Gujarat High Court
Abdullatif Yusufbhai Chaudhary vs State Of Gujarat on 7 January, 2025
NEUTRAL CITATION
R/CR.A/230/2012 JUDGMENT DATED: 07/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 230 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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ABDULLATIF YUSUFBHAI CHAUDHARY
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR N P CHAUDHARY(3980) for the Appellant(s) No. 1
MR TUSHAR CHAUDHARY(5316) for the Appellant(s) No. 1
MR MB RANA(2760) for the Opponent(s)/Respondent(s) No. 2
Mr. Bhargav Pandya, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/01/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - original complainant under Section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgement and order of acquittal passed by the learned 3rd Additional Chief Judicial Magistrate Palanpur (hereinafter referred to as "the learned Trial Court") in Criminal Case No. 3696 of 2007 on Page 1 of 13 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jan 20 2025 Downloaded on : Fri Jan 31 23:24:13 IST 2025 NEUTRAL CITATION R/CR.A/230/2012 JUDGMENT DATED: 07/01/2025 undefined 19.11.2011, whereby, the learned Trial Court has acquitted the respondent no. 2 - original accused for the offence punishable under Section 138 of Negotiable Instrument Act, 1881 (hereafter referred to as "NI Act" for short). 1.1 The appellant - original complainant and the respondent no. 2 - original accused are hereinafter referred to as the complainant and accused as they stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case are as under:
2.1 That the complainant and the accused were known to each other for seven to eight years and were good friends and the accused used to frequently borrow money for his business from the complainant and returned the same in due course. In the year 2005 - 2006, the accused required some finance and the complainant and his brothers gave an amount of ₹28,00,000/- to the accused out of which an amount of ₹5,00,000/- belonged to the complainant. The complainant demanded for the amount and the accused Page 2 of 13 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jan 20 2025 Downloaded on : Fri Jan 31 23:24:13 IST 2025 NEUTRAL CITATION R/CR.A/230/2012 JUDGMENT DATED: 07/01/2025 undefined gave cheque no. 012630 dated 25.08.2006 of ₹5,00,000/-, drawn on Banaskantha Mercantile Cooperative Bank Ltd.
and gave other cheques on the names of the brothers and nephew of the complainant. The cheque was deposited by the complainant in his Saving Account No. 2652 with Banaskantha District Central Cooperative Bank Ltd., Kanodar Branch on 08.02.2007 but the cheque returned unpaid with the endorsement "Funds Insufficient" with the return memo dated 13.02.2007 and the bank of the complainant intimated the same on 19.02.2007. The complainant gave the statutory demand notice dated 02.03.2007 by registered post AD which was duly served to the accused on 05.03.2007. The accused did not repay the amount and did not reply to the notice and hence, the complainant filed the complaint before the Court of the Judicial Magistrate First Class, Banaskantha at Palanpur on 12.04.2007.
2.2 The accused was duly served with the summons and the accused appeared before the learned Trial Court and the plea of accused was recorded at Exh. 4. The complainant filed his examination-in-chief at Exh. 6 and Page 3 of 13 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jan 20 2025 Downloaded on : Fri Jan 31 23:24:13 IST 2025 NEUTRAL CITATION R/CR.A/230/2012 JUDGMENT DATED: 07/01/2025 undefined examined witness Mahendrakumar Lallubhai at Exh. 27 and produced nine documentary evidences in support of his case. The complainant filed the closing pursis at Exh. 43 and the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded wherein the accused denied all the evidence of the complainant and refused to step into the witness box or examine witnesses and stated that a false case has been filed against him. After the arguments of the learned advocates for both the parties were heard, the learned Trial Court was pleased to acquit the accused from the offence under section 138 of the NI Act by a judgement and order dated 19.11.2011.
3. Being aggrieved and dissatisfied with the said judgement and order of acquittal the appellant has filed the present appeal mainly stating that the judgement and order of acquittal is illegal, erroneous, contrary to law and evidence on record. The learned Trial Court has not considered that the appellant had issued the notice which was duly received by the respondent no. 2, but no reply was given by the respondent no. 2 and this fact is proved by the Page 4 of 13 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jan 20 2025 Downloaded on : Fri Jan 31 23:24:13 IST 2025 NEUTRAL CITATION R/CR.A/230/2012 JUDGMENT DATED: 07/01/2025 undefined oral and documentary evidence available on record. The learned Trial Court has erred in considering that there is no enough evidence led by the appellant to rebut the presumption under the provisions of the NI Act and has not considered the fact that the say of the respondent no. 2 that six cheques have been misused, is not supported by any evidence. The learned Trial Court has erred in considering that the appellant had no financial capacity to give ₹5 lakhs to the respondent no. 2 and even though the respondent no. 2 has not rebutted the presumption raised in favour of the appellant by leading evidence, the learned Trial Court has believed his version. Hence, the impugned judgement and order of acquittal deserves to be quashed and set aside.
4. Heard learned APP Mr. N.P. Chaudhary for the appellant, learned advocate Mr. M.B. Rana for the respondent no. 2 and learned APP for the respondent State. Perused the impugned judgement and order of acquittal and have reappreciated the entire evidence of the prosecution on record of the case.
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5. Learned APP Mr. N.P. Chaudhary has taken this Court through the entire evidence of the prosecution on record of the case and submitted that the learned Trial Court has not considered the evidence in proper perspective and has misinterpreted the evidence and acquitted the respondent no. 2 even though the evidence proves that the offence is committed. The appellant has produced the cheque and other documents but the same have not been considered by the learned Trial Court. That the statutory notice has also been duly served and all the ingredients have been proved but the learned Trial Court has not consider the same. Learned Advocate has urged this Court to allow the appeal.
6. Learned APP Mr. Bhargav Pandya for the respondent no. 1 State and learned Advocate Mr. M. B. Rana for the respondent no. 2 have submitted that the learned Trial Court has discussed and considered all the evidence produced by the complainant and has rightly appreciated the entire evidence in light of the judgements of the Apex Court and no interference is required in the impugned Page 6 of 13 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jan 20 2025 Downloaded on : Fri Jan 31 23:24:13 IST 2025 NEUTRAL CITATION R/CR.A/230/2012 JUDGMENT DATED: 07/01/2025 undefined judgement and order and have urged this court to reject the appeal.
7. In light of the settled principles of law in acquittal appeals, on re-appreciation of the evidence of the complainant on record, it is the case of the complainant that he had given the amount of ₹5 lakhs to the accused as a loan and the same was to be returned towards which the cheque in question was given by the accused. The complainant has been cross-examined by the learned advocate for the accused. He has stated that he does not keep the amount deposited in his bank account with BDCC Bank, Kadar Branch and he does not have any written evidence about his milk business. He has no evidence to show to whom does he sell the milk and has no evidence about his cattle and does not keep any accounts regarding his cattle business. That he has given money to his brother- in-law - Abdul Hamid and Mohammed Hanif but he does not have any document regarding the same. He does not have any document to show about the previous transactions with the accused and has no correct date Page 7 of 13 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jan 20 2025 Downloaded on : Fri Jan 31 23:24:13 IST 2025 NEUTRAL CITATION R/CR.A/230/2012 JUDGMENT DATED: 07/01/2025 undefined about the financial transaction. That he and his brothers had given an amount of ₹28 lakhs in bits and pieces to the accused and he does not know how much amount was repaid by the accused to his brothers. That he has not mentioned the date and month when he had given the accused the amount and he had given the amount of ₹5 lakhs in cash but he has no document to show that he had the amount in cash. The agricultural land is in the joint name of his brothers and himself, and he has not produced any documentary evidence regarding his land. That he does not know in whose handwriting is the cheque written. That he has not stated in the complaint that he alone had loaned an amount of ₹5 lakhs to the accused.
8. In light of the above facts of the case of the complainant it would be fit to refer to the judgement of the Apex Court in Tedhi Singh V. Narayan Dass Mahant reported in (2022) 6 SCC 735 wherein in para 7 and para 9 it is observed as under :
7. It is true that this is a case under Section 138 of the Negotiable Instruments Act. Section 139 of the N.I. Act Page 8 of 13 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jan 20 2025 Downloaded on : Fri Jan 31 23:24:13 IST 2025 NEUTRAL CITATION R/CR.A/230/2012 JUDGMENT DATED: 07/01/2025 undefined provides that Court shall presume that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. This presumption, however, is expressly made subject to the position being proved to the contrary. In other words, it is open to the accused to establish that there is no consideration received. It is in the context of this provision that the theory of 'probable defence' has grown. In an earlier judgment, in fact, which has also been adverted to in Basalingappa (supra), this Court notes that Section 139 of the N.I. Act is an example of reverse onus [see (2010) 11 SCC 441). It is also true that this Court has found that the accused is not expected to discharge an unduly high standard of proof. It is accordingly that the principle has developed that all which the accused needs to establish is a probable defence. As to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist.
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9. The Trial Court and the First Appellate Court have noted that in the case under Section 138 of the N. I. Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the N. I. Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to Page 9 of 13 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jan 20 2025 Downloaded on : Fri Jan 31 23:24:13 IST 2025 NEUTRAL CITATION R/CR.A/230/2012 JUDGMENT DATED: 07/01/2025 undefined show that he had the financial capacity. To that extent the Courts in our view were right in holding on those lines.
However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.
9. In light of the above facts and settled law with regard to cases filed under Section 138 of the NI Act, the evidence of the complainant is on record that the accused has rebutted the presumption by bringing on record that the complainant did not have the financial capacity to loan an amount of Rs 5,00,000/- in cash to the accused. The complainant has not produced any documentary evidence Page 10 of 13 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jan 20 2025 Downloaded on : Fri Jan 31 23:24:13 IST 2025 NEUTRAL CITATION R/CR.A/230/2012 JUDGMENT DATED: 07/01/2025 undefined to show that he, in fact, had the financial capacity to lend the amount to the accused and has not proved that there was a legal due and legal enforceable debt from the accused. Moreover, the complainant has stated that he does not keep any of his savings in the bank or in any government institution and he has not clarified as to where he got the huge amount of ₹5 lakhs in cash to give the complainant. The learned Trial Court has observed that there was no mention in the notice that ₹5 lakhs were of the complainant and the cheque has been deposited after five months and no explanation regarding the same was on record. The learned Trial Court has relied upon the judgement of this Court in the case of Manishbhai Bharatbhai Shah V. State of Gujarat reported in 2008(1) GLR 392 and has concluded that as the accused has successfully proved his initial burden and the complainant was not able to prove that the cheque was issued for a legally enforceable debt has passed the impugned judgment and order of acquittal.
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10. On minute re-appreciation of the entire evidence of the prosecution and the impugned judgment and order, it appears that the learned Trial Court has thoroughly appreciated all the evidence on record and has given due consideration to all the material pieces of evidence. The learned Trial Court has discussed all the oral as well as documentary evidences and if the evidence produced by the prosecution is examined in light of the law laid down Tedhi Singh (supra), it appears that the learned Trial Court has arrived at findings which are legal and proper and there are no errors of law or facts. Moreover, the view taken by the learned Trial Court in acquitting the accused is fairly possible and there is no illegality and perversity in the impugned judgment and order of acquittal. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed.
11. The impugned judgment and order passed by the learned 3rd Additional Chief Judicial Magistrate Palanpur in Page 12 of 13 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jan 20 2025 Downloaded on : Fri Jan 31 23:24:13 IST 2025 NEUTRAL CITATION R/CR.A/230/2012 JUDGMENT DATED: 07/01/2025 undefined Criminal Case No. 3696 of 2007 on 19.11.2011, is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J) VASIM S. SAIYED Page 13 of 13 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Jan 20 2025 Downloaded on : Fri Jan 31 23:24:13 IST 2025