque (Ex.P/2), dishonoured notice (Ex.P/3), registered notice (Ex.P/4), postal receipt Ex.P/5 and return envelop (Ex.P/6).
09. This witness had been cross-examined at length by the counsel for the respondent before the trial Court. In para-12 this witness explained that how he knew the respondent. In para-13 he categorically stated that respondent undertake the work on contract in the year 2010-11 and thereafter he did work with his son Mayank together in the Irrigation Department in Tejgarh. In para- 14, this witness categorically admitted that he is a Government servant posted in office of Janpad Panchayat, Damoh and receiving Rs.53-54 thousand per month as 8 salary. He further stated that after deduction, he is receiving actual salary of Rs.47 to 48 thousand per month. His wife run a shop. In para-15 he admitted that respondent showed urgency for money stating that otherwise in the rainy season, dams constructed by him would be damaged and demanded amount of Rs.15,00,000/-, then this witness collected Rs.12,50,000/- and provided that money to the respondent.
10. This witness further categorically stated that prior to this alleged transaction, he also provided money to the respondent 3-4 times and the respondent returned that money within time.. In para-16, this witness categorically explained that first time in December, 2013 respondent borrowed Rs.30,000/-, second time borrowed money of Rs.1,20,000/-, third time in February, 2014 borrowed money of Rs.10,000/-, forth time in February, 2014 borrowed money of Rs.60,000/-. In para-17 this witness stated that he is not having any written documents of that transactions because the respondent did not execute any written document for that transactions returned all the 9 amount within time. This witness further stated that for all transactions, he received the money from his wife. In para-18, this witness categorically stated that his wife is running the shop of Paras Krishi Seva Kendra and when he received the money from the shop of his wife he did not know whether entry of that transaction had been entered in the account book. In para-20 this witness further categorically stated that the respondent received Rs.12,50,000/- in the month of June, 2014, but the date has not been mentioned in the complaint because the respondent had received the money at so many occasions. This witness in para-20 has not explained how much amount he provided from his pocket and how much amount received from the other relatives and friends. This witness categorically stated that he has not mentioned such transaction in the income tax return.
11. In para-21, this witness further explained that he provided Rs.2,50,000/- from his own. This witness in so many times categorically stated that he received the money from his wife and his wife is running the shop of 10 Paras Krishi Seva Kendra, however, in para-20 this witness stated that he did not know how much amount she earned from the shop and this fact can be asked to his wife, but, this witness did not produce his wife as a witness in this case. In para-24, this witness categorically deposed that for giving the amount to the respondent, he received the amount from his relatives and friends and he returned that amount to his relatives and friends. He also stated that it is not necessary to explain how he arranged the money for returning to his friends and relatives. This witness also stated that he sold out his plot and received some money but did not produce any document for substantiating his version and stated he thought it is not necessary. This witness did not submit any witness to substantiate this fact before the trial Court.
12. On plaint reading of the whole statement of this witness, this witness stated that he provided Rs.12,50,000/- to the respondent on his demand, but he did not state the fact that how he arranged for the money and also not substantiated this fact that how he collected 11 that huge amount to fulfill the demand of respondent by producing documents and witnesses.
13. This witness in para-26 of his cross-examination stated that the respondent provided cheque on 25/11/2014 to him for returning the borrowed amount of Rs.12,50,000/-. It is also deposed by this witness that this cheque (Ex.P/1) was written , signed and dated by the respondent.
14. Respondent, in his examination under Section 313 of Cr.P.C. pleaded defence that this case is totally false and he is innocent. He has been falsely implicated in the matter, however, did not raise any specific defence for that, not submitted any counter affidavit and not produced himself in the witness box therefore the complainant could not have opportunity to cross-examine the respondent on the raised defence .
15. Narendra Singh Saluja (DW-1) who is father of the respondent categorically admitted that the respondent is his son and also stated that there is no contract in his name in the area of Damoh, however, admitted that his 12 son who is respondent herein has took the work of construction of canal site at Tejgarh and some work at Sagar and he did not know the appellant-Man Singh nor his son Mayank. This witness denied all the documents shown to him during his cross-examination. This witness submitted Ex.D/1 a notice sent by Mediator to him along with arbitration award, cheque dated 4/11/2013 issued in the name of this witness to show that he is not doing the work in the area of Damoh and Sagar. But, this witness admitted that his son i.e. respondent did the work in District Damoh and Sagar.
16. After perusal of the whole statement of all the witnesses, it reveals that it has not been denied by the respondent before the trial Court that Ex.P/1, questioned cheque, has not been issued by him. He pleaded the defence only that he has falsely been implicated in this false case. Learned trial Court also not found that cheque (Ex.P/1) has not been issued by the respondent in favour of the appellant. Learned trial Court only concluded the fact that the cheque had not been issued for legally 13 enforceable debt after considering so many case-laws. On the basis of evidence adduced by both the parties, this Court is of the view that the appellant succeeded to prove that the cheque (Ex.P/1) had been issued by the respondent in favour of the appellant.
17. Whether questioned cheque had been issued for satisfying the legally recoverable debt or liabilities ? After hearing both the parties, perused the judgment of the trial Court. Learned trial Court has discussed the case-laws of Krishna Janardhan Bhat vs Dattatraya, (2008) 4 SCC 54 and Venugopal. vs . Madan P. Sarathi, AIR 2009 SC 588 about presumption contemplated under Section 139 of NI Act in which Hon'ble Apex Court held that presumption can be rebutted on the basis of the evidence adduced by both parties and can be rebutted on the basis of preponderance of probabilities and also discussed other case-laws.
18. Recently Hon'ble Apex Court in the case of Anss Rajashekar vs Augustus Jeba Ananth, AIR 2019 SC 942 by referring judgment delivered in the case of 14 Rangappa Vs. Sri Mohan, (2010) 11 SCC 441 while settling the legal position under Section 139 of N.I.Act in para-10 has held as under :
10. Section 139 of the Act mandates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in whole or in part, of a debt, or liability. The expression "unless the contrary is proved"
indicates that the presumption under Section 139 of the Act is rebuttable. Terming this as an example of a "reverse onus clause" the three Judge Bench of this Court in Rangappa (supra) held that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by a preponderance of probabilities. This Court held thus:
"28 In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some 15 cases the accused may not need to adduce evidence of his/her own"
(emphasis supplied)
19. When it has been proved that the cheque (Ex.P/1) had been issued by the respondent, now the burden is shifted upon the shoulder of respondent to rebut that presumption envisaged under Sections 139 and 118(a) of NI Act. No doubt, Hon'ble Apex Court in the above case- laws categorically held that reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. The standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. Hon'ble Apex Court also held that for rebuttal accused can rely on the material submitted by the complainant . In the present case, the respondent did not appear in the witness box. He has produced his father-Narendra Singh Saluja in the witness box as DW-1 who firstly stated that he is not having any work in Damoh or Sagar District where the applicant 16 resides but admitted in cross-examination that his son did work at Damoh and Sagar.
20. The only evidence available on record for rebuttal is cross-examination of complainant-Man Singh (PW-1). After perusal of the cross-examination of Man Singh (PW-1) as discussed before, this Court finds that appellant Man Singh could not establish the fact that being a Government servant, how he collected the huge amount of Rs.12,50,000/- for providing to the respondent. This Court is of the view that Man Singh being a Government Servant not informed to the employer as also not mentioning this amount in the income tax return nor made entries in the accounts book of the shop that his wife is running and also did not disclose the name of persons from whom he collected the money nor submitted any transaction in writing exhibited for borrowing money not diposed that the huge amount of money received by cheque from his relatives in his account. If cash transaction of huge amount had been conducted by the appellant, strong burden is shifted upon him to show that 17 he has received and provided the huge amount in legal way because before drawing the presumption, the appellant had to prove beyond doubt that he had transacted the money legally.
21. Hon'ble Apex Court in the case of Binoy Viswam Vs. Union of India and others, (2017) 7 SCC 59 in para-98 made following observations :
"98. In view of the above, we are not impressed by the contention of the petitioners that the two enactments are contradictory with each other. A harmonious reading of the two enactments would clearly suggests that whereas enrollment of Aadhaar is voluntary when it comes to taking benefits of various welfare schemes even if it is presumed that requirement of Section 7 of Aadhaar Act that it is necessary to provide Aadhaar number to avail the benefits of schemes and services, it is upto a person to avail those benefits or not. On the other hand, purpose behind, enacting Section 139AA of the Act is to check a menace of black money as well as money laundering and also to widen the income tax net so as to cover those persons who are evading the payment of tax."
22. Hon'ble Apex Court in the case of K. Subramani Vs. K.Damodara Naidu, (2015) 1 SCC 99 observed that complainant was working as a Lecturer and accused was 18 also working as a Lecturer in the same college. The case of the complainant was that accused borrowed loan of Rs.14 lakh in cash much promising to repay the same and issued a post dated cheque for repayment and when the cheque was presented in the bank for encashment, it was dishonoured. In these circumstances Hon'ble Apex Court while referring the case of Rangappa (supra) in para-9 has held as under :
"9. In the present case the complainant and the accused were working as Lecturers in a Government college at the relevant time and the alleged loan of Rs.14 lakhs is claimed to have been paid by cash and it is disputed. Both of them were governed by the Government Servants' Conduct Rules which prescribes the mode of lending and borrowing. There is nothing on record to show that the prescribed mode was followed. The source claimed by the complainant is savings from his salary and an amount of Rs.5 lakhs derived by him from sale of site No.45 belonging to him. Neither in the complaint nor in the chief-examination of the complainant, there is any averment with regard to the sale price of site No.45. The sale deed concerned was also not produced. Though the complainant was an income-tax assessee he had admitted in his evidence that he had not shown the sale of site No.45 in his income-tax return. On the contrary the complainant has admitted in his evidence that in the year 1997 he had obtained a loan of Rs.1,49,205/- from L.I.C. It is pertinent to note that the alleged loan of Rs.14 lakhs is claimed to have been disbursed in the year 1997 to the accused. Further 19 the complainant did not produce bank statement to substantiate his claim. The trial court took into account the testimony of the wife of the complaint in another criminal case arising under Section 138 of the N.I. Act in which she has stated that the present appellant/accused had not taken any loan from her husband. On a consideration of entire oral and documentary evidence the trial court came to the conclusion that the complainant had no source of income to lend a sum of Rs.14 lakhs to the accused and he failed to prove that there is legally recoverable debt payable by the accused to him."
facts of this case law and facts of case in hand are more similar hence finding of this case law is much closer to the present dispute.
23. On the basis of evidence came into the deposition of complainant Man Singh (PW-1), this Court is of the view that on the basis of facts came in the cross- examination of complainant, the complainant failed to prove that he had provided a legal debt to the respondent. On the basis of preponderance of probabilities, the respondent succeeded to establish the fact that he had not provided check for payment a legally enforceable debt. In these circumstances, cheque issued to the appellant is not for satisfied the payment of legally enforceable debt or liability. The respondent succeeds to rebut the 20 presumption under Section 139 of N.I. Act. The ingredients of the offence under Section 138 of N.I. Act reads as under :
138 Dishonour of cheque for insufficiency, etc., of funds in the account. --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 by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and 21
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability"
24. There should be legally enforceable debt between the parties and this Court is of the view that when complainant failed to prove these ingredients, no offence is made out against the respondent for the offence punishable under Section 138 of N.I. Act.
25. Hon'ble Apex Court in the case of Bhaskar Ramappa Madar & others Vs. State of Karnataka, AIR 2009 SC (suppl) 1826 while referring the previous judgment passed in the case of Chandrappa and others Vs. State of Karnataka, (2007) 4) SCC 415 in para-36 has held as under :
"36. From the above decisions, in Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415), the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out:22
(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 phraseologies are more in the nature of "flourishes of language" to emphasise 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."
26. On the basis of forgoing discussions, this Court is not inclined to allow this appeal filed by the 23 appellant/complainant against the order of acquittal passed by the trial Court.
27. Accordingly, the criminal appeal is devoid of merit and the same is hereby dismissed. There shall be no order as to cost.
(Vishnu Pratap Singh Chauhan) Judge ts Digitally signed by TULSA SINGH Date: 2020.01.21 15:33:45 +05'30'