Gujarat High Court
Jayesh ... vs Vandan Salt ... on 9 February, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1075 of 2011
With
R/CRIMINAL APPEAL NO. 1074 of 2011
With
R/CRIMINAL APPEAL NO. 1076 of 2011
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JAYESH TRADERS,THRO'PROPRIETOR,JAYESHKUMAR PRANJIVANDAS
MODI
Versus
VANDAN SALT INDUSTRIES,THRO'PROPRIETOR, PANKAJ MANSUKHLAL MO
& 1 other(s)
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Appearance:
MR KASHYAP R JOSHI(2133) for the Appellant(s) No. 1
MR NV GANDHI(1693) for the Opponent(s)/Respondent(s) No. 1
MR. MANAN MEHTA, APP for the Opponent(s)/Respondent(s) No. 2
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 09/02/2024
ORAL ORDER
1. Since all these criminal appeals raise common question of law in
background of similar set of facts and evidences, the said appeals
were heard together and are decided by the common order. For the
sake of convenience, Criminal Appeal No. 1075 of 2011 is treated as
the lead matter.
2. Facts of Criminal Appeal No. 1075 of 2011:
2.1 The present appeal is filed under Section 378(4) of the Cr.P.C.
against the judgment and order dated 29.12.2010 passed by the
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learned 3rd Additional Chief Judicial Magistrate, Bharuch in Criminal
Case No.6132 of 2007, recording the acquittal of respondent
No.1/original accused- Vandan Salt Industries represented through its
Proprietor Pankaj Mansukhlal Modi. By the said judgment and order,
the learned Magistrate has acquitted said respondent for the offence
alleged under Section 138 of the N.I. Act.
2.2 In nutshell, the case of the original complainant, which is a firm
named Jayesh Traders through its proprietor Jayeshkumar
Pranjivandas Modi had complained before the learned Magistrate that
the respondent-accused happens to be the customer of the said Firm
and had purchased the goods on credit. The account of the said
customer was maintained by the Firm, wherein the entries of credit
were entered in the record. It is contended that as against the
purchase of such goods, the respondent-accused had handed over
cheque bearing No. 207897 drawn from his account with the Mahila
Nagrik Sahkari Bank Limited, Bharuch dated 10.05.2007 for an amount
of Rs.1 Lakh in favour of the complainant Firm. The said cheque was
presented for clearance on 02.07.2007 with the Canara Bank, Bharuch.
However, the cheque was not realized on account of "insufficient
funds" and the return memo was issued by the concerned bank with
reason assigned "insufficient funds". The attention of the respondent-
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accused was drawn to the returning of the cheque; however, the
accused had once again assured the complainant to present the
cheque for realization of the outstanding amount. Accordingly, the
complainant claims to have presented the cheque on 07.08.2007,
however, the same was returned back with endorsement of
"insufficient funds". In such circumstances, the complainant was
constrained to issue legal notice raising demand of the outstanding
amount on 11.08.2007. The said notice was though served by R.P.A.D.
as well as UPC and having acknowledged on 16.08.2007, the
respondent-accused had failed to respond to such notice or to make
payment of outstanding amount. In such circumstances, the
complainant was constrained to initiate the proceedings against the
respondent-accused by lodging complaint before the learned
Magistrate under Section 138 of the N.I. Act, which was registered as
Criminal Case No.6132 of 2007.
3. Facts of Criminal Appeal No. 1074 of 2011:
3.1 The present appeal arises out of the judgment and order of
acquittal passed by the learned 3rd Additional Chief Judicial
Magistrate, Bharuch in Criminal Case No.6131 of 2007. By the said
judgment and order, the learned Magistrate has recorded acquittal of
respondent No.1/original accused- Vandan Salt Industries represented
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through its Proprietor Pankaj Mansukhlal Modi for the offence alleged
under Section 138 of the N.I. Act.
3.2 In nutshell, the case put forward by the complainant- Jayesh
Traders through its proprietor Jayeshkumar Pranjivandas Modi is that
the respondent-accused was the customer of the complainant Firm
and on various occasion had purchased goods on credit. As against the
outstanding amount of the transaction entered with the complainant
Firm, the accused had issued cheque in favour of the complainant Firm
drawn of the bank of Mahila Nagrik Sahkari Bank Limited, Bharuch
bearing cheque No.207896 dated 03.07.2007 of an amount of Rs.1
Lakh. It is further contended that the aforesaid cheque was presented
for realization of 06.07.2007 with the complainant's bank i.e. Canara
Bank, Bharuch for realization of the aforesaid amount. The said
cheque was dishonoured on account of "insufficient funds" as
endorsed in the return memo issued by the concerned bank on
13.07.2007. In such circumstances, the complainant had issued legal
notice raising demand of the aforesaid cheque amount on 02.08.2007,
which was duly served upon the respondent No.1 by R.P.A.D. In spite
of service of such legal notice, the respondent-original accused had
chosen not to make payment of the outstanding amount. In such
circumstances, the complainant was constrained to initiate the
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proceedings against the respondent-accused by lodging complaint
before the learned Magistrate under Section 138 of the N.I. Act, which
was registered as Criminal Case No.6131 of 2007.
4. Facts of R/Criminal Appeal No. 1076 of 2011:
4.1 This appeal arises out of the judgment and order of acquittal
dated 29.12.2010 passed by the learned 3rd Additional Chief Judicial
Magistrate, Bharuch in Criminal Case No.6133 of 2007, acquitting the
respondent No.1-Vandan Salt Industries through Proprietor, Pankaj
Mansukhlal Modi and respondent No.2-Amishaben Nileshbhai Mehta
for the offence alleged under Section 138 of the N.I. Act.
4.2 In nutshell, the complainant has averred in his complaint that
the respondent No.1/original accused No.1 was the customer of the
complainant Firm and used to purchase the goods on credit. Against
such transaction, the respondent No.2/original accused No.2 had
taken over the liability of the respondent No.1-accused of repayment
of such outstanding amount by issuing cheque in favour of the
complainant with the Mahila Nagrik Sahkari Bank Limited, Bharuch
bearing No.222522 dated 02.07.2007 of an amount of Rs.25,000/-.
According to the complainant, said cheque was presented for
realization on 02.07.2007 with the Canara Bank, Bharuch; however, the
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same was returned back with an endorsement "insufficient funds" The
attention of the accused was invited to the aforesaid fact, whereby
considering the assurance given by the respondent accused No.1, the
cheque once again was presented for realization on 07.08.2007 only to
have the confirmation of dishonour of cheque, once again returned
back with an endorsement of "insufficient funds". The complainant
was, therefore, constrained to raise demand by sending legal notice
dated 11.08.2007 by R.P.A.D. upon respondent-accused, which was
duly served on 16.08.2007. In spite of service of such notice, the
respondent-accused had failed to respond to such notice or to make
good the payment of cheque amount. In such circumstances, the
complainant has approached the court of learned Chief Judicial
Magistrate, Bharuch by lodging the complaint under Section 138 of
the N.I. Act, which was registered as Criminal Case No.6133 of 2007.
5. The aforesaid criminal cases were independently decided by the
learned Magistrate. Upon recording the statement of verification of
the complainant, the learned Magistrate being satisfied about the
maintainability of such complaint for initiating proceedings under
Section 138 of the N.I. Act, proceeded to issue summons upon the
respondents-accused. The respondents-accused were duly served with
the summons and had appeared before the learned Magistrate. The
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plea of accused has been recorded by the learned Magistrate, wherein
the accused has denied the case of the complainant. The learned
Magistrate has proceeded with summons's trial. The complainant has
proceeded to produce on record the documentary evidence. The
details of the evidence of lead matter as transpired on record are
reproduced as under:
Sr. No. Particular Exh.
complainant
4 The legal notice issued upon 19
the accused
7 Acknowledgment slip of the 23
notice issued to the accused
notice issued to the accused
9 The details of cash credit 37
account card of accused
10 The form filled up by the 38
accused at the time opening
of the account
11 The extract of the register 41
maintaining details of
dishonoured cheque
12 Cheque return memo issued 42
by the bank
13 The extract of account details 43
of the accused
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5.1 On the other hand, the further statement of the respondent-
accused has been recorded under Section 313 of the Code, wherein
the accused has responded all the question put forwarded by the
complainant in affirmation. When he is called upon to give any
explanation, he has refused to lead any evidence and has concluded by
submitting that the false case has been registered against him. The
learned Magistrate has proceeded to appreciate the aforesaid
evidence, which has been brought on record by the respective parties.
The learned Magistrate has also taken into consideration the
arguments canvassed by the learned counsels representing the
respective parties and has arrived at a finding that the respondent-
accused was the customer of the complainant Firm and various
transactions were entered into between the parties. That the learned
Magistrate has noted the case of the complainant as against the
outstanding amount of such transactions, the accused had issued the
disputed cheques to the complainant firm. However, the complainant
has not produced any documentary evidences witnessing such
transactions between the parties. The learned Magistrate has also
noticed that no details of the account books and ledger books have
been produced by the complainant and has thus, arrived at a
conclusion that the complainant has failed to prove his case beyond
reasonable doubt. The learned Magistrate has proceeded to record
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the acquittal of the respondent-accused by giving benefit of doubt on
the ground that it was for the complainant to prove that the disputed
cheques were issued towards the outstanding legally enforceable
debt with the respondent-accused.
5.2 Similar findings have been arrived at by the learned Magistrate
while examining the evidence brought on record in Criminal Case
No.6131 of 2007. In Criminal Case No.6133 of 2007, the additional fact
which has emerged on record, is the respondent No.2- Amishaben
Nileshbhai Mehta is joined as accused No.2. In light of the fact that,
she had assured to take over the liability of the accused No.1 and had
issued the cheque with an assurance that the outstanding amount
against the transaction entered with the respondent No.1-original
accused, stands satisfied. In the said criminal case, similar set of
evidence has been brought on record by the original complainant firm.
The perusal of further statement recorded under Section 313 of the
Code, goes to indicate that similar set of questions were put to the
respondent-accused, which have been answered in affirmation. The
further opportunity of raising defence was also extended, wherein the
respondent-accused have concluded by submitting that the false case
has been raised by the complainant against the accused. No separate
evidence or independent witness has been examined by the accused.
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At one stage, the defence was raised disputing the fact of issuance of
legal notice upon respondent-original accused, thereby challenging
the maintainability of complaint on the ground of breach of Section
138(b) of the N.I. Act. However, the learned Magistrate has proceeded
to deal with the merits of the case by appreciating the evidence
brought on record. The learned Magistrate has mainly taken into
consideration the evidence as emerged in the cross-examination of
the complainant. The learned Magistrate has noticed that the accused
No.2 has handed over the disputed cheque to Mr. Jayeshkumar
Pranjivandas Modi, who also appears to be the proprietor of
complainant firm i.e. Jayesh Traders whereas the cheque is drawn in
the name of Jayesh Traders, which has been dishonoured. Noticing the
aforesaid fact, the learned Magistrate has arrived at a finding that no
transaction of the complainant's firm with the respondent No.2-
original accused No.2 existed, to attract offence punishable under
Section 138 of the Act.
5.3 Having noticed the aforesaid facts and considering the contents
of the return memo, it is held that no cause of action had arisen to
initiate proceedings under Section 138 of the Act. With such
observations, the learned Magistrate has proceeded to record
acquittal of the respondents- original accused for the offence alleged
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under Section 138 of the N.I. Act.
5.4 Hence, these appeals against the judgment and order of
acquittal.
6. Learned advocate Mr. Kashyap Joshi has appeared for the
appellant-original complainant and learned advocate Mr. N.V. Gandhi
for the respondent No.1-original accused and Mr. Manan Mehta,
learned APP has appeared for the respondent-State.
7. At the outset, the learned advocate for the appellant has invited
my attention to the findings and the reasons assigned by the learned
Magistrate while recording the acquittal of the respondent-accused in
the respective cases. It is submitted that indisputably, it has emerged
on record that the accused was the customer of the complainant firm
and various transactions prevailed during the course of the period,
wherein the account was maintained by the firm. It has also emerged
on record that the accounts were maintained, which indicates that the
outstanding amount was due to be realized from the respondent-
accused. In such circumstances, the factum of the legal debt against
the respondent-accused has been proved by the appellant.
7.1 The learned advocate has further invited my attention to the
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scheme of the Act by referring to Sections 118 and 139 of the Act.
According to the learned advocate, the specific provision has been
incorporated in the statute, which permits the Court to raise statutory
presumption. In absence of any challenge with regard to issuance of
cheque in the name of the complainant firm and the signature of the
accused on the disputed cheques, the statutory presumption had
arisen in favour of the complainant. The learned advocate has further
submitted that the aspect of validity of cheque was not raised by the
respondent-accused. In such circumstances, the burden was upon the
respondent-accused to prove that the cheque was not given towards
any legally enforceable debt. In support of his submissions, the
learned advocate has placed reliance upon the decision of the Hon'ble
Supreme Court in the case of Uttam Ram vs. Devinder Singh Hudan
and another reported in (2019) 10 SCC 287, to contend that to
disprove the presumption, the accused was expected to bring on
record such facts and circumstances to establish that the
consideration and debt did not exist or their non-existence was so
probable that a prudent man would under the circumstances of the
case, act upon the plea that they exist.
7.2 The learned advocate has further submitted that the approach
of the court below calling upon the complainant to prove his case by
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shifting the burden upon the complainant was therefore, erroneous in
absence of any evidence for rebuttal of such presumption being
brought on record by the respondent-accused. Learned advocate has
further referred to the decision of Hon'ble Supreme Court in the case
of D.K. Chandel vs. M/S Wockhardt Ltd and Anr. reproted in 2020
LawSuit (SC) 154, wherein the Hon'ble Supreme Court had uphold the
approach of the High Court in reversing the judgment of the acquittal
recorded by the trial court to insist for production of the account
books/cash book in proceedings arising out of Section 138 of the N.I.
Act. The Hon'ble Supreme Court had taken into consideration the
statutory presumption as available under the Act and had thereby
upheld the conviction of the appellant under Section 138 of the N.I.
Act. The reliance was also placed on the decision of the Hon'ble
Supreme Court in the case of Kishan Rao vs. Shankargouda
reported in (2018) 8 SCC 165, to contend that accused is expected to
adduce evidence to rebut presumption under Section 139 of the Act
and mere denial regarding existence of debt cannot be treated as
sufficient evidence to dislodge the presumption. The reliance was also
placed upon the decision of the Hon'ble Supreme Court in the case of
Bir Singh vs. Mukesh Kumar reported in (2019) 4 SCC 197, once
again reiterating the principle that a person, who signs a cheque and
makes it over to the payee remains liable unless he adduces evidence
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to rebut the presumption that the cheque had been issued for
payment of a debt or in discharge of a liability.
7.3 The attention of this Court was also invited to the fact that even
in a case where the respondent-accused had claimed to have been
parted with the cheque under any threat or coercion, the Court is
bound to extend the benefit of presumption under Section 139 of the
Act in absence of any evidence of exercise of undue influence of
coercion. While referring to the decision of the Hon'ble Supreme
Court in the case of M. Abbas Haji vs. T.N. Channakeshava reported
in (2019) 9 SCC 606, the learned advocate had highlighted the
reasons, which had appealed the High Court and had thereby
submitted that in the present case, the respondent-accused had
chosen not to step into the witness box nor he had applied for opinion
of any handwriting expert nor he had responded to the legal notice. In
such circumstances, the trial court ought not to have considered the
case for acquittal. At this stage, the reference was made to the
decision of the Hon'ble Supreme Court in the case of Rangappa vs. Sri
Mohan reported in (2010) 11 SCC 441, by relying upon the
observations made by the Hon'ble Supreme Court in Para 15, to
contend that the very fact that the accused had failed to reply to the
statutory notice under Section 138 of the N.I. Act lead to the inference
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that there was merit in the complainant's version. Because, this goes
to suggest that the accused was not able to contest the existence of
legally enforceable debt or liability. On the aspect of the approach of
the trial court in erroneously shifting the burden upon the
complainant to prove his case, the learned advocate has placed
reliance upon the relevant observations made by the Hon'ble Supreme
Court in the case of T. Vasanthakumar vs. Vijayakumari reported in
(2015) 8 SCC 378 and has submitted that once the presumption had
arisen in favour of the complainant, the burden was on the accused to
rebut such presumption. In such circumstances, the approach of the
Court in recording the acquittal on the ground that the complainant
had not proved legally enforceable debt or liability against the
defendant, was quashed and set aside by the Hon'ble Supreme Court.
Lastly, the learned advocate has relied upon the decision of the
Hon'ble Supreme Court in the case of State of U.P. vs. Lakhmi
reported in (1998) 4 SCC 336, to submit that the court ought not to
have ignored the evidence culled out in the form of the statement of
accused recorded under Section 313 of the Code. The trial court ought
to have given due weightage to the answers given by the accused
while appreciating the case of the complainant.
7.4 By making aforesaid submissions, the learned advocate has,
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therefore, urged this Court to quash and set aside the order of
acquittal and to convict the respondents-accused for the offence
under Section 138 of the N.I. Act.
8. Learned advocate Mr. N.V. Gandhi for the respondent- original
accused has vehemently objected to the aforesaid submissions of the
learned advocate for the appellant. The learned advocate has briefly
referred to the findings and reasons assigned by the learned
Magistrate while recording the order of acquittal. Learned advocate
has further placed reliance upon the scope of appeal under Section
378 of Code to contend that based on appreciation of evidence on
record, in absence of manifest illegality, once the order of acquittal is
passed by the trial court, this court may not interfere in the impugned
order. According to the learned advocate, noticing the evidence of the
complainant in light of the averments made in the original complaint,
the learned trial court has rightly shifted the burden upon the
complainant to establish his case beyond reasonable doubt. The
learned advocate has further submitted that the presumption which is
available under the statue, is not absolute and it was for the
complainant to prove that the disputed cheques were issued towards
the discharge of any debt or liability of the respondent-accused. By
making the aforesaid submissions, the advocate had prayed to not to
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entertain the appeals.
9. Having heard the learned advocates appearing for the
respective parties and on close perusal of the evidence placed on
record, the question which falls for consideration before this Court in
the present group of appeals is, "whether the trial court committed
any error in recording the acquittal of the respondents-accused in
facts of the case."
10. On appreciation of the evidence brought on record, more
particularly, the deposition of the complainant and the statement of
the accused recorded under Section 313 of the Code, indisputably, it
transpires that there existed the business transactions between the
complainant firm and the respondent No.1-original accused. In his
cross-examination, the complainant has admitted that he is the owner
of the complainant firm i.e. Jayesh Traders, which is a registered firm.
He has also admitted that the books of accounts are maintained by
the said firm. It is further admitted that the separate account of the
respondent-accused was maintained; however, the said document has
not been brought on record. Though, he has expressed before the trial
court that he is ready to place on record, the same has ultimately not
placed on record. He has denied the suggestion of the respondent of
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misuse of blank cheque signed by the respondent-accused. He has
also denied the fact that no outstanding amount is due to be realized
from the respondent-accused and has lodged false case to extract
money.
10.1 The learned Magistrate has taken into consideration the
aforesaid evidence of the complainant to arrive at a finding that the
separate account in the name of accused though being maintained,
has not been produced on record. The court has drawn inference
against the original complainant and has thereby shifted the burden
upon the complainant to prove that cheque was issued towards the
outstanding dues. With such observations, the learned Magistrate has
granted benefit of doubt to the respondents-accused and has passed
the impugned order of acquittal.
11. The learned advocate for the appellant has highlighted the
aforesaid approach of the trial court as against the principle laid down
in various authorities as relied upon and the scheme of the Act. He has
made much emphasis on the statement of the accused recorded under
Section 313 of the Code, to contend that the trial court has committed
serious error in shifting the burden upon the respondent-accused to
prove his case beyond reasonable doubt, more particularly, when the
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accused though by way of admission in his further statement has not
disputed the case of the complainant. With such admission being
brought on record, the situation does not warrant any dispute to the
case put forward by the complainant and therefore, according to
learned advocate the trial court ought not to have shifted the burden
upon the original complainant.
12. Looking to the controversy involved, I have closely gone
through the relevant observations of the Hon'ble Supreme Court in
the various authorities relied upon by the learned advocate for the
appellant-complainant. The sole purpose of Section 138 of the N.I. Act
is to ensure that the cheque transaction has as much credibility as a
cash transaction, the interpretation of the statutory provision is to
infuse the credibility of such instruments to encourage and promote
the use of cheque in financial transactions. The penal provision of
Section 138 of the N.I. Act is intended to be a deterrent to callous
issuance of cheques without serious intention to honour the promise
implicit in the issuance of the same. There cannot be any dispute to
the settled legal position i.e. the scheme of the Act in light of the
mandate of raising statutory presumption as envisaged under
Sections 118 and 139 of the Act as noted in the aforesaid various
decisions relied upon by the learned advocate for the appellant. In
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absence of any dispute with regard to issuance of cheques and the
signature of drawer on the disputed cheques, the presumption as
provided under the statute arises in favour of the holder of the
cheque. This is of course in the nature of rebuttal presumption and it
is open to the accused to raise a defence wherein the existence of a
legally enforceable debt or liability can be contested. However, there
can be no doubt that there is an initial presumption, which favours
the complainant. Section 139 of the Act is an example of reverse onus
clause that has been included in the furtherance of the legislative
objective of improving the credibility of negotiable instruments. While
Section 138 of the Act specifies strong criminal remedy in relation to
the dishonour of cheques, the rebuttal presumption under Section
139 of the Act is a device to prevent the course of litigation.
13. Keeping in view of the aforesaid principles, it is also a settled
position that when an accused has to rebut the presumption under
Section 139 of the Act, the standard of proof for doing so is that of
"preponderance of probability". Therefore, if the accused is able to
raise a probable defence which creates a slightest doubt about the
existence of a legally enforceable debt or liability, the prosecution can
fail.
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14. Having held so, it is also settled legal position that the defence
which may emerge on record at the instance of the respondent-
accused not necessarily may be in the form of substantive
independent evidence lead by the respondent-accused. The courts
have held that it is not necessary that the accused should enter into
the witness box and lead the evidence. What is essential, is that the
Section 139 of the Act, which mandates "unless the contrary" is
proved, it is to be presumed that the holder of cheque received the
cheque of the nature referred to in Section 138 of the Act for
discharge, in whole or in part, of any debt or other liability. Thus, in the
opinion of this Court, the slightest doubt created by the accused in the
cross-examination of the complainant of issuance of cheque towards
the existence of any debt or liability, leads to the rebuttal of
presumption and the onus of proving the fact that the cheque was not
in discharge of any debt or other liability, stands satisfied.
15. A similar question arose for consideration before the Hon'ble
Supreme Court in the case of Kumar Exports vs. Sharma Carpets
reported in (2009) 2 SCC 513. The concept of "preponderance of
probability" in light of the provisions of the Act has been dealt with by
the Hon'ble Supreme Court in the case Kumar Exports (supra). The
Hon'ble Supreme Court had taken into consideration the exception
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culled out in case of matters arising out of dishonour of cheque as
against the general rule applicable to the contracts, whereby Sections
118 and 139 of the Act permit the Courts to raise presumption in
certain cases. The Court upon appreciation of the aforesaid provisions
noted that, the presumption was a matter of principle to facilitate
negotiability as well as trade. While applying the definition of the
word proved appearing in Section 3 of the Evidence Act to the
provisions of Sections 118 and 139 of the Act, the Court observed that
the statute permits the court to raise initial presumption that every
negotiable instrument was made or drawn for consideration and that
it was executed for discharge of debt or liability, once the execution
of negotiable instrument was proved or admitted.
16. Having noted so, in light of the submissions of the learned
advocate for the appellant-original complainant with regard to the
admission made under Section 313 of the Code, extending the benefit
of such admission, the evidence of the complainant was shaken by the
respondent-original accused in the cross-examination, wherein the
complainant had failed to produce on record the details related to the
books of accounts, more particularly, when it was admitted by the
complainant that separate account was maintained with regard to the
transaction with respondent No.1-original accused. This had put
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question mark on the existence of the actual consideration or the
legal debt or liability incurred by the respondent-accused. In my
opinion, the burden had shifted on the complainant to prove his case
beyond reasonable doubt. The use of words "until the contrary" is
proved in Section 118 of the Act and the use of the words "unless the
contrary" is proved in Section 139 of the Act meet with the definitions
of "may" presume and "shall" presume as given in Section 4 of the
Evidence Act, makes it clear that the presumption is raised under both
the provisions are rebuttable.
17. Insofar as approach of the trial court in manner in which the
burden was shifted upon the respondent-accused, this Court is of the
opinion that at one stage, the defence was raised by the respondent-
accused about misuse of blank cheque. However, the same has not
been substantiated by leading any cogent evidence on record. The
argument is canvassed that in absence of any cogent material being
brought on record, the learned Magistrate ought not to have shifted
the burden upon the original complainant to prove his case beyond
reasonable doubt. The aforesaid argument in similar set of case has
been appreciated and dealt with by the Hon'ble Supreme Court in the
case of Rajaram S/O Sriramulu Naidu (Since Deceased) through
L.Rs. Versus Maruthachalam (Since Deceased) through L.Rs
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reported in 2023 LiveLaw (SC) 46. The Court held that it was open for
the accused to rely upon the material submitted by the complainant
for raising a probable defence and rebutting the presumption, the
absence of discolsing the amount advance/lent in the income tax
returns was a material circumstance go into root of the matter. The
insistence of the learned Magistrate upon failure of the complainant
to produce the account books/ cash books in criminal case under
Section 138 of the N.I. Act cannot be faulted with in the present
proceedings. Since, the fact remains that having admitted at one stage
about the acceptance of the separate account being maintained in the
name of the respondent-accused, the question arises as to the
existence of actual amount of debt or dues to be realized from
accused consideration and the issuance of cheques as against such
dues. In such circumstances, the burden has shifted upon the
complainant to establish that the cheques were issued towards
discharge of outstanding dues.
18. The emphasis is made on the non-consideration of the further
statement of accused recorded under Section 313 of the Code, more
particularly, when all the questions put to the respondent-accused has
not been disputed or rather affirmed. It would be worth to note that
in criminal proceedings, the recording of further statement of the
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accused under Section 313 of the Code is at the stage once the
onerous responsibility of scanning the evidence after the prosecution
closes its case and to enable to trace the incriminating circumstances
in the evidence against the accused, the whole purpose of recording
the statement under Section 313 of the Code is to extend an
opportunity to the accused with reference to the incriminating
circumstances appearing against him in persecution evidence. It is not
for the observance of a ritual in a trial nor it is a mere formality but a
solitary purpose is involved behind such exercise as it enables the
Court to apprise of what the indicted person has to say about the
circumstances pitted against him by the transaction. In fact, the
decision relied upon by the learned advocate for the appellant in the
case of Lakhmi (supra) is concerned, the Hon'ble Supreme Court
having noted the aforesaid object has further held that the answers of
the accused even when they contain admission of circumstances
against him by itself cannot be use for arriving at a finding that the
accused have committed the offence.
19. Having held so, considering the scope of the Appeal under
Section 378 of the Code, more particularly, when the order of
acquittal has been earned by the respondent-accused, this Court is of
the view that no perversity or error is committed by the learned trial
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court while recording the order of the acquittal of the respondent-
accused. Hence, these criminal appeals fail and are hereby dismissed.
Record and proceedings, if any, be send back to the concerned court
forthwith.
(NISHA M. THAKORE, J)
SUYASH SRIVASTAVA
