Patel Malpeshkumar Kantilal vs State Of Gujarat
2024 Latest Caselaw 534 Guj

Gujarat High Court

Patel Malpeshkumar Kantilal vs State Of Gujarat on 22 January, 2024

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     R/CR.A/1849/2023                              JUDGMENT DATED: 22/01/2024

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
   R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1849 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1     Whether Reporters of Local Papers may be allowed                  NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                          YES

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

4     Whether this case involves a substantial question                YES
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                         PATEL MALPESHKUMAR KANTILAL
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR JIGAR D DAVE(6528) for the Appellant(s) No. 1
MR KAIVAN K PATEL(6338) for the Opponent(s)/Respondent(s) No. 2
MS DIVYANGNA JHALA, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
                     Date : 22/01/2024
                     ORAL JUDGMENT

1.With the consent of the parties, appeal is

being decided finally on admission stage.

2.This appeal is filed under Section 378 of the

Code of Criminal Procedure, 1973 ('the

Cr.P.C.' hereinafter) challenging the

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impugned judgment and order dated 20.06.2023

passed by the learned Additional Civil Judge

and Judicial Magistrate first Class, Vijapur

in Criminal Case No.1599 of 2022 below

Exhibit 27, whereby the the respondent­

accused is acquitted from the offence under

Section 138 of the Negotiable Instruments

Act, 1886.

3.The case of the complainant is that the

complainant and the accused were knowing to

each other as the accused is doing the

trading business of potato and having the

cold storage at Bardoli. The complainant used

to visit the cold storage and the complainant

and the accused become a friend. In the year

March 2022, the accused had purchased the

potatoes through the complainant of the

amount of Rs.11,12,146/­. As the said goods

were purchased through the complainant,

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payment was made to the complainant of

Rs.80,146/­ in cash and for the remaining

amount of Rs.10,32,000/­ three cheques were

issued in favour of the complainant. The

details of the cheques are mentioned

hereinbelow:

Sr. Cheque No. Bank Name Cheque Date Cheque Amount (Rs.) 1 007828 Axis Bank, 29.06.2022 4,00,000/-

Bardoli Branch 2 873533 HDFC BANK, 29.06.2022 3,00,000/-

Bardoli Branch 3 873535 HDFC BANK, 20.06.2022 3,32,000/-

Bardoli Branch

3.1. An assurance was given that on

depositing the aforesaid cheque in the

Bank, it would be honored and the amount

would be credited in the account of the

complainant. On depositing the aforesaid

cheques with the complainant Bank, the

same was dishonored with an endorsement of

'Account Closed' on 30.06.2022. Again, the

said cheques were deposited with the same

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endorsement and the same was returned on

05.08.2022. The demand notice came to be

issued by the complainant on 01.09.2022,

which was served on 05.09.2022. As neither

demand notice was complied nor the

replied, a private complaint came to be

filed being Criminal Case No.2599 of 2022.

3.2. To prove the case, the complainant has

examined himself below Exhibit 5 and

produced the documentary evidence in the

nature of three original cheques below

Exhibits 8, 9 and 10, check returned

advice below Exhibit 11, cheque returned

memos below Exhibit 12, 13, 14, copy of

the notice below Exhibit 15, copy of the

registered Post A.D. window slip below

Exhibit 16, copy of the acknowledgment

below Exhibit 17, reply to the notice

below Exhibit 18, carbon copy of the bill

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below Exhibits 19 to 22, GST certificate

below Exhibit 23.

3.3. On filing the closing pursis, the

disclosing that he did not want to give

the further statement. Thereafter judgment

and order on acquittals after considering

the material placed on record was passed

by the learned trial Court below Exhibit

27, which is impugned before this Court.

4.Heard the learned advocate Mr.Jigar Dave for

the applicant, learned advocate Mr.Kaivan

Patel for the respondent No.2 and learned APP

Ms.Divyangna Jhala for respondent­State.

5.Learned advocate Mr.Jigar Dave for the

appellant submits that unique method has been

adopted by the learned trial Court for

acquitting the respondent­accused. That on

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appearing the accused, the complainant was

cross examined which was over in five lines

wherein the complainant was asked to identify

the respondent­accused, for which the

complainant failed to identify, only on that

ground the learned trial Court had acquitted

the respondent­accused.

5.1. Learned advocate Mr.Dave submits that

though the presumption which is in favour

of the complainant under Sections 118 and

139 of the N.I.Act was not rebutted by the

learned trial Court, learned trial Court

had acquitted the respondent­accused only

on the ground that the present complainant

could not identify the respondent­accused

in the court. Learned advocate Mr.Dave

further submits that though along with the

complaint, bills were produced below

Exhibits 19 to 22 showing that the

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respondent­accused had purchased the goods

worth of Rs.11,12,146/­, which was not

denied by the respondent­accused. There

was no any further statement was recorded.

The learned trial Court had acquitted the

respondent­accused in haste by adopting

the method of identifying the respondent­

accused in the Court.

5.2. Learned advocate Mr.Dave further submits

that to support the contents of the

complaint the documentary evidences were

produced, which were not controverted by

the respondent­accused either during the

cross examination of the complainant or by

the independent evidence or by proving any

circumstances, learned trial Court had

passed the judgment and order of

acquittal. Learned advocate Mr.Dave

further submits that without any cogent

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reason the judgment and order of the

acquittal was passed, therefore, the

impugned judgment and order is required to

be quashed and the respondent­accused is

required to be convicted.

6.On the other hand, learned advocate Mr.Kaivan

Patel for the respondent­accused submits that

the contention of the complainant in the

notice as well as in the complaint is with

regard to having the friendly relations was

falsified during the trial as the complainant

was not able to identify to the respondent­

accused which amounts to rebutting the

presumption, which is in favour of the

complainant. Therefore, the learned trial

Court had rightly acquitted the respondent­

accused from the charges.

6.1. Learned advocate Mr.Patel further

submits that as the respondent­accused was

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able to rebut the presumption by asking

the complainant to identify the

respondent­accused which he could not do,

therefore, learned trial Court had rightly

not believed the case of the complainant

and acquitted the respondent­accused.

Learned advocate Mr.Patel further submits

that the case of the respondent­accused in

the reply to the demand notice is that the

cheques which are lying in the motorcycle

dickey was stolen by the present

complainant and the same was established

during the cross examination therefore,

there was no any error committed by the

learned trial Court in acquitting the

respondent­accused. By submitting the

same, learned advocate Mr.Patel submits

that after considering the evidence and

the material placed before the learned

trial Court, the learned trial Court had

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acquitted the respondent­accused and

therefore, there was no any interference

is required and the appeal is prayed to be

dismissed and judgment and order passed by

the learned trial Court requires to be

confirmed.

7.Considering the arguments advanced by the

learned advocates for the respective parties,

few dates which are required to be noted are

mentioned hereinbelow:

03.10.2022 Complaint came to be filed. 20.06.2023 Accused appeared and his plea was recorded below Exhibit 24 20.06.2023 Cross examination of the complainant below Exhibit 5 was made by the learned advocate for the respondent-accused.

20.06.2023 Closing pursis came to be filed by the complainant below Exhibit 5.

20.06.2023 Pursis came to be filed by the accused not to give any further statement below Exhibit 26. 20.06.2023 Judgment and order acquitting the respondent-

accused was passed.

From the aforesaid dates, it can be averred that,

the learned trial Court in haste concluded the

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proceedings in two dates; first is date of filing

complaint and the process issued i.e. 03.10.2022

and the remaining procedure was followed i.e.

20.06.2023. It is true that as per the directions

issued by this Court as well as the Apex Court

the case is to be concluded as expeditiously as

possible, but not at the cost administrate on

justice. The cross examination which was

conducted by the learned advocate for the

respondent­accused reproduced hereinelow:

"I know the accused. By raising the finger,

he identified the accused and stating that

his name is Sanjaybhai Dahyabhai Patel. The

Court had called that person and asked his

name and his name was Rahulbhai Gopalbhai

Patel and his Election Card Number was

mentioned as 1311943. It is admitted by the

complainant that he mentioned in the

complaint and in his verification that he is

knowing to the respondent­accused. The last

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question was replied that it is not true

that the false case is filed against the

respondent­accused."

By giving this answer the cross examination

was over.

7.1. Immediately, the closing pursis was

filed below Exhibit 5, declaring that the

respondent­accused filed pursis declaring

that he did not want to give further

statement below Exhibit 26 and the

judgment and order of acquittal was passed

below Exhibit 27.

8.The question before this Court is that merely

non­identifying to the respondent­accused

would lead to the conclusion that respondent­

accused had rebutted the presumption which is

in favour of the complainant. To answer the

same, this Court had gone through the law

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laid down by the Apex Court in case of

Rajesh Jain vs. Ajay Singh, reported in 2023

(10) SCC 148 wherein the relevant paragraphs

which are required to be considered are

reproduced hereinbelow:

"23.Since the execution of the cheque is, admittedly, not under dispute, the limited question to be considered, is (i) whether the accused can be said to have discharged his 'evidential burden', for the courts below to have concluded that the presumption of law supplied by Section 139 had been rebutted?

23.1 If the answer to this question is found in the affirmative, the next question to be considered is (i) whether the complainant has, in the absence of the artificial force supplied by the presumption under Section 139, independently proved beyond reasonable doubt that the cheque was issued in discharge of a debt/liability? The necessity of dealing with point No.

(ii) will only arise if the answer to point No. (I) in the affirmative. Hence, we shall take up point (i) for consideration.

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25.Essentially, in all trials concerning dishonour of cheque, the courts are called upon to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act.

26.In Gimpex Private Limited vs. Manoj Goel 7, this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure:

(1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account;

(i) The cheque being drawn for the discharge in whole or in part of any debt or other liability;

(iii) Presentation of the cheque to the bank arranged to be paid from that account,

(iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount,

(v) A notice by the payee or the holder in due course

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making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and

(vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.

27. In K. Bhaskaran v. Sankaran Vaidhyan Balan 8 this Court had summarised the constituent elements of the offence in fairly similar terms by holding:

"14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the notice."

29.There are two senses in which the phrase 'burden of

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proof ' isused in the Indian Evidence Act, 1872 (Evidence Act, hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the 'legal burden' and it never shifts, the latter is called the 'evidential burden' and it shifts from one side to the other. [See Kundanlal v. Custodian Evacuee Property (AIR 1961 SC 1316)].

30. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (See Halsbury's Laws of England, 4th Edition para 13). While the former, the legal burden arising on

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the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G.Vasu V. Syed Yaseen (AIR 1987 AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35].

31.Presumption, on the other hand, literally means "taking as true without examination or proof". In Kumar Exports v. Sharma Exports 9, this Court referred to presumption as "devices by use of which courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence."

32.Broadly speaking, presumptions are of two kinds, presumptions of fact and of law. Presumptions of fact are inferences logically drawn from one fact as to the existence of other facts. Presumptions of fact are rebuttable by evidence to the contrary. Presumptions of law may be either irrebuttable (conclusive presumptions), so that no evidence to the contrary may be given or rebuttable. A rebuttable presumption of law is a legal rule to be applied by the Court in the absence of conflicting evidence (Halsbury, 4th Edition paras 111, 112]. Among the class of rebuttable presumptions, a further distinction can be made between discretionary presumptions ('may presume') and compulsive or

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compulsory presumptions ('shall presume'). [G. Vasu V. Syed Yaseen (Supra)].

33. The Evidence Act provides for presumptions, which fit within one of three forms: 'may presume' (rebuttable presumptions of fact), 'shall presume' (rebuttable presumption of law) and conclusive presumptions (irrebuttable presumption of law). The distinction between 'may presume' and 'shall presume' clauses is that, as regards the former, the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved, [G.Vasu V. Syed Yaseen (Supra)].

34. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability'. It will be seen that the 'presumed fact'

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directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138.

35.Section 139 of the NI Act, which takes the form of a 'shall presume' clause is illustrative of a presumption of law. Because Section 139 requires that the Court 'shall presume' the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established.

36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35].

37.Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar 11 ].

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Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.

38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.

39.John Henry Wigmore on Evidence states as follows:

"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands

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free from any rule."

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41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513].

42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the

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accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was 'no debt/liability'. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513].

43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.

44.The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon

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presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non- existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well."

9.On considering the aforesaid law and the

records, it transpires that though in reply

of the demand notice the accused had stated

that his bike as well as the cheques were

stolen. But, neither the said fact was proved

by adducing pleading or evidence which may be

in the standard of preponderance of

probabilities or during the cross examination

creating circumstnaces. In the cross

examination, undoubtedly, the complainant

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failed to identify to the respondent­accused,

but this Court is of the view that the

prosecution of the private complaint for an

offence under Section 138 of the N.I.Act

largely differs from the prosecution of the

complaint in respect of other offences

punishable under the Indian Penal Code. The

proceedings under Section 138 of the N.I.Act,

though criminal in nature, do not really

signify the criminal intent and flow from the

act, the basic object and the purpose of

N.I.Act is to harness the violators of the

transactions arising from the Mercantile Law

and to ensure that the necessary commitment

flows from the obligations and make them

liable for criminal prosecution to achieve

aforesaid object. Learned trial Court ought

to have followed the procedure in fair and

judicious manner and ought not to intend to

serve a short cut to dismissal of case by

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snap judgment.

10. In the instant case, the accused neither

created any circumstances to rebut the

evidence or had established the defence

through any independent evidence nor given

the statement under Section 313 of the

Cr.P.C. was recorded.

11. This Court is of the view that nothing

insignificant has been elicited in the cross

examination of the complainant to raise any

suspicion in the case set up by the

complainant. The complainant, undoubtedly,

not identified the accused in the Court, but

it does not mean that the false complaint is

filed by the accused without having rebutted

the presumption which is in favour of the

complainant. Signature on the cheque having

not disputed in view thereof the presumption

under Sections 118 and 138 of the N.I.Act

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having taken effect, the complainant case

stood satisfied every ingredients necessary

for sustaining the conviction under Section

138 of the N.I.Act. The case of the defence

was limited only through the reply of the

demand notice, that the cheques and the bike

were stolen. However, to support his defence,

he neither gave his statement under Section

313 of the Cr.P.C. nor lead any evidence

therefore, mere bald words cannot be accepted

and cannot be suggested that he rebutted the

presumption.

12. This Court could have concluded the

appeal without remitting the matter back to

the learned trial Court, however, it

transpires from the record that neither the

fledged cross examination was concluded nor

the accused had given the statement under

Section 313 of the Cr.P.C. nor his defence

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was put through an independent evidence.

Therefore, this Court with a view to see that

further impairment of administration of

criminal justice may not be occurred and to

give fair opportunity to both the sides to

lead the evidence, deemed it fit to remit

back to learned trial Court.

13. In view thereof, the appeal is partly

allowed. The the impugned judgment and order

dated 20.06.2023 passed by the learned

Additional Civil Judge and Judicial

Magistrate first Class, Vijapur in Criminal

Case No.1599 of 2022 below Exhibit 27 is

quashed and set aside. The Case Criminal Case

No.1599 of 2022 is remanded back to the

learned trial Court to decide afresh from the

stage of the cross examination of the

complaint.

(M. K. THAKKER,J) M.M.MIRZA