Ushakiran Wd/O Arun Thute vs Diwakar S/O Dhondbaji Patne
2021 Latest Caselaw 189 Bom

 Judgment                                1                        9 appa 262.2020.odt




                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                            NAGPUR BENCH, NAGPUR.

               CRIMINAL APPLICATION (APPA) NO. 262 OF 2020

               Smt. Ushakiran wd/o Arun Thute
               Aged about 64 years, Occ. Retired,
               R/o G-3, Ground floor, Vijay Sahniwas,
               W.C.P. Road, Dhantoli, Nagpur.
                                                        .... APPLICANT/
                                                           APPELLANT
                                 // VERSUS //

              Shri Diwakar s/o Dhondbaji Patne,
              Aged about 62 years, Occ. Business,
              c/o Harikrupa Housing Agency,
              5th floor, Khullar Chamber,
              Maharashtra Bank Chowk,
              Sitabuldi, Nagpur - 440 012
                                                      .... RESPONDENT
  _____________________________________________________________
 Shri V.K. Paliwal, Advocate for appellant/applicant.
 Shri J.M. Gandhi, Advocate for respondent.
 ___________________________________________________________________

                           CORAM : VINAY JOSHI, J.

RESERVED FOR JUDGMENT ON : 22/12/2020.

PRONOUNCEMENT OF JUDGMENT ON : 06/01/2021

1. The applicant/appellant (Complainant) has challenged the

order of acquittal dated 07.03.2013 passed in Regular Criminal Appeal

No. 29 of 2013. The Sessions Court has reversed the order of

conviction recorded by the Magistrate for the offence punishable under

Sections 138 of the Negotiable Instrument Act,1881 (for short "the N.I.

Act").

Judgment 2 9 appa 262.2020.odt

2. ADMIT. Heard finally by consent of both the parties.

3. Initially the Complainant has filed private complaint

bearing Summary Criminal Case No. 15031 of 2009 against the

respondent (accused) for the offence punishable under Section 138 of

the N.I. Act. The Trial Court held that the complainant has duly

established the essential ingredients namely issuance of cheque, it's

dishonor, service of demand notice, non-payment within stipulated

period, and accordingly convicted the accused for the aforesaid

offence. The Trial Court has imposed the sentence of paying

compensation to the tune of Rs.1,00,000/- with stipulation of default

sentence.

4. Being aggrieved by the order of conviction, accused

preferred Regular Criminal Appeal No. 29 of 2013 in which the

Sessions Court reversed the finding of guilt by holding that the

complainant failed to establish legally enforceable dept or other

liability. Moreover, it was held that the complaint was not tenable

without joining partnership firm as an accused. The said judgment of

acquittal dated 07.01.2013, is the subject matter of this revision.

5. The facts in nut-shell are that, the complainant-lady was

resident of Laxmi Nagar, Nagpur. She was acquainted with accused

Judgment 3 9 appa 262.2020.odt

who was a property dealer. The complainant gave handloan to the

accused to meet his urgent business need. The accused had not repaid

the amount as per payment condition. Time to time accused made part

payment of handloan and towards last installment issued disputed

cheque tuning Rs.63,000/-. The complainant has presented the cheque

dated 25.03.2009 at her joint account with State Bank of India,

however, it was dishonored for the reason "opening balance

insufficient". The complainant received written intimation about

dishonor of cheque on 14.07.2009. The complainant issued statutory

demand notice to accused on 12.08.2009 which he received on

14.08.2009. The accused neither replied the notice nor made payment

as demanded. Therefore, private complaint has been filed.

6. The Trial Court on verification has issued process against

accused. The complainant and accused led evidence in Trial Court as

well as complainant has filed requisite documents. On appreciation of

oral and documentary evidence, the Trial Court held that the

complainant has established essential requisites to constitute the

offence punishable under Section 138 of the N.I. Act and accordingly,

passed the judgment and order of conviction.

7. The complainant led evidence on affidavit vide Exhibit 56.

Judgment 4 9 appa 262.2020.odt

Her evidence was inconsonance with the contents of complaint. In

support of her case, complainant has examined her employee namely

Sushant Maske at Exhibit 58. Besides that, the complainant has

produced cheque (Exhibit 20), bank return memo (Exhibit 21),

demand notice (Exhibit 22) and it's acknowledgment (Exhibit 23). The

defence of accused was of denial of issuance of cheque towards

discharge of liability. According to the accused, the disputed cheque

was handed over to the complainant towards security for repayment of

investment of Rs.5,00,000/- made in his business. It is the defence that

a blank signed cheque was handed over to the complainant which was

misused. It is particular stand that the accused has repaid the entire

investment of Rs.5,00,000/- however, the disputed cheque was

misused since interest was not paid. Moreover, the accused has also

denied receipt of demand notice.

8. Learned Counsel appearing for the complainant has

vehemently argued that the Appellate Court failed to appreciate the

evidence in its proper perspective. According to him, the Appellate

Court failed to appreciate that issuance of signed cheque and it's

dishonor has not been denied. The statutory notice was duly served on

the admitted address of the accused. He would submit that the

transaction was made by accused in personal capacity, still the

Judgment 5 9 appa 262.2020.odt

Appellate Court held that the complaint was not tenable as the

partnership firm was not arraigned as accused. In short, by supporting

the judgment of Trial Court, he prayed for reversal of the order of

acquittal passed in the appeal.

9. Per contra, the learned Counsel appearing for the accused

has justified the reasoning and finding recorded by the Appellate Court

in support of reversal of conviction. It is submitted that the

complainant failed to establish foundational facts i.e. existence of

legally enforceable debt or other liability. According to him, though the

transaction was with partnership firm as well as the cheque was issued

on behalf of firm, still demand notice was not issued to the firm nor

complaint was made against the firm, and therefore, it is not

maintainable. He would submit that the complainant is vague. The real

transaction has been suppressed. The Appellate Court has properly

analyzed the evidence hence, the order of acquittal calls no

interference.

10. It is not in dispute that there was certain monitory

transaction between the parties. It is not denied that the accused had

issued a signed cheque to the complainant which was dishonored. In

the background of said admitted position, the evidence requires re-

  Judgment                                6                        9 appa 262.2020.odt




 appreciation.

11. The accused has denied the very nature of transaction by

stating that the cheque was not issued towards discharge of legally

enforceable debt or other liability. According to him, towards security, a

blank cheque was issued which was allegedly misused. Naturally, the

initial onus lies on the complainant to establish the foundational facts.

It is settled law that, in order to attract presumption under Section 139

of the N.I. Act, the debt or liability has to be legally recoverable. In

order to discharge initial burden, the complainant has stated that she

was well acquainted with accused who was indulging into the business

of property dealing. It is her evidence that the accused had contacted

her for handloan for business purpose. Besides that she had not

divulged any details about the transaction.

12. Pertinent to note that complainant's evidence is totally

silent as to when she gave handloan to the accused apart from the

amount of handloan or the date on which transaction took place. In

absence of such basic facts, she further stated that towards repayment

of installment of handloan, accused gave disputed cheque tuning

Rs.63,000/- which was dishonored. Learned Counsel for the accused

has straneously argued that in absence of details about issuance of

Judgment 7 9 appa 262.2020.odt

handloan, the complainant's case cannot be accepted. According to

him, the defence set out by him is more probable. In support of said

contention, he relied on the decision in case of John K. Abraham v.

Simon C. Abraham and anr. reported in (2014) 2 SCC 236 wherein

Supreme Court ruled that in order to draw presumption under Section

118 read with Section 139 of the N.I. Act, burden lies on complainant

to show that he had the requisite funds, the money transaction was

true and the accused was bound to make payment as agreed. In said

case, the then complainant was not aware of the date when the loan

amount was advanced nor documents were produced to support the

source for advancing amount. The Supreme Court considered the

absence of details of transaction as a serious lacuna and accordingly,

acquitted the accused.

13. On the similar line, learned Counsel for the accused further

relied on the decision in case of Sanjay Mishra v. Kanishka Kapoor @

Nikki and anr. reported in 2009(4) Mh.L.J. 155 wherein this Court held

that on complainant's failure to disclose the amount of handloan to

income tax, it cannot be said that the amount was legally recoverable.

In order to impress said proposition again reliance has been placed on

the decision of this Court in case of Vasudeo Ramchand Ahuja v. Vilas

Shripati Kamble and anr. reported in 2006(2) Bom.C.R.(Cri).1 and

Judgment 8 9 appa 262.2020.odt

Satish Lakhmichand Bothra V. Dilipkumar Ghevarchand Lodha reported

in 2011 ALL MR (Cri.) 2881.

14. Reverting to the facts, it is relevant to note that complaint

is totally silent about the nature of transaction. For ready reference, the

relevant portion of complaint has be extracted below :

"2. I say that the accused - Shri Diwakar s/o Dhondbaji Patne is doing business of property dealing. The accused had contacted to me for hand loan as the accused was urgent need of fund for said business".

15. Besides that there was no other reference about handloan

transaction. As against this, the accused in his evidence stated that, he

was dealing in property transactions and had advertised for his

business. The complainant contacted him and invested Rs.5,00,000/- in

his business. At the time of making investment, he had handed over a

blank signed cheque towards security. It is his evidence that he had

repaid entire investment amount of Rs.5,00,000/- however,

complainant started to insist for payment of interest. According to

accused, since interest was not paid the cheque issued towards security

was misused. It requires to be noted that the complainant has even not

stated as to how much amount was given to the accused towards

handloan apart from mode of payment and other details. The

Judgment 9 9 appa 262.2020.odt

complaint is silent about payment of handloan and in whose presence

it was given. In absence of evidence, it is not possible to accept the

complainant's version about handloan of Rs.5,00,000/- and issuance of

cheque towards balance payment of Rs.63,000/-.

16. Learned Counsel for the accused would submit that the

accused had already repaid the entire investment amount of

Rs.5,00,000/- and thus, nothing was due. In this regard, he has

attracted my attention towards cross-examination of complainant.

Interesting to note that the complainant gave evasive answers to the

crucial questions put in that regard. It was specifically asked to the

complainant as to whether she made investment with accused to which

she replied that she might have. It was asked whether she had invested

amount of Rs.5,00,000/- to which she equally stated that she might

have. She has admitted in categorical terms that she had asked for

refund of invested amount on which the accused had repaid the entire

amount of Rs.5,00,000/-. Thus, there was clear admission supporting

the defence that the amount of Rs.5,00,000/- which was invested by

complainant was entirely repaid. In that view of the matter, it is

difficult to accept that, the accused was in due of Rs.63,000/- so as to

construe that the disputed cheque was issued towards discharge of

debt or liability.

Judgment 10 9 appa 262.2020.odt

17. Learned Counsel for the accused would submit that the

burden on accused to lift the statutory presumption is not heavy, but he

can discharge the burden on the basis of preponderance of

probabilities. To substantiate said contention reliance has been placed

on the decision of the Supreme Court in case of M.S. Narayana Menon

v. State of Kerala reported in (2006) 6 SCC 39. Undoubtedly, onus of

proof on accused is not as heavy as that of the prosecution. The

accused need not enter into the witness box, but he can discharge the

onus through the circumstances emerging on record. In the context of

such legal position, if evidence is tested, it reveals that there was

categorical admition of the complainant that entire advance amount

towards investment was refunded. In the circumstance, the defence of

issuance of cheque towards security appears to be more probable.

Besides that, as the entire amount was admittedly refunded, the

cheque amount being not legally recoverable cannot be said to be

towards discharge of liability. Thus, the complainant utterly failed to

establish that the cheque was issued towards discharge of legally

enforceable debt or liability.

18. Learned Counsel for accused also attacked the

maintainability of complaint for want of joining firm as an accused. In

support of said submission reliance has been placed on the decision in

Judgment 11 9 appa 262.2020.odt

cases of C.Antony v. K.G. Raghavan Nair reported in AIR 2003 SC 182,

Aneeta Hada v. Godfather Travels and Tours (P) Ltd. Reported in

(2012) 5 SCC 661, A. Chinnaswami v. B.G. Company reported in

1997(3)Mh.L.J. 335, Philip J. v. Ashapura Minechem Ltd. Reported in

2016 ALL MR (Cri) 1802 and Mr. K.S. Gupta v. Mr. Ashok Shaligram

Gupta and ors. reported in 2015 ALL MR (Cri.) 4877. In these

decisions, it has been consistently laid down that, it is necessary for

arraigning of a partnership firm for prosecution against the partner of

firm. However, there is no application of said preposition in the facts of

this case since it was not the case of complainant, that she had given

handloan to the partnership firm. It is her categorical case that she was

acquainted with accused and on the laters demand she gave handloan

to the accused. Merely because, the disputed cheque bears a stamp of

partnership firm, it does not mean that the amount was given to the

firm and the cheque was issued by a partner on behalf of firm. The

accused has not brought any material to show that the advance amount

was given to the firm therefore, being distinct fact, the said submission

is not tenable. In view of such position, there is no necessity to dwell

upon the decision of this Court in case of Kiran R. Bhandari v. Narayan

P. Sarada in Criminal Appeal No. 369 of 2017 relied by the complainant

in that regard.

Judgment 12 9 appa 262.2020.odt

19. Learned Counsel for Complainant has submitted that when

once the signature on cheque is admitted, it amounts to admission of

liability. The said submission was made by relying on the decision of

Supreme Court in case of Uttam Ram v. Devinder Singh Hudan and anr.

reported in AIROnline 2019 SC 1285 SC . By relying on the decision of

Supreme Court in case of M/s. Malabar Fisheries Co. v. The

Commissioner of Income-tax Kerala reported in AIR 19080 SC 176 SC

it is submitted that the liability of partner has to be equated with the

liability of firm. There can be no dispute about said preposition of law.

However, that is not helpful to the complainant since, on the said count

there is no failure.

20. Learned Counsel for the complainant submitted that during

pendency of trial, the accused has admitted the liability vide Pursis

(Exhibit 25) therefore, defence about non-existence of legally

enforceable debt is unacceptable. True during trial the accused has

filed Pursis (Exhibit 25) stating that the matter has been amicably

settled and he would pay the cheque amount in two installments. By

any stretch of imagination this Pursis cannot be termed as an

acknowledgment of liability. There are vareity of reasons for the litigant

to settle the matter during pendency. To name the few, one may settle

the dispute to come out of litigation or one may settle to avoid further

Judgment 13 9 appa 262.2020.odt

round of litigation. Pertinent to note that there was no recital in the

Pursis about acknowledgment of liability and settlement for said

purpose. Merely it was amicable settlement, however it was not

materialized hence, it cannot be read differently.

21. The finding of Appellate Court that the complainant failed

to establish legally enforceable debt is based on sound appreciation and

reasoning. The said finding cannot be termed as perverse so as to

interfere the finding of acquittal. The law is fairly well settled in this

regard that the Appellate Court cannot lightly set aside the order of

acquittal on mere existence of another possible view.

22. In case at hand, the evidence of complainant is quite

vague. The real nature of transaction has been suppressed. The

complaint is totally silent regarding the payment of handloan, even the

amount of handloan has not been stated. On the touch stone of

probabilities, the defence is more acceptable one. In the circumstances,

revision being devoid of merit stands dismissed.

JUDGE Trupti