The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgement and order of acquittal passed by learned Metropolitan Magistrate (Negotiable Instruments Act) Court No. 6, Ahmedabad, on 30.7.2010 in Criminal Case No. 67 of 2009 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short). 2. According to the complainant, the accused is his relative and he had given financial assistance of Rs. 90,000/- to the accused to send his son Mitul to England on work permit. The accused gave cheque No. 410447 dated 24.3.2008 for Rs. 90,000/- drawn on ICICI Bank Limited, Ahmedabad Branch. On presentation in the bank, the cheque returned unpaid with the endorsement “insufficient funds”. Therefore, notice was served to the accused through advocate demanding the amount of unpaid cheque. The accused did not make the payment of unpaid cheque but gave false and evasive reply to the notice. Therefore, complaint under Section 138 of the Act was filed in the Court of learned Metropolitan Magistrate at Ahmedabad and it was registered as Criminal Case No. 5964 of 2008.
3. The trial Court issued summons and the accused appeared and denied having committed the offence. Therefore, the prosecution adduced evidence. At the end of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to him. The accused in his further statement recorded under Section 313 of the Code of Criminal Procedure, 1973, stated that the complainant took responsibility to send his son Mitul to England on work permit Visa for Rs. 2,50,000/- before about four years. Therefore, cheque in question was given to the complainant as security and it was to be returned but Visa work was not completed and therefore he demanded return of the cheque from the complainant but the complainant informed him that the cheque has expired and is not found. Therefore, the complainant and his friend Hiral Kansara committed cheating and therefore a complaint was filed against them. The cheque given as security was presented in the bank by writing date with a view to raise false defence. It is further explained that the cheque in question is not given towards discharge of debt and no loan is advanced but the cheque has been misused. After hearing learned advocates for the parties, the trial Court by impugned judgement acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
4. I have heard learned advocate Mr. Patel for the appellant and learned advocate Mr. Raval for the respondent accused at length and in great detail. I have also perused the impugned judgement and record and proceedings of the trial Court.
5. Learned advocate Mr. Patel submitted that Rs. 90,000/- was given to the accused to enable the accused to send his son Mitul to U.K. and cheque in question was given towards discharge of such liability. He also submitted that presumption under Section 139 of the Act is rebuttable and the accused is required to rebut the presumption. He also submitted that presumption is in favour of holder of cheque that it was given towards discharge of debt or liability but the accused failed to rebut the presumption. He also submitted that the documents produced by the accused are not proved and tentative exhibits are given by the trial Court but those documents cannot be read in evidence and therefore the accused was not able to rebut the presumption and hence the trial Court committed error in acquitting the accused.
Therefore, the impugned judgement is required to be set aside. He relied on the decisions in RANGAPPA VS. MOHAN reported in AIR 2010 SC 1898; K.N. BEENA VS. MUNIYAPPAN reported in 2001 Cri. L. J. 4745; HITEN P. DALAL VS. BRATINDRANATH BANERJEE reported in 2001 Cri. L.J. 4647; PRAJAPATI OIL INDUSTRY VS. STATE OF GUJARAT reported in 2004(1) GLH 365 and GIRISHBHAI NATVARBHAI PATEL VS. STATE OF GUJARAT reported in 2006(1) GLH 530.
6. Learned advocate Mr. Raval for the respondent accused submitted that cross-examination of the complainant indicates that no documentary evidence was produced by the complainant to prove that there was existence of legally recoverable debt. He also submitted that presumption under Section 139 of the Act is rebuttable and the accused has to raise a probable defence and in the present case the accused was able to raise probable defence and the complainant failed to prove legally recoverable debt. He also submitted that in reply to the notice and in the further statement the accused explained the incriminating circumstances and thereby the accused was able to raise probable defence and hence the trial Court was justified in acquitting the accused. Therefore, no interference is warranted in the impugned judgement.
7. Prosecution examined Devanshu Bharatkumar Mehta at Exh. 3. In the cross-examination the witness admitted that the accused is his maternal uncle. The witness also deposed that amount of Rs. 90,000/- was not given at once but was given in division and no record has been kept with regard to the amount advanced. The witness also deposed that he is running tuition class and has income of about Rs. 20,000/- per month. The witness also admitted that the accused has filed complaint against him in Maninagar Police Station. In view of this evidence, it emerges that the amount was given in divisions and the witness did not produce any documentary evidence to show that amount of Rs. 90,000/- was given to the accused. It is also significant that the witness did not state date of advance in the complaint nor produced any evidence showing the dates of the amount advanced to the accused. It is settled position that under Section 139 of the Act it shall be presumed that the holder of cheque received the cheque for the discharge in whole or in part of any debt or other liability but the presumption is rebuttable and when the 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 doubts about the existence of a legally enforceable debit or liability, the prosecution can fail. It is also settled position that in order to rebut presumption and raise probable defence, the accused is not required to enter into witness box or lead evidence. The accused can rely on the material submitted by the complainant in order to raise a probable defence. As observed earlier, the cross-examination of the witness indicates that there was no documentary evidence to prove that amount of Rs. 90,000/- was given to the accused. Therefore, the accused was able to raise a probable defence which creates doubts about the existence of legally recoverable debt or liability. The complainant did not adduce any evidence to show that there was existence of legally recoverable debt and the cheque in question was given towards discharge of such debt. Therefore, the trial Court was justified in acquitting the accused.
8. In the decision of RANGAPPA VS. MOHAN (supra) and HITEN P. DALAL VS. BRATINDRANATH BANERJEE (supra) Hon'ble Supreme Court laid down law with regard to presumption under Section 139 of the Act and ruled that the standard of proof for rebutting the presumption is that of preponderance of probabilities. In the decision of K.N. BEENA VS. MUNIYAPPAN (supra), Hon'ble Supreme Court held that the burden is on the accused to prove that cheque had not been issued for any debt or liability and mere denial is not sufficient to shift the burden on the complainant. It is also held that the accused has to prove in trial by leading cogent evidence that there was no debt or liability. In the present case, as observed earlier, the accused by cross-examination of the prosecution witness was able to bring on record such facts and circumstances upon consideration of which a serious doubt is raised about existence of legally recoverable debt and/or liability. In the facts of this case, both these decisions are not applicable.
9. As regards the decisions of this Court in the cases of G.N. PATEL VS. STATE OF GUJARAT (supra) and PRAJAPATI OIL INDUSTRY VS. STATE OF GUJARAT (supra) in view of decisions of Hon'ble Supreme Court in above referred to decisions both these decisions do not render any assistance to the appellant.
10. Learned advocate for the appellant failed to point out any infirmity in the impugned judgement. Therefore, the appeal fails and stands dismissed.
(BANKIM N. MEHTA, J) (pkn)