Gujarat High Court

Mehulkumar Vishnuprasad Joshi vs State Of Gujarat on 13 February, 2024

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 362 of 2024
FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE M. K. THAKKER
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1     Whether Reporters of Local Papers may be allowed                  NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                           NO

3     Whether their Lordships wish to see the fair copy                 NO
      of the judgment ?

4     Whether this case involves a substantial question                 NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       MEHULKUMAR VISHNUPRASAD JOSHI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR MAHENDRA U VORA(3034) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MS MONALI BHATT, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                               Date : 13/02/2024

                               ORAL JUDGMENT

1.This appeal is filed under Section 378 of the

Code of Criminal Procedure, 1973 ('the

Cr.P.C. referred hereinafter) challenging the

judgment and order of the acquittal passed by

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the learned 2nd Additional Chief Judicial

Magistrate, Himmatnagar at Sabarkantha in

Criminal Case No.6123 of 2013 below Exhibit

117 dated 24.08.2023, whereby the respondent

accused was acquitted from the charges under

Section 138 of the N.I.Act.

2.Brief facts of the present case in a

capsulized form are as follow:

2.1. It is the case of the complainant that

the complainant and the accused were

belonging from the same village and they

were friends and having homely relations

with each other. On sudden needs of the

money, the respondentaccused came to the

house of the complainant on 13.01.2013 and

demanded the amount of Rs.3 Lakh. The

complainant from his saving as well as

after arranging the fund from the family

members as well as the friends has lent

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the amount of Rs.2,49,999/ to the

respondentaccused. On being repeated

demand, cheque bearing No.228327 of

Sabarkantha District Central Cooperative

Bank, Raygadh Branch for the amount of

Rs.2,49,999/ was issued in favour of the

complainant dated 01.05.2013.

2.2. On depositing the said cheque on

12.07.2013 same was returned with an

endorsement of 'fund insufficient',

'signature differ', 'the stamp of the firm

is missing'. On receiving the return memo,

demand notice was issued below Exhibit 20.

As the demand notice was neither replied

nor complied, therefore, private complaint

came to be filed before the competent

Court. The accused came to be appeared

before the learned trial Court and his

plea was recorded wherein the accused

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pleaded not guilty and claimed to be

tried.

2.3. To prove the guilt of the accused, the

complainant had examined himself below

Exhibit 60 and the Bank officer at Exhibit

66. Further the documentary evidence in

the nature of disputed cheque Exhibit 18,

Exhibit 19, copy of the notice Exhibit 20,

post receipt Exhibit 21 and acknowledgment

slip Exhibit 22 were produced.

2.4. On filing the closing pursis, statement

was recorded under Section 313 of the

Cr.P.C. wherein the accused pleaded

innocent and stated that the bag

containing the cheque as well as the

necessary documents was fallen down from

the bike and with regard to the same the

Janvajog application was registered before

the Gambhoi Police Station as well as the

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application was given for the stop payment

before the Bank authority and by misusing

the said cheque and making the forge

signature on the same, the false complaint

is filed before the learned trial Court.

2.5. In addition of his statement, accused

had produced the documentary evidence in

the nature of specimen signature Exhibit

67, account opening form Exhibit 68,

account opening form Exhibit 69. The reply

given by the police sub inspector, Gambhoi

Police Station Exhibit 95, affidavit on

the stamp paper Exhibit 106, application

given to the police station Exhibit 107,

reply to the demand notice Exhibit 108,

postal receipt Exhibit 109, acknowledgment

slip Exhibit 110 and the reply of Head

Constable of Gambhoi Police Station

Exhibit 111.

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2.6. After considering these evidences and

the arguments made by the learned

advocates for the respective parties,

learned trial Court was pleased to acquit

the respondentaccused from the charges

under Section 138 of the N.I.Act which is

impugned before this Court.

3.Heard learned advocate Mr.Mahendra Vora for

the appellant and as this matter is decided

on merits at admission stage, after perusing

the record and proceedings, without issuing

the notice to the respondent, respondent was

not heard.

4.Learned advocate Mr.Mahendra Vora submits

that though the defence of the respondent

accused was not believed by the learned trial

Court with regard to the missing of the

cheque book and giving application before the

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concerned police station as well as to the

Bank authority, judgment and order of

acquittal was passed. Learned advocate

Mr.Vora submits that though further defence

with regard to the signature differ was also

disbelieved by the learned trial Court,

however, at the end judgment and order of the

acquittal was passed by the learned trial

Court.

4.1. Learned advocate Mr.Vora submits that

the sole ground for acquitting to the

respondentaccused is that the complainant

did not examine the relatives and the

friends from whom the money was borrowed

and was lent to the respondentaccused and

thereby he failed in proving the financial

capacity to lend the amount. Learned

advocate Mr.Vora submits that though

presumption, which is in favour of the

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complainant under Sections 118 and 139 of

the N.I.Act regarding the issuance of the

cheque to discharge the legally

enforceable debt in favour of the

complainant was not rebutted by the

respondentaccused by establishing the

probable defence, judgment and order of

acquittal was passed by the learned trial

Court acquitting the respondentaccused.

4.2. Learned advocate Mr.Vora submits that as

the complainant and the respondent was

having the homely relations and on sudden

demand, the complainant had arranged the

funds from the friends and relatives. By

nonexamining the said witness the case of

the complainant cannot be said to have

been falsified. Learned advocate Mr.Vora

submits that for the small amount the

friends or relatives may not appear before

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the learned trial Court for the evidence,

as on the instance of the complainant, the

amount was given to the complainant, which

was lent in turn to the respondent

accused. Therefore, acquitting the

respondentaccused for not examining the

said witness, learned trial Court has

committed a grave error in acquitting the

respondentaccused.

4.3. Learned advocate Mr.Vora submits that

though the case of the complainant was

believed by the learned trial Court and

probable defense which respondentaccused

had tried to put was discarded, judgment

and order of the acquittal was passed by

the learned trial Court, which is against

the material on record. Learned advocate

Mr.Vora submits that when the complainant

had discharged his initial burden to prove

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the execution of the cheque and on proving

the said execution, statutory presumption

which is available under the Act comes

into operation in favour of the

complainant and failing to dislodging of

the said presumption by producing the

evidence which may in the standard or

preponderance of probabilities, learned

trial Court had committed an error in

acquitting to the respondentaccused from

the charges. By submitting the same,

learned advocate Mr.Vora prays to admit

this appeal and to convict the respondent

accused for the charges levelled against

him.

5.Considering the submissions, before entering

into the merits of the case, this Court deems

it fit to relook the provisions of the

N.I.Act, which are reproduced hereinbelow:

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"Section 118 - Presumptions as to negotiable instruments Until the contrary is proved, the following presumptions shall be made:

of consideration; that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

as to date; that every negotiable instrument bearing a date was made or drawn on such date;

as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

as to time of transfer; that every transfer of a negotiable instrument was made before its maturity;

as to order of indorsements; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

as to stamp; that a lost promissory note, bill of exchange or cheque was duly stamped;

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

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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--

(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

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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,

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."

6.Considering the above provisions, what is the

presumption that is elaborated in 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 and a

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discussion with regard to the same 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:

6.1.1.

"A presumption is an inference as to the existence of a fact not actually known arising from its connection with another which is known.

6.1.2.

A presumption is a conclusion drawn from the proof of facts or circumstances and stands as establishing facts until overcome by contrary proof. 6.1.3.

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

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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."

6.1.4.

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".

7.Keeping in mind the above ratio, now if the

Court would examine the case of the

complainant which is as under:

7.1. It is the case of the complainant that

the complainant and the respondentaccused

were knowing to each other and having the

family relations and on sudden demand, the

complainant lent the money of

Rs.2,49,999/ after arranging the same

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from the family and friends in addition to

his own savings. On raising the demand of

the aforesaid money, the cheque bearing

No.228327 of Sabarkantha District

Cooperative Bank Limited, Raigadh Branch

was issued in favour of the complainant.

The said cheque was dated 01.05.2013 was

deposited with the Bank on 12.07.2013

which was returned on 13.07.2013 with the

reasons mentioned in the return memo i.e.

6(A), 7, 14 D and 23. Therefore, after

following the due procedure, the private

complaint came to be filed.

7.2. On being appeared, the plea was

recorded of the accused below Exhibit 11

wherein he denied the allegation and

claimed to be innocent. After filing the

closing pursis by the complainant, the

statement under Section 313 of the Cr.P.C.

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was recorded wherein the accused pleaded

that though the demand notice was replied,

same was suppressed in the complaint. In

the reply to the demand notice, which is

produced at Exhibit 108 the respondent

accused stated that his bag containing the

cheque book of ICICI Bank as well as the

cheque of other Bank and relevant

documents was missing and on being

realized he immediately informed to the

police station and that cheque was misused

by the complainant after making the forge

signature and filling the other body

writing of the cheque. The same defence

was stated in the statement recorded under

Section 313 of the Cr.P.C.

7.3. To rebut the presumption, which is in

favour of the complainant, the complainant

was cross examined by the respondent

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accused, wherein the following admissions

made by the complainant.

(1) The complainant is doing the business

of Karm kand. Respondentaccused did not

disclose for what purpose the money he

needed. The amount of Rs.3 Lakh was not

having when Samirbhai came and money was

demanded. On the day when the demand was

raised by the Samirbhai in the night, I

arranged funds and lent to Samirbhai. I

was having some of the amount and for the

remaining amount, I borrowed from the

family and the friends. I had not

disclosed in my chief examination that how

much amount I was having and what amount I

borrowed from which friend and family

members. I was having the saving of

Rs.40,000/ and for remaining amount which

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friend given how much amount that fact I

cannot state.

(2) On which date I demanded the amount

from the respondentaccused is not

disclosed either in my complaint or in my

chief examination. On which date, the

accused gave the cheque is also not

disclosed in the complaint and in the

chief examination. My account is with the

Sabararkantha District Cooperative Bank is

a joint account. I have also account in

the Union Bank, Raygadh Branch. I can

deposit the cheque wherever I want as per

my choice. Reply of the demand notice was

given by the accused through an advocate,

that fact is not disclosed in my complaint

or chief examination. In the said reply,

accused contended that bag containing the

cheques and the other important document

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was missing and for that Janvajog

application was given to the police

station and the application was also given

to the Bank for stop payment. In the said

reply to the demand notice, I warn the

complainant to return the cheque as well

as the memo.

(3) During the cross examination, he

further stated that I am ready to produce

the rejoinder of the demand notice and for

that an adjournment was granted. On next

date of hearing in the continuation of the

cross examination it is stated that I did

not have the rejoinder of the demand

notice. I did not give rejoinder to the

demand notice given by the respondent

accused. I am aware the difference of

account payee cheque and the bearer

cheque. In the bearer cheque, on the

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production of the cheque the amount would

immediately be given to the person and in

the account payee cheque the money would

be credited in the account of the person.

The disputed cheque was account payee

cheque. On being seen Exhibit 18, he admit

that the cheque is bearer cheque.

(4) In the return memo reasons mentioned

are signature differ, stop payment, fund

insufficient and rubber stamp required. I

am having the qualification of M.A. with

Sanskrit. Notice was issued by the

advocate as per my instructions. After

being read, the complaint and the chief

examination were signed by me.

(5) I know Kanubhai Barot, who is having

the office at Durga Complex and having the

residential premises at Green Park. It is

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not true that one cheque was given to the

said Kanubhai and Kanubhai had deposited

the cheque with the Bank. However, I am

not having the knowledge that Kanubhai did

not filed any complaint. The accused had

demanded the amount of Rs.3 Lakh, however,

only Rs.2,49,999/ was arranged and

therefore that was only lent to the

accused. I was not having the total amount

of Rs.2,50,000/.

7.4. In addition to this witness the other

witness was also cross examined by the

respondentaccused, who is Dharmeshkumar

Bharatbhai Pandya, whose evidence was

recorded at Exhibit 66. In his examination

in chief, he had stated that I am serving

at Sabarkantha District Cooperative Bank,

District Raygadh Branch and the accused is

maintaining the account in one Bank,

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cheque book containing the cheque number

228321 to 228340 was issued in the name of

respondentaccused on 12.09.2012. Exhibit

18 cheque was issued by the Bank to the

accused. The said cheque does not have the

signature of the account holder. As the

signature on the cheque was not matching

with the specimen signature, it was

returned with an endorsement of signature

differ.

7.5. In addition to the said reason, another

reasons being No.7, 14D and 23 was also

mentioned in the return memo. On the day

when the cheque was sent for clearing, the

respondentaccused was having balance of

Rs.622/. During the cross examination,

the specimen card wherein the signature of

the accused is made having produced at

Exhibit 18. On being verified in the cross

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examination, he admit that signature on

the disputed cheque is not matching with

the specimen signature at Exhibit 18. The

application for stop payment was given on

04.07.2013. Along with the application,

the affidavit which was produced before

the Gambhoi Police Station regarding the

missing of cheque was also annexed. There

was no any stamp or seal of the firm of

the accused, namely, Samir Construction.

Exhibit 18 cheque was bearer cheque and on

receiving in the clearance the said cheque

was returned on the same day i.e. on

13.07.2013. The signature was not of the

respondentaccused on the said cheque. In

addition of the aforesaid cross

examination, the respondentaccused has

also proved the documentary evidence,

which is sample of signature Exhibit 67,

account opening form Exhibit 68.

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8.Learned trial Court after examining the

record disbelieved the case of the

respondentaccused with regard to the

signature differ as well as missing the

cheque book, for the reason that in the

affidavit filed before the police station,

the respondentaccused mentioned the cheque

book of ICICI Bank which is missing however,

the disputed cheque was of the Sabarkantha

District Central Cooperative Bank. The

learned trial Court comes to the conclusion

that the amount of Rs.2,49,999/ which was

arranged by the complainant from the family

and his friend is not proved through the

evidence of any witness and therefore,

financial capacity was disbelieved by the

learned trial Court.

9.On examining the record, this Court is not

agree with the findings of the learned trial

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Court where the defence of the respondent

accused was disbelieved with regard to the

missing the bag and the bearer cheque which

was dishonored on one of the ground of

signature differ. To rebut the statutory

presumption, accused is not expected to prove

his defence beyond the reasonable doubt as is

expected from the criminal case arising from

the offence punishable under the Indian Penal

Code or any other offence.

9.1. Accused may adduce direct evidence to

prove that cheque in question was not

supported by the consideration and that

there was no debt or liability to be

discharged by him. As held by the Apex

Court in catena of judgments that Court

need not insist in every case that the

accused should disprove nonexistence of

consideration and that by leading direct

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evidence because existence of negative

evidence is neither possible nor

contemplated. Some thing which is probable

has to be brought on record for getting

burden of proof shifted to the

complainant.

10. In the present case, to disprove the case

of the complainant and to dislodge the

presumption, accused has raised his probable

defence of missing the cheque and for that he

produced the application, which was given to

the Gambhoi Police Station along with an

affidavit on NonJudicial Stamp paper. In

addition to that during the examination of

the Bank Officer, wherein it is admitted that

the disputed signature was not matching with

the specimen signature of the card is also

sufficient to dislodge the presumption, which

in favour of the complainant.

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11. One more glaring aspect is that the amount,

which was lent is an aud amount i.e.

Rs.2,49,999/. When the respondent had

collected the amount from the friends and

relatives, he stated in his cross examination

that he could not collect the amount of

Rs.2,50,000/. To believe the case that Rs.1

was left in Rs.2,50,000/ and that amount was

lent is also under cloud of doubt.

12. This Court is of the view that the

probable defence, which was raised by the

respondentaccused by leading the evidence in

the nature of specimen signature, stop

payment application and the affidavit on the

stamp paper with regard to the missing

complaint has successfully to dislodge the

presumption which is in favour of the

complainant. In addition to the above

documents, the detailed cross examination was

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held of the complainant wherein the

complainant himself had admitted that

signature was not of the respondentaccused

on the disputed cheque. The presumption,

which is mandated under Section 139 of the

N.I.Act does not indeed include the existence

of the legally enforceable debt or liability.

When the accused raised the defence, wherein

the existence of the legally enforceable debt

or liability was challenged then onus after

rebutting the said presumption again shifted

on the complainant. When the accused is able

to raise the probable defence which create

doubt about the existence of the legally

enforceable debt or liability, prosecution

would fail. That by producing the material

and by cross examining the complainant, the

accused had successfully rebutted the

presumption and therefore, there cannot be

said any error committed by the learned trial

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Court in acquitting the respondentaccused.

13. Further more, as per the law laid down

by the Apex Court in catena of decisions

wherein it is held that, accused has to bring

on record the facts and circumstances, which

may lead the Court to conclude either this

consideration is not exist or that non

existence was so probable that a prudent man

would, under circumstances of the case act

upon plea that consideration does not exist.

Addition to this fact, the complainant also

fails to prove his financial capacity though

in the chief examination and in the complaint

averment made that after borrowing the money

from the friends and relatives, the amount

was lent to the accused.

14. This being a acquittal appeal, as per

the law laid down by the Apex Court in case

of Chandrappa and others vs. State of

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Karnataka, reported in (2007) 4 SCC 415

wherein the general principles were laid down

regarding the powers of the Appellate Court

while dealing with the appeal against an

order of the acquittal, which are reproduced

hereinbelow:

"(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

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(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court."

15. Considering the above judgment and

overall circumstances of the case, this Court

is of the view that the judgment and order of

acquittal passed by the learned trial Court

is in accordance with law and there is no any

illegality, perversity or impropriety found

in the judgment and, therefore, the same is

required to be confirmed.

16. In view of the above discussions, this

appeal fails. The judgment and order of the

acquittal passed by the learned 2nd

Additional Chief Judicial Magistrate,