NEUTRAL CITATION
R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 259 of
2023
In R/CRIMINAL APPEAL NO. 34 of 2023
With
R/CRIMINAL APPEAL NO. 34 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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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 or any order made thereunder ?
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PATEL RUPAL SHAMBHUBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR. JAY M THAKKAR(6677) for the Applicant(s) No. 1
MS MONALI BHATT ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 01/11/2023
ORAL JUDGMENT
1. This application seeking special leave to appeal has been filed Page 1 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined under Section 378(4) of the Code of Criminal Procedure at the instance of the original complainant seeking challenge of judgment and order dated 25.11.2022 passed by the learned Special Judge, N.I. Court, Vadodara, in Criminal Case No.1045 of 2017. By the said judgment and order, the learned Special Judge has proceeded to dismiss the complaint by holding that the complainant has failed to prove his case.
2. The transaction in question as narrated by the original complainant is that:
2.1 The respondent - accused had borrowed the amount of Rs.4,50,000/- from the complainant on 10.06.2014. The part payment of an amount of Rs. 1,50,00 was made by the respondents in different installments. Due to a financial crunch, the accused had once again urged the complainant for further financial help, pending an earlier outstanding amount. On 28.11.2014, the complainant had lent an amount of Rs. 2,50,000/- to the accused. At that stage, the accused had assured the complainant to make repayment of the total amount of Rs.5,50,000/-. The transaction between the parties had continued whereby the accused in Page 2 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined different installments had made payment of Rs.1 Lakh. It is the case of the complainant that once again, the accused had borrowed the amount of Rs.2 Lakhs on 01.10.2015 and thereafter, an amount of Rs.1,49,000/- on 13.10.2015. Thus, the total outstanding amount to be realized from the accused was Rs.8,89,000/-. It is further contended that lastly the accused had approached the complainant on 04.04.2016 for financial assistance for an amount of Rs.1,50,000/-. Against which the complainant claims to have paid an amount of Rs.1 Lakh. Thus, it is the case of the complainant that the total amount to be recovered was Rs.9,99,000/-, which was otherwise assured by the respondent accused to be repaid.
2.2 It is further contended in the complaint that against the aforesaid outstanding amount of Rs.9,99,000/-, the respondent accused had issued a cheque dated 05.11.2016. It was mutually agreed that if the amount is realized prior to the maturity period, such cheque shall be returned back to the accused. Since the accused had failed to make repayment before the maturity date, the complainant had approached the accused, who had instructed him to present a cheque for realization of the outstanding amount. Page 3 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023
NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined Accordingly, the complainant had presented the said cheque on 05.11.2016, which got dishonoured on 07.11.2016 as informed by the bank on the ground of "insufficient funds". 2.3 The complainant was constrained to initiate proceedings under Section 138 of the Negotiable Instruments Act by raising legal notice on 05.12.2016, which was served on the known address of the respondent - accused by RPAD. It is submitted by the complainant that though the notice was sent, the respondent - accused had refused to accept such notice and the same was returned back on 09.12.2016 with an endorsement of "refusal". In absence of any repayment of the amount or any reply given to the legal notice, the complainant was constrained to approach the Court of learned Special Judge, N.I. Act, by lodging complaint under Section 138 of the Negotiable Instruments Act on 03.01.2017. The said complaint was registered as Criminal Case No.1045 of 2017 before the Court of learned Special Judge, N.I. Act, Vadodara.
2.4 The verification of the complainant was recorded by the learned Magistrate and the summons came to be issued noticing Page 4 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined prima facie case upon the respondent - accused. Such summons were duly served upon the respondent - accused, who appeared before the learned Magistrate and the plea came to be recorded vide Exhibit 11 on 17.09.2019. Noticing the denial of the commission of the offence by the accused, the learned Special Judge proceeded with the trial.
2.5 The complainant had offered himself in the witness box and his evidence has come on record vide Exhibit 5. Apart from the aforesaid evidence, the complainant has also led documentary evidences, which includes the disputed cheque dated 05.11.2016 (Exhibit 13), cheque return memo dated 07.12.2016 (Exhibit 14), legal notice issued upon the respondent - accused (Exhibit 15), postal slip with aforesaid notice (Exhibit 16), cover carrying legal notice with endorsement of refusal (Exhibit 17), income tax returns filed by the complainant for F.Y. 2013-14 (Exhibit 29), for F.Y. 2014-15 (Exhibit 30), for F.Y. 2015-16 (Exhibit 31), for F.Y. 2016- 17 (Exhibit 32), for F.Y. 2017-18 (Exhibit 33), for F.Y. 2018-19 (Exhibit 34) and for F.Y. 2019-20 (Exhibit 35). On the other hand, the original accused had failed to lead any evidence, however, the statement of the accused, recorded under Section 313 of the Code Page 5 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined of Criminal Procedure, has come on record. In the special defence raised by the accused, it is contended that the complainant is engaged in the business of lending hand loan by charging interest and having borrowed from the complainant, the blank cheque was handed over to the complainant. Though the amount has been realized, the complainant, by incorporating the false details of the amount in the disputed cheque, has raised false claims against the accused. It was therefore urged by the accused not to entertain the complaint.
2.6 The learned Magistrate upon appreciation of the evidence being brought on record by the original complainant, after taking into consideration the relevant statutory provisions of the Act, has prima facie noted that the mandatory provisions of Section 138(a), 138(b), 138(c) and 140(b) of the Negotiable Instruments Act have been satisfied. Upon appreciation of the relevant documents, the learned Special Judge has found that the complaint is maintainable as filed within the prescribed period of limitation. 2.7 Learned Special Judge has thereafter proceeded to examine the merits of the case. During the course of evaluation of the Page 6 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined evidence of the complainant, the learned Magistrate has noticed the discrepancies in the figure of the outstanding amount. Upon comparison of the contents of the legal notice Exhibit 15, the original complaint at Exhibit 1 and the affidavit in the form of examination-in-chief Exhibit 5 as well as cross-examination of the complainant, the learned Special Judge has noticed that the figure projected by the complainant was for an amount of Rs.8,99,000/- however if the contents are to be believed then the actual figure appears to be less. The learned Special Judge has manually compared the relevant dates and the amount borrowed and repaid by the respondent accused and has arrived at categorical finding that as per the case of the complainant himself, the amount outstanding comes to Rs.8,99,000/-. The aforesaid fact has been put to the notice of the original complainant in his cross- examination, wherein he has admitted the aforesaid fact that the outstanding amount is Rs.8,99,000/- whereas the disputed cheque carries the amount of Rs.9,99,000/-. At the same time, the complainant has failed to tender any explanation for an additional amount of Rs.1 Lakh. Noticing the aforesaid glaring discrepancy, the learned Magistrate has arrived at conclusion that the aforesaid consideration has dislodged the presumption drawn in favour of Page 7 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined the complainant in terms of Sections 138 and 139 of the Negotiable Instruments Act. In other words, the respondent - accused has been successful in rebutting the presumption and has thus, shifted the burden upon the complainant to prove his case beyond reasonable doubt. However, in absence of any explanation offered by the complainant with regard to the additional amount worth Rs.1 Lakh, the learned Magistrate has proceeded to pass the order of acquittal of the respondent - accused.
3. Mr. Jay Thakkar, learned advocate on record for the applicant - original complainant while drawing attention of this Court to the aforesaid findings and reasons recorded by the learned Magistrate, has placed reliance on the admission of the accused as reflected in statement recorded under Section 313 of the Code of Criminal Procedure with regard to signing of the cheque as well as issuance of the said cheque in the name of the complainant. The learned advocate has emphasized on the fact that though the question was put to the complainant with regard to incorporation of details of the figure in the cheque, the same has been categorically denied by the complainant. In such circumstances, the burden had continued upon the respondent - accused to establish his defence Page 8 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined of misuse of blank security cheque. He further emphasized on the fact that in absence of any evidence being led by the respondent - accused, there was no rebuttal of presumption in the eyes of law and thus, the learned Magistrate having satisfied with the compliance of the basic ingredients of Section 138 of the Negotiable Instruments Act, the accused ought to have been convicted for the said offence. He, therefore, urged this Court that an arguable case lies to grant special leave to appeal and let the evidence be closely re-appreciated by this Court after admission of the appeal.
4. In support of his submissions, the learned advocate has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. reported in (2019) 10 Supreme Court Cases 287. He further submitted a similar set of facts, even where inconsistency in the amount was noticed and the defence was raised that the cheque was stolen and misused, the Hon'ble Supreme Court had disapproved the approach of the Court below as the complainant was expected to prove his debt in light of statutory presumption available in terms of Section 118 and Section 139 of the Page 9 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined Negotiable Instruments Act. It was further held that in absence of any other evidence, the Court below could not dismiss the complaint only on account of discrepancy of the amount due for which the cheque was issued. Learned advocate has further placed reliance upon the judgment of the Hon'ble Supreme Court in the case of C.C. Alavi Haji Vs. Palapetty Muhammed and Anr. reported in (2007) 6 Supreme Curt Cases 555 to meet with the aspect of sufficient compliance of Section 138 proviso (b) and
(c) of the Act, whereby the Hon'ble Supreme Court has held that treated service of legal notice, in case of evader of notice with endorsement unserved, as sufficient compliance of the mandatory requirement of Section 138.
5. Aforesaid submissions of the learned advocate for the original complainant has been vehemently objected by the learned advocate Mr. Vasimraja Kureshi appearing for the respondent - original accused. He has strongly placed reliance upon the admission of the original complainant in his cross-examination. He submitted that the learned Magistrate has rightly noticed the discrepancy in the amount due of Rs.1 Lakh which straightway contradicts the existence of actual consideration debt as Page 10 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined contended by the original complainant. According to him, the learned Magistrate has rightly shifted the burden upon the complainant to prove his case beyond reasonable doubt. Having failed to offer any explanation with regard to the additional amount of Rs.1 Lakh, the case of the complainant and the cheque being issued towards discharge of legally recoverable debt itself had come under clouds. In such circumstances noticing the discrepancies emerged on record, the learned Magistrate has rightly acquitted the present respondent - original accused.
6. In support of his submissions, the learned advocate has placed reliance on the judgment of the learned Single Judge of Karnataka High Court in the case of Herman Castelino Vs. Dr. Suresh Kudva reported in 2022(3) AIR Kar R 314. By referring to the aforesaid judgment, learned advocate submitted that the incorrect additional amount of Rs. 1 Lakh towards dues amounts to material alteration which renders negotiable instrument void in absence of any common intention of the respective parties. In such circumstances, the accused cannot be held guilty of the alleged offence. Learned advocate has further relied upon judgment of the Bombay High Court in the case of M/s. Pinak Bharat and Page 11 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined Company Vs. Shri Anil Ramrao Naik and Ors. reported in 2023(2) Mh. LJ (Cri.) 183 for the proposition of law that incorporation of date on cheque without authority of the accused amounts to material alterations in the cheque, which could not attract the offence punishable under Section 138 of the Act. By making aforesaid submissions, learned advocate submitted that no arguable case is made to consider the appeal for admission and has urged this Court to dismiss the leave against the order impugned.
7. Having heard learned advocates appearing for the respective parties and having perused the order impugned as well as authorities relied upon, this Court is called upon at this in present application as well as in appeal as to whether the judgment under challenge is perverse, illegal, erroneous, warranting any interference at the hands of this Court.
8. It is not in dispute that various transactions had taken place between the parties to the proceedings. The issuance of cheque and the signature on the cheques has not been disputed by the respondent - Accused.The learned Magistrate upon close scrutiny Page 12 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined of the contents of the demand raised in the legal notice, the averments made in the complaint at Exhibit 1, affidavit of examination in chief (Exhibit 5) as well as cross-examination of the complainant has compared various transactions which have taken place between the parties. In the process of comparison of the aforesaid transactions, the Court has noticed that the outstanding amount due from the respondent -accused comes to around Rs.8,99,000/-. The aforesaid fact was categorically raised by the respondent during cross-examination of the complainant. While responding to such defence, the complainant has fairly accepted the fact about the actual outstanding amount dues from the complainant to be Rs.8,99,000/-, whereas the cheque in dispute appears to be figures of Rs.9,99,000/-. In the opinion of this Court, the aforesaid contradiction goes to the root of the matter. It straightway hit the presumption drawn in favour of the complainant under Section 118(a) of the Negotiable Instruments Act, which permits the Court to raise presumption with regard to existence of consideration amount. Section 139 of the Negotiable Instruments Act further permits the Court to raise presumption with regard to the cheque being issued towards discharge of legally recoverable debt as on the date of the presentation of the cheque. It is a settled Page 13 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined legal position that in absence of any challenge to the signature on the disputed cheque, the statutory presumption available under Section 118 and Section 139 of the Act comes into play. The aforesaid statutory provision permits the Court to raise presumption against the respondent accused. The onus is upon the accused on the issuance of cheque to rebut the presumption that the cheque was not issued for discharge of any debt or liability under Section 138 of the Act. However, such presumption is subject to probable defence to be raised by the accused to create doubt with regard to existence of any debt or liability. In case of Rangappa Vs. Sri Mohan reported in 2010(11) SCC 441, the Hon'ble Supreme Court held that the standard of proof to discharge of such presumption can be in the form of probable defence which is weighed on the scale of preponderance of probabilities. As noticed hereinabove, in the present matter, the learned Court below has consciously and carefully taken into consideration this aspect, which has emerged on record to arrive at finding with regard to the discrepancy in the amount dues to be realized from the respondent accused, coupled with the fact that the original complainant has failed to offer any explanation with regard to the additional amount of Rs.1 Lakh. In my opinion, no Page 14 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined fault can be found in the approach of the learned Magistrate in shifting the burden upon the original accused to prove his case beyond reasonable doubt. The discrepancy noted in the amount due against the respondent - accused against which the cheque is alleged to have been issued goes to the root of the matter, which can be treated as material contradiction.
9. So far as judgment relied upon by the learned advocate for the applicant in the case of Uttam Ram (Supra) is concerned, the Court notices that though the Hon'ble Supreme Court at one stage disapproved the approach of the Court below taking into consideration the discrepancy in determining the amount dues as against the cheque issued, it has clearly transpired that the Court was guided by the fact that there exists written document which crystallizes the amount due, for which the cheque was issued. Having noticed the aforesaid document, the Hon'ble Supreme Court has held that the conclusion drawn by the Court below to acquit the respondent - accused on the basis of discrepancy in the statement to be perverse and held unsustainable in law. Whereas in the present case, indisputably no explanation has come forward from the applicant before trial Court as well as before this Court Page 15 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023 NEUTRAL CITATION R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023 undefined with regard to additional amount of Rs.1 Lakh. In such circumstances, in absence of cogent material being brought on record, the complainant has failed to prove his case beyond reasonable doubt.
10. In the opinion of this Court, no arguable case is made out to entertain a present application seeking leave to appeal. Hence, present application is hereby rejected. Rule is discharged.
In view of dismissal of the application seeking leave to appeal, Criminal Appeal No.34 of 2023 stands disposed of.
(NISHA M. THAKORE,J) Y.N. VYAS Page 16 of 16 Downloaded on : Wed Nov 01 20:49:46 IST 2023