Gujarat High Court
Lal Bahadur Ramchand Katariya vs State Of Gujarat on 10 September, 2024
NEUTRAL CITATION
R/CR.MA/10753/2023 ORDER DATED: 10/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10753
of 2023
In R/CRIMINAL APPEAL NO. 1432 of 2023
With
R/CRIMINAL APPEAL NO. 1432 of 2023
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LAL BAHADUR RAMCHAND KATARIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. R.D.KINARIWALA(6146) for the Applicant(s) No. 1
MS POOJA BRAHMBHATT FOR MR P P MAJMUDAR(5284) for the
Respondent(s) No. 2
MS ASHMITA PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 10/09/2024
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL)
NO. 10753 of 2023
1. This application is filed seeking leave to prefer an appeal
challenging the judgment and order of acquittal passed
by the learned Additional Chief Judicial Magistrate Court
at Jetpur dated 20.02.2023 in Criminal Case No.1236 of
2018 whereby the respondent-accused was acquitted for
the offence punishable under Section 138 of the
Negotiable Instruments Act, 1886 ('the N.I.Act referred
hereinafter).
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2. It is the case of the complainant that the complainant
and the respondent-accused were having the good
relations and on raising the financial help, amount of
Rs.10 Lacs was lent by the complainant to the
respondent-accused. For repayment of the above
amount, the cheque bearing No.000048 dated
10.01.2018 issued in favour of the complainant, which
was dishonored on depositing with the Bank with an
endorsement of 'Payment Stopped by the Drawer'. The
complainant after following due procedure under the
N.I.Act filed the complaint before the learned Competent
Court and the respondent-accused has appeared before
the learned trial Court on receiving the summons. The
respondent-accused has denied the allegations and
claimed to be tried therefore, in order to substantiate the
allegations made in the complaint, the complainant was
examined below Exhibit 4 and has produced five
documentary evidences before the learned trial Court.
The learned trial court after recording the statement
under section 313 of the Code of Criminal Procedure,
1973 of the respondent-accused wherein the defence was
raised that there was no any relations with the
complainant neither has borrowed any amount, however,
the cheque book which was remained in the car of
Salimbhai was misused by the respondent-accused in
connivance of Piyushbhai Polara as well as Salimbhai. The
learned trial Court, after examining the evidence
adduced by the complainant as well as the cross
examination conducted by the respondent-accused, has
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acquitted the respondent-accused which is the subject
matter of challenge before this Court.
3. Heard the learned advocate Mr.R.D.Kinariwala for the
applicant-original complainant.
4. Learned advocate Mr.Kinariwala submits that the learned
trial Court has committed an error in shifting the onus on
the complainant to prove the case by examining
Piyushbhai Polara without rebutting the presumption
which is in favour of the respondent-accused by creating
circumstances or by adducing independent evidence to
show that there was no any legally enforceable debt
occurred. Learned advocate Mr.Kinariwala submits that
mere non-identifying the respondent-accused was
considered as a rebuttal evidence. Learned advocate
Mr.Kinariwala further submits that the prosecution under
Section 138 of the N.I.Act is largely differs from the
prosecution or complaint in respect of IPC offences and
therefore, the complainant cannot be asked to identify
the respondent-accused in the Court. Learned advocate
Mr.Kinariwala submits that some times it happens that
even if respondent-accused is present before the Court
through oversight or through lost of memory he would
not be able to identify, but that fact cannot be lead to
conclusion that the false case is filed against the
respondent-accused. Learned advocate Mr.Kinariwala
submits that signature on the cheque is not disputed and
though defence was raised that cheque book which was
lying in the car of Salimbhai was misused, no any
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complaint was filed before the police authority regarding
the same. Learned advocate Mr.Kinariwala submits that
the bare defence was accepted by the learned trial Court
while awarding the judgment and order of acquittal.
Learned advocate Mr.Kinariwala submits that no cogent
reasons assigned for acquitting the respondent-accused
and therefore, judgment and order of acquittal is required
to be interfered with and application for seeking leave to
prefer an appeal is required to be allowed.
5. Considering the submissions made by the learned
advocate as well as on perusing the record and
proceedings, it transpires that it was the case of the
complainant that the complainant and the respondent-
accused were knowing to each other since long and for
the development of the business, the amount of Rs.10
Lac was lent by the complainant to the respondent-
accused and cheque which was issued on 10.01.2018
was returned on depositing with the Bank on 04.04.2018.
As the signature on the cheque was not disputed,
therefore presumption has been drawn in favour of the
complainant and in order to rebut the presumption, the
complainant was cross examined. During the cross
examination, respondent-accused created the
circumstances from which it transpires that as per the
admission made by the complainant, namely, Piyushbhai
Polara and Mohanbhai, who is the accused and one friend
of Mohanbhai met near the Chetna Talkies. Piyushbhai
Polara is a friend of the complainant, who introduced
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Mohanbhai with the complainant. He met to the
respondent-accused Mohanbhai on two to three
occasions and on putting questions that whether
Mohanbhai is present before the Court, the answer was
given in negative form, though the respondent-accused
was present before the Court. It was further admitted by
the complainant that he met to Mohanbhai twice in the
office of Piyushbhai and Piyushbhai is having the shop of
dresses and saaries at Matwa Sheri. The complainant
does not recollect the mobile number of Mohanbahi
neither having the information with regard to the
business of Mohanbhai. It is stated by the complainant
that previously also there was a transaction of
Rs.25,000/- with Mohanbhai however, he does not
recollect the particular time of the transaction.
5.1. The complainant further admits during the cross
examination that the amount of Rs.10 Lac was lent in
one time which was lying in the Bank as well as having
some cash and that transaction was carried out at the
instance of Piyushbhai. The complainant and
Piyushbhai having the relations since eight to nine
years. The disputed cheque was handover by
Mohanbahi near the Chetna Talkies and the columns of
name, date and amount were filled up by the friend of
Mohanbhai. Name of that person has not in the
knowledge of the complainant neither any details with
regard to that person has stated before the
respondent-accused. It is admitted that Mohanbhai
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belongs to which caste is not known to the
complainant neither he is relatives nor his friend only
he was introduced by Piyushbhai and on that basis the
huge amount of Rs.10 Lac was lent by the
complainant. The notice was issued to the respondent-
accused on the information of Piyushbhai regarding
non-payment of the debt. The complainant admits that
what was the contents of the notice is not in the
knowledge neither any instruction was given to the
advocate for issuance of the notice and notice was
replied or not that fact is also not in the knowledge of
the complainant. For what purpose the amount was
lent was also not in the knowledge of the complainant.
It is admitted by the complainant that except this
Mohanbhai he never lent any amount like of Rs.10 Lac
to any person.
6. From overall facts it appears that the complainant does
not have any detail with regard to the respondent-
accused neither having the mobile number of the
respondent-accused nor having the address of the
respondent-accused and then also the huge amount was
lent merely at the instance of Piyushbhai Polara. It is true
that merely non-identification of the respondent-accused
cannot be considered as a rebuttal evidence however,
along with the fact that the complainant does not have
any details with regard to the transaction which was
taken place for huge amount, non-identification of the
respondent-accused would be one more ground for
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creating suspicious on the case of the complainant.
Though the complainant lent the amount only on the
basis of the say of Piyushbhai Polara, however,
Piyushbhai Polara has not been examined by the
complainant as the witness. Despite having the
admission that demand was made by Piyushbhai Polara
and he never went to the advocate for giving the
instructions with regard to issuance of the notice. In view
of the same, the defence, which was raised by the
respondent-accused that he never met with the
complaint and there was no any transaction taken place
between the complainant appears to be a plausible
defence.
7. On rebutting the presumption by creating the
circumstances that the complainant and the respondent
never met with each other, the burden would shift on the
complainant to prove his case beyond the reasonable
doubt. Though it is stated by the complainant that the
cheque was given at the Chetna Talkies in presence of
Piyushbhai Polara and one of the friends of Mohanbhai,
none of the person was examined by the complainant. It
is also admitted by the complainant that the details of
the cheque were not filled up by the respondent-accused,
but by the friend of the respondent-accused, however,
neither any name was stated nor any detail about that
person is mentioned by the complainant. In addition to
that the respondent-accused has also challenged the
financial capacity of the transaction which was taken
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place in the year 2017-18. The complainant was having
the funds of Rs.3 Lac in the Bank account and no any
documents were produced to show that any withdrawal
was made during this period by the complainant and it
was further admitted by the complainant that though
turnover of Rs.94 Lac was there of Baba Textile in the
year 2017 the income tax of Rs.2,000/- was only paid to
the Government.
8. This Court has considered the decision rendered by the
Hon'ble 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
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
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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."
9. Considering the overall circumstances, this Court is of the
view that in the reasons assigned by the learned trial
Court while acquitting the respondent-accused, no
illegality found therefore, this Court deems it fit not to
interfere with the judgment and order of acquittal passed
by the learned trial Court and this application fails and
deserves to be dismissed accordingly.
10. Resultantly, this application for seeking leave to prefer
an appeal is dismissed.
ORDER IN R/CRIMINAL APPEAL NO. 1432 of 2023
In view of the dismissal of application for seeking
leave to prefer an appeal, criminal appeal is also
dismissed.
(M. K. THAKKER,J)
M.M.MIRZA
