Jitendra Shyamlal Jariwala ... vs State Of Gujarat
2021 Latest Caselaw 1428 Guj

           R/CR.MA/5493/2019                                     ORDER




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC.APPLICATION NO. 5493 of 2019
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JITENDRA SHYAMLAL JARIWALA PROPRIETOR OF TIRUPATI TEXTILES
                           Versus
                     STATE OF GUJARAT
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Appearance:
MR MANAN A SHAH(5412) for the Applicant(s) No. 1
MR NK MAJMUDAR(430) for the Respondent(s) No. 2
MS CM SHAH, APP for the Respondent(s) No. 1
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 CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI
                    Date : 01/02/2021
                     ORAL ORDER

1. The applicant­original complainant has filed the present application seeking leave to appeal under Section 378(4) of the Cr.P.C in connection with the judgment and order dated 06.08.2018 passed by the 6th Additional Chief Judicial Magistrate, Surat (hereinafter referred to as "the Trial Court") in Criminal Case No. 25368 of 2010 whereby the trial Court has acquitted the respondent No. 2­accused from the charges levelled against him under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as "the said Act").

2. As transpiring from the documents on record, more particularly the impugned judgment, the applicant­complainant had filed the complaint against the respondent No. 2­accused alleging inter alia that during the period 2004­2010, the complainant had given hand­ loans to the accused from time to time in all amounting to Rs.90,00,000/­, as the accused happened to be his friend. Out of the said hand­loans amount, the respondent No. 2 had repaid in part, however he still had to repay Rs. 55,00,000/­. The applicant­ complainant having demanded the said amount, the respondent No. 2

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had given him six cheques as mentioned in the complaint totally for the amount of Rs. 2,10,000/­. It was further alleged that out of the said cheques, one cheque of Surat Textile Traders Co­operative Bank Limited given by the accused, when presented in the bank was returned with the endorsement "Account Closed", whereas the other five cheques of Punjab National Bank issued by the accused, when presented in the bank by the complainant had returned dishonored with the endorsement "funds insufficient" or "account inactive". The complainant having given notice to the accused on 14.07.2010 under Section 138 of the said Act, the same was received by the accused on 16.07.2010, however the respondent­accused had given evasive reply and not paid the amount of the cheques and hence the complaint under Section 138 of the said Act was filed by the applicant­ complainant. The trial Court after appreciating the evidence on record and considering the statements of the respondent­accused under Section 313 of Cr.P.C. has acquitted the respondent­accused passing the impugned judgment and order. Being aggrieved by the same, the applicant­appellant has preferred the application seeking leave to appeal before this Court under Section 378(4) of the Cr.P.C.

3. Learned Advocate Mr. Manan Shah appearing for the applicant submitted that the trial Court has mis­appreciated the evidence adduced by the complainant and erroneously held that the complainant had failed to prove his source of income for lending such a huge amount to the accused. Pressing into service the presumption under Section 139 read with Section 118 of the said Act, learned Advocate Mr. Shah for the applicant submitted that the accused had failed to rebut the said presumption by leading cogent evidence. In this regard, Mr. Shah has placed reliance on the decision of the Supreme Court in the case of Uttam Ram versus Devinder Singh Hudan and Another reported in (2019) 10 SCC 287. Reliance is also

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placed on the decision of the Supreme Court in case of K N Beena versus Muniyappan and Another reported in (2001) 8 SCC 458, in support of his submission that the denials in the reply to the legal notice was not sufficient to shift the burden of proof on the complainant to prove that the cheque was issued for a debt or liability.

4. However, learned Advocate Mr.Majmudar appearing for the respondent No. 2 supporting the findings recorded by the trial Court submitted that the applicant­complainant had miserably failed to prove the basic facts for raising the presumption under Section 139 of the said Act. According to him, the complainant had misused the cheques of the accused and there was nothing to show that any outstanding legal dues were payable to the complainant by the accused. He also submitted that as rightly observed by the trial Court, the complaint was not filed within the period of limitation prescribed under Section 138 of the said Act and therefore the ingredients of Section 138 having not been fulfilled, the trial Court had rightly acquitted the accused.

5. At the outset, it may be noted that the Supreme Court recently in case of Basalingappa vs Mudibasappa reported in (2019) 5 SCC 418 after referring the presumptions under Section 118 and Section 139 and after discussing several decisions, summed up the principles in para. 25 as under:

"25. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:­ 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the

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presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5 It is not necessary for the accused to come in the witness box to support his defence."

6. So far as the facts of the present case are concerned, it appears that a common complaint was filed by the applicant­complainant in respect of the dishonour of six cheques which were as under:

     Sr.No. Cheque No. Date              Bank                Amount
                                                             (Rs.)
     1        115798         05/05/10 The Surat Textile 5,000/­
                                      Traders Co. Op.
                                      Bank Ltd.
     2        649428         02/05/10 Punjab National        25,000/­
                                      Bank
     3        824543         01/04/10 Punjab National        30,000/­
                                      Bank
     4        824545         29/12/09 Punjab National        50,000/­
                                      Bank
     5        924544         26/12/09 Punjab National        50,000/­
                                      Bank
     6        924546         28/12/09 Punjab National        50,000/­
                                      Bank
                                         Total Amount        2,10,000/­
                                         (Rs.)

7. As transpiring from the details of the cheques, three cheques were allegedly issued by the respondent in December, 2009, one

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cheque in April, 2010 and two cheques in May, 2010. All the cheques appear to have been presented by the complainant in June, 2010 and the complainant appears to have given the common notice to the accused on 14.07.2010. That apart, as per the case of the complainant, he had given hand­loans to the accused in piecemeal during the period 2004­2010 totally amounting to Rs. 90,00,000/­ and he did not know as to which cheque was given in which year and in respect of which transaction/loan. He had not produced any account books or income tax returns to show as to how he had given hand­loans to the accused for such a huge amount and as to which of the said cheques were issued by the respondent­accused towards which of the said loans. The allegations made in the complaint and the evidence of the complainant before the Court were also as vague as anything. It is needless to say that the standard of proof on the part of the complainant is always high unlike the accused, who has to raise only a probable defence.

8. The trial Court after properly analyzing the evidence on record and discussing the legal position in detail has rightly come to the conclusion that the complainant had failed to prove the ingredients of offence under Section 138 of the said Act. As against that the respondent­accused had raised a probable defence to rebut the presumption under Section 139 of the said Act. The Court therefore does not find any illegality or infirmity in the impugned judgment passed by the trial Court.

9. It is also settled legal position that the appellate Court should be slow in interfering with the order of acquittal. Beneficial reference of the decision of the Supreme Court in case of Arulvelu and another versus the State reported in (2009) 10 Supreme Court Cases 206 be made in this regard wherein it is observed that an order of

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acquittal should not be lightly interfered with when the Court believes that two views are possible and when the prosecution had failed to prove the charges levelled against the accused beyond reasonable doubt. The Supreme Court has observed in para. No. 36 of the said judgment as under:

"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."

10. Beneficial reference to the decision of the Supreme Court in case of State of Rajasthan versus Ram Nivas reported in (2010) 15 SCC 463 be also made in this regard wherein it has been held as under:

"6. This Court has held in Kalyan v. State of U.P. reported in (2001) 9 SCC 632:

"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the Criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial Court is supposed to have watch the demeanor and conduct of the witnesses and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram. v. state of H.P., this Court observed that the golden thread which runs through the web of administration of justice in a criminal case is that if two views are possible on the evidence adduced in the

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case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.""

11. In that view of the matter, the Court is not inclined to interfere with the judgment of acquittal passed by the trial Court. Hence, the application seeks leave to appeal is dismissed.

12. As a result of dismissing the application for leave to appeal, the Appeal against the order of acquittal passed by the trial Court is also dismissed.

(BELA M. TRIVEDI, J) SINDHU NAIR