The appellant – original complainant has filed this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgement and order of acquittal passed by learned Additional Senior Civil Judge and Judicial Magistrate First Class, Anand, on 20.1.2007 in Criminal Case No. 4013 of 2005 acquitting the respondent-accused for the offence under Section 138 of the Negotiable Instruments Act (“the Act” for short). 2. According to the complainant as the accused was in need of finance, he contacted the complainant and after following necessary procedure, advanced amount to the accused who gave cheque No. 007475 dated 16.3.2005 for Rs. 8,12,800/- drawn on Anand Mercantile Co-operative Bank Limited, Industrial Estate Branch. On presentation of the cheque in the bank, the same returned dishonoured with endorsement “insufficient funds in the account”. Therefore, he served notice dated 13.4.2005 informing the accused about return of cheque unpaid. Despite that, the accused did not pay the amount and sent an evasive and got up reply. Therefore, complaint under Section 138 of the Act was filed.
3. The trial Court issued summons and the accused appeared in the Court in response to the summons and pleaded not guilty and claimed to be tried. Therefore, the complainant adduced evidence. On completion 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 Criminal Procedure Code, explained that he had taken loan from Charotar Nagarik Credit Society, Vadodara and three cheques were given towards security. Out of that, one cheque has been misused. It was further explained that office bearers of Dhanavarsha Investment and Charotar Nagarik Credit Society are the same and therefore false complaint has been filed. After hearing learned advocates for the parties, the trial Court by the impugned judgement acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
4. I have heard learned advocate Mr. Harshil Datani for Mr. P.P. Majmudar for the appellant, Mr. Tejas Barot for the respondent-accused and learned A.P.P. Ms. C.M. Shah for the respondent State at length and in great detail. I have also perused the impugned judgement and record and proceedings of the trial Court.
5. It appears from the allegations made in the complaint that the complainant has nowhere stated the exact amount and the date of advance allegedly made to the accused. The allegations in that regard are vague. Therefore, it is not clear as to when the alleged loan was advanced to the accused.
6. The complainant has examined himself at Exh. 13. The complainant has deposed that after following necessary procedure advance was given to the accused and the accused gave cheque in question towards discharge of his liability. In the cross-examination the complainant has denied that no loan is given to the accused. The complainant has deposed that after verifying the record he can say as to when and what amount of loan was advanced to the accused. The witness has also admitted that the notice given to the accused does not mention date and amount of loan given to the accused.
7. In view of above evidence, it emerges that the witness could not give details of loan allegedly advanced to the accused. It also emerges that the accused challenged the allegations of loan advanced to him. However, the complainant did not produce any evidence to support that loan was advanced to the accused. The witness has deposed that after following necessary procedure, loan was advanced to the accused but no documentary evidence to indicate that procedure was followed and loan was given to the accused was produced. As observed earlier, the allegations with regard to loan are vague and absurd. Therefore, it is difficult to believe that the complainant advanced amount to the accused.
8. The complainant has produced a copy of the notice at Exh. 22. The notice is also vague. It does not disclose as to what was loan advanced and when it was advanced to the accused. The notice only indicates that cheque was given towards discharge of liability and hence returned unpaid on presentation in the bankk. The accused gave reply to the notice produced at Exh. 25. The accused has denied allegations levelled in the notice and alleged that he had obtained loan from Charotar Nagarik Credit Society, Vadodara and three blank cheques were given towards security but the cheques have been misused by the complainant, as a person in the complainant Institution was in contact with Charotar Nagarik Credit Society, Vadodara.
9. On examination of cross-examination of the complainant, it emerges that the accused has challenged the fact of advance by the complainant. It also emerges that no documentary evidence was produced to prove the loan. The burden shifted on the complainant to prove that the amount was advanced to the accused but the complainant did not produce any evidence to show that amount was advanced to the accused as loan. Therefore, except bare words, there is no evidence that amount was advanced to the accused as loan.
10. The complainant examined Ashok H. Parmar at Exh.
35. The witness produced certain documents. However, those documents were not admitted in evidence. Therefore, the evidence of this witness does not carry the complainant's case any further.
11. It is settled proposition that when an accused has to rebut the presumption under Section 139 of the Act, 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. The accused can rely on the material submitted by the complainant in order to raise such a defence. In the present case, the accused has disputed the fact of loan. The complainant did not produce any documentary evidence to show that loan was advanced to the accused. Therefore, probable defence was raised by the accused and the burden shifted on the complainant to prove that loan was advanced to the accused and the cheque in question was given towards discharge of liability. Therefore, the trial Court was justified in acquitting the accused.
12. Learned advocate Mr. Datani submitted that the accused did not step into the witness box to prove his defence and therefore the defence could not be believed. In the decision of KRISHNA JANARDHAN BHAT VS. DATTATRAYA G.
HEGDE reported in (2008) 4 SCC 54 Hon'ble Supreme Court held that in order to discharge burden by the accused he is not required to step into the witness box and examine himself but he may discharge his burden on the basis of material already brought on record. It is also held by the Hon'ble Supreme Court that standard of proof on the part of an accused and that of prosecution in criminal case is different. In the present case, the accused has been able to discharge the burden by cross- examining the complainant and therefore the accused was not required to step into the witness box and examine himself. Therefore, this submission cannot be accepted. Learned advocate Mr. Datani has also relied on the decision in the case of K.N. BEENA VS. MUNIYAPPAN AND ANOTHER reported in AIR 2001 SC 2895 wherein Hon'ble Supreme Court ruled that denial/averments in reply by accused are not sufficient to shift the burden of proof onto the complainant but the accused has to prove in trial by leading cogent evidence that there was no debt or liability. In view of above referred to decision of KRISHNA JANARDHAN BHAT VS. DATTATRAYA G. HEGDE (supra), this decision does not require any elaborate discussion.
13. Learned advocate Mr. Datani has also relied on the decision of the Hon'ble Supreme Court in the case of HITEN P. DALAL VS. BRATINDRANATH BANERJEE reported in AIR 2001 SC 3897 wherein Hon'ble Supreme Court has ruled that mere plausible explanation is not sufficient. Proof of explanation is necessary for the offence under Section 138 and presumption under Section 139 of the Act. There cannot be any dispute with regard to this proposition laid down in the said decision. However, in the facts of the present case, this decision cannot be made applicable.
14. Learned advocate Mr. Datani has relied on the decision of the Hon'ble Supreme Court in the case of KUMAR EXPORTS VS. SHARMA CARPETS reported in (2009) 2 SCC 513.
Hon'ble Supreme Court ruled that “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 because the existence of negative evidence is neither possible nor contemplated. At the same time, bare denial of the passing of the consideration and existence of debt, apparently does 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.”
15. In the present case, as observed earlier, the facts and circumstances brought on record by the accused show that consideration and debt did not exist and their non-existence was probable. Therefore, the trial Court was justified in passing the impugned judgement.
16. In the result, the appeal fails and stands dismissed.
(BANKIM N. MEHTA, J) (pkn)