Gujarat High Court

Amarben Jethabhai Parmar vs Narendrabhai Kalidas Chavda on 16 April, 2024

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     R/CR.MA/17792/2023                             ORDER DATED: 16/04/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 17792
                          of 2023
                    In F/CRIMINAL APPEAL NO. 35809 of 2023
                                     With
                      F/CRIMINAL APPEAL NO. 35809 of 2023
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                       AMARBEN JETHABHAI PARMAR
                                 Versus
                   NARENDRABHAI KALIDAS CHAVDA & ANR.
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Appearance:
MR.RAJESH BAROT on behalf of MR NIRAV C THAKKAR(2206) for the
Applicant(s) No. 1
for the Respondent(s) No. 1
MS.VRUNDA SHAH, APP for the Respondent(s) No. 2
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 CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                               Date : 16/04/2024

                                 ORAL ORDER

1. This matter is a glaring example of misusing of the

powers by the Police Officer who is doing the business of

money lending.

2. The present application is filed seeking leave to prefer

an appeal against the judgment and order dated

09.08.2023 passed by the learned 7 th Additional Judicial

Magistrate First Class, Mahesana in Criminal Case No.

3066 of 2020 acquitting the respondent-accused for the

charges punishable under section 138 of the Negotiable

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Instruments Act, 1881 (hereinafter referred to as the

"N.I.Act").

3. It is the case of the complainant namely Amarben that

complainant lent the amount of Rs.2,50,000/- for

education of children and treatment of accused's father's

cancer ailment in several parts starting from 15.08.2019

to 22.10.2019 to the accused. For the repayment of the

aforesaid hand loan the cheque bearing no. 000002

dated 26.02.2020 of Rs.2,50,000/- was issued in favour

of the complainant and on depositing the same on

03.03.2020, it was returned with an endorsement of

"funds insufficient" 04.03.2020. With above contention,

private complaint came to be filed before competent

court.

4. On being summoned, the accused appeared and his plea

was recorded wherein, he pleaded not guilty and

claimed to be tried.

4.1. Complainant in order to prove the guilt of the accused

has examined four witnesses namely (1) Amarben

Jethabhai Parmar, (2) Diptiben Jethabhai Parmar (Power

of Attorney holder of complainant), (3) Vanjha Urviben

Dilipbhai - Senior Clerk, Gujarat State Commission for

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Women and (4) Ismail Daoodbhai Mansuri - Police Sub-

Inspector, Gomtipur Police Station, Ahmedabad. The

documentary evidence in the nature of cheque, return

memo, FIR being No. 11191018200232, Power of

Attorney given by Amarben- complainant to Diptiben,

complaint given by Diptiben to Gujarat Women

Commission below Exh.55, quashing petition being

Criminal Miscellaneous Application No. 10382 of 2020

was produced in addition to the oral evidence.

4.2. On filing the closing pursis, statement recorded under

section 313 of the Code of Criminal Procedure, 1973

wherein, the accused pleaded that the amount which

was borrowed was already paid to the complainant and

receipt of the aforesaid amount was admitted by the

complainant in the statement recorded before the police

pursuant to the police complaint given by the present

accused wherein, it was stated that disputed cheques

were at the house of her mother which would be

returned and the same cheque would not be utilized.

4.3. Thereafter, learned trial court, after hearing the

arguments and considering the evidence, has come to

the conclusion that complainant fails to establish the

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legally enforceable debt against the respondent-accused

and respondent-accused was acquitted from the charges

leveled against him which is subject matter of challenge

before this Court.

5. Heard learned advocate Mr.Rajesh Barot on behalf of

learned advocate Mr.Nirav Thakkar for the applicant-

original complainant.

5.1. Learned advocate Mr.Rajesh Barot submits that

learned trial court has committed grave error in

acquitting the respondent-accused in absence of the

rebuttal of presumption which is in favour of the

complainant under section 118 and 139 of the N.I.Act.

5.2. Learned advocate Mr.Rajesh Barot submits that

respondent-accused had admitted the issuance of the

cheque, borrowing of the amount and had not placed any

evidence with regard to the repayment of the loan

amount to the complainant i.e Amarben and statement

which was recorded of the daughter namely Diptiben

would not be binding to the complainant as Amarben did

not receive the amount which was lent to the accused.

5.3. Learned advocate Mr.Rajesh Barot submits that it is

true that after chief examination was over of the

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complainant, Amarben did not come for the cross-

examination and thereafter, the evidence of Diptiben

who is the Power of Attorney Holder of Amarben was

recorded but that Power of Attorney was not available at

the time when the statement was recorded in police

complaint and in absence of the Power of Attorney,

admission on the part of Diptiben which was before

police is not admissible evidence, more particularly,

when allegations of the threats were made by Diptiben

to various authority. However, learned trial court relying

on admission of Diptiben in the statement recorded

before police officer has acquitted the respondent-

accused from the charges and therefore, learned

advocate prays to grant leave as prayed for.

5.4. Learned advocate Mr.Rajesh Barot submits that

though the F.I.R is filed under section 406, 294(b),

506(1), 114 of Indian Penal Code, 1860 and section 4, 42

and 40 of Gujarat Money Lender's Act against Amarben,

Diptiben and unknown person but as there were no

evidence this Court has stayed the proceedings in the

quashing petition being Criminal Miscellaneous

Application No. 10382 of 2020. However, learned trial

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court has disbelieved the case of the complainant on the

ground that Power of Attorney holder namely Diptiben is

the police constable and doing the business of money

lending, as the said conclusion was arrived without any

evidence, the impugned judgment and order of acquittal

deserves to be interfered with.

5.5. Learned advocate Mr.Rajesh Barot submits that

without any cogent reason, the judgment and order of

acquittal was passed, therefore, same is required to be

interfered with and leave as prayed for is required to be

granted.

6. Having heard the learned advocate Mr.Rajesh Barot for

the applicant-original complainant as well as thoroughly

examining the record and proceedings, it emerges from

the record that complainant has filed the complaint with

allegations that the amount of Rs. 2,50,000/- was lent

and for repayment the cheque bearing no. 000002 which

was issued was dishonoured.

6.1. The complainant namely Amarben has not come in the

box for cross-examination as after examination-in-chief

was over on account of ill health, she did not offer

herself for cross-examination by the accused.

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7. At this stage this Court has considered the decision

rendered by the Hon'ble Apex Court in the case of Gopal

Saran Vs Satyanarayan reported in AIR 9 SC 1141,

wherein the Hon'ble Apex Court held that:

"On the basis of the aforesaid, it was contended that it was the definite case of the defendant in Examination-in- chief, that the board belonged to him and that the defendant was carrying on his own business and that there was no dispute as to the same by the plaintiff. It may be mentioned that the plaintiff had not subjected himself to cross-examination in spite of the order of the Court after the remand, therefore, it would not be safe to rely on the examination- in-chief recorded which was not subjected to cross-examination before the remand was made. If that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint. This position appears established from the facts on record. When the plaintiff appeared for evidence in rebuttal he could have been cross- examined on these points. It was submitted that in rebuttal the plaintiff had stated only with regard to the default in payment of rent but the Plaintiff had not chosen to support his plaint case, before the defendant went to the witness box. There was no question of cross-examining the plaintiff traveling beyond the evidence of the plaintiff given in examination-in-chief and thereby giving an opportunity to make out a case in cross-examination. It, therefore, appears from the pleadings and the evidence that the respondent did not make out any case of the appellant parting with

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posses- sion by putting up the hoarding. In examination in- chief also he did not make out such a case and on the contrary his case was that it was that it was the defendant- appellant who had put up the hoarding. The plaintiff did not allege that the defendant-appellant was not carrying on also advertising business. It was submitted on behalf of the appellant that having refused to submit to cross- examination the plaintiff has made the evidence in examination-in-chief non est. It was the case of the defendant that he was carrying on the business of advertisement by putting up the hoardings of different parties. The board was made by him, paintings and writings were also done by him and for putting the hoarding the charged from his customers. Therefore, it appears to us that there are no clear findings that anybody was given lease or anybody was given the right to put up the hoarding and there was parting of possession in favour of anyone else. It was, however, argued that even if the appellant had put the advertisement board hoarding he was earning a huge amount by the same and this was a factor which would indicate that there was parting of possession by him. It was, however, submitted on behalf of the appellant that when the shop had been let out to the defendant-appellant for carrying on business it was the fight of the defendant-appellant to carry on the business. It was legally permissible to use the said shop room and also use the roof thereof and earn as much as could be done and as such it is not parting with possession."

8. In view of the above judgment, in absence of the cross-

examination, the evidence of the complainant in the

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instant case which was submitted through the chief

examination cannot be relied.

9. Thereafter, on the application of the complainant, the

Power of Attorney holder namely Diptiben, who is the

daughter, came for evidence and was examined below

Exh.46. During her cross-examination, she admitted that

the police complaint is filed, wherein he was released on

bail.

9.1. It is further admitted in the cross-examination that at

the time when the cheque was issued i.e 26.02.2020,

there was lock down due to Covid-19 pandemic.

Complaint was filed by the accused with regard to the

disputed cheque before Gomtipur police station wherein,

her statement was recorded but thereafter, she clarified

that the Police Officer had recorded statement on their

own. With regard to the threats, she made a complaint to

the Women Rights Commission and the Officer from the

Commission was examined below Exh.54. The said

application was disposed of by the Police Officer after

investigating.

9.2. Thereafter, one more witness was examined namely

Ismailbhai below Exh.59 who was Police Officer serving

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at Gomtipur Police Station and during the cross-

examination of this witness, it is admitted that the

statement which was recorded of Diptiben in the

proceedings of the complaint was read over, wherein,

she stated that she received the money as well as cheque

and promissory note would be returned and at present

the same is lying with the mother. To the evidence of

this witness, the report which is submitted below Exh.60

from where it transpires that on 01.03.2020 statement of

Diptiben was recorded wherein, it transpires that

dispute occurred between Narendrabhai Chavda and

Diptiben as Diptiben went to the house along with one

unknown person to demand the money which was lent

by Diptiben at that time, due to aggressive altercation a

call was made to the Control Room wherein, the

statement of both the persons namely Narendrabhai and

Diptiben was recorded that settlement is arrived

between the parties as the cheque amount is received

and the cheque which was issued would be returned

along with the promissory note.

9.3. After recording the statement on 01.03.2020,

Amarben and Diptiben deposited the cheque on

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04.03.2020 and therefore, FIR came to be filed before

Gomtipur Police Station. This report was proved through

the evidence of the complainant witness. The FIR which

is registered against the complainant as well as Diptiben

wherein, also the allegations are made that at the time

of borrowing the amount, the cheque was taken and

promissory note was given and for two months the

interest was paid of Rs.17,500/- thereafter, he could not

make the payment of the interest therefore, on

29.02.2020 Diptiben called Narendrabhai on his mobile

asking him to pay interest as it was not paid since last

three months and when it was conveyed that at present

Narendrabhai is in financial difficulty, Diptiben had

abused him and warned him that if the amount is not

repaid then he would face dire consequences.

9.4. On the same day, at night around 8:00 pm, Diptiben

came to the house along with one unknown person and

again the money was demanded and thereafter, it was

informed to the unknown person that "I will commit

suicide at the house of Narendrabhai" and due to

intervention of the neighbours, Diptiben and unknown

person went away from the house. Thereafter,

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Narendrabhai had informed in the Police Control Room

and on calling Diptiben as well as Narendrabhai it was

admitted by Diptiben that amount of Rs.2,50,000/- was

received and the cheque is in the name of Amarben

which would not be used in future. The same entry was

made in the Station Diary on 01.03.2020.

9.5. Learned trial court has believed the defence of the

accused that as Diptiben admitted the amount debt have

been paid, the respondent-accused had successfully

rebutted the presumption which is in favour of the

complainant. Therefore, learned trial court has acquitted

the respondent-accused by giving detailed reasons and

therefore, this Court did not find any infirmity, illegality

or perversity in the impugned judgment and order of

acquittal.

10. Diptiben who is the Power of Attorney holder of

complainant is serving in Police Department has lent the

amount to respondent-accused and from the FIR it

transpires that for taking back the amount as well as

interest, she went to the house of complainant and

created ruckus and for that respondent-accused i.e

Narendrabhai had informed in the Control Room

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wherein, she admitted in her statement that amount is

received by her therefore, cheque was deposited in the

name of mother namely Amarben wherein, again

Diptiben, who is a Police Constable, gave evidence as a

Power of Attorney holder.

11. It is true that the investigation is stayed in the quashing

petition filed by the complainant being Criminal

Miscellaneous Application No. 10382 of 2020, however,

from the record it prima facie appears that Dipitben,

who is the Power of Attorney holder of complainant

namely Amarben, serving as a Police Constable is

involved in the offence of money lending and on non-

payment of interest amount, quarrel had taken place and

thereafter, the FIR is lodged.

12. This Court has 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:

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25.1. Once the execution of cheque is admitted Section 139 the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise 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 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."

13. In view of the above, this Court holds that no leave is

required to be granted to file an appeal before this Court

challenging the judgment and order dated 09.08.2023

passed by the learned 7th Additional Judicial Magistrate

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First Class, Mahesana in Criminal Case No. 3066 of

2020 and this application deserves to be dismissed.

14. Hence, this application is dismissed.

15. The Registry is directed to place this order before the