Parmar Bakiben W/O Shanabhai vs State Of Gujarat
2021 Latest Caselaw 166 Guj

        R/CR.RA/689/2020                                  ORDER



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/CRIMINAL REVISION APPLICATION NO. 689 of 2020
                             With
        R/CRIMINAL REVISION APPLICATION NO. 690 of 2020
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                    PARMAR BAKIBEN W/O SHANABHAI
                                Versus
                         STATE OF GUJARAT
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Appearance:
KAASH K THAKKAR(7332) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE S.H.VORA
                    Date : 07/01/2021

                            ORAL ORDER

1. By way of present Revision Applications preferred under the provision of section 397 of Code of Criminal Procedure, the applicants - original complainant challenges the order dated 06.07.2020 passed in Criminal Appeal No.27 of 2019 passed by learned Sessions Judge, Halol and restore the judgment of Criminal Case No.2138 of 2015 dated 19.09.2019 and order dated 06.07.2020 passed in Criminal Appeal No.26 of 2019 passed by learned Sessions Judge, Halol and restore the judgment of Criminal Case No.2139 of 2015 dated 19.09.2019, whereby, the private respondent was convicted for the offence punishable under section 138 of the Negotiable Instrument Act (for short "the N.I.Act").

2. Brief facts leading to the present Revision Applications can be stated thus :-

2.1. The applicants are doing agricultural activity and both

R/CR.RA/689/2020 ORDER

the applicants were farming land and as per family arrangement, they were doing agriculture activity on the said land. According to the applicants, respondent no.2 herein was in the business of buying and selling the land and wanted to buy applicants' land and made offer of Rs.21 lakhs to the present applicants. According to the applicants, respondent no.2 prepared all the documents and paid money in installment, but for final installment, respondent no.2 gave two cheques worth Rs.3 lakhs each in the name of the applicants. According to the applicants, both the cheques were issued by respondent no.2 on the date of sale deed which was registered on 01.06.2015. After receipt of cheques, sale deed was registered and executed before the Sub Registrar. Upon presentation of cheques, same were returned by the bank with remarks 'insufficient funds' and therefore, the applicants issued notice to respondent no.2 on 17.07.2015 and as respondent no.2 failed to honour the demand notice, criminal cases came to be filed before the competent Court under section 138 of the Act.

3. The learned Trial Court convicted respondent no.2 and sentenced for one and half year simple imprisonment with fine of Rs.4,50,000/- and ordered respondent no.2 to undergo six months more imprisonment, in case of default to pay fine. But, the learned Appeal Court reversed the judgment and order of learned Trial Court and therefore, present revisions.

4. Learned advocate Mr. Kaash Thakkar appearing for the applicants - original complainant took the Court through findings and observations recorded by the Courts below and would submit that price of land was Rs.21 lakhs, but as one of

R/CR.RA/689/2020 ORDER

the original complainant was illiterate, she did know what amount was written in the sale deed. According to the applicants, sale consideration mentioned in the sale deed was Rs.1,80,000/- and it was paid, but as the applicant lady was illiterate, she was not aware about the amount mentioned in the sale deed, but in fact the land was agreed to be purchased by respondent no.2 at Rs.21 lakhs and for final installment, respondent no.2 issued cheque of Rs.3 lakhs to each applicant, but same were dishonored.

5. Sale deed was produced by respondent no.2 at Exh.51 and Exh.49 before the learned Trial Court. It is a matter of fact that sale consideration was mentioned at Rs.1,80,000/- in both the sale deeds. The sale deed is never challenged by the applicants either before the Civil Court or Criminal Court, more particularly on the ground of insufficient consideration being shown in the sale deed.

6. Having heard submissions made at bar, it is quite clear and admitted position that the applicants received sale consideration as mentioned in the sale deed in full. It was specific case of respondent no.2 that cheques were not issued for any legally enforceable debt. In that circumstances, the applicants - original complainant are required to establish that cheques were issued towards remaining payment of sale consideration. The learned Appeal Court in para 12 and 13 has specifically found and observed that sale deed was silent as to issuance of any cheques on the date of execution of sale deed and /or any payment remaining on the date of execution and registration of sale deed in favour of respondent no.2. So in Court's considered opinion, the applicants - original

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complainants were required to establish that cheques obtained by them were towards legally enforceable debt and in absence of any debt, the cheques obtained or in possession of original complainant would not lead the Court to believe that there is any debt outstanding against respondent no.2.

7. In order to attract penal provision for bouncing of cheques contained in Chapter XVII of the Act, it is essential that dishonour of cheques should have been issued in discharge, wholly or in part of any debt or liability of the drawer to the payee. Strict liability under section 138 of the Act can be enforced only when cheques is issued in discharge of any legally enforceable debt or any other liability. There is no legal obligation on the part of the private respondent to effect clearance of cheques, if it is not issued towards legally enforceable debt or any other liability. Section 139 of the Act merely raises presumption in favour of holder of cheque that same has been issued for discharge of any debt or liability. Existence of legally recoverable debt is not a matter of presumption under section 139 of the Act. In other words, debt or liability which existed on the date on which cheque was issued is debt or liability referred to in section 138 of the Act. The expression 'debt or liability' appearing in section 138 of the Act shall mean legally enforceable debt or any other liability. In the case on hand, there was no debt or any liability on the part of the private respondent to be discharged as same has been proved by private respondent by submitting sale deed at Exh.49 and Exh.51 before the learned Trial Court, inter-alia, showing that there is no liability on the part of the private respondent to discharge at the time of execution of sale deed, since full consideration was paid to respective

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applicants herein. Thus, learned Appellate Court rightly found that private respondent discharged burden to prove that cheque in question was not issued for legally enforceable debt or any other liability, in light of sale deed executed and registered by the applicants themselves before the office of Sub Registrar.

8. In view of above facts and circumstances, the Court do not find any substance in the present Revision Applications as there is no illegality or impropriety committed by the learned Appellate Court in reversing the judgment of conviction under section 138 of N.I.Act. The Revision Applications, are therefore, rejected at admission stage.

(S.H.VORA, J) SATISH