Vinod Dnyaneshwarrao Kharbade vs Ku. Vaishali Raju Patil, (Nee) Sau. ...
2024 Latest Caselaw 24396 Bom

Bombay High Court

Vinod Dnyaneshwarrao Kharbade vs Ku. Vaishali Raju Patil, (Nee) Sau. ... on 20 August, 2024

2024:BHC-NAG:9169




              Judgment

                                                          272 apeals397 & 398.22

                                              1

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

                           CRIMINAL APPEAL NO.397 OF 2022
                                        AND
                           CRIMINAL APPEAL NO.398 OF 2022


              CRIMINAL APPEAL NO.397 OF 2022
              Vinod Dnyaneshwarrao Kharbade,
              aged:- 51 years, occupation : service,
              r/o Anju Colony, New Town
              Badnera, Amravati, tahsil and district
              Amravati.                            ..... Appellant.

                                     :: V E R S U S ::

              Ku.Vaishali Raju Patil, (Nee)
              Sau.Vaishali Nitin Burange,
              age:- 46 years, occupation : service,
              r/o c/o House of Shri Naitam, plot
              no.24, Shivshakti Colony, Beside
              Krushnarpan Colony, Amravati,
              tahsil and district Amravati.

              Second Address - Shivaji High
              School, Purnanagar, taluka Bahtkuli,
              district Amravati.                   ..... Respondent.
              =================================
              Shri P.A.Kadu, Counsel for the Appellant.
              Shri S.S.Dhengale, Counsel for the Respondent.
              =================================


              CRIMINAL APPEAL NO.398 OF 2022
              Vinod Dnyaneshwarrao Kharbade,
              aged:- 51 years, occupation : service,
              r/o Anju Colony, New Town
              Badnera, Amravati, tahsil and district

                                                                         .....2/-
 Judgment

                                                     272 apeals397 & 398.22

                                  2

Amravati.                                ..... Appellant.

                         :: V E R S U S ::

Ku.Vaishali Raju Patil (Nee),
Sau.Vaishali Nitin Burange,
age 46 years, occupation : service,
r/o c/o House of Shri Naitam, plot
No.24, Shivshakti Colony, beside
Krushnarpan colony, Amravati,
tahsil and district Amravati.

Second Address - Shivaji High
School, Purnanagar, taluka Bahtkuli,
district Amravati.
=================================
Shri P.A.Kadu, Counsel for the Appellant.
Shri S.S.Dhengale, Counsel for the Respondent.
=================================

CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 06/08/2024
PRONOUNCED ON : 20/08/2024

COMMON JUDGMENT

1. Criminal Appeal No.397/2022, arises out of judgment

and order dated 1.2.2022 passed by learned Judicial

Magistrate First Class, Court No.3, Amravati in SCC

Nos.2774/2016 filed by the appellant/complainant whereby

the respondent/accused is acquitted of offence punishable

under Section 138 of the Negotiable Instruments Act, 1881.

.....3/-

Judgment

272 apeals397 & 398.22

Criminal Appeal No.398/2022, arises out of judgment

and order dated 1.2.2022 passed by learned Judicial

Magistrate First Class, Court No.3, Amravati in SCC

Nos.3013/2016 filed by the appellant/complainant whereby

the respondent/accused is acquitted of offence punishable

under Section 138 of the Negotiable Instruments Act, 1881.

2. Brief facts are as under:

The appellant/complainant is an agriculturist.

Husband of the respondent/accused wanted to sell his shop

situated at Rajapeth. The appellant/complainant was desirous

to purchase shop. With an intervention of one Mahalle and

Choudhari, an agreement of sale was executed between the

appellant/complainant and husband of the

respondent/accused on 9.3.2013. After execution of the said

agreement, the husband of the respondent/accused sold shop

to third person and, therefore, the agreement of sale executed

in favour of the appellant/complainant was cancelled. The

appellant/complainant returned documents to husband of the

respondent/accused and husband of the respondent/accused

.....4/-

Judgment

272 apeals397 & 398.22

refunded earnest amount to the appellant/complainant. Being

there a friendly relation is developed between the

appellant/complainant and the respondent/accused, the

appellant/complainant gave hand loan of Rs.3,50,000/- to the

respondent/accused and the respondent/accused executed a

receipt dated 9.1.2015 as well as post dated cheques bearing

No.031930 of Rs.2.00 lacs dated 9.5.2016 and bearing

No.031923 of Rs.1,50,000/- dated 24.5.2016 of the Amravati

District Central Cooperative Bank Limited. When the first

cheque was presented, it was dishonoured for reason

"Accounts Closed." The appellant/complainant issued a notice.

After receipt of the notice, the respondent/accused has not

paid the amount and, therefore, the appellant/complainant

filed a criminal complaints under Section 138 of the

Negotiable Instruments Act.

3. After hearing both sides and recording evidence, the

trial court held that the appellant/complainant failed to

establish that cheques were issued against legal and

enforceable debt and acquitted the respondent/accused.

.....5/-

Judgment

272 apeals397 & 398.22

4. Being aggrieved with the same, the present appeals are

preferred by the appellant/complainant on ground that there

was an ample material on record to show that there was legal

and enforceable debt and presumption is not rebutted by the

respondent/accused and wrongly acquitted the

respondent/accused.

5. Heard learned counsel Shri P.A.Kadu for the

appellant/complainant and learned counsel Shri S.S.Dhengale

the respondent/accused.

6. Learned counsel for the appellant/complainant

submitted that the trial court committed an error in holding

that there was legal and enforceable debt and the respondent/

accused rebutted the presumption. It is submitted that the

respondent/accused failed to send reply to the statutory

notice. The respondent/accused also failed to file any

submissions as to allegation in the complaint neither entered

into the witness box in support of their defence. It was

submitted that when the respondent/accused kept mum to the

statutory notice and no evidence was adduced on her behalf in

.....6/-

Judgment

272 apeals397 & 398.22

support of her stand, the presumption under Sections 118 and

139 of the Negotiable Instruments Act is operated against

them. As such, the view taken by the trial court is erroneous

and, therefore, the judgments impugned in appeals are liable

to be set aside.

7. In support of his contentions, learned counsel for the

appellant/complainant placed reliance on following decisions:

1. Rajesh Jain vs. Ajay Singh, reported in (2023)10 SCC 148;

2. Kalamani Tex and anr vs. P.Balasubramanian, reported in (2021)5 SCC 283;

3. Hemant Pavel Gracias vs. Socorro Santan Fernandes, reported in 2008(2) DCR 423, and

4. Rangappa vs. Sri Mohan, reported in (2010)11 SCC

441.

8. Per contra, learned counsel for the respondent/accused

submitted that even if there was a presumption that cheques

were issued for discharge of legal debt or liability, once

signatures on cheques were admitted, the

appellant/complainant was still required to prove foundational

.....7/-

Judgment

272 apeals397 & 398.22

facts of his case. However, the appellant/complainant failed to

prove such foundational facts regarding hand loan advanced to

the respondent/accused. It is not necessary for the

respondent/accused to enter into the witness box. The

appellant/complainant can rebut the presumption through

cross examination also.

9. In support of his contentions, learned counsel for the

respondent/accused placed reliance on following decisions:

1. Sanjay Yadhavraoji Makode vs. Suhas Prakashji Dhote, reported in 2018(3) DCR 24;

2. Shankar Jaganath Mane vs. Sikkandar Mohammed Bidiwala, reported in 2020(3) DCR 471, and

3. Mahendra Gulabchand Kochar vs. Sakharam Ramdas Patil, reported in 2009 SCC OnLine Bom 493.

10. Before referring to the evidence and material on record,

it is necessary to refer the law settled by the Honourable Apex

Court.

11. The Honourable Apex Court, in the case of

M.S.Narayana Menon vs. State of Kerala, reported in (2006)6

.....8/-

Judgment

272 apeals397 & 398.22

SCC 39, referred to presumption under Sections 118 and 139

of the Negotiable Instruments Act and held that the

presumption is rebutable. The Honourable Apex Court in

paragraph No.30 of its judgment observed as follows:

"30. Applying the said definitions of 'proved' or 'disproved' to principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non- existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.

It has further been observed that a Division Bench of

this Court in Bharat Barrel and Drum Manufacturing Company

vs. Amin Chand Payrelal, reported in (1999)3 SCC 35 laid

down law in following terms:

"Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the

.....9/-

Judgment

272 apeals397 & 398.22

presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non- existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non- existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt."

12. The Single Bench of this Court also in the case of

Sanjay Yadhavraoji Makode vs. Suhas Prakashji Dhote supra

by referring few precedents observed that as the foundational

.....10/-

Judgment

272 apeals397 & 398.22

facts were not established by the appellant in the present case,

it cannot be said that the trial Court committed any error in

holding that the respondent deserved to be acquitted.

13. Thus, in catena of decisions, it is clearly opined that it

is not necessary for the defendant to disprove existence of

consideration by way of direct evidence. The standard of

proof evidently is preponderance of probabilities and it can be

drawn not only from the materials on records but also by

reference to the circumstances upon which he relies.

Presumption drawn under a statute has only an evidentiary

value. Presumptions are raised in terms of the Evidence Act.

Presumption drawn in respect of one fact may be an evidence

even for the purpose of drawing presumption under another.

14. Thus, the accused has also an option to prove the non-

existence of consideration and debt or liability either by letting

in evidence or in some clear and exceptional cases, from the

case set out by the complainant, that is, the averments in the

complaint, the case set out in the statutory notice and evidence

adduced by the complainant during the trial. Once such

.....11/-

Judgment

272 apeals397 & 398.22

rebuttal evidence is adduced and accepted by the court, having

regard to all the circumstances of the case and the

preponderance of probabilities, the evidential burden shifts

back to the complainant and, thereafter, the presumptions

under Sections 118 and 139 of the Negotiable Instruments Act

will not help to the complainant.

15. A Three Judges Bench of the Hon'ble Supreme Court in

the case of Rangappa vs. Sri Mohan, reported in (2010)11 SCC

441, in the context of Section 139 of the Negotiable

Instruments Act, has held as follows:

"27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 139 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and

.....12/-

Judgment

272 apeals397 & 398.22

interpretation of reverse onus clauses and the accused/ defendant cannot be expected to discharge an unduly high standard or proof.

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 cases the accused may not need to adduce evidence of his/her own."

16. Thus, the position of law settled by the aforesaid

decisions is that although presumption does arise against the

accused in such cases under Sections 118 and 139 of the

Negotiable Instruments Act, the presumption is rebuttable on

the touchstone of preponderance of probabilities.

17. Applying the aforesaid proposition of law to the facts of

the present case, it is found that the respondent/accused failed

to reply to the statutory notice sent by the

.....13/-

Judgment

272 apeals397 & 398.22

appellant/complainant. Admittedly, they had not filed any

reply or submission in response to the complaint of the

complainant and also not entered into the witness box. Thus,

there was no direct evidence led by him in support of his case.

She placed reliance on cross examination of the

appellant/complainant. The defence of the

respondent/accused was that blank cheques issued to the

security were misused by the appellant/complainant. It was

further defence of the respondent/accused that she never took

hand loan from the appellant/complainant and not executed

usanwar pawti and not issued cheques.

18. Perusal of the evidence of the appellant/complainant

shows that though during chief examination he had reiterated

contents of the complaint, during cross examination he

admitted that he has not produced any documents on record

to show that he is doing agricultural work as well as private

work. He has also not filed on record any evidence to show

that his wife is also earning. It revealed from the cross

examination that initially there was transaction of agreement

.....14/-

Judgment

272 apeals397 & 398.22

of sale between the appellant/complainant and the

respondent/accused. He has neither filed copy of the said

agreement of sale nor any document to show that how much

amount was decided as a consideration amount and how much

amount he received. He admitted to the extent that he is

unable to tell on which date and how much amount he paid to

the respondent/accused. He specifically admitted that

economic condition of the respondent/accused is better than

his economic condition. It further came during his cross

examination that in usanwar pawti Exhibit-28 his name is not

mentioned. Thus, it is not disputed that signatures on cheques

were that of the respondent/accused. It was submitted that

the appellant/complainant failed to support his case of having

advanced cash loan to the respondent/accused. The cross

examination also demonstrates that there was some other

transaction which was subsequently cancelled. However, there

is no evidence that husbands of the respondent/accused repaid

the said earnest amount. As far as the hand loan given to the

respondent/accused is concerned, no date is mentioned.

.....15/-

Judgment

272 apeals397 & 398.22

19. Perusal of the evidence of the appellant/complainant

shows that he specifically admitted that his name is not

mentioned in the usanwar pawti. As such, from the usanwar

pawti nowhere it reveals that it was executed in favour of the

appellant/complainant. As far as source of income of the

appellant/complainant is concerned, his admission is sufficient

to show that the respondent/accused is teacher and having

good income than the appellant/complainant. The

appellant/complainant has not disclosed source of his earning

and there is no other material to show that he was in a

position to give such amount as a hand loan. It is pertinent to

note that the entire reliance of the appellant/complainant is on

the usanwar pawti, but the said usanwar pawti nowhere

reveals that it was executed in favour of the

appellant/complainant.

20. In the case of Rajesh Jain vs. Ajay Singh supra, as relied

upon by learned counsel for the appellant/accused, it is held

that the standard of proof to discharge this evidential burden is

not as heavy as that usually seen in situations where the

.....16/-

Judgment

272 apeals397 & 398.22

prosecution is required to prove the guilt of an accused. The

accused is not expected to prove the non-existence of the

presumed fact beyond reasonable doubt. The accused must

meet the standard of 'preponderance of probabilities', similar

to a defendant in a civil proceeding. In order to rebut the

presumption and prove to the contrary, it is open to the

accused to raise a probable defence wherein the existence of a

legally enforceable debt or liability can be contested.

21. As the defence taken by the respondent/accused is a

probable defence, the trial court acted upon it and held that

the appellant/complainant failed to prove that cheques were

issued in discharge of legal and enforceable debt.

22. It is well settled that while exercising appellate powers,

especially while dealing with appeals against acquittal,

cardinal principle to be kept in mind is that there is a

presumption of innocence in favour of accused unless the

accused is proved guilty. The presumption continues and

finally culminates into a fact when the case ends in acquittal.

The possibility of two views in criminal cases is not an

.....17/-

Judgment

272 apeals397 & 398.22

extraordinary phenomenon while considering appeals against

acquittal. A fact cannot lose sight of the same. The trial court

has appreciated the entire evidence and reversal of an order of

acquittal is not to be based on mere existence of different

views or mere difference of opinion. Normally, while

exercising the appellate jurisdiction, it is the duty of the

appellate court to see, whether decision is correct or incorrect

on law and facts. While dealing with appeals against acquittal,

the court cannot examine the impugned judgment only to find

out whether the view taken was correct or incorrect. After re-

appreciating oral and documentary evidence, the Appellate

Court must first decide whether the Trial Court's view was a

possible view. The Appellate Court cannot overturn acquittal

only on the ground that after re-appreciating evidence, it is of

the view that the guilt of the accused was established beyond a

reasonable doubt.

23. In the present case, as the foundational facts were not

established by the appellant/complainant, it cannot be said

that the trial court committed any error to hold that the

.....18/-

Judgment

272 apeals397 & 398.22

respondent/accused deserves to be acquitted. The

appellant/complainant is completely discredited during the

cross examination and, therefore, appeals are devoid of merits.

The trial court has taken into consideration the entire material

on record and by applying the law in respect of presumption

under the said Act has taken a possible view of the matter.

When the trial court has taken a possible view, there should

not be any interference by the higher court. It is well settled

that when two views are possible, one which is in favour of the

accused will prevail.

24. In that light of the above, appeals being devoid of

merits liable to be dismissed and the same are dismissed.

Appeals stand disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 20/08/2024 11:01:37