Gujarat High Court
Patel Rupal Shambhubhai vs State Of Gujarat on 1 November, 2023
Bench: Nisha M. Thakore
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R/CR.MA/259/2023 JUDGMENT DATED: 01/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 259 of
2023
In R/CRIMINAL APPEAL NO. 34 of 2023
With
R/CRIMINAL APPEAL NO. 34 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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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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PATEL RUPAL SHAMBHUBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR. JAY M THAKKAR(6677) for the Applicant(s) No. 1
MS MONALI BHATT ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 01/11/2023
ORAL JUDGMENT
1. This application seeking special leave to appeal has been filed
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under Section 378(4) of the Code of Criminal Procedure at the
instance of the original complainant seeking challenge of judgment
and order dated 25.11.2022 passed by the learned Special Judge,
N.I. Court, Vadodara, in Criminal Case No.1045 of 2017. By the
said judgment and order, the learned Special Judge has
proceeded to dismiss the complaint by holding that the
complainant has failed to prove his case.
2. The transaction in question as narrated by the original
complainant is that:
2.1 The respondent - accused had borrowed the amount of
Rs.4,50,000/- from the complainant on 10.06.2014. The part
payment of an amount of Rs. 1,50,00 was made by the
respondents in different installments. Due to a financial crunch, the
accused had once again urged the complainant for further financial
help, pending an earlier outstanding amount. On 28.11.2014, the
complainant had lent an amount of Rs. 2,50,000/- to the accused.
At that stage, the accused had assured the complainant to make
repayment of the total amount of Rs.5,50,000/-. The transaction
between the parties had continued whereby the accused in
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different installments had made payment of Rs.1 Lakh. It is the
case of the complainant that once again, the accused had
borrowed the amount of Rs.2 Lakhs on 01.10.2015 and thereafter,
an amount of Rs.1,49,000/- on 13.10.2015. Thus, the total
outstanding amount to be realized from the accused was
Rs.8,89,000/-. It is further contended that lastly the accused had
approached the complainant on 04.04.2016 for financial
assistance for an amount of Rs.1,50,000/-. Against which the
complainant claims to have paid an amount of Rs.1 Lakh. Thus, it
is the case of the complainant that the total amount to be
recovered was Rs.9,99,000/-, which was otherwise assured by the
respondent accused to be repaid.
2.2 It is further contended in the complaint that against the
aforesaid outstanding amount of Rs.9,99,000/-, the respondent
accused had issued a cheque dated 05.11.2016. It was mutually
agreed that if the amount is realized prior to the maturity period,
such cheque shall be returned back to the accused. Since the
accused had failed to make repayment before the maturity date,
the complainant had approached the accused, who had instructed
him to present a cheque for realization of the outstanding amount.
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Accordingly, the complainant had presented the said cheque on
05.11.2016, which got dishonoured on 07.11.2016 as informed by
the bank on the ground of "insufficient funds".
2.3 The complainant was constrained to initiate proceedings under
Section 138 of the Negotiable Instruments Act by raising legal
notice on 05.12.2016, which was served on the known address of
the respondent - accused by RPAD. It is submitted by the
complainant that though the notice was sent, the respondent -
accused had refused to accept such notice and the same was
returned back on 09.12.2016 with an endorsement of "refusal". In
absence of any repayment of the amount or any reply given to the
legal notice, the complainant was constrained to approach the
Court of learned Special Judge, N.I. Act, by lodging complaint
under Section 138 of the Negotiable Instruments Act on
03.01.2017. The said complaint was registered as Criminal Case
No.1045 of 2017 before the Court of learned Special Judge, N.I.
Act, Vadodara.
2.4 The verification of the complainant was recorded by the
learned Magistrate and the summons came to be issued noticing
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prima facie case upon the respondent - accused. Such summons
were duly served upon the respondent - accused, who appeared
before the learned Magistrate and the plea came to be recorded
vide Exhibit 11 on 17.09.2019. Noticing the denial of the
commission of the offence by the accused, the learned Special
Judge proceeded with the trial.
2.5 The complainant had offered himself in the witness box and his
evidence has come on record vide Exhibit 5. Apart from the
aforesaid evidence, the complainant has also led documentary
evidences, which includes the disputed cheque dated 05.11.2016
(Exhibit 13), cheque return memo dated 07.12.2016 (Exhibit 14),
legal notice issued upon the respondent - accused (Exhibit 15),
postal slip with aforesaid notice (Exhibit 16), cover carrying legal
notice with endorsement of refusal (Exhibit 17), income tax returns
filed by the complainant for F.Y. 2013-14 (Exhibit 29), for F.Y.
2014-15 (Exhibit 30), for F.Y. 2015-16 (Exhibit 31), for F.Y. 2016-
17 (Exhibit 32), for F.Y. 2017-18 (Exhibit 33), for F.Y. 2018-19
(Exhibit 34) and for F.Y. 2019-20 (Exhibit 35). On the other hand,
the original accused had failed to lead any evidence, however, the
statement of the accused, recorded under Section 313 of the Code
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of Criminal Procedure, has come on record. In the special defence
raised by the accused, it is contended that the complainant is
engaged in the business of lending hand loan by charging interest
and having borrowed from the complainant, the blank cheque was
handed over to the complainant. Though the amount has been
realized, the complainant, by incorporating the false details of the
amount in the disputed cheque, has raised false claims against the
accused. It was therefore urged by the accused not to entertain the
complaint.
2.6 The learned Magistrate upon appreciation of the evidence
being brought on record by the original complainant, after taking
into consideration the relevant statutory provisions of the Act, has
prima facie noted that the mandatory provisions of Section 138(a),
138(b), 138(c) and 140(b) of the Negotiable Instruments Act have
been satisfied. Upon appreciation of the relevant documents, the
learned Special Judge has found that the complaint is
maintainable as filed within the prescribed period of limitation.
2.7 Learned Special Judge has thereafter proceeded to examine
the merits of the case. During the course of evaluation of the
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evidence of the complainant, the learned Magistrate has noticed
the discrepancies in the figure of the outstanding amount. Upon
comparison of the contents of the legal notice Exhibit 15, the
original complaint at Exhibit 1 and the affidavit in the form of
examination-in-chief Exhibit 5 as well as cross-examination of the
complainant, the learned Special Judge has noticed that the figure
projected by the complainant was for an amount of Rs.8,99,000/-
however if the contents are to be believed then the actual figure
appears to be less. The learned Special Judge has manually
compared the relevant dates and the amount borrowed and repaid
by the respondent accused and has arrived at categorical finding
that as per the case of the complainant himself, the amount
outstanding comes to Rs.8,99,000/-. The aforesaid fact has been
put to the notice of the original complainant in his cross-
examination, wherein he has admitted the aforesaid fact that the
outstanding amount is Rs.8,99,000/- whereas the disputed cheque
carries the amount of Rs.9,99,000/-. At the same time, the
complainant has failed to tender any explanation for an additional
amount of Rs.1 Lakh. Noticing the aforesaid glaring discrepancy,
the learned Magistrate has arrived at conclusion that the aforesaid
consideration has dislodged the presumption drawn in favour of
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the complainant in terms of Sections 138 and 139 of the
Negotiable Instruments Act. In other words, the respondent -
accused has been successful in rebutting the presumption and has
thus, shifted the burden upon the complainant to prove his case
beyond reasonable doubt. However, in absence of any explanation
offered by the complainant with regard to the additional amount
worth Rs.1 Lakh, the learned Magistrate has proceeded to pass
the order of acquittal of the respondent - accused.
3. Mr. Jay Thakkar, learned advocate on record for the applicant -
original complainant while drawing attention of this Court to the
aforesaid findings and reasons recorded by the learned
Magistrate, has placed reliance on the admission of the accused
as reflected in statement recorded under Section 313 of the Code
of Criminal Procedure with regard to signing of the cheque as well
as issuance of the said cheque in the name of the complainant.
The learned advocate has emphasized on the fact that though the
question was put to the complainant with regard to incorporation of
details of the figure in the cheque, the same has been categorically
denied by the complainant. In such circumstances, the burden had
continued upon the respondent - accused to establish his defence
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of misuse of blank security cheque. He further emphasized on the
fact that in absence of any evidence being led by the respondent -
accused, there was no rebuttal of presumption in the eyes of law
and thus, the learned Magistrate having satisfied with the
compliance of the basic ingredients of Section 138 of the
Negotiable Instruments Act, the accused ought to have been
convicted for the said offence. He, therefore, urged this Court that
an arguable case lies to grant special leave to appeal and let the
evidence be closely re-appreciated by this Court after admission of
the appeal.
4. In support of his submissions, the learned advocate has placed
reliance upon the judgment of the Hon'ble Supreme Court in the
case of Uttam Ram Vs. Devinder Singh Hudan and Anr.
reported in (2019) 10 Supreme Court Cases 287. He further
submitted a similar set of facts, even where inconsistency in the
amount was noticed and the defence was raised that the cheque
was stolen and misused, the Hon'ble Supreme Court had
disapproved the approach of the Court below as the complainant
was expected to prove his debt in light of statutory presumption
available in terms of Section 118 and Section 139 of the
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Negotiable Instruments Act. It was further held that in absence of
any other evidence, the Court below could not dismiss the
complaint only on account of discrepancy of the amount due for
which the cheque was issued. Learned advocate has further
placed reliance upon the judgment of the Hon'ble Supreme Court
in the case of C.C. Alavi Haji Vs. Palapetty Muhammed and
Anr. reported in (2007) 6 Supreme Curt Cases 555 to meet with
the aspect of sufficient compliance of Section 138 proviso (b) and
(c) of the Act, whereby the Hon'ble Supreme Court has held that
treated service of legal notice, in case of evader of notice with
endorsement unserved, as sufficient compliance of the mandatory
requirement of Section 138.
5. Aforesaid submissions of the learned advocate for the original
complainant has been vehemently objected by the learned
advocate Mr. Vasimraja Kureshi appearing for the respondent -
original accused. He has strongly placed reliance upon the
admission of the original complainant in his cross-examination. He
submitted that the learned Magistrate has rightly noticed the
discrepancy in the amount due of Rs.1 Lakh which straightway
contradicts the existence of actual consideration debt as
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contended by the original complainant. According to him, the
learned Magistrate has rightly shifted the burden upon the
complainant to prove his case beyond reasonable doubt. Having
failed to offer any explanation with regard to the additional amount
of Rs.1 Lakh, the case of the complainant and the cheque being
issued towards discharge of legally recoverable debt itself had
come under clouds. In such circumstances noticing the
discrepancies emerged on record, the learned Magistrate has
rightly acquitted the present respondent - original accused.
6. In support of his submissions, the learned advocate has placed
reliance on the judgment of the learned Single Judge of Karnataka
High Court in the case of Herman Castelino Vs. Dr. Suresh
Kudva reported in 2022(3) AIR Kar R 314. By referring to the
aforesaid judgment, learned advocate submitted that the incorrect
additional amount of Rs. 1 Lakh towards dues amounts to material
alteration which renders negotiable instrument void in absence of
any common intention of the respective parties. In such
circumstances, the accused cannot be held guilty of the alleged
offence. Learned advocate has further relied upon judgment of the
Bombay High Court in the case of M/s. Pinak Bharat and
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Company Vs. Shri Anil Ramrao Naik and Ors. reported in
2023(2) Mh. LJ (Cri.) 183 for the proposition of law that
incorporation of date on cheque without authority of the accused
amounts to material alterations in the cheque, which could not
attract the offence punishable under Section 138 of the Act. By
making aforesaid submissions, learned advocate submitted that no
arguable case is made to consider the appeal for admission and
has urged this Court to dismiss the leave against the order
impugned.
7. Having heard learned advocates appearing for the respective
parties and having perused the order impugned as well as
authorities relied upon, this Court is called upon at this in present
application as well as in appeal as to whether the judgment under
challenge is perverse, illegal, erroneous, warranting any
interference at the hands of this Court.
8. It is not in dispute that various transactions had taken place
between the parties to the proceedings. The issuance of cheque
and the signature on the cheques has not been disputed by the
respondent - Accused.The learned Magistrate upon close scrutiny
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of the contents of the demand raised in the legal notice, the
averments made in the complaint at Exhibit 1, affidavit of
examination in chief (Exhibit 5) as well as cross-examination of the
complainant has compared various transactions which have taken
place between the parties. In the process of comparison of the
aforesaid transactions, the Court has noticed that the outstanding
amount due from the respondent -accused comes to around
Rs.8,99,000/-. The aforesaid fact was categorically raised by the
respondent during cross-examination of the complainant. While
responding to such defence, the complainant has fairly accepted
the fact about the actual outstanding amount dues from the
complainant to be Rs.8,99,000/-, whereas the cheque in dispute
appears to be figures of Rs.9,99,000/-. In the opinion of this Court,
the aforesaid contradiction goes to the root of the matter. It
straightway hit the presumption drawn in favour of the complainant
under Section 118(a) of the Negotiable Instruments Act, which
permits the Court to raise presumption with regard to existence of
consideration amount. Section 139 of the Negotiable Instruments
Act further permits the Court to raise presumption with regard to
the cheque being issued towards discharge of legally recoverable
debt as on the date of the presentation of the cheque. It is a settled
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legal position that in absence of any challenge to the signature on
the disputed cheque, the statutory presumption available under
Section 118 and Section 139 of the Act comes into play. The
aforesaid statutory provision permits the Court to raise
presumption against the respondent accused. The onus is upon
the accused on the issuance of cheque to rebut the presumption
that the cheque was not issued for discharge of any debt or liability
under Section 138 of the Act. However, such presumption is
subject to probable defence to be raised by the accused to create
doubt with regard to existence of any debt or liability. In case of
Rangappa Vs. Sri Mohan reported in 2010(11) SCC 441, the
Hon'ble Supreme Court held that the standard of proof to
discharge of such presumption can be in the form of probable
defence which is weighed on the scale of preponderance of
probabilities. As noticed hereinabove, in the present matter, the
learned Court below has consciously and carefully taken into
consideration this aspect, which has emerged on record to arrive
at finding with regard to the discrepancy in the amount dues to be
realized from the respondent accused, coupled with the fact that
the original complainant has failed to offer any explanation with
regard to the additional amount of Rs.1 Lakh. In my opinion, no
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fault can be found in the approach of the learned Magistrate in
shifting the burden upon the original accused to prove his case
beyond reasonable doubt. The discrepancy noted in the amount
due against the respondent - accused against which the cheque is
alleged to have been issued goes to the root of the matter, which
can be treated as material contradiction.
9. So far as judgment relied upon by the learned advocate for the
applicant in the case of Uttam Ram (Supra) is concerned, the
Court notices that though the Hon'ble Supreme Court at one stage
disapproved the approach of the Court below taking into
consideration the discrepancy in determining the amount dues as
against the cheque issued, it has clearly transpired that the Court
was guided by the fact that there exists written document which
crystallizes the amount due, for which the cheque was issued.
Having noticed the aforesaid document, the Hon'ble Supreme
Court has held that the conclusion drawn by the Court below to
acquit the respondent - accused on the basis of discrepancy in the
statement to be perverse and held unsustainable in law. Whereas
in the present case, indisputably no explanation has come forward
from the applicant before trial Court as well as before this Court
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with regard to additional amount of Rs.1 Lakh. In such
circumstances, in absence of cogent material being brought on
record, the complainant has failed to prove his case beyond
reasonable doubt.
10. In the opinion of this Court, no arguable case is made out to
entertain a present application seeking leave to appeal. Hence,
present application is hereby rejected. Rule is discharged.
In view of dismissal of the application seeking leave to
appeal, Criminal Appeal No.34 of 2023 stands disposed of.
(NISHA M. THAKORE,J)
Y.N. VYAS
