Gujarat High Court

Nareshkumar Ladhaji Jat vs State Of Gujarat on 9 November, 2023

Bench: M. K. Thakker

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     R/CR.A/905/2023                            JUDGMENT DATED: 09/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 905 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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                       NARESHKUMAR LADHAJI JAT
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR K B VIRVADIYA(11272) for the Appellant(s) No. 1
MR N S PARMAR(6785) for the Appellant(s) No. 1
MR PRAVIN GONDALIYA(1974) 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 : 09/11/2023

                           ORAL JUDGMENT

1. This appeal is filed under Section 378 of the Code of

Criminal Procedure, challenging the judgment and order of

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acquittal dated 13.01.2023 passed by the learned 3 rd Addl.

Judicial Magistrate First Class, DeesaCriminal Case No.806 of

2018.

2. The case of the complainant is that complainant wants to

purchase the land of the Respondent No.2, original accused.

However, there was a restrictions under the Section 73AA of the

Bombay Land Revenue Code,1879, therefore, it was conveyed by

the accused that without sanction of the Competent Authority,

restricted land cannot be transferred. However, assurance was

given that he would seek the permission and necessary

procedure would be followed and thereafter, the land would be

transferred that towards the sale consideration of the land, Rs. 7

Lacs was given in the presence of the witnesses to the

Respondent No.2, original accused. By lapse of time, procedure

for seeking the permission was not initiated, therefore, the

complainant demanded the money of the sale consideration back

and for that, Respondent No.2- accused had issued the cheque of

Dena Gramin Bank, Aakhol Char-rasta (Deesa) Branch, bearing

No.2498844 dated 20th August, 2017. On the said cheque, the

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thumb impression was made by respondent-accused and

assurance was given that the cheque would be honored in favour

of the complainant. On depositing the cheque with the Bank on

13rd September, 2017 with Dena Gramin Bank, Aakhol Char-rasta

(Deesa) Branch, which was returned with the endorsement of the

"fund insufficient" on 14th September, 2017. On informing with

regard to dishonoring of the cheque, a notice was issued on

3.10.2017, which was served, as per the information given by

the Postal Department on 5.10.2017. As amount of cheque was

not paid, private complaint, under Section 138 of the Negotiable

Instruments Act read with Section 142 of the said Act. came to

be filed before the Competent Court, which was given number as

a Criminal Inquiry Case No.146/2017. On recording the plea and

prima-facie considering the evidence, learned Court had ordered

to register the Criminal Case and to issue the process under

Section 204 of the Code of Criminal Procedure, 1973. To prove

the case, the complainant had examined the 4 witnesses and

produced 10 documentary evidences. On filing the closing pursis,

further statement under Section 313 of the Code of Criminal

Procedure was recorded wherein, the defence was raised by the

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accused that thumb impression, which is on the cheque i.e.

Exh.48, was not made by the accused and the thumb impression

was taken from the other person, therefore, he prayed to send

the cheque for examination with finger print experts. To prove

his defence, complainant had examined 3 witnesses and

produced 7 documentary evidences. The learned trial Court,

after considering the evidence placed by both the parties and

the arguments advanced by the learned advocates, comes to the

conclusion that the complainant failed to prove the case against

the respondent-accused under Section 138 of the Negotiable

Instruments Act and therefore, the judgment and order of the

acquittal was passed on 13.1.2023, which is the subject matter

of challenge before this Court.

3. Heard the learned advocate, Mr.K.B.Virvadiya, for the

appellant. Learned advocate for the appellant, original

complainant submitted that though accused had put the prima-

facie case against the respondent-accused and though

presumption, which is in favour of the complainant provided

under Sections 118 and 139 of the Negotiable Instruments Act,

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was not rebutted by the respondent - accused, the learned trial

Court had acquitted the respondent-accused from the charges.

Learned advocate for the appellant further submits that as the

appellant is an agriculturist and respondent No.2 is also an

agriculturist and both are knowing to each other and the

appellant wants to purchase the agriculture land of the

respondent No.2, which was restricted tenure as per Section

73AA of the Bombay Land Revenue Code, 1879, the assurance

was given by the respondent No.2 to obtain the necessary

permission from the competent Authority and on the same

assurance, the amount of the sale consideration of Rs.7 lacs was

paid by the appellant herein to the respondent No.2. As

necessary permission from the Competent Authority was not

availed, the amount, which was given towards the sale

consideration, was demanded back for which Cheuqe

No.2498844 dated 20.08.2017 of Dena Gramin Bank, Aakhol

Char-rasta (Deesa) Branch was issued in favour of the present

appellant, which was returned with the endorsement as

"insufficient funds" for which, the demand notice was issued on

10th November, 2017 and though respondent No.2 had received

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the same notice, Respondent No.2 had not replied the same

within stipulated time and therefore, the present appellant,

original complainant was constrained to file the criminal case

before the Competent Court.

4. Learned advocate for the appellant, original complainant

further draws the attention of this Court with regard to the

ingredients required for proving the charge under Section 138 of

the Negotiable Instruments Act, and submitted that the learned

trial Court has to consider the only aspect that whether the

accused was able to rebut the statutory presumption provided

under Section 139 of the Negotiable Instruments Act or not.

Learned advocate relied on the said decision in the case of

Gimpex Private Limited V/s. Manoj Goel reported in 2022

(11) SCC 705 and in the case of K.Bhaskaran V/s. Sankaran

Vaidhyan Balan reported in 1999 (7) SCC 510 and submitted

that though all components were fully satisfied, the learned trial

Court had committed an error in acquitting the respondent-

accused.

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5. Learned advocate for the appellant, original complainant

further submits that from the record, it appears that statutory

notice, which was given, was not replied within a stipulated

period and accused had also not explained as to why, he has not

set up for his defence at the earliest point i.e. at the stage of

receiving the demand notice, though in his cross examination, he

had admitted that he had received the demand notice, which

was produced at Exh.11, therefore, the learned advocate had

submitted that in absence of any reply, presumption becomes

more stronger that the accused is liable for making the payment

of legally enforceable debt of the complainant. Learned advocate

further submits that merely denying the thumb impression on

the cheque is not sufficient to rebut the presumption, when he

himself is admitting in his evidence that he is having the bank

account and bank had issued the cheque book. It is further

submitted by the learned advocate that the defence, which was

raised by the accused that cheque book was taken by Ladhaji

Bhuraji in the year 2017, but complaining with regard to the

aforesaid aspects, no any application was submitted till

November, 2021 by the respondent-accused with the Bank.

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Learned advocate further submitted that theory of misusing the

cheque is also not supported by cogent material, as till

November, 2021, the respondent No.2 had not lodged any

complaint with the police officers. However, on filing the

impugned complaint under Section 138 of the Negotiable

Instruments Act, the Respondent No.2 had lodged the complaint

before the police officer, which was of no use as the present

complaint is filed prior in point of time. The police complaint,

which was lodged by respondent No.2 of misusing of the cheque,

is nothing but an afterthought and to save the scene from the

present offence. Learned advocate further submits that learned

trial Court had committed grave error in not considering Section

139 of the Negotiable Instruments Act in true letter and spirit as

under the said sections, is in favour of the complainant until the

contrary is proved and in Section 139 of the Negotiable

Instruments Act, it is provided that unless the contrary is proved,

learned Court ought to have presumed that cheque had been

issued towards the discharge of legally enforceable debt when

the drawer of the cheque admits about issuance of the cheuqe

and secondly even when complainant proves that cheque was

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issued in favour by the drawer.

6. To support his submission, learned advocate had relied on

the decision rendered in the case of Bharat Barrel And Drum

Manufature Company Limited V/s. Amin Chand Payrelal

reported in 1999 (3) SCC 35 and in the case of Bir Singh V/s.

Mukesh Kumar reported in 2019 (4) SCC 197 and submitted

that as soon as complainant discharged the burden to prove that

instrument, which is issued by the accused for discharge of the

debt, the presumptive device under Section 139 of the

Negotiable Instruments Act helps shifting burden on the accused.

7. Learned advocate for the appellant, original complainant

submits that without considering the aforesaid settled principle

of law, learned trial Court had committed a grave error in

acquitting the respondent. Learned advocate further submits

that the approach of the learned Magistrate in shifting the

burden upon the complainant to prove the case beyond his

reasonable doubt is not proper when accused had chosen not to

question the financial capacity of the complainant at very first

instance by not replying the statutory notice. The statutory

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presumption draws under Section 139 of the Negotiable

Instruments Act continues and it was for the accused to

discharge the onus by bringing on record such facts to show the

preponderance of the probabilities about non existence of such

legal debt between the parties. To support this contention, the

learned Court had relied upon the decision in the case of

Yogendrakumar Dindayal Dhoot V/s. Manish Kisan Binani

reported in 2023 (0) AIJEL-HC 245944 and in the case of

State of Gujarat V/s. Mohanlal Jitamalji Porwal reported in

AIR 1987 SC 1321 and submitted that the higher Court can

always invoke power under Section 391 and take the additional

evidence, if necessary. Learned advocate further relies on the

decision rendered in the case of Rajesh Jain V/s. Ajay Sinh and

submits that though the ample opportunity was available with

the accused to get the report for finger print expert to prove his

defence with regard to misusing of cheuqe, instead of doing the

same, at the first available opportunity, he lingering the

proceedings without making the genuine attempts with regard to

the said fact. At the end, learned advocate submits that the

findings given by the learned trial Court is erroneous and

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absolutely unjustified and arbitrary and without considering the

legal position and therefore, the judgment and order passed by

the learned trial Court acquitting the respondent is required to

be interfered with and this appeal is required to be allowed. It

was further prayed to order to undergo the sentence accordingly.

Though the learned advocate for the Respondent has been called

for by issuing 'Notice' but in the appeal, at the stage of seeking

leave, this Court is of the view that there is no requirement to

hear the respondent/s as this Court is not satisfied to interfere

with the judgment and order of the acquittal and decide to hear

the appeal on merits at an admission stage.

8. 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. Section 142. Cognizance of offences:

1[(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),

(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on

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which the cause of action arises under clause (c) of the proviso to section 138:

2[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;]

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.].

3[(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,--

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Explanation.-- For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.

Section 4 in The Indian Evidence Act, 1872

4. "May presume".--Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. "Shall presume".--Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. "Conclusive proof".--When one

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fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

Section 5. Evidence may be given of facts in issue and relevant facts.

Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

9. 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

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.

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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 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".

10. In light of the above settled position, now if we may look

in to merits of this case. It appears that complainant had

deposed in his examination of chief below Exh.3 and reiterated

at the version of the complaint, to rebut the presumption, the

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complainant was cross examined by the learned advocate for

the respondent-accused. Relevant admissions, which comes

out to rebut the presumptions, are reproduced herein below:

(a) He admits that he is not having any agricultural loan.

There is a distance of 3 Kms. from the Sherpura village to his

father's field.

(b) He admits that there is no any written document to

show agreement to sell between the complainant and the

accused.

show with regard to advance money of Rs.7 Lacs and there is

no receipt to that effect was given by the accused.

(d) He also admits that he did not mention in the

complaint, affidavit and notice with regard to that before in

whose presence the amount of Rs.7 lacs was lent to the

accused.

(e) He further admits that no averment is made in his

affidavit and noticed that on which date, which year and at

which place, in which month and on which time the

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transaction was taken place with the accused. He could not

depose that in whose presence on which date, which place,

which time the demand was raised. He states in his cross

examination that his yearly income is Rs.6 lacs but he does

not have any document or bill to show that his agriculture

income of Rs.6 lacs.

(f) He admits that the complainant, his brother and

father staying separately.

(g) He admits that name of his father, Jat Ladhaji Bhuraji

and his elder brother Trikamji Bhuraji and his son, namely,

Prabhubhai Trikamji. He denies to the fact that his cousin

brother, namely, Prabhu had filed the false case against the

brother of the accused, namely, Ravji Chtraji with regard to

dishonoring of the cheque. He denies to the fact that in the

said case, the same date i.e. 20.8.2017 is mentioned on the

cheque. He denies to the fact that his uncle's son, namely,

Jagdish Madhaji has also filed the complaint with regard to

dishonoring of the cheque for which, date is mentioned as

20.8.2017.

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(h) He admits that against the accused and his brother,

the cheque returning case is pending with Deesa Court. He

pleads ignorance with regard to the fact that at that point of

time, the account was opened in the year 2012 with the

Dena Gujarat Gramin Bank and he accepts that he did not fill

up the column of the cheque, namely, figure, date and

words.

(I) He admits that in the cheque, his handwriting is not

there but his father's handwriting is there. He accepts that

he is not having knowledge of his account number. He

accepts that there is alteration in the affidavit, notice and

also admits fact that there is no initial was made by his

advocate.

(j) He admits that he is not maintaining the books of

account to show agriculture income of Rs.6 lacs. He admits

that his father had made signature to identify the thumb

impression of the accused on cheque.

(ii) The next witness, which was examined by the complainant,

is the father of the complainant, namely, Jat Ladhaji Bhuraji,

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below Exh.19. With regard to the chief examination, he filed the

affidavit to support the contents of the compliant and in the

cross examination, the following aspects come on record.

In the cross examination, he denied to the fact that through

the nephew, the complaint was filed against Ravji Chatraji and

Harji Chatraji. On next line, he said that both the cases are

pending with the concerned Court. He admits that he was stand

as a witness in the case filed by Prabhuji Trikamji also. He admits

that there is no any agreement to show that the land belonging

to the Maji Rana Bhil was purchased by this witness. On the

question of that whether he stood as a witness in the loan, which

was given by the bank towards the agriculture produce? He

answered that he himself had taken the loan and filed the case,

he had no knowledge. On the question being raised that with

regard to opening of the account of respondent No.2 and the

brother, namely, Harji Chatraji and Ravji Chatraji and whether

these witnesses had taken them in to the bank or took the

cheque book? He gave answer that he himself opened the

account and took the passbook. On the question whether the

thumb impression of the other person was made in the disputed

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cheque on filling up the column of amount, date? He answered

that accused himself had given the cheque and in his presence,

the thumb impression was made and all the column was filled up

by the accused himself. On the question of whether nephew,

namely, Prabhuji Bhuraji and Jagdishji Madaji and the son Naresh

Nagaji had filed the complaint against accused, Kalubhiai

Chatrabhai, his brother Harjibhai Chatrabhai and Ravjibhai

Chatraji on being misused of the cheque, and misused of the

thumb impression and on filling of the same date and the

amount and on being identified by the said person on thumb

impression of the accused? He answered that all 3 accused had

approached to the respective complainants and conveyed that

they had financial burden and there is a marriage of the

daughter's, therefore, they are in need of Rs.21 lacs against the

sale of the agriculture land and on assurance of taking

permission from the Competent Authority with regard to the

removal of restrictions under Section 73AA of the Bombay Land

Revenue Code, the money was advanced. On being asking that

any document is available to show that complainant had

advanced of Rs.7 lacs to the accused? He answered that

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between the village people, no such type of written documents

were ever executed, everything would be going on trust. On

being asking that whether the land of Kalubhai Chatraji who was

mortgaged with him in the year 2012 against the advance of

Rs.60,000/-? He answered that there was a continuous

transactions and therefore, only the thumb impression was

identified by him. On further question that whether with regard

to the said transaction of 2012 any written documents were

executed? He answered that on non judicial stamp of Rs.50/- the

writing was executed with regard to Rs.60,000/-, however same

is already over. From the evidence of this witness, it is coming

out that he had identified the thumb impression, with regard to

landing money of Rs.60,000/- written document was executed.

(iii) The next witness, which was examined by the complainant,

namely, Jat Rameshbhai Meghji vide Exh.21, the evidence in the

form of affidavit, he supports the contention made in the

complaint.

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In the cross examination conducted by the learned

advocate for the respondent No.2-accused, he denied all the

material aspects and plead the ignorance, however, he

submitted that to show that accused was having the land, he had

produced 7/12 extracts and 8-A. He submits in the cross

examination that these documents were given by the accused to

handing over to the Ladhaji Bhuraji with regard to the fact that

permission from the Competent Authority and execution of any

sale-deed, he pleads ignorance. This witness appears to have

been examined to produce the 7/12 extracts and 8-A record

showing that accused is possessing the land, however, story,

which was put up by this witness that accused himself had given

this document and asked to hand over this Ladhaji Bhuraji

creates suspicion as it would be impossible that accused would

handing over the document to produce before the Court, which is

not in his favour.

(iv) The next witness, which was examined by the complainant,

is Lilabhai Lalabhai Desai.

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The cross examination, which was conducted by this

witness, he admits that Trikamji Bhuraji is doing the business of

finance to the village people. He admits that on the day of the

evidence, he came along with Ladhaji Bhuraji, father of the

complainant. He admits that the complainant, namely, Nareshji

Ladhaji ,is the nephew of Trikamji Bhuraji. He admits that he is

having the talking terms with Trikamji Bhuraji. He admits that the

agriculture field of the Ladhaji and the present witness having

the distance of 2 to 3 kms. only. He admits that there was no any

agreement executed in his presence with regard to selling of

land between the complainant and the respondent No.2. Neither

any agreement with regard to the permission from the

competent authority was made in presence of him. On next line,

he said that there was oral conversation with regard to the

permission but how many years before that he do not know.

Neither any approximately period, he can depose. He has no

knowledge with regard to survey number and the area, the

Kalubhai Chatrabhai possessing. He admits that it is true that

there cannot be any transaction of selling land with the Maji

Rana Bhil community to the other community. He admits that

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there was no any land in the name of the complainant, namely,

Nareshji Ladhaji but his father is possessing the land. From the

evidence of this witness, it transpires that uncle of the

complainant, namely, Trikamji Bhuraji is doing the finance

business and this witness is having the good terms with the said

Trikamji Bhuraji but he had no knowledge with regard to the

disputed transactions.

Thereafter, it transpires from the record that one

application came to be preferred by the respondent No.2 -

accused on 31.7.2021 under Section 243(2) to send the disputed

cheque to handwriting experts on his own cost, which came to be

dismissed by the learned trial Court vide an order dated 8.9.2021

with a liberty to send the same cheque to the private hand

writing finger print experts within a period of 30 days at the cost

of respondent-accused. It further transpires from the record that

against the aforesaid order, the revision application came to be

preferred before this Court being Criminal Revision Application

No.754 of 2021 which came to be rejected vide an order dated

21st October 2021.

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(v) Thereafter the accused himself, namely, Kalubhai

Chatrabhai, was examined as a defence witness and submitted

that in the year 2012, he was in need of money, therefore, land

bearing survey No.289/13 paiki 2 was mortgaged with the father

of the complainant, namely, Ladhaji Bhuraji and took advance of

Rs.60,000/- for that mortgage deed was executed on 23.4.2012

with the condition that on repayment of Rs.60,000/- the

mortgage would be released. In the fixed period, he did not

make the payment of Rs.60,000/-, therefore, the father of the

complainant, namely, Ladhaji Bhuraji had took the respondent-

accused at Dena Gramin Bank, Aakhol Char-rasta (Deesa)

Branch, and opened the account being No.737310050130 and

took the cheque book bearing serial number 2498844 to

2498854. Thereafter, the advance money was repaid to the

father of the complainant in the presence of Bhil Bharatbhai

Harjibhai and demand of the cheque book was raised but the

same was not returned. Thereafter, cheque bearing No.2498844

was deposited in the account in the year 2017 by filling up

column of the amount of Rs.7 lacs and by making the thumb of

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the different person and the same was identified by the father of

the complainant and on dishonoring the same, the impugned

complaint was filed. He pleaded that this cheque below Exh.8 is

required to be sent to the handwriting expert as he had not filled

up column of the cheque and made thumb impression. As after

2012, there was a computerized cheque book was issued

wherein 3 months time period was mentioned with regard to the

deposit of the cheuqe. It is pleaded that though in the cheuqe,

date is mentioned as 20th August, 2017, but there was no any

validity like 3 months from the date is mentioned. He further

contends in the affidavit that at the time of taking the advance in

the year 2012, the mortgage deed was executed wherein the

thumb impression was made of the present Respondent No.2 in

presence of Notary. It is further contended in the affidavit that

respondent No.2 as well as brother, namely, Rajabhai

Chatrabhai, Harjibhai Chatrabhai and Ravjibhai Chatrabhai was

taken to the Dena Gramin Bank, Aakhol Char-rasta (Deesa)

Branch, and the account was opened on their name/s and thumb

impression of the present respondent No.2 and another brother,

Raja Chatrabhai was taken on Kishan credit card, which was

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identified by Jat Ladhaji Bhuraji and the cheque book, which was

containing the disputed cheque, was took by the Ladhaji Bhuraji,

which was not returned and with a view to grab the agriculture

land, disputed cheque was misused and the false case was filed.

He submits that notice was replied through the advocate where

the dispute was raised with regard to thump impression,

however, said fact was not brought to the notice of the learned

Court while filing the impugned complaint. It is contended that

there was no any witness whose name is mentioned at the time

of agreement to sell as, in fact, the lands are restricted land and

therefore the same cannot be transferred to the other

community. It is further contended that present Respondent No.2

advantage of illiteracy was taken and false case was filed. It is

further contended that respondent No.2 had filed the complaint

before the DSP, Palanpur on 10th November, 2021 and the

application for stop payment was also given on 3.12.2021 and it

is pleaded by respondent No.2 that there was no any legally

enforceable debt for which cheque was issued and therefore, he

prayed to dismiss the complaint.

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The Respondent No. 2, namely, Kalubhai Chatrabhai, was

cross examined by the learned advocate for the complainant

wherein he admits that he is an illiterate person and there was a

distance of 7 to 8 kms. between Sherpura village to Varan

Village. He admits that all three brothers had mortgaged the land

against advanced money. The cultivation on the aforesaid land

was made by the Ladhaji Bhuraji for 4 years, prior to 2 years the

mortgage was released but no any document was executed in

that regard. He admits that he had not opened the account but

the account was opened by the Laghaji. He admits that he went

to the Bank and open the same in the year 2012. He admits that

which document was given to open the account was not known

to him only the thumb impression was made. He admits that he

did not know when the cheque was taken. He denied to the

identification of thumb, which was on the disputed cheque. He

denies to the fact that the thumb impression was conveyed to be

identified to the Ladhaji. He admits that he has not having the

balance in his account. He admits that his own brother has also

opened the account on the same day. He admits that he does

not have any document to show that father of the complainant

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was doing the business of money lending. He admits that

Rs.60,000/-, which was advanced by the Ladhaji Bhuraji was

returned on the day when the account was opened. He admits

that for 4 to 5 years, the land was cultivated by the complainant.

On the question being raised that how many cheques were

issued, he said that he had not used the single cheuqe neither

issued to any person. From the evidence of this witness, it comes

on the record that earlier there was a transaction of Rs.60,000/-

against which mortgage deed was executed before the Notary

and he along with his brother were taken to the bank to open the

account by Ladhaji. He produced the agreement - mortgage

deed of 2012 below Mark 46/1 from which it transpires that the

land was mortgaged with the condition that on repayment of

Rs.60,000/- mortgage deed is to be released. With regard to the

Kishan Credit Card, his thumb was identified by Ladhaji Bhuraji

which was produced by Mark 40/4. The application for stop

payment and stop payment was produced below Mark 46/5 and

application to the DSP was produced at Exh.58.

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(vi) The defence had examined Mr.Yogeshkumar Fulram Mali,

Branch Manager, Baroda Gujarat Gramin Bank, Aakhol Char-rasta

(Deesa), at Exh.64 who deposed that concerned Branch Manager

had provided the information with regard to the account of

Kalubhai Chatraji on 16.2.2022. He admits that there is no any

information available with regard to the disputed cheque. He

admits that cheque book bearing No259991 to 260000 was

issued to Kalubhai Chatraji. He admits that as per the rule

framed by RBI, after 2013, CTS 2010 standard cheques were

issued to the account holder. He admits that the disputed

cheque is prior to 2013, as the disputed cheque does not show

the CTS 2010 standard. He admits that disputed cheque was not

issued by the Bank and accordingly information was given to the

police constable.

In the cross examination, which was conducted by the

complainant, it transpires that at the time when the account was

opened, he was not the Branch Manager. The account was

opened only on 29th August, 2012. He admits that other two

brothers accounts are also in the said bank but he is not having

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that details at that point of time. He admits that records were

maintained with regard to the issuance of the cheuqe. He admits

that customer does not want cheque book then a single cheuqe

was issued to the customer. He admits that cheque is of Dena

Gujart Gramin Bank of Deesa Branch and return memo shows

that "insufficient funds". The details with regard to the request of

issuance of the cheque of 26.4.2017 is not having. He admits

that there was no transactions in the cheque book containing

cheque No.259991 to 260000. He admits that at the time of

opening the account, the account holder had made the thump

impression. He admits that there was no any register

maintained for loose cheques. On the question raised by the

Court for withdrawal of the amount, disputed cheque was issued?

The answer was given that sometimes the branch manager is

providing loose cheque for withdrawal of the amount and it

happens that customer can take the said loose cheque instead of

depositing with the window by taking the advantage of the

crowd, for that no any record is available with the bank. From the

evidence of this witness, it transpires that the disputed cheque is

prior to 2013 and that cheque has not been issued to the

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respondent No.2. However, suspicion was raised that in fact the

loose cheque must have been used by respondent No.2 for

issuing the same in favour of the complainant and that also the

answer is given that loose cheque was providing by branch

manager for withdrawal of the amount.

(vii) The defence had further examined the witness, namely,

Valabhai Vaghabhai below Exh.69, Armed Head Constable,

Aagkhara Police Station. He deposed in his chief examination

that he is serving as a Head Constable in the Aagkhara Police

Station and the Varan village is under the jurisdiction of the

Aagkhara bit. On 10.11.2021, one complaint was given by

Kalubhai Chatrabhai Bhil, which was addressed to the DSP for the

offence punishable under Sections 120-B, 190, 192, 193, 196,

199, 406, 420, 465, 467, 468, 469 and 471 of the Indian Penal

Code and Section 3(1)(10) and 3(2)(v) of the Atrocities Act and

that was investigated by this witness. During the investigation,

the secrete information was called for from the Baroda Gujarat

Gramin Bank, Aakhol Char-rasta (Deesa) Branch, which was

provided by the Bank Manager on 16.2.2022, which was

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exhibited below Exh.70. It was found in that information that

disputed cheque was never issued by the Bank and with regard

to the said cheque, Bank is not having any information. He

admits that Bank had issued communication that said cheque is

not issued in the name of the complainant. Security bond was

executed by the accused regarding the Chapter Case 32/22 for

the offence punishable under Sections 107 and 151 of the Code

of Criminal Procedure, 1973.

On being cross examined by the complainant, he admits

that in the complaint dated 10.11.2021, no cheque was

attached. Surety bond was taken from the other side so that

peace may prevail. He admits that he had not sent cheque to the

finger print experts. He admits that it was denied by the accused

that he had not examined the record of the disputed cheque.

11. In the instant case, it transpires that the defence, which

was taken by the respondent-accused with regard to the

information making thumb impression on the disputed cheque

appears to be the probable. The rebuttal does not have to

conclusively establish but such evidence must be adduced

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before the Court in support of defence that the Court must either

believe the defence to exist or consider its existence to be

reasonably probable, the standard or reason-ability being that of

prudent man. As it was identified by none other than the father

of the complainant creates doubt on the story of the complainant

with regard to issuance of the cheque for payment of illegally

enforceable debt by the accused. In the present case, the

defence, which was raised and tried to establish by the

witnesses, namely, Yogeshkumar Fulram Mali, Manager of the

Bank, namely, Baroda Gujarat Gramin Bank and Valabhai

Vaghabhai, Head Constable of the Aagkhara Police Station. It is

also coming out from the fact that after the impugned complaint

was filed, the application for stop payment of cheque

No.2498854 was given on 3.12.2021 and before the DSP, the

complaint was filed alleging the offence under the IPC for which

the investigation was carried out and it was found that disputed

cheque was never issued to the respondent-accused by the

Bank. From the cross examination of these witnesses, it

transpires that the complainant and his family doing the business

of money lenders, there is a tendency of money lending to have

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the signatures on many documents like, stamp paper, cheuqe

book, etc. Here in the present case also, the cheque books where

the thumb impression alleged to have been used by the

complainant. It further came on record that different complaints

were filed against different accused i.e. brother of the present

respondent wherein also date is 20.08.2017 and evidence of

bank officer suggests that disputed cheque is prior to 2013.

12. That as per the evidence of the father wherein he initially

admits to the aspect that there is no any document was

executed suggesting that amount of Rs. 7 Lacs was lent to the

present respondent-accused towards the consideration of the

sale and also giving bold answer that between the village people,

everything is going on trust. However, in the next line, he admits

that in the year 2012, for Rs.60,000/- the mortgage deed was

executed between the respondent-accused and the complainant

and after repayment of the advance money, the mortgage deed

was released. There is another suspicious aspect in the present

case is that on advancing the money of Rs.7 lacs, no any

document was issued neither the details with regard to name of

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witness, date, place were knowing to the complainant or any of

the witnesses. The complainant further admits that he was

having knowledge that the land belongs to the Maji Rana Bhil

Community and same cannot be transferred to the other person

and also not having the knowledge with regard to revenue

survey number, measurement of the field and how much land

they were agreed to purchase. Complainant also admits in his

evidence that he has not signed the slip of depositing the

amount or not signed in the notice. In the cross examination, he

admits that other column was filled up by the father in the

cheque. Case of the complainant was defeated by the

respondent-accused by putting himself in the box as well as

examining the other witness, namely, Manager of the Bank. it

reveals that cheque was issued prior to 2013 and cheque

number which is mentioned on the cheque was never issued to

the respondent-accused and it further transpires that no

information is available with the Bank about the disputed

cheque.

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13. It further transpires from the record that accused being an

illiterate person and was in a financial need, that advantage was

taken by the complainant and his brothers and therefore, against

the respondent-accused, the complainant and cousin brother had

filed the various complaints wherein the date on the cheque is

mentioned is of the same date i.e. 20.8.2017.

14. This Court is of the view that accused has come out with

the probable defence and the presumption is rebutted and

therefore, accused cannot be held responsible for making the

payment of the cheque. The complainant fails to prove the

aspect with regard to having legally enforceable debt with the

respondent-accused. If the evidence, which was placed on the

record, is considered then it transpires that it is consistent with

the innocence of the accused which may reasonably true, even

though it is not possible to be true, accused would entitle to be

acquitted. In the present case, the accused had proved the non

existent of the consideration by raising the probable defence and

accused had proved to have discharged the initial onus to prove

by showing that existence of the consideration was improbable

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and doubtful, and complainant fails to discharge its onus, and

therefore, he would dis-entitle to grant any relief on the basis of

this Negotiable Instruments.

15. This Court has also considered the law laid down by

Hon'ble Apex Court in the case of M.S.Narayana Menon Alias

Mani V/s. State of Kerala and Another reported in (2006) 6 SCC

39.

41. In Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16], a 3- Judge Bench of this Court held that although by reason of Sections 138 and 139 of the Act, the presumption of law as distinguished from presumption of fact is drawn, the court has no other option but to draw the same in every case where the factual basis of raising the presumption is established. Pal, J. speaking for a 3-Judge Bench, however, opined: "\005Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to

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be proved when, "after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man"."

42. The court, however, in the fact situation obtaining therein, was not required to go into the question as to whether an accused can discharge the onus placed on him even from the materials brought on records by the complainant himself. Evidently in law he is entitled to do so.

43. In Goaplast (P) Ltd. v. Chico Ursula D'Souza and Another [(2003) 3 SCC 232], upon which reliance was placed by the learned counsel, this Court held that the presumption arising under Section 139 of the Act can be rebutted by adducing evidence and the burden of proof is on the person who want to rebut the presumption. The question which arose for consideration therein was as to whether closure of accounts or stoppage of payment is sufficient defence to escape from the penal liability under Section 138 of the Act. The answer to the question was rendered in the negative. Such a question does not arise in the instant case.

44. In Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay [AIR 1961 SC 1316], Subba Rao, J.,

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as the learned Chief Justice then was, held that while considering the question as to whether burden of proof in terms of Section 118 had been discharged or not, relevant evidence cannot be permitted to be withheld. If a relevant evidence is withheld, the court may draw a presumption to the effect that if the same was produced might have gone unfavourable to the plaintiff. Such a presumption was itself held to be sufficient to rebut the presumption arising under Section 118 of the Act stating: "\005Briefly stated, the burden of proof may be shifted by presumptions of law or fact, and presumptions of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact. We are not concerned here with irrebuttable presumptions of law."

45. Two adverse inferences in the instant case are liable to be drawn against the Second Respondent: (i) He deliberately has not produced his books of accounts. (ii) He had not been maintaining the statutory books of accounts and other registers in terms of the bye-laws of Cochin Stock Exchange. Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceeding.

46. In Harbhajan Singh v. State of Punjab and another [AIR 1966 SC 97], this Court while considering the nature and scope of onus of proof which the accused was required to discharge in seeking the protection of exception 9 to Section 499 of the Indian Penal Code stated the law as under: "\ 005In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities, so must a Criminal Court hold

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that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him..."

47. In V.D. Jhingan v. State of Uttar Pradesh, [AIR 1966 SC 1762], it was stated: "\005It is well- established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt\005" [See also State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, AIR 1981 SC 1186]

48. In Kali Ram v. State of Himachal Pradesh [(1973) 2 SCC 808], Khanna, J., speaking for the 3- Judge Bench, held: "\005One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the

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innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal."

49. In The State through the Delhi Administration v. Sanjay Gandhi [AIR 1978 SC 961], it was stated: "\ 005Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused.

16. The judgment which was relied on by the learned advocate

for the appellant is not helpful as it appears to be different legal

issues and on different facts but it is a settled law that the

presumption is not conflict with the human right of presumption

of innocence of accused which prosecution is required to

dislodge by proving its case against the accused beyond

reasonable doubt.

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17. In view of this, this Court deems it fit to dismiss the appeal

and confirms the order passed by the learned trial Court