The appellant – original complainant has preferred this appeal under section 378 of the Code of Criminal Procedure,1973 and challenged the judgment and order of acquittal passed by the learned Additional Senior Civil Judge and JMFC, Bhavnagar on 7.5.2009 in Criminal Case No.1006 of 2008 acquitting the respondent accused for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”). 2. According to the complainant, as the accused was known to her husband, her husband Bhagwandas Pirumal advanced Rs.50,000/- on 26.6.2006 to the accused for his business purpose. The accused assured that as he has vast experience of bakery business and grocery, he would pay Rs.750/- per month towards profit of the said business. The accused executed a writing on 26.6.2006 in that regard. Therefore, principal amount of Rs.50,000/- and Rs.14,250/- towards amount of profit at the rate of Rs.750/- for 19 months remained payable by the accused and therefore, she made demand of outstanding amount of Rs.64,250/- from the accused. The accused gave cheque No.10423 dated 26.11.2007 for Rs.25,000/- drawn in favour of Bhavnagar Nagarik Sahkari Bank Limited, Shishuvihar, Rupapari Road Branch, Bhavnagar. The said cheque returned unpaid with the endorsement insufficient funds. Therefore, notice was served to the accused demanding the amount of unpaid cheque. Despite the receipt of notice, the accused did not pay the amount. Therefore, the complaint under section 138 of the Act was filed.
3. The trial Court issued summons to accused and the accused appeared and pleaded not guilty to the charge and claimed to be tried. Therefore, the complainant adduced evidence in support of his case. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against accused were explained to him. Accused in his further statement recorded under section 313 of the Code of Criminal Procedure, 1973 denied having committed the offence and stated that cheque bearing No.10403 and 10423 were given to the husband of the complainant on
parties, the trial Court by impugned judgment, acquitted the accused. Being aggrieved by the said decision, the appellant – original complainant has preferred this acquittal appeal.
4. I have heard learned advocate Ms. Kotecha for the appellant and learned advocate Ms. Vyas for learned advocate Ms. Shah for the respondent at length and in great detail. I have also perused the R & P of the trial Court.
5. Ms. Kotecha submitted that the cheque was given towards discharge of liability and under section 139 of the Act, there is presumption that the cheque was given towards discharge of debt. Therefore, the complainant was not required to adduce any evidence to prove the debt. She also submitted that the accused did not offer any explanation with regard to the cheque. She further submitted that the agreement executed between the husband of the complainant and the accused indicates that the amount was advanced to the accused for his business purpose and the accused agreed to pay Rs.750/- per month. However, the accused did not pay the amount and therefore, the complainant was able to prove that cheque was issued by the accused towards discharge of liability and hence, the trial Court committed error in acquitting the accused. She relied upon the decision of Anil Sachar and another Vs. M/s. Shree Nath Spinners P. Ltd. & others etc. reported in AIR 2011 SC 2751.
6. Learned advocate Ms. Vyas submitted that the complainant failed to prove that the cheque was given towards discharge of liability. She also submitted that there is legal presumption under section 139 of the Act. However, the complainant is required to prove that the cheque is issued towards discharge of liability, but the complainant did not adduce any evidence to prove the liability. She further submitted that the complainant did not produce agreement executed between her husband and the accused and the cheque in question was given towards security as per the agreement. She also submitted that the accused did not give any cheque to the complainant and the cheque which was given to the husband of the complainant has been misused. Therefore, the trial Court was justified in acquitting the accused.
7. It appears from the allegations made in the complaint that the accused allegedly borrowed Rs.50,000/- on 26.6.2006 from the husband of the complainant and agreed to pay Rs.750/- per month to the husband of the complainant as profit and writing dated 26.6.2006 was executed by the accused. According to the complainant, Rs.64,250/- remained payable by the accused and towards discharge of liability in part, cheque in question was given by the accused to the complainant.
8. In view of the averments made in the complaint, it emerges that the complainant claimed that Rs.64,250/- remained payable by the accused under writing dated 26.6.2006 executed by the accused in favour of her husband Bhagwandas and the accused gave the cheque towards discharge of liability in part. It is significant that the complainant did not produce the writing in the Court in support of her case. Therefore, the accused filed application Exh-19 for a direction to the complainant to produce writing dated 26.6.2006 with other documents. The trial Court after hearing the learned advocates for the parties, by order dated 4.3.2009 directed the complainant to produce writing dated 26.6.2006. It is stated by learned advocate Ms. Vyas that despite the order, the complainant did not produce the writing. Therefore, the accused produced xerox copy of writing and it was admitted in evidence at Exh-38. It emerges from the writing that the accused borrowed Rs.50,000/- from Bhagwandas Pirumal, - husband of the complainant and agreed to pay Rs.25,000/- on 26.12.2006 and remaining Rs.25,000/- on 26.6.2007. The writing also indicates that cheque No.10403 and cheque No.10423 of Rs.25,000/- each drawn on Bhavnagar Nagrik Sahakari Bank Limited, Shishuvihar, Rupapari Road, Bhavnagar were given to said Bhagwandas towards security and agreed that in case of default in payment by the accused, said Bhagwandas was entitled to file proceedings for recovery of the amount advanced by him. Cheque No.10423 is the subject matter of this proceedings. In view of the fact that the complainant has in the complaint referred to the writing dated 26.6.2006, it is clear that the cheque in question was in fact given to the husband of the complainant and not to the complainant as claimed by her. Therefore, now the question is whether it can be said that the cheque in question was given by the accused to the complainant towards discharge of part of his liability?
9. As observed earlier, the averments made in the complaint indicates that the accused allegedly gave cheque in question of Rs.25,000/- drawn on 26.11.2007 towards discharge of his liability in part for the amount borrowed by him from her husband Bhagwandas. In view of the fact that the writing Exh-38 dated 26.11.2009 executed by the accused indicates that the accused gave cheque in question to the husband of the complainant, it is difficult to believe that the accused gave cheque in question on 26.11.2007 towards discharge of his liability in part to the complainant as claimed by her.
10. There is no dispute that the cheque in question returned unpaid with endorsement of insufficient funds and the complainant served a notice demanding the amount of unpaid cheque. The prosecution has produced the notice at Exh-31. It emerges from the notice that the complainant has alleged that the accused gave cheque No.10403 dated 26.12.2006 drawn on Bhavnagar Nagrik Sahakari Bank Limited, Shishuvihar, Rupapari Road, Bhavnagar for Rs.25,000/- in favour of the husband of the complainant, but the cheque returned unpaid on account of insufficient funds. Therefore, the husband of the complainant served a notice to the accused, but the accused did not pay and agave assurance that he he would pay in short time, but thereafter, the husband of the complainant died and therefore, the complainant made demand from the accused, who gave cheque in question drawn on 26.11.2007. These allegations in the notice show that cheque No.10403 was given by the accused drawn in favour of the husband of the complainant on 26.12.2006 and thereafter, cheque No.10423 dated 26.11.2007 was drawn in favour of the complainant. These allegations are contrary to the stipulation made in writing Exh-
38. In view of this evidence, it appears that the cheques were given to the husband of the complainant at the time of writing dated 26.6.2006 and thereby, the complainant was in custody of these two cheques and the accused was not in custody of the cheque in question when it was allegedly given to the complainant. The accused has raised a defence that the cheques were given to the husband of the complainant towards security. The complainant has in her cross examination has deposed that she does not know whether the cheque No.10403 dated 26.6.2006 was given to her or her husband. She also denied that the writing Exh-38 was executed in favour of her husband and she does not know that two cheques in her name and two cheques in name of her husband were given. She has also denied that blank cheque was given to her husband and it is being misused. She has also denied that the cheque was given towards security. This evidence clearly indicates that the accused challenged that the cheque in question was given towards discharge of liability in part. It is not in dispute that the complainant has alleged that by virtue of writing between her husband and the accused, Rs.64,215/- remained payable by the accused and cheque in question was given towards discharge of liability in part. However, no documentary evidence was produced to prove the legally enforceable debt. Though the complainant stated about writing dated 26.6.2006 in the complaint, despite order of the Court, she did not produce the original writing for the reason best known to her. The writing Exh-38 indicates that the accused borrowed the amount and gave two cheques as security to the husband of the complainant. The evidence indicates that out of two cheques, one cheque No.10403 was presented in the bank during the life time of the husband of the complainant, but it returned unpaid and a notice was issued to the drawer of cheque, but it appears that no proceedings were initiated for return of the cheque unpaid. Thereafter, the cheque in question was presented in the bank claiming that it was given by the accused towards discharge of part of his liability. As observed earlier, the complainant did not produce any evidence to prove that the amount claimed in the notice remained outstanding and the cheque in question was given towards discharge of liability in part. It is settled proposition that under section 139 of the Act, legal presumption is in favour of holder of cheque, but it does not extend to extent that the cheque was issued for discharge of any debt of liability. The complainant is required to prove existence of legally recoverable debt or liability. It is also settled proposition that when an accused has to rebut the presumption, the standard of proof for doing so is that of “Preponderance of probabilities”. Therefore, if the accused is able to raise a probable defence, which creates doubt about the existence of a legally recoverable debt or liability, the prosecution can fail. It is not necessary that in order to rebut the presumption, accused is required to step into witness box or lead evidence. The accused can rely upon on the materials submitted by the complainant in order to raise such defence. Once the accused is able to raise probable defence, the burden shifts on the complainant to prove the existence of a legally recoverable debt or liability. In the present case, the accused was able to raise probable defence that blank cheques were given to the husband of the complainant. The writing Exh-38 also indicates that the cheque in question was given to the husband of the complainant. Therefore, the accused was able to rebut the presumption and raise a probable defence. The complainant failed to prove that the cheque in question was given to her towards discharge of existing recoverable debt or liability. Therefore, in my view, the trial Court was justified in acquitting the accused. In the decision of Anil Sachar (supra) relied upon by the appellant, the Hon'ble Supreme Court has laid down law with regard to presumption of consideration under section CR.A/2356/2009 10/10 JUDGMENT 139 of the Act. It is well settled law that presumption under section 139 is rebuttable presumption. In the decision of P.Venugopal v. Madan P. Sarathi reported in 2008 AIR SCW 7702, the Hon'ble Supreme Court has ruled that the presumption does not extend to the extent that the cheque was issued for discharge of any debt or liability, which is required to be proved by the complainant. Therefore, in my view, the decision relied upon by the appellant does not render any assistance to the appellant. In view of above, learned advocate appellant has not been able to point out any infirmity in the impugned judgment.
11. In the result, the appeal fails and stands dismissed.
(BANKIM N.MEHTA, J.) shekhar*