apeal517of06.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.517 OF 2006
Dilip Manoharlal Murarka,
aged adult, Occupation Business,
"Murarka Bhavan" Gandhi Chowk,
Shegaon, Tahsil Shegaon
District Buldhana ......APPELLANT
...V E R S U S...
1 Satyanarayan Lalchand Verma
Aged about adult, C/o. Lalchand
Mahadeo Verma, Sarafa Galli,
Akola, District Akola
2 State of Maharashtra,
through PSO Shegaon,
District Buldhana ....... RESPONDENTS
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Shri R.L. Khapre, Advocate for Appellant.
Smt. A.S. Ahirkar , Advocate for Respondent 1.
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CORAM: ROHIT B. DEO, J.
DATE: th
11 DECEMBER, 2017.
ORAL JUDGMENT
The appellant is aggrieved by the judgment and order dated 28.10.2005 passed by the Judicial Magistrate First Class Shegaon in Summary Criminal Case 1040 of 2004, thereby acquitting the respondent of offence punishable under section 138 ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:30:28 ::: apeal517of06.odt 2 of the Negotiable Instruments Act, 1881 ("Act" for short). 2 Heard Shri. R.L. Khapre, the learned counsel for appellant and Ms. A.S. Ahirkar, the learned counsel for the respondent.
3 The learned counsel for the appellant - complainant Shri R.L. Khapre, submits that the judgment of acquittal is contrary to law since the learned Magistrate has not correctly appreciated the import and implication of the statutory presumption under section 139 of the Act. The presumption is not rebutted by the accused, is the submission. Reliance is placed inter-alia on the judgments of the Hon'ble Apex Court in K.Bhaskaran Vs. Sankaran Vaidhyan Balan and another, AIR 1999 SC 3762 and K.N.Beena Vs. Muniyappan and another, (2001)8 SCC 458 and a judgment of a learned Single Judge of this Court in Smt.Kiran Yugalkishor Bhattad Vs. Smt. Sushila Ramcharan Kattamwar, 2010 CRI. L.J.2705.
4 Per contra, the learned counsel Ms. A.S. Ahirkar, for the accused submits that a possible view is taken and this Court ought not to interfere in the judgment of acquittal in the absence ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:30:28 ::: apeal517of06.odt 3 of perversity. The learned counsel for the accused has invited my attention to several circumstances, which according to the learned counsel have persuaded the learned Magistrate to record a finding that the presumption stands rebutted.
5 The gist of the complaint is that in March 2004 accused met the complainant at Shegaon and requested for a hand loan. The complainant and the accused being well acquainted, the complainant extended hand loan of Rs. 55,000/- in cash which the accused assured would be repaid in April 2004. On the same day, the accused issued cheque 0002764 dated 24.4.2004 drawn on the Akola Janta Commercial Cooperative Bank Limited, Akola. The cheque was dishonoured, the return memo dated 12.10.2004 disclosed that the dischonour was due to insufficient funds in the account of the accused, statutory notice dated 28.10.2004 was issued demanding the payment of amount covered by the cheque, a false reply was sent by the accused to the statutory notice, this was treated as non-compliance and proceeding under section 138 of the Act were initiated.
6 The defence of the accused is that he neither knows the complainant nor did he have any transaction with the ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:30:28 ::: apeal517of06.odt 4 complainant. The brother of the accused one Ghanshyamdas had borrowed some amount from Sushil Murarka and Naval Murarka of Akola and as security had handed over 102 blank cheques which were signed by either Ghanshyamdas, the accused or the other brothers. Despite having repaid the loan in entirety, Sushil and Nawal did not return the 102 blank cheques and started demanding amount, not legally due from Ghanshyamdas. Ghanshyamdas was subjected to mental and physical harassment to such an extent that he committed suicide on 3.3.2002. A report was lodged and prosecution was initiated against Naval and Sushil Murarka, Dhiraj and Rakesh. In Sessions trial 35 of 2002, the accused deposed as prosecution witness and to extract revenge, the Murarkas misused the 102 blank cheques and instituted several litigations against the accused and other brothers. The disputed cheque is one of the 102 cheques which is misused by Sushil and Naval Murarka and the complainant is only a proxy asked to insert the date and name and to initiate the prosecution, is apparently the defence.
7 Shri. Khapre, the learned counsel would contend, relying on the judgments noted supra, that the presumption under section 139 of the Act can not be rebutted by a mere denial in the ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:30:28 ::: apeal517of06.odt 5 reply to the legal notice and that the accused has to prove by cogent evidence that the cheque was not issued to discharge existing debt or liability. The learned counsel Shri. R.L. Khapre, invites my attention to the following observations in K.N.Beena Vs. Muniyappan and another:-
"6. In our view the impugned Judgment cannot be sustained at all. The Judgment erroneously proceeds on the basis that the burden of proving consideration for a dishonored cheque is on the complainant. It appears that the learned Judge had lost sight of Sections 118 and 139 of the Negotiable Instruments Act. Under Sections 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebutable. However the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal vs. Bratindranath Banerjee has also taken an identical view".
"7. In this case admittedly the 1st Respondent has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denials/averments in his reply dated 21.5.1993 were sufficient to shift the burden of proof on the Appellant/Complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The 1st Respondent had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The 1st Respondent not having led any evidence could not be said to have discharged the burden cast on him. The 1st Respondent not having discharged the burden of proving that the cheque was not issued for a ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:30:28 ::: apeal517of06.odt 6 debt or liability, the conviction as awarded by the Magistrate was correct. The High Court erroneously set aside that conviction".
The submission of Shri R.L.Khapre as a preposition is unexceptional. In view of the enunciation of law by the Hon'ble Apex Court, a bare denial in the notice or otherwise would not be sufficient to discharge the burden on the accused to rebut the presumption under section 139 of the Act. But then, it is equally well settled that to discharge the burden the accused need not step into the witness box and the burden could be discharged on the basis of material produced on record by the complainant or the material extracted or elicited in the cross examination of the complainant or any other witness examined in support of the complaint. The learned Magistrate has based the judgment of acquittal on the following circumstances which cumulatively, in the opinion of the learned Magistrate, were sufficient to discharge the burden on the accused to rebut the statutory presumption under section 139 of the Act.
a. The complainant failed to prove that he and the accused were well acquainted with the result that extending loan of Rs. 55,000/- in cash is rendered doubtful. b. No documentary evidence, other than cheque, is ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:30:28 ::: apeal517of06.odt 7 adduced to prove that the complainant extended loan to the accused.
c. The complainant presented the cheque for encashment in May 2004 (which is not disclosed in the complaint) and then again in October 2004. The complainant has not explained as to what steps he took in the interregnum to persuade the accused to repay the loan. d. The transaction, as is projected by the complainant is not free from doubt.
e. The defence of the accused that the disputed cheque is one of the 102 cheques handed over to Naval and Sushil Murarka, which cheques were signed though blank in other contents, is probabilized on the touchstone of preponderance of probabilities.
f. The accused produced several complaints filed against him and his brothers in October or November 2004, by Murarkas and one Sonal Pandya.
g. The circumstances in which the complainant secured the custody of cheque Exh. 33, which is the disputed cheque, are not free from doubt.
h. It is apparent to the naked eye that the signature, the amount, the name of the complainant and the date appear ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:30:28 ::: apeal517of06.odt 8 to be written in different ink.
8 It is true, as is contended by the learned counsel for the complainant Shri R.L. Khapre that the observation of the learned Magistrate in paragraph 6 of the judgment impugned that the settled position is that to bring home the guilt it is for the complainant to discharge the initial burden to show that the dishonoured cheque was issued towards discharge of legal enforceable debt or liability, could have been better worded. Since the signature on the cheque is concededly that of the accused, Shri Khapre, is right in contending that the presumption under section 139 of the Act is duly activated and that the burden was that of the accused to rebut the presumption. 9 However, on a holistic appreciation of the evidence on record, I am not in a position to accept the submission that the presumption is not rebutted. Be it noted, that it is proved through examination of DW 1, who was then the Branch Manager of Akola Janta Commercial Cooperative Bank, that the cheque book containing the disputed cheque was issued on 12.12.2000 and the last cheque book was issued to the accused on 9.6.2001. It is duly proved that the accused addressed letter dated 11.3.2004 Exh. 55 ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:30:28 ::: apeal517of06.odt 9 requesting the bank to close the account. DW 1 states that the bank did not close the account and informed the accused accordingly. The evidence of the complainant reveals that he does not own any vehicle other than a bicycle, concededly neither is the amount reflected in the income tax returns nor are the income tax returns produced on record. The inference is that the complainant was not a income tax payee and his financial ability to extend loan of Rs. 55,000/- in cash to the accused in the year 2004 is rendered extremely doubtful. These circumstances, and the other circumstances noted by the learned Magistrate, cumulatively probabilize the defence of the accused that he did not have any transaction with the complainant. The learned counsel for the accused Ms. A.S. Ahirkar is right in contending that the view taken by the learned Magistrate is a possible view and that there is no compelling case made out for this Court to interfere in the judgment of acquittal.
The appeal is devoid of substance and is rejected.
JUDGE RS Belkhede,PA ::: Uploaded on - 14/12/2017 ::: Downloaded on - 16/12/2017 01:30:28 :::