Punjab-Haryana High Court
Inderjeet Dev vs Ram Babu on 20 January, 2025
Neutral Citation No:=2025:PHHC:007387
CRM-A-480-MA-2018
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-A-480-MA-2018
Date of decision: 20.01.2025
INDERJEET DEV ... PETITIONER
V/s
RAM BABU ...RESPONDENT
CORAM: HON'BLE MR. JUSTICE SUMEET GOEL
Present: Mr. Munish Mittal, Advocate
for the appellant.
Mr. Kushagra Mahajan, Advocate
for the respondent.
*****
SUMEET GOEL, J.
1. The instant appeal is directed against the judgment dated
04.01.2018, passed by the Learned Judicial Magistrate, 1st Class,
Yamuna Nagar at Jagadhri, in Criminal Complaint No. 2026 of 2016.
Vide the impugned judgment, the Learned Magistrate acquitted the
accused in a complaint case under Section 138 of the Negotiable
Instruments Act. Aggrieved by the acquittal of the accused, the
complainant has filed the present appeal.
2. It is the case of the complainant that the accused, at
separate instances spanning over the period from 16.02.2015 to
15.06.2016, borrowed money from him, totaling Rs. 5,05,000/-. The
instances of the advancement of money by the complainant to the
accused are mentioned as follows:
Rs.1,00,000/- On 16.02.2015 In cash
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Rs.70,000/- On 12.03.2015 In cash
Rs.80,000/- On 10.05.2016 Through Cheque No.021461
Rs.2,30,000/- On 10.06.2015 In cash
Rs.25,000/- On 15.06.2016 Through Cheque No.678771
3. It is further the case of the complainant that the accused,
in discharge of his liability towards repayment of the above-
mentioned amount, issued him Cheque No. 274528 dated 15.10.2016
for a sum of Rs. 2,30,000/-, drawn on State Bank of Patiala, Industrial
Area, Yamuna Nagar. However, upon presentation to the bank, the
said cheque was dishonoured with the remark "Funds Insufficient." A
statutory legal notice was issued by the complainant to the accused,
demanding payment of the cheque. Upon the failure of the accused to
make payment, the complainant filed a complaint under Section 138
of the Negotiable Instruments Act against the accused.
4. The accused, in his statement under Section 313 of the
Cr.P.C., in order to rebut the case of the complainant, stated that he
had never borrowed any amount from the complainant. Rather, the
accused had intended to purchase a refrigerator and, in order to get it
financed, approached the complainant to arrange a financier for the
said purpose. The complainant called a person financing through
Finance to his home and obtained two blank signed cheques, along
with other documents, such as the identification card, to facilitate the
financing of the refrigerator. However, the complainant neither
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arranged the finance from Bajaj Finance for the accused nor returned
the cheques, and one of the said cheques was misused by the
complainant in the present complaint.
5. The learned trial Court, while adjudicating the
complaint, ultimately concluded that the accused had successfully
rebutted the statutory presumption under Section 139 of the
Negotiable Instruments Act, and that the complainant failed to prove
the alleged liability on the part of the accused to issue the cheque in
question in favor of the complainant. The learned trial Court, on the
strength of the evidence adduced on record, also noted that earlier,
the complainant had instituted a suit (Ex. D-5) for recovery against
Sumitra and Kunta, both sisters of the accused. Ex. D-1. The certified
copy of the complainant's statement in the said civil suit (Ex D-1)
indicated that Sumitra Devi and subsequently her sister, Maina, were
employed at the complainant's residence for domestic work receiving
a monthly salary of Rs.1200/-. In view of these facts, the learned trial
Court held that the relationship between the parties was not of such a
nature that the complainant would have lent a sum of Rs. 5,05,000/-
to the accused without any security.
6. The learned trial Court relied on the fact that the
complainant had no written acknowledgment, pronote, or receipt to
prove that he had advanced the alleged sum of money to the accused.
7. The learned trial Court further pointed out the falsity in
the complainant's case regarding his claim of advancing an amount
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of Rs. 80,000/- through Cheque No. 021461 on 11.05.2016, and an
amount of Rs. 25,000/- through Cheque No. 678771 on 15.06.2016.
The complainant, in order to prove the issuance of these two cheques
to the accused, relied upon his bank statements (Ex. C-8 and C-9).
Upon appraisal of the evidence, the learned trial Court held that the
mere perusal of the said bank statements did not conclusively prove
that the cheques had been encashed by the accused. The accused
suggested during the complainant's examination that the complainant
had fabricated false bank entries to falsely implicate the accused in
the complaint. The learned trial Court held that the complainant was
required to prove the issuance of the cheques to the accused by
examining a witness from the bank who could have testified that the
amount was disbursed to the accused. The learned trial Court further
held that, even if it were assumed for the sake of argument that the
cheques for Rs. 80,000/- and Rs. 25,000/- were given to the accused,
they would still fall far short of the amount of Rs. 2,30,000/-, which
is the amount of the cheque that is the subject matter of the present
case.
8. In the case of H.D. Sundara & Ors. v. State of
Karnataka, 2023 (9) SCC 581, the Hon'ble Supreme Court of India
laid down the principles governing the power of appeal filed against
acquittal as follows:
"(a) The acquittal of the accused further strengthens the
presumption of innocence;
(b) The Appellate Court, while hearing an appeal
against acquittal, is entitled to re-appreciate the oral
and documentary evidence;
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(c) The Appellate Court, while deciding an appeal
against acquittal, after re-appreciating the evidence, is
required to consider whether the view taken by the Trial
Court is a possible view which could have been taken on
the basis of the evidence on record;
(d) If the view taken is a possible view, the Appellate
Court cannot overturn the order of acquittal on the
ground that another view was also possible; and
(e) The Appellate Court can interfere with the order of
acquittal only if it comes to a finding that the only
conclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused was
proved beyond a reasonable doubt and no other
conclusion was possible."
9. Further, the Hon'ble Supreme Court, in the judgment
passed in the case titled "Babu Sahebagouda Rudragoudar and
Others v. State of Karnataka," 2024 INSC 320 = 2024(2) held as
follows:
"39. Thus, it is beyond the pale of doubt that the scope of
interference by an appellate Court for reversing the
judgment of acquittal recorded by the trial Court in
favour of the accused has to be exercised within the four
corners of the following principles:-
(a) That the judgment of acquittal suffers from patent
perversity;
(b) That the same is based on a misreading/omission to
consider material evidence on record;
(c) That no two reasonable views are possible and only
the view consistent with the guilt of the accused is
possible from the evidence available on record."
10. It is argued on behalf of the appellant that the plea taken
by the accused in his statement under Section 313 of the Cr.P.C.
regarding the calling of a person for availing a financing facility at
the complainant's house is not plausible. As such, the accused has
failed to rebut the presumption attached to the cheque under Section
139 of the Negotiable Instruments Act. It is argued that such a
financing facility is easily available at shops in the market. However,
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this argument on the part of the appellant does not, in any manner,
impair the defence taken by the accused. It is not a thumb rule that
just because finance facilities are available at shops in the market, a
finance person cannot be called to the house of the complainant. The
facts of the case clearly indicate that the accused does not belong to
an affluent stratum of society, as his two sisters have worked at the
complainant's house for domestic jobs at a meager sum of Rs. 1,200/-
per month. Therefore, there is a preponderance of probability in the
version put forth by the accused.
11. The Hon'ble Supreme Court, in the case of M/s Kumar
Exports v. M/s Sharma Carpets, 2009(1) RCR (Criminal) 478, has
held as follows:
"11. The use of the phrase "until the contrary is proved" in
Section 118 of the Act and use of the words "unless the
contrary is proved" in Section 139 of the Act read with
definitions of "may presume" and "shall presume" as given in
Section 4 of the Evidence Act, makes it at once clear that
presumptions to be raised under both the provisions are
rebuttable. When a presumption is rebuttable, it only points out
that the party on whom lies the duty of going forward with
evidence, on the fact presumed and when that party has
produced evidence fairly and reasonably tending to show that
the real fact is not as presumed, the purpose of the
presumption is over. The accused in a trial under Section 138
of the Act has two options. He can either show that
consideration and debt did not exist or that under the
particular circumstances of the case the non-existence of
consideration and debt is so probable that a prudent man
ought to suppose that no consideration and debt existed. To
rebut the statutory presumptions an accused is not expected to
prove his defence beyond reasonable doubt as is expected of
the complainant in a criminal trial. The accused may adduce
direct evidence to prove that the note in question was not
supported by consideration and that there was no debt or
liability to be discharged by him. However, the court need not
insist in every case that the accused should disprove the non-
existence of consideration and debt by leading direct evidence
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because the existence of negative evidence is neither possible
nor contemplated. At the same time, it is clear that bare denial
of the passing of the consideration and existence of debt,
apparently would not serve the purpose of the accused.
Something which is probable has to be brought on record for
getting the burden of proof shifted to the complainant. To
disprove the presumptions, the accused should bring on record
such facts and circumstances, upon consideration of which, the
court may either believe that the consideration and debt did
not exist or their non-existence was so probable that a prudent
man would under the circumstances of the case, act upon the
plea that they did not exist. Apart from adducing direct
evidence to prove that the note in question was not supported
by consideration or that he had not incurred any debt or
liability, the accused may also rely upon circumstantial
evidence and if the circumstances so relied upon are
compelling, the burden may likewise shift again on to the
complainant. The accused may also rely upon presumptions of
fact, for instance, those mentioned in Section 114 of the
Evidence Act to rebut the presumptions arising under Sections
118 and 139 of the Act. The accused has also an option to
prove the non-existence of consideration and debt or liability
either by letting in evidence or in some clear and exceptional
cases, from the case set out by the complainant, that is, the
averments in the complaint, the case set out in the statutory
notice and evidence adduced by the complainant during the
trial. Once such rebuttal evidence is adduced and accepted by
the court, having regard to all the circumstances of the case
and the preponderance of probabilities, the evidential burden
shifts back to the complainant and, thereafter, the
presumptions under Sections 118 and 139 of the Act will not
again come to the complainant's rescue."
12. It is argued on behalf of the complainant that the plea
taken by the accused is that the cheques issued by him for availing
the finance were not returned to him. However, he has not filed any
complaint in this regard against the complainant. It is submitted that
the accused has not replied to the legal notice issued after the
dishonour of the cheque; as such, he has admitted his liability
concerning the cheque. As held earlier, the societal status of the
accused, belonging to a weaker section of society, means his failure
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to take proactive steps, such as lodging a complaint against the
complainant or replying to the legal notice, cannot ipso facto saddle
him with liability in this case. In view of the probable defence put
forth by the accused in the trial Court, the onus was upon the
complainant to prove his case against the accused beyond a shadow
of reasonable doubt. The complainant, in this regard, cannot be
permitted to draw any strength from the weakness or carelessness on
the part of the accused in pursuing his remedies against the
complainant.
13. It is next argued on behalf of the complainant that the
complainant had the financial capacity to advance the amount in
question to the accused; as such, the claim of the complainant cannot
be doubted. It is submitted that the learned trial Court has not
considered that Rs. 80,000/- and Rs. 25,000/- were respectively paid
by the complainant to the accused through cheques. This plea on the
part of the complainant is ex-facie wrong, as the impugned judgment
clearly reveals that the learned trial Court has in detail, dealt with the
aspect of these two cheques. After scrutinizing the entire evidence
meticulously, the learned trial Court rightly concluded that the
account statements (Ex. C-8 and C-9) do not, in any manner,
conclusively prove that the said cheques were issued to and encashed
by the accused. No cogent, convincing, and plausible evidence
connecting the accused with the said cheques has been adduced by
the complainant.
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14. Perusal of the judgment of acquittal passed by the trial
Court shows that the trial Court has thoroughly examined the entire
evidence led by the prosecution in a painstaking manner and has dealt
with each and every aspect of the case in a pragmatic way. The
judgment of acquittal passed by the trial Court, based on sound
reasoning, does not suffer from any illegality or perversity. As such,
the judgment of acquittal dated 04.01.2018, passed by the Learned
Judicial Magistrate, 1st Class, Yamuna Nagar at Jagadhri, in the
present case, is upheld. Resultantly, the present appeal, being bereft
of merit, fails and is dismissed.
(SUMEET GOEL)
JUDGE
January 20, 2025
jatin
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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