Akash Tiwari vs Deepak Marothiya
2023 Latest Caselaw 2581 MP

                                 1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                            BEFORE
             HON'BLE SHRI JUSTICE ATUL SREEDHARAN
                   ON THE 13 th OF FEBRUARY, 2023
                 CRIMINAL REVISION No. 409 of 2007

BETWEEN:-
AKASH TIWARI S/O S/O SHRI PRADEEP SHARMA , AGED
ABOUT 28 YEARS, OCCUPATION: SERVICE R/O 269,
TANSEN NAGAR, GWALIOR (MADHYA PRADESH)

                                                             .....PETITIONER
(BY SHRI SOMYADEEP DWIVEDI - ADVOCATE)

AND
DEEPAK   MAROTHIYA S/O     SHRI  SHYAMBABU
MAROTHIYA R/O BEHIND SHRIVASTAVA NURSINGH
HOME PARAKH JI KA BADA, DAULATGANJ, LASHKAR,
GWLAIOR (MADHYA PRADESH)

                                                            .....RESPONDENT
(BY SHRI ANMOL KHEDKAR - ADVOCATE)

      This revision coming on for admission this day, th e court passed the
following:
                                  ORDER

The present petition has been filed by the petitioner who is the complainant before the learned trial Court who is aggrieved by the judgment of acquittal dated 24.03.2007 passed by the learned Court of sessions in Criminal Appeal No.4/2007 by which the appellate Court reversed the judgment of conviction and sentence passed by the learned trial Court dated 06.11.2006 in Criminal Case No.200/2005.

The petitioner is the holder of cheque issued by the respondent Deepak Marothiya. The case of the petitioner is that the respondent borrowed

Rs.65,000/- from the applicant for his professional requirement in the month of October, 2004 and the money was borrowed in two installments of Rs.30,000/- and Rs.35,000/-. In part payment of the said debt, the respondent allegedly issued a cheque No.986013 dated 10.12.2004 for an amount of Rs.25,000/- which, when deposited by the petitioner was returned without being honored. The cheque was deposited on 16.04.2005 and it was dishonored on 18.04.2005 as reflected by the cheque return memo. On 20.04.2005 the notice was issued to the respondent No.2 and Ex.P/6 is the note of the Postal Department which reflects that the notice was returned as it was not accepted by the respondent. Vide judgment dated 06.11.2006, the learned trial court convicted the

respondent and asked him to pay an amount of Rs.25,000/- and in the event he did not pay the said amount to the complainant he would have to undergo imprisonment for six months. The impugned order allowed the appeal and acquitted the respondent.

Learned counsel for the petitioner submits that the learned appellate Court disregarded the presumption under Section 139 of the Negotiable Instrument Act which placed the burden on the respondent to show that the cheque issued by him was not for the discharge of a debt. During the course of the trial, the respondent exhibited document D/1 which is a receipt dated 07.10.2004 which bore the signature of petitioner / complainant wherein the petitioner accepted Rs.30,000/- from the respondent and issued a receipt for it. Ex.D/2 is complaint which is filed by the respondent before the police on 12.04.2005 for an incident that had taken place on the previous day i.e. on 11.04.2005 where the respondent allegedly was heckled by the petitioner when he went to ask the petitioner to return the cheque as he had already discharged his debt alongwith interest on 07.10.2004 itself.

Learned counsel for the petitioner has relied upon the judgment in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Another (2003) 8 SCC 752, with specific reference to paragraph 20 where the Supreme Court has dealt with the objection relating to the admissibility of document in evidence which it classified into two classes firstly, wherein an objection that the document which is sought to be proved is itself inadmissible in evidence and (ii) where the objection does not dispute the admissibility of the document in evidence. But is directed towards the mode of proof and the allegation is with regard to the regularity or sufficiency of the evidence. In the first case acquiescence would be no bar to raising the objection in a superior Court even at the stage of an appeal. In this regard, learned counsel for the petitioner submits that Ex. D-1 which is the receipt exhibited by the respondent is inadmissible in evidence as it does not bear a stamp on it. Learned counsel for the respondent on the other hand has sought to counter his argument by stating that the respondent had already discharged his debt on 07.10.2004 by which he had already paid the cheque amount of Rs.25,000/- alongwith Rs.5000/- as interest and therefore, a total sum of Rs.30,000/- was paid. He further says that in the course of his testimony before the trial Court, the petitioner herein had admitted to having issued the said receipt. Once the receipt has been issued by the petitioner himself, a lacuna in the said document

cannot be taken advantage of by the petitioner himself. Besides, the contention of the petitioner was that Rs.30,000/- that was given by way of cash by the respondent to the petitioner was the discharge of an earlier debt. The petitioner has not given any evidence relating to the earlier debt and it is merely an argument taken before this Court. If such was the stand of the petitioner details

ought to have been given along with documentary proof if available with regard to the previous debt which was being discharged by the payment of cash to the petitioner for which the receipt dated 07.10.2004 was given by the petitioner to the respondent.

Even otherwise, it is relevant to mention here that the cheque undisputedly was issued on 10.12.2004 i.e. two months after the receipt was issued by the petitioner. In between 10.12.2004 and, the deposit of the cheque on 16.04.2005, several events had taken place. However, before referring to the same it would necessary to state here that the cheque which is Ex.P/1 clearly reveals that the date "10.12.2004" has been written by a different pen which is in black ink which would reveal that the cheque that was issued by the respondent to the petitioner was undated. Thereafter, the respondent states that on 11.04.2005 he was ruffled up by the petitioner when the respondent went to seek the return of the cheque that was given to the petitioner by the respondent by way of a security. On 12.04.2005, the complaint relating to the same was lodged at Police Station Huzrat Kotwali, Gwalior. The objection taken by the learned counsel for the petitioner to this document is that it does not bear the seal of police station. However, that by itself would not invalidate the genuineness of the complaint before the police station as it does bear an endorsement on the left hand side and a date which is 13.04.2005. In the cross- examination of the respondent, a suggestion has been given by the petitioner to the respondent that Ex.D-2 is a fabricated document to which the respondent has answered in negative.

Learned counsel for the respondent submits that it was for the petitioner to adduce evidence to show that the said document was fake. The question before this Court is that whether there was a presumption with regard to a debt

upon the respondent and secondly, whether the said presumption was rebutted by the respondent. As regards the first question, it can be answered in affirmative, there was a presumption on the respondent on account of Section 139 of the Negotiable Instrument Act of the existence of debt. However, it must also be held that the respondent has been able to discharge the burden effectively during the course of the trial. It must be borne in mind that where an accused has to rebut a particular fact or a presumption, the evidence adduced must only raise a doubt in the mind of the court and the same would bear the standard of the evidence in a civil case being preponderance of probability rather than one under a criminal case beyond reasonable doubt. Here, if one looks at the sequence of the events, the first document in the series is the receipt dated 07.10.2004 which has been accepted by the petitioner as having been issued by him. The second is the cheque which is dated 10.12.2004 and the third is, the incident / altercation between the petitioner and the respondent, on account of non-return of the cheque by the petitioner on 11.04.2005, and the complaint dated 12.04.2005 before the Police which is Ex. D-2 which was received by the police on 13.04.2005 and thereafter, the deposit of the cheque on 16.04.2005, its being returned without being honored on 18.04.2005 and the notice that was issued on 20.04.2005. From the timeline, it is clear that the respondent was given the receipt by the petitioner on 07.10.2004 having been received a sum of Rs. 30,000/-. The contention of the petitioner is that the said receipt was for an earlier debt of Rs.30,000/- which the respondent was returning has to be discarded as no details of the previous debt have ever been alleged and proved by the petitioner. The said amount having been accepted by the petitioner in his Court testimony probablizes the contention of the

respondent that the payment was made in lieu of the chaque amount and interest and that would effectively dislodge the burden / presumption placed upon the respondent effectively.

Under the circumstances, this Court does not find any error with the judgment of acquittal recorded by the learned Appellate Court, against which the present petition has been preferred, and therefore, the petition is dismissed.

(ATUL SREEDHARAN) JUDGE Ashish*

ASHISH Digitally signed by ASHISH CHAURASIA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA

CHAUR PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=bf81a9adb1da24e4bc7b5195154c3d4de 08c6bb9303e52e2e7e728d9bac85bd3, pseudonym=CA2EA6EDDF504F8F9C2790FA9A0F D201D0242B64, serialNumber=A926F3CBF979ECA6A4C477577EE

ASIA DBA3AB4F94593A930B98DAE1B0AD16F90B5FD, cn=ASHISH CHAURASIA Date: 2023.02.15 15:35:42 -08'00'