Gujarat High Court
Ramanbhai Balubhai Rathod vs Ramabhai Jivabhai Prajapati on 19 January, 2024
NEUTRAL CITATION
R/CR.RA/225/2012 ORDER DATED: 19/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 225 of 2012
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RAMANBHAI BALUBHAI RATHOD
Versus
RAMABHAI JIVABHAI PRAJAPATI & 1 other(s)
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Appearance:
MR PRAKASH G PANDYA(3041) for the Applicant(s) No. 1
MR PANKAJ S CHAUDHARY(3269) for the Respondent(s) No. 1
MR HK PATEL, PUBLIC PROSECUTOR for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 19/01/2024
ORAL ORDER
1. By way of this Revision, the Revisionist-original
complainant has challenged the judgment and order dated
31.03.2012, passed by the learned Additional Sessions Judge,
Sabarkantha at Modasa ('Appellate Court', in brief), in Criminal
Appeal No. 2 of 2009, whereby, the Appellate Court quashed
and set aside the judgment and order dated 15.12.2008,
passed by the learned Judicial Magistrate First Class, Modasa
(in short, 'Trial Court'), in Criminal Case No. 2562 of 2003.
2. For the sake of convenience, the Revisionist shall be
referred to as the Complainant, whereas, Respondent No.1
shall be referred to as the accused, herein after.
3. The brief facts of the case are that the complainant
instituted a complaint, under Section 138 of the Negotiable
Instruments Act, 1881 (NI Act', hereinafter), before the trial
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Court, wherein, he stated that the accused happened to be his
friends and since, the accused was in the need of money, the
complainant had lent him an amount of Rs.90,000/-. According
to the complainant, towards the security of the aforesaid
amount, the accused had given him a cheque dated
11.07.2023, bearing No. 752664, drawn on the Sabarkantha
District Cooperative Bank. It is the case of the complainant
that on 11.07.2023, when he presented the said cheque for
payment, the same was returned with the endorsement
'Insufficient Funds'.
3.1 The complainant, therefore, issued a notice by R.P.A.D.
through his learned Advocate to the accused on 20.07.2003
and the same was duly served on the accused on 25.07.2003.
Despite that, since, the accused failed to repay the cheque
amount, the complainant instituted a complaint, being Criminal
Case No. 2562 of 2003, before the trial Court. The trial Court,
after giving due opportunities to both the sides and after
considering the material on record, passed the order dated
15.12.2008 and convicted the accused for the offence
punishable under Section 138 of the NI Act and sentenced him
to undergo simple imprisonment for six months and also
ordered to pay Rs.90,000/-, towards compensation to the
complainant.
3.2 The accused preferred Criminal Appeal No. 2 of 2009,
against the order dated 15.12.2008, wherein, the Appellate
Court, after hearing both the sides and perusing the material
placed before it, passed the impugned order dated 31.03.2012
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and set aside the order dated 15.12.2008 passed by the trial
Court.
3.3 Being aggrieved and dissatisfied with the order dated
31.03.2012, passed by the Appellate Court, the complainant
has preferred the present Revision.
4. Learned Advocate, Mr. Pandya, appearing for the
complainant took this Court through the order dated
15.12.2008, passed by the trial Court, and submitted that after
recording the cogent and credible evidence available on the
record, convicted the accused for the offence punishable under
Section 138 of the NI Act. It was submitted that, since, the
accused admitted his signature on the cheque in question, the
trial Court rightly held that the presumption available under
Section 139 of the NI Act was running against the accused. It
was submitted that the complainant had also issued the
statutory notice on 20.07.2003, which was duly served on the
accused on 25.07.2003, and even after that as the accused did
not make the payment, the complainant filed the complaint.
He referred to Page-30 of this petition and internal Page-5 of
the impugned order dated 15.12.2008 and submitted that the
complainant had stated before the trial Court that he had paid
Rs.90,000/- to the accused, out of the amount received by him
from sell of cotton and castor seeds and that he holds 10
bighas of more agricultural land, than what his brothers have
and thereby, it was submitted that the complainant had
sufficient means to lent the amount of Rs.90,000/- to the
accused. It was, further, submitted that the trial Court,
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therefore, had rightly believed that due to friendship with the
accused, the complainant had lent him Rs.90,000/-, which is
totally ignored by the Appellate Court. It was submitted that,
since, all the ingredients of Section 138 of the NI Act are
satisfied, the trial Court had rightly held that presumption
under Section 139 of the NI Act shall be available in favour of
the complainant and against the accused. It was, therefore,
prayed that, since, the Appellate Court has committed a grave
error in passing the impugned order dated 31.03.2012, the
same may be set aside and the order dated 15.12.2008,
passed by the trial Court be restored.
Aforesaid submissions are made to allow this Revision.
5. On the other hand, learned Advocate, Mr. Chaudhary,
appearing for Respondent No.1-accused supported the
judgment and order 31.03.2012, passed by the Appellate Court
and submitted that, after appreciating the material before it,
the Appellate Court passed the order dated 31.03.2012 and
the same requires no interference. It was submitted that the
appellate Court rightly come to the conclusion that the
complainant, who was serving as a teacher and was getting
monthly salary of Rs.6700/- and who had to maintain a family
of nine persons, could not have sufficient means to lent
Rs.90,000/- to the accused. It was submitted that there was
financial transaction of Rs.90,000/- between the accused and
the complainant and the accused had repaid Rs.35,000/- along
with an amount of Rs.12,400/- towards interest and therefore,
the appellate Court rightly believed the defence raised by the
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accused. It was, further, submitted that, in fact, the
complainant misused the cheque, which was given towards
security by the accused towards transaction of Rs.35,000/-. It
was submitted that the Appellate Court rightly appreciated the
said aspect and passed the order dated 31.03.2012.
6. Having heard the learned Advocates for the parties and
having perused the material on record, at the outset, it would
be relevant to refer to the observations made by the Appellate
Court at Paragraph-9 of its order dated 31.03.2012, which
reads thus;
"9. In this matter the complainant has given his
deposition and if, the cross-examination of the
complainant is seen, then, he has admitted that he is
serving as a teacher and he is getting onthly salary of
Rs.6,700/-. There are nine members in his family and his
monthly household expenses are about rupees six to
seven thousand. Now, if the cross-examination of the
complainant is examined, who is serving as a teacher
and has to spend about six to seven thousand rupees
per month to maintain a family of nine persons, then, it
cannot be believed that he shall have savings of or an
extra amount of Rs.90,000/- to lent someone. The
complainant has given an explanation by stating that he
has income from agriculture. However, he did not
produce any evidence to show that he had given
Rs.90,000/- from the amount received by him towards
sell of cotton and castor seeds and from his personal
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savings. When there is a clear submission is made on
the part of the learned Advocate for the accused that the
economical condition of the complainant was not sound,
so as to permit him to lent an amount of Rs.90,000/-,
then, it cannot be believed that the complainant had lent
such a huge sum to the accused. Further, the accused
and the complainant both are pursuing different
vocations and they also belong to different castes and
there is nothing produced on record to show that there
was friendship between them. The accused has refused
to have any friendship with the complainant, under the
circumstances, it cannot be believed that the
complainant had lent such a huge sum to the accused.
There was a clear provision, made under the Income Tax
Act, was in vogue in the year 2003 that all the
transactions, involving an amount greater than
Rs.10,000/-, be done through cheque and despite that
there is no mention in the complainant and there is no
clear evidence, as to when and on which date and in
whose presence, the complainant had paid such a huge
amount in cash to the accused. Thus, when the
complainant does not have financial capacity to lent such
a huge amount and when there is no clear evidence, as
to when and on which date such a huge was given to the
accused, I agree with the argument of the learned
Advocate for the accused. Since, it cannot be believed
that the complainant, who was serving as a teacher in
the year 2003 could have such a huge amount with him,
since, in his cross-examination the complainant has
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admitted that as against the monthly income of
Rs.6,700/-, he has to spend about six to seven thousand
rupees per month to meet with household expenses and
therefore, the argument advanced by the learned
Advocate for the accused requires to be accepted.
Further, in the year 2003, for a teacher an amount of
Rs.90,000/- can be said to be a very huge amount and
nobody would keep such a huge amount in his house
and if, such amount was withdrawn from the bank
account, then, there is no evidence produced on record
to that effect. There is also no evidence produced on
record by the complainant with regard to the land
possessed by him. There is also no evidence produced
to show that any amount was received from the sell of
cotton and castor seeds. Under the circumstances, it
would create a doubt, as to whether, the complainant
had actually lent such a huge amount to the accused and
therefore, it raises suspicion with regard to the aspect of
lending such a huge sum and when the accused is
stating that he did not borrow such a huge amount and
instead, he had borrowed a small sum in installments,
which he has already repaid along with interest, then, it
shall be the responsibility of the complainant to prove
that there is legally enforceable amount due against the
accused and the same cannot be believed."
6.1 Before proceeding further, fruitful it would be to refer to
the observations made by the Hon'ble Apex Court in the case
of 'Basalingappa Vs. Mudibasappa', reported in AIR 2019 SC
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1983, wherein, at Paragraph-25 it is observed and held as
under;
"25. We having noticed the ratio laid down by this Court
in above cases on Sections 118(a) and 139, we now
summarise the principles enumerated by this Court in
following manner:-
25.1 Once the execution of cheque is admitted
Section 139 of 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 the 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 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
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come in the witness box in support of his defence."
6.2 Undoubtedly, in the case on hand, the presumption under
Section 139 of the NI Act runs in favour of the complainant.
Section 139 of the NI Act starts with the words, "It shall be
presumed...", which means that an accused is required to
discharge the burden and to rebut such presumption. However,
an accused is required to discharge such a burden on the
preponderance and probabilities and not on the touch-stone of
beyound reasonable doubt. Further, it is not necessary for the
accused to step in the witness box to support his case, but, he
can pick defence from the cross-examination of the
complainant or the prosecution witnesses.
6.3 In the instant case, the complainant was examined vide
Exhibit-14, wherein, he was asked, as to what is his
occupation, how much salary he is receiving every month, how
many family members he has to maintain and how much
expenses he has to bear for the same and the complainant has
replied that he is serving as a teacher and he is getting
monthly salary of Rs.6,700/- and he has to maintain a family of
nine members. The complainant, further, stated that he has to
spend about Rs.6,000/- to Rs.7,000/- for maintaining his family.
Such an admission on the part of the complainant in his cross-
examination raises suspicion about his financial capacity to
lent an amount of Rs.90,000/- to the accused that too in cash.
The complainant, though, stated that he arranged the amount
of Rs.90,000/-, out of the amount received by him from the sell
of cotton and castor seeds and from his personal savings, he
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failed to adduce any evidence to that effect and therefore, the
appellate Court came to the conclusion that it cannot be
believed that the complainant had financial capacity to lent
Rs.90,000/- to the accused. The complainant also did not
produce any evidence to show that he holds any agricultural
land. In short, the appellate Court found that the complainant
failed to established his financial capacity to lent the amount in
question to the accused and therefore, the appellate Court
rightly came to the conclusion that it cannot be believed that
complainant had lent Rs.90,000/- to the accused. On the
contrary, the appellate Court found that the defence put-forth
by the accused that he had borrowed Rs.35,000/- from the
complainant in installments and had repaid the said amount
along with interest of Rs.12,400/-, as probable and believable.
6.4 Considering the limited jurisdiction of this Court in
exercise of the powers under Section 397, read with Section
401, of the Code of Criminal Procedure, 1973, this Court finds
no reason to interfere with the order dated 31.03.2012, passed
by the Appellate Court and this Revision deserves to be
dismissed.
7. Resultantly, this Revision petition fails and is
DISMISSED, accordingly. Rule is discharged.
(J. C. DOSHI,J)
UMESH/-
