Gujarat High Court
Vijaybhai Jivrajbhai Dhameliya vs State Of Gujarat on 4 March, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 862 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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VIJAYBHAI JIVRAJBHAI DHAMELIYA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR BN LIMBACHIA(3454) for the Appellant(s) No. 1
NISHITH K JOSHI(9193) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
KAUSHAL S JANI(7627) for the Opponent(s)/Respondent(s) No. 3
MR RAJ H JOBANPUTRA(10779) for the Opponent(s)/Respondent(s) No. 3
MS VRUNDA SHAH, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 04/03/2024
ORAL JUDGMENT
1.This appeal is filed by the appellant
original complainant under Section 378 of the
Code of Criminal Procedure, 1973 ('the
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Cr.P.C. referred hereinafter) challenging the
impugned judgment and order of acquittal
dated 16.12.2022 passed in Criminal Case
No.543 of 2019 by the learned Special Judge,
N.I.Act Court, Surat.
2.Case of the complainant is that the
complainant is doing the business in the name
and style of Remedial Fashion Proprietor and
the accused is doing online business and
giving the orders to the complainant for
readymade goods. The accused No.2 is
managing the whole business of the accused
and as per the order placed by the accused,
the goods were sent of the amount of
Rs.81,076/ by way of different challans. For
the payment of the aforesaid amount as well
as the late payment charges, the cheque
bearing No.001483 of ICICI Bank dated
25.10.2018 for the amount of Rs.1 Lakh was
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issued in favour of the complainant. On
depositing the aforesaid cheque, it was
returned with an endorsement of 'fund
insufficient'. Therefore, the demand notice
was issued on 27.11.2018 which was returned
with an endorsement of 'no person staying at
the Kanjali Company' on 30.11.2018.
2.1. On following the procedure prescribed
under the Act, private complaint came to
be filed before the learned trial Court,
wherein after recording the verification,
summons came to be issued upon
respondentsaccused. On being appeared,
plea came to be recorded below Exhibits 21
and 22 of the accused, wherein accused
pleaded not guilty and came to be tried.
2.2. To prove the case, the complainant had
examined himself below Exhibit 4 and
produced the documentary evidence in the
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nature of bill and different challans from
Exhibit 23 to Exhibit 34, outstanding
report below Exhibit 35, cheque below
Exhibit 36, returned memo below Exhibit
37, demand notice below Exhibit 38, Indian
Post Receipt below Exhibit 39, thereafter
on filing the closing pursis further
statement was recorded wherein the accused
had denied for the issuance the cheque and
stated that the alteration was made in the
cheque and he wants to send the disputed
cheque before the handwriting expert and
the application was given along with the
prayer that action may be taken under
Section 340 of the Cr.P.C. below Exhibit 9
which was rejected vide order dated
17.08.2021 by the learned trial Court on
the ground that there is no any cogent and
reliable reasons found to send the cheque
to the FSL.
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2.3. Thereafter, again an application was
preferred by the respondentaccused below
Exhibit 53 stating that there is an
alteration in the dates, cheque and in
place of '2016', '08' is added, which was
also rejected by the learned trial Court
vide order dated 27.04.2022. In the said
order, the learned trial Court has
observed that if the accused wants to
examine any experts in his defence then
that liberty is reserved. Thereafter, the
respondentsaccused had produced the
opinion of the expert i.e. S.J. Laboratory
wherein it was opined that in dates
numerical '6' has been converted into
numerical '8'. In addition to that the
expert was also examined below Exhibit 63,
namely, Jayeshkumar Jagdishkumar Dave.
2.4. That learned trial Court after
considering the evidence on record and the
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arguments advanced by the learned
advocates for the respective parties has
come to the conclusion that the
complainant fails to establish the legally
enforceable debut against the respondents
accused and the respondentsaccused is
acquitted from the charges, the same is
impugned before this court.
3.Heard the learned advocate Mr.Nishit Joshi
for the appellant and as this Court has
decided the case at admission stage, though
the respondentsadvocate was represented
through his advocate, but was not allowed to
argue.
4.Learned advocate Mr.Joshi submits that the
judgment and order of the trial Court was
passed mainly on two grounds; (i) that as per
the opinion of the handwriting expert there
is an alteration made with the disputed
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cheque and (ii) the complainant fails to
establish that against the bill of Rs.81076/
how the cheque of Rs.1 Lakh was issued in
favour of the complainant and the complainant
has also not produced the certificate under
Section 65B of the Indian Evidence Act to
prove genuineness of the computerized bill.
4.1. Learned advocate Mr.Joshi submits that
though in the disputed bills, the
respondentsaccused had signed as a
receiver and the stamp and seal of the
firm of the accused is also made. Without
considering the same, learned trial Court
has acquitted the respondentsaccused.
Learned advocate Mr.Joshi submits that
alteration which was alleged to have been
made cannot be said as a material
alteration as there is no dispute with
regard to the signature of the
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respondentsaccused in the cheque neither
the transactions were disputed, however,
the learned trial Court had given much
weightage to the opinion of the expert and
acquitted the respondentsaccused.
4.2. Learned advocate Mr.Joshi submits that
despite the presumption, which is in
favour of the complainant was not rebutted
by the respondentsaccused, learned trial
Court has committed a grave error in
acquitting the respondentaccused from the
charges. Learned advocate Mr.Joshi submits
that without any cogent reason the
judgment and order of acquittal is passed
and therefore, the same is required to be
interfered with and appeal is required to
be allowed.
5.Considering the submissions advanced by the
learned advocate for the appellant before
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examining the case on merits, this Court
would deem it fit to refer the relevant
provisions of the N.I.Act.
"Section 87. Effect of material alteration.--Any
material alteration of a negotiable instrument renders
the same void as against any one who is a party
thereto at the time of making such alteration and does
not consent thereto, unless it was made in order to
carry out the common intention of the original
parties;Alteration by indorsee.--And any such alteration,
if made by an indorsee, discharges his indorser from all
liability to him in respect of the consideration
thereof.The provisions of this section are subject to
those of sections 20, 49, 86 and 125.
Section 118 - Presumptions as to negotiable
instruments: Until the contrary is proved, the following
presumptions shall be made:
1. 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;
2. as to date; that every negotiable instrument bearing
a date was made or drawn on such date;
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3. as to time of acceptance; that every accepted bill
of exchange was accepted within a reasonable time after
its date and before its maturity;
4. as to time of transfer; that every transfer of a
negotiable instrument was made before its maturity;
5. as to order of indorsements; that the indorsements
appearing upon a negotiable instrument were made in
the order in which they appear thereon;
6. as to stamp; that a lost promissory note, bill of
exchange or cheque was duly stamped;
7. 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 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 burden of proving that the
holder is a holder in due course lies upon him.
Section 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
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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 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;
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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."
Section 118 of the N.I.Act provides the
presumptions as to negotiable instruments
wherein the presumptions related to the
consideration, date, time of acceptance, time
of transfer, order of endorsement, stamps and
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the holder in due course is provided. The
said presumption is rebuttable presumption
and provides that until the contrary is
proved, it would be presumed that all the
ingredients of section 118 is satisfied with.
This section laid down the special rule of
evidence applicable to the negotiable
instruments. Normally, the initial burden is
always on the plaintiff to prove the
execution of the pronote. Once the execution
of pronote is proved by the plaintiff then
the statutory presumption available under
Section 118 of the N.I.Act comes into
operation in favour of the plaintiff as
passing of consideration as to dates etc.,
but the respondentsaccused may also dislodge
the statutory presumption, to dislodge the
presumption, accused has not to prove through
the direct evidence only even the
circumstances or preponderance of probability
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itself is sufficient to dislodge the legal
presumption attached to the accused. Once the
accused is able to show the preponderance of
the probability to dislodge the legal
presumption, the burden again shift on the
plaintiff to establish the passing of
consideration.
6.What is the presumption that is defined by
the Apex Court in the case of in the case of
M.S.Narayana Menon vs . State Of Kerala
reported in (2006) 6 SCC 39, a 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:
"A presumption is an inference as to the existence of a fact
not actually known arising from its connection with another
which is known.
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A presumption is a conclusion drawn from the proof of facts
or circumstances and stands as establishing facts until
overcome by contrary proof.
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 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."
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 position of law if
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the case of the complainant is to examine
then the complainant alleged in the complaint
that for the payment of the bill including
the late payment charges, the cheque bearing
No.001483 dated 21.10.2018 for the amount of
Rs.1 Lakh was issued which was dishonored
with an endorsement of 'insufficient fund'.
In the first opportunity, the respondents
accused when appeared and their further
statements were recorded, they stated that
there is an alteration in the cheque and
therefore, they prayed to send the cheque to
the handwriting expert and for that they
filed an application below Exhibit 9 praying
that the action be taken against the
complainant under Section 340 of the Cr.P.C.
for producing the false evidence before the
Court of law and also prayed to send the
cheque to the handwriting expert.
8.Learned trial Court vide order dated
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21.10.2018 has rejected both the prayers on
the ground that without any cogent and
reliable reasons, the cheque cannot be sent
to the FSL. The respondentsaccused had filed
another application below Exhibit 53 praying
similar relief, which was also rejected vide
order dated 27.04.2022, however, the learned
trial Court has reserved the liberty to
examine the expert to prove his defence. In
order to prove the defence, the Forensic
Expert, namely, Jaykumar Dave was examined
below Exhibit 36 wherein he produced his
opinion stating that in both the cheques in
date numerical six has been converted into
the numerical eight and cheques' date has
been altered. That opinion was exhibited
below Exhibit 66.
9.During the cross examination, the complainant
could not establish any discrepancies in the
evidence of the witness below Exhibit 63.
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10. It is true that as provided under
Section 87 of the N.I.Act only material
alteration of a negotiable instrument renders
the instrument void against any one who is
party therefore, at the time of making such
alteration and does not consent thereto,
unless it was made in order to carry out the
common intention of original party. An
alteration of the negotiable instrument is
material if it changes its legal effect or
its course as means of evidence. It is
material if it easily affects the parties'
substantial right whether such result
actually follows or not and even though the
change is abundant by the parties in whose
favour it was intended to operate. This
principle of law is essential for integrity
and entity of the contract, and is found on
the soundsense, and it is calculated to
prevent the fraud and determent from
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tempering with written security and it would
be directly redundant with the policy of such
law to permit the holder of bill to attempt
of fraud of this kind of impunity, which
would be the case if after being detected in
the attempt, he was not in a worst position
than he was before.
11. The Apex Court in the case of Seth
Loonkaran Sethiya And Ors. vs Mr. Ivan E.
John And Ors, reported in AIR (1977) SC 336
has held that material alteration is one
where the rights, liabilities and legal
position of the parties as ascertained by the
deed in its original state, or otherwise
varies the legal effect of the instrument as
originally expressed, or reduces to certainty
some provision which was originally
unascertained and as such void, or which may
otherwise prejudice the party bound by the
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deed as originally executed.
12. In the case on hand to ascertain that
whether it was material alteration or not,
following fact is to be considered.
(I) As per the expert opinion Exhibit 36,
cheque was altered and in place of 2016, it
was added 2018. By doing so an attempt was
made to put the case in a limitation. As the
complaint is filed in the year 2019 and
cheque was returned as per the endorsement on
31.10.2018. Therefore, it was projected that
the cheque was deposited within a time limit
prescribed under the Act.
(II)During the cross examination when the
question was put that whether these dates
were altered, the answer was given that "I
cannot say anything".
(III) It is admitted in the cross examination
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that due to nonobtaining the GST Number the
business was closed in the year 2017. To
support the complaint and to establish the
legally enforceable debt, the complainant has
also produced the bill which is of 2017 i.e.
after closing the business.
Therefore, in the opinion of this Court,
the date is a very material in calculating
the period of limitation to deposit the
cheque and to even sue before the Court of
law and instrument itself is void declared
under Section 87 of the N.I.Act.
13. To rebut the presumption which is
provided under Section 139 of the N.I.Act the
complainant was cross examined by the
respondentaccused wherein following
admissions were made:
(I) That in the challan which is produced,
who signed as a receiver, he cannot say
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surely. No any evidence related to the income
tax was produced. Computerized bill which was
produced was without certificate required
under Section 65 B of the Indian Evidence
Act. He knows the person namely Vijaybhai
Kukadiya who is the brotherinlaw of the
accused Jigneshbhai. The complainant is
having very good relations with Vijaybhai
Kukadiya. The suggestion, which was put that
due to dispute between the accused and
Vijaybhai Kukadiya, cheque was obtained from
Vijaybhai Kukadiya and after overwriting, it
was deposited with the Bank, which was
denied. There was no any evidence to show
that at the time of transaction, he was
having the stock of goods,which is mentioned
in the complaint.
14. Under Section 139 of the N.I.Act, it is
settled law that existence of the debt is not
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the subject matter of presumption. The drawee
of the cheque has to prove the existence of
the debt or liability and it is only upon
such proof of existence of debt, the
presumption under Section 139 of the Act to
the effect that cheque has been issued for
discharge of the debt or other liability can
be drawn. The standard of proof to discharge
the burden in terms of Section 139 of the
N.I.Act being a preponderance of the
probability, the inference can therefore be
drawn not only from the material brought on
record, but also from the reference to the
circumstances upon which the accused relies
on.
15. Considering the material placed before
the learned trial Court, it cannot be
concluded that the learned trial Court
committed an error acquitting the respondent
accused and holding that the complainant
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fails to prove the legally enforceable debt
against the respondentaccused.
16. This Court has also considered the
judgment rendered by the Apex Court in the
case of Basalingappa V/s. Mudibasappa
reported in (2019) 5 SCC 418 where summarize
the principle enumerated in paragraph No.25,
which reads as under:
"25. We having noticed the ratio laid down
by this Court in the above cases on Section
118(a) and 139, we now summarise the
principles enumerated by this Court in the
following manner:
25.1. Once the execution of cheque is
admitted Section 139 of theAct mandates a
presumption that the cheque was for the
discharge of any debt or other liability.
25.2. The presumption under Section 139is
a rebuttable presumption and the onus is
on the accused to raise probable defence.
The standard of proof for rebutting the
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presumption is that of preponderance of
probabilities.
25.3. To rebut the presumption, it is open
for the accused to rely on evidence led by
him or the accused can also rely on the
materials submitted by the complainant in
order to raise a probable defence. Inference
of preponderance of probabilities can be
drawn not only from the materials brought
on record by the parties but also by
reference to the circumstances upon which
they rely.
25.4. That it is not necessary for the
accused to come in the witness box in
support of his defence. Section 139 imposed
an evidentiary burden and not a persuasive
burden."
25.5. It is not necessary for the accused to
come in the witness box to support his
defence."
17. This being an acquittal appeal, as per the
law laid down by the Apex Court in case of
Chandrappa and others vs. State of
Karnataka, reported in (2007) 4 SCC 415
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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."
18. Therefore, this Court is of the view that
there is no interference required in the
impugned judgment and order of acquittal.
19. Resultantly, this appeal fails. The
impugned judgment and order of acquittal
dated 16.12.2022 passed in Criminal Case
No.543 of 2019 by the learned Special Judge,
N.I.Act Court, Surat is hereby confirmed.
Record and proceedings be sent back to the
concerned Court, forthwith.
(M. K. THAKKER,J)
M.M.MIRZA
