Gujarat High Court
Hitesh Mahendrabhai Patel Thro Poa ... vs State Of Gujarat on 13 December, 2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1180 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HITESH MAHENDRABHAI PATEL THRO POA MAHENDRABHAI KANTILAL
PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR ZUBIN F BHARDA(159) for the Appellant(s) No. 1
MR HARDIK A DAVE(3764) for the Opponent(s)/Respondent(s) No. 2
MS DIVYANGNA JHALA APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 13/12/2023
ORAL JUDGMENT
1. This matter was considered and disposed of finally at the
admission stage.
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2. This appeal is filed challenging the judgment and order
passed in Criminal Case No.54778 of 2016 by the learned Special
Judge, Special Negotiable Instruments Act Court, Surat dated
8.4.2023 whereby respondent-accused was acquitted from the
offence punishable under Section 138 of the Negotiable
Instruments Act.
3. It is the case of the complainant that complainant, who is
Power of Attorney holder, is having the knowledge with regard to
the disputed transaction of the private complaint which is filed
before the Competent Court being Criminal Case No.54778 of
2016. It is alleged in the complaint that complainant and accused
were belonging to the same village and are the distant relatives.
As the respondent-accused was in need of the money, in the
year March, 2015, demand was raised with the complainant to
lend the money. Complainant had given two cheques bearing
Cheque No.058258 and 058259 dated 10th March, 2015 of Rs.10
lacs each of Associate Co.Op. Bank Ltd, Ring Road Branch, Surat.
The assurance was given by the respondent-accused that the
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amount would be repaid within a period of 1 year. On completion
of 1 year, money was demanded back where the accused had
conveyed that he is in financial difficulty but within a 2 to 3
months, the amount would be repaid. Ultimately, cheque dated
14.6.2016 bearing Cheque No.434251 and 434252 of Rs.10 lacs
each was drawn in the name of the complainant of Surat
Mercantile Co.Op. Bank Ltd., Surat where respondent-accused
has signed as authorized signatory of Shiv Enterprises. At that
point of time assurance was given that on depositing with the
Bank, the same would be honored and the amount would be
credited in his account. The cheque was deposited and was
returned on 15.6.2016 with an endorsement that "fund
insufficient" for which the 'Notice' was issued on 11.07.2016
which returned with an endorsement that "not known".
Thereafter, aforesaid private complaint came to be filed. On
being recorded the verification by the learned Court, the
summons came to be issued under Section 204 of the Code of
Criminal Procedure and on appearance of the accused, plea was
recorded below Exh.7 wherein respondent-accused had denied
the allegation and claimed to be tried. To prove the case, the
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complainant had examined himself below Exh.4 and witness,
Gaurav Maheshbhai Patel, below Exh.30. Documentary evidence
in the nature of Power of Attorney was produced below Exh.8.
Registration of the firm below Exh.9. Xerox copies of the cheque
by which the amount was lent below Exh.10 and 11. Copy of
passbook Exh.12. Disputed cheques Exh.13 and Exh.15. Return
Memo Exh.14 and 16. Demand Notice Exh.17. Registered AD
Receipt Exh.18. Return cover Exh.19. Income-tax return of the
year 2014-15 and 2015-16 below Exh.20 and 21. On filing closing
pursis, further statement under Section 313 of the Code of
Criminal Procedure was recorded wherein the accused had
pleaded that there was a partnership firm where her husband
and uncle in-law were partner, thereafter, dispute occurred
between the partners, the cheques which were lying in the office
were misused by the uncle in-law by forging the signature and
given to the complainant. In fact, accused never met to the
complainant nor made any transaction and pleaded to be
innocent. However, cheques in the name of Shiv Enterprises
where she is Proprietor were misused and she further in order to
prove her defence, in addition to cross examination, she
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examined the witness, namely, Dharmesh Ramchandra Mohite,
below Exh.39, Bank Officer of Associate Co. Op. Bank Ltd and she
herself was examined below Exh.73. She also produced the
document like authority letter for the bank witness at Exh.40,
certificate under Section 65B of the Evidence Act at Exh.41. Joint
account opening form of the accused and her husband at Exh.42,
Account statement for the period of 25.3.2015 to 15.6.2016 at
Exh.43, Pay slip showing amount deposited in the accounts of
the complainant vide Exh.44 to Exh.55 for the period of
30.4.2015 to 1.1.2016 and Hand Writing Expert Opinion below
Exh.70. Learned trial Court after considering the evidence led
and the submissions advanced by the respective parties,
acquitted the respondent-accused from the charges, which is
impugned before this Court.
4. Heard Mr.Zubin F. Bharda, learned advocate for the
appellant.
5. Learned advocate, Mr.Bharda, for the appellant submits
that though the presumption, which is in favour of the
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complainant, was not rebutted by the respondent-accused by
leading the probable defence, learned trial Court had acquitted
the respondent- accused only on relying the report of Hand
Writing Expert, which was produced below Exh.70. Learned
advocate, Mr.Bharda, further submits that in the cases like
present one, there was no any need to have the opinion of Hand
Writing Expert, in - fact, it is the duty of the respondent-accused
to lead the evidence, which may be in the nature of
preponderance of the probability but that may be either through
the circumstances or through the witnesses, which is required to
be proved. However, learned trial Court committed grave error in
not considering the same. Learned advocate, Mr.Bharda,
vehemently submits that report of the Hand Writing Expert was
accepted without having examined the officer and relies on the
evidence of the respondent-accused. The Report was blindly
accepted and believed by the learned Court. Learned advocate
further submits that, in - fact, the Bank officer had not returned
the cheque on the ground of signature differ but cheque was
returned with the endorsement of the insufficient fund. If the
defence which was tried to be projected by the learned advocate
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for the respondent is accepted then Bank officer could have
returned the cheque on the ground of signature differ. However,
bank officer is not in dipsute with regard to the signature but as
respondent-accused was not having sufficient balance in her
account, therefore, the cheque was returned with said
endorsement. Learned advocate further submits that if bank
officer is not in dispute with regard to the signature differ, the
subsequent defence cannot be raised by the respondent-accused
that she did not sign on the cheuqe as the said signature was not
mismatched when it was sent for the encashment. Learned
advocate further submits that the amount was lent by
complainant to the accused through the Bank, therefore, denial
on the part of the respondent-accused that she is not knowing
about the transaction is absolutely baseless and improbable as
there is entry in the passbook, which is showing that amount is
credited in the account of M/s. Shiv Enterprises where the
respondent-accused is the authorized signatory, therefore, it can
be averred that subsequently false defence created by the
respondent-accused.
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5.1 Learned advocate further submits that there was no any
complaint before the police officer or any application given to the
bank officer with regard to misappropriating the cheque books
by the uncle in-law. However, only to get away from the liability,
this improbable defence was created by the respondent-accused
which may not be accepted by any prudent man. Learned
advocate further submits that though complainant had proved
the case and accused fails to rebut the presumption, learned trial
Court had acquitted the respondent-accused and therefore, it is
prayed to admit the appeal and convict the respondent-accused
for the alleged offences.
6. Considering the aforesaid submissions made by learned
advocate for the appellant, before entering into the merits of the
case, this Court deems it fit to re-look the relevant provisions of
law, which are reproduced herein below:
Section 118 - Presumptions as to negotiable instruments
Until the contrary is proved, the following presumptions shall be
made:
1. of consideration; that every negotiable instrument was
made or drawn for consideration, and that every such
instrument, when it has been accepted, indorsed,
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negotiated or transferred, was accepted, indorsed,
negotiated or transferred for consideration;
2. as to date; that every negotiable instrument bearing a
date was made or drawn on such date;
3. as to time of acceptance; that every accepted bill of
exchange was accepted within a reasonable time after its
date and before its maturity;
4. as to time of transfer; that every transfer of a negotiable
instrument was made before its maturity;
5. as to order of indorsements; that the indorsements
appearing upon a negotiable instrument were made in the
order in which they appear thereon;
6. as to stamp; that a lost promissory note, bill of exchange
or cheque was duly stamped;
7. that holder is a holder in due course; that the holder of
a negotiable instrument is a holder in due course: Provided
that, where the instrument has been obtained from its
lawful owner, or from any person in lawful custody thereof,
by means of an SP offence or fraud, or has been obtained
from the maker or acceptor thereof by means of an offence
or fraud, or for unlawful consideration, the burthen of
proving that the holder is a holder in due course lies upon
him.
138 Dishonour of cheque for insufficiency, etc., of funds
in the account. --Where any cheque drawn by a person on an
account maintained by him with a banker for payment of any
amount of money to another person from out of that account for
the discharge, in whole or in part, of any debt or other liability, is
returned by the bank unpaid, either because of the amount of
money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount arranged to be
paid from that account by an agreement made with that bank,
such person shall be deemed to have committed an offence and
shall, without prejudice to any other provisions of this Act, be
punished with imprisonment for [a term which may be
extended to two years], or with fine which may extend to twice
the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
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--
(a) the cheque has been presented to the bank within a period
of six months from the date on which it is drawn or within the
period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the
case may be, makes a demand for the payment of the said
amount of money by giving a notice in writing, to the drawer of
the cheque, [within thirty days] of the receipt of information
by him from the bank regarding the return of the cheque as
unpaid; and
(c) the drawer of such cheque fails to make the payment of the
said amount of money to the payee or, as the case may be, to
the holder in due course of the cheque, within fifteen days of
the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other
liability" means a legally enforceable debt or other liability.]
Section 139 in The Negotiable Instruments Act, 1881
139. Presumption in favour of holder.--It shall be presumed,
unless the contrary is proved, 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.
7. Considering the aforesaid provisions first of all what is a
presumption that is to be taken into consideration by this Court,
as per the judgment rendered by the Hon'ble Apex Court in the
case of M.S.Narayana Menon vs . State Of Kerala reported
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in (2006) 6 SCC 39, a discussion with regard to the
presumption is provided in para-40, which is reproduced herein
below.
40. "In P. Ramanatha Aiyar's Advanced Law
Lexicon, 3rd edition, at page 3697, the term
'presumption' has been defined as under:
"A presumption is an inference as to the existence of
a fact not actually known arising from its connection
with another which is known.
A presumption is a conclusion drawn from the proof of
facts or circumstances and stands as establishing
facts until overcome by contrary proof.
A presumption is a probable consequence drawn from
facts (either certain, or proved by direct testimony) as
to the truth of a fact alleged but of which there is no
direct proof. It follows, therefore that a presumption
of any fact is an inference of that fact from others
that are known". (per ABBOTT, C.J., R. v. Burdett, 4 B.
& Ald,
161) The word 'Presumption' inherently imports an
act of reasoning a conclusion of the judgment; and it
is applied to denote such facts or moral phenomena,
as from experience we known to be invariably, or
commonly, connected with some other related facts.
(Wills on Circumstantial Evidence) A presumption is a
probable inference which common sense draws from
circumstances usually occurring in such cases. The
slightest presumption is of the nature of probability,
and there are almost infinite shades from slight
probability to the highest moral certainty. A
presumption, strictly speaking, results from a
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previously known and ascertained connection
between the presumed fact and the fact from which
the inference is made."
Having noticed the effect of presumption which was
required to be raised in terms of Section 118(a) of the
Act, we may also notice a decision of this Court in
regard to 'presumption' under Section 139 thereof".
8. Keeping in mind the above provision and submissions
made by learned advocate for the appellant as well as
considering the record and proceedings of the trial Court, it is not
in dispute that at the first opportunity i.e. the stage of the
statement under Section 313 of the Code of Criminal Procedure,
defence was put by the respondent-accused with regard to the
misusing the cheque by the uncle in-law. She from the beginning
submitting that signature on the cheque is not of her. To rebut
the presumption which is in favour of the complainant under
Section 118 and 139 of the Negotiable Instruments Act, she
examined Bank Officer of Associate Co.Op. Bank Ltd. below
Exh.37 and produced the KYC which was given to opening the
bank account and also produced the account opening form and
produced the pay-slip, which shows that on different dates, cash
amount was deposited in the account of the complainant. The
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complainant herself was examined below Exh.73 and submitted
that there was a partnership firm in the name of Anmol Marble
where the husband and the uncle in-law, namely, Kanaiyalal is
the partner. Complainant had lent the money to the uncle in-law
and one of the partner is of her husband, therefore, amount was
lent in the name of the husband. Dispute was arisen between the
husband and uncle in-law, therefore, the cheques which are lying
with the uncle in -law were misused and given to the
complainant. It is further contended that to repay the amount in
the account of the complainant, every month, the amount was
deposited in cash and for that receipts were produced. She said
that the signature on the cheque is not belonging to the
respondent- accused and therefore, she is not liable for making
the payment of the cheuqe amount. On persual of the record, it
further comes on record that applicant has preferred the
application immediately on appearance below Exh.56 to send the
cheques for the Hand Writing Expert Opinion. The order was
passed by the learned Court below Exh.56 allowing the said
application and on condition to pay the cost of Rs.10,000/- to the
expert. Thereafter, the Hand Writing Expert had called the
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specimen signature as well as specimen signature card from with
the Surat Mercantile Co. Op. Bank Ltd. and the old cheques and
the applications filed before the learned Court, were also called
for, for making comparison with the disputed cheques . At the
end, Hand Writing Expert had opined as under:
Opinion
"The person who wrote the encircled standard
signatures marked S1 to S36 (The blue encircled
specimen signatures on loose sheets stated to be of
Pinaben K. Patel), N1 (The blue encircled Natural
signature on Jubani dated 17.7.2017 stated to be of
Pinaben K. Patel) and N2 (The blue encircled Natural
signature on specimen card of the Surat Mercantile Co.
Op. Bank Ltd. dated 4.10.2011 stated to be of Pinaben
K. Patel) did not write the encircled disputed signatures
marked D1 (Red encircled disputed signature on cheque
No. 434251 of the Surat Mercantile Co. Op. Bank Ltd.
dated 14.6.2016 for Rs.10,00,000/- and D2 (Red
encircled disputed signature on cheque No.434252 of
Surat Mercantile Co.Op. Bank Ltd. dated 14.6.2016 for
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Rs.10,00,000/-).
and relying on the said opinion, the learned trial Court rightly
acquitted the respondent-accused from the charges.
9. This Court is also considered the decision rendered by the
Hon'ble Apex Court in the case of Basalingappa V/s.
Mudibasappa reported in (2019) 5 SCC 418 where summarize
the principle enumerated in paragraph No.25, which reads as
under:
25. We having noticed the ratio laid down by
this Court in the above cases on Section
118(a) and 139, we now summarise the
principles enumerated by this Court in the
following manner:
25.1. Once the execution of cheque is
admitted Section 139 of theAct mandates a
presumption that the cheque was for the
discharge of any debt or other liability.
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25.2. The presumption under Section 139 is a
rebuttable presumption and the onus is on the
accused to raise probable defence. The
standard of proof for rebutting the
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
the 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
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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."
10. Considering the said judgment, this Court is of the view
that report of the Hand Writing Expert which is placed on record
to show that cheque in question has not been signed by the
respondent-accused and by producing the report, the accused
had successfully rebutted the presumption which is in favour of
the complainant. The complainant in turn was not in a position
rebutted report neither had tried to examine the witnesses to
prove his case. It is settled law that if any altercation is found in
the cheque, no relief can be given and cheque itself becomes
void instrument even if liability exists towards the accused.
11. This being an acquittal appeal, as per the judgment
rendered by the Hon'ble High Court of Gujarat Court in the case
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of State of Gujarat V/s. Jitendra C. Thakkar reported in 2017
(4) GLR 3200 wherein it is held that when two views are
possible, the view which is in favour of the accused is to be
considered.
6.10 That in an appeal against acquittal filed under
Section 378 of the Code, 1973, as such there is no
limitation on the Appellate Court to review the
evidence. But at the same time, if on fact as well as on
law, conclusion drawn by the trial Court based on
appreciation of evidence unless compelling, cogent and
substantial reasons appear for interference and when
findings of the trial Court are palpably wrong,
manifestly erroneous or demonstrably unsustainable,
acquittal is not to be reversed or disturbed. When
acquittal is based on the surmises and conjectures and
not substantiated by law and evidence on record, an
Appellate Court may re-appreciate and review the
entire evidence to see that undue benefit is not given
to the accused. Now, it is well settled that even if two
views are possible, the Appellate Court shall not
ordinarily interfere with the judgment of acquittal in a
routine manner unless the judgment of the trial Court
is per se wrong on facts and on law or perverse,
substituting its own views by the High Court is not
permissible. That in case of acquittal, it is to be borne
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into mind by the Appellate Court that there is double
presumption in favour of the accused that firstly,
presumption of innocence in favour of a guilty on the
premise that every person should be presumed to be
innocent unless he is proved to be guilty by the Court
of Law, and secondly, when accused secures an
acquittal, such presumption of innocence is reinforced
and reaffirmed by the trial Court.
12. In view of above discussion, I find that the judgment and
order passed in Criminal Case No.54778 of 2016 by the learned
Special Judge, Special Negotiable Instruments Act Court, Surat
dated 8.4.2023 is correct and as per law and evidence and it is
not required to be interfered from this Court. Hence, this appeal
is rejected.
(M. K. THAKKER,J)
ASHISH M. GADHIYA
