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 Additional Judicial Magistrate First Class, Padra, on 1.7.2010 in Criminal Case No. 1987 of 2004 acquitting the respondent accused for the offences under Section 138 of the Negotiable Instruments Act, 1881 ("the Act" for short).
2. According to the complainant, he is doing the business of building construction and accused is doing the business of sale and purchase of trucks. During the life time of his father, the accused obtained loan in his presence. On settlement of account, Rs. 10 lakh remained payable by the accused for the transactions between 7.6.1993 and 10.6.1999. On making demand of the outstanding amount, the accused gave cheque No. 063692 dated 5.8.2004 for Rs. 10 lakh drawn on Padra Nagar Nagrik Sahkari Bank Limited, Padra Branch. The cheque returned unpaid on account of insufficient fund when presented in the bank. Therefore, notice was served to the accused. Despite receipt of notice, the accused did not pay the amount of unpaid cheque but gave false and evasive reply. Therefore, complaint under Section 138 of the Act was filed in the Court of learned Judicial Magistrate First Class, at Padra and it was registered as Criminal Case No. 1987 of 2004.
3. The trial Court issued summons. The accused appeared and denied having committed the offence. Therefore, the prosecution adduced evidence. On completion of recording of evidence, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused in his further statement explained that he is not a debtor and the complainant was in need for finance in respect of his agricultural land and wanted to obtain money from the market and therefore asked him to remain as a guarantor and demanded the cheque. Therefore, he gave blank cheque to the complainant who filled in the details in the cheque and presented it in the bank. He is innocent. 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 at length and in great detail. The Court while admitting the appeal issued bailable warrant to the accused. The record indicates that bailable warranted was executed. However, the respondent did not appear in this Court. Therefore, again by order dated 13.12.2011 notice was issued to the respondent accused making it returnable on 23.1.2012. The notice was served to the respondent accused and the serving Officer recorded his statement on 30.12.2011 wherein the respondent accused stated that the notice is served to him and shall defend his case by engaging his advocate and he does not require legal aid.
5. Today when the matter was called out thrice, the respondent accused did not appear in the Court. Therefore, I have heard learned advocate Mr. Patel for the appellant and perused the impugned judgement and record and proceeding of the trial Court.
6. Learned advocate Mr. Patel submitted that the acquittal is recorded on the ground that the cheque in question was given for time barred debt but in view of the Full Bench Decision of this Court in the case of HINDUSTAN APPAREL INDUSTRIES VS. FAIR DEAL CORPORATION reported in 2000(2) G.L.R. 1422 fresh period of limitation would start even the cheque issued after the period of limitation is bounced. He further submitted that under Section 139 of the Act, presumption is in favour of the drawer of the cheque that it was issued for discharge of liability and the accused is required to rebut the presumption but the accused failed to rebut the presumption. He also submitted that the accused did not dispute issue of cheque and therefore the burden was on the accused to prove that it was not given towards discharge of debt and therefore the trial Court committed error in acquitting the accused. He relied on the decisions in the case of A.V. MURTHY VS. B.S. NAGABASAVANNA reported in AIR 2002 SC 985 and in the case of S. PARAMESHWARAPPA VS. S. CHOODAPPA reported in 2007 Cri. L.J 586. No other contentions are raised.
7. It appears from the allegations made in the complaint that the accused obtained hand loan from his father during his life time in his presence. The allegations clearly indicate that the accused did not obtain any amount from the complainant. Therefore, it cannot be said that the cheque was drawn by the accused in favour of the complainant in respect of discharge of legally recoverable debt or other liability.
8. In order to prove the prosecution case, the complainant examined himself at Exh. 9. In the cross-examination the complainant admitted that the notice Exh. 9 does not indicate that he had transaction with the accused. The complainant also deposed that he does not remember exact years of transactions between his father and the accused and that he had no monetary transaction with the accused after 10.6.1999. The complainant also admitted that he did not maintain any record with regard to transactions but he recorded the account in the diary kept by accused. The complainant also admitted that he pays income tax and shows his income in the income-tax return.
9. The complainant produced notice given to the accused demanding the amount of unpaid cheque at Exh. 9. On perusal of the notice it appears that the complainant has alleged that the accused obtained hand loan from his father.
10. In view of above evidence it clearly emerges that there were financial transactions between the accused and the father of the complainant. The complainant has not produced any documentary evidence to show that he had monteray transaction with the accused and he advanced amount of Rs. 10 lakh to the accused. The complainant is an income-tax payer. The complainant has not produced books of account or income tax return to show that he had paid the amount to the accused. The complainant even did not produce any documentary evidence to show that the accused borrowed amount from his father. According to the complainant, on settlement of account, the accused gave the cheque against amount payable by the accused but no documentary evidence of settlement of account is produced. Therefore, the complainant failed to prove existence of legally recoverable debt.
11. Under Section 139 of the Act, presumption is in favour of the holder of cheque that the cheque was issued for discharge in whole or in part of any debt or other liability unless contrary is proved. Therefore, presumption is rebuttable presumption. It is settled proposition that standard of proof to rebut the presumption is that of preponderance of probabilities. To disprove the presumption the accused has to bring on record such facts and circumstances upon consideration of which the Court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would under the circumstances of the case act upon belief that it did not exist. The accused is required to bring on record something which is probable for getting the benefit of shifting the onus of proving to the complainant. If the accused is able to raise probable defence which creates doubts about existence of legally recoverable debt, prosecution can fail. It is also settled proposition that in order to raise probable defence the accused is not required to enter into witness box or lead evidence, it can rely on the evidence produced by the complainant. Considering the allegations made in the complaint and notice Exh. 9 it emerges that the complainant alleged that the accused borrowed money from his father. In the cross-examination the complainant admitted that notice Exh. 9 did not indicate that the accused had transactions with him. Therefore, by cross-examination of the complainant the accused was able to bring on record the facts and circumstances that the cheque in question was not given towards discharge of legally recoverable debt or liability. The accused was able to raise probable defence that the cheque in question was not given towards discharge of debt. Therefore, the burden shifted on the complainant to prove that the cheque was given towards legally recoverable debt or liability. The complainant did not produce any documentary evidence to show that there was existence of legally recoverable debt and the accused gave cheque towards discharge of such debt. Therefore, in my view, the complainant failed to prove that there was existence of legally recoverable debt and the cheque in question was given towards discharge of such debt or liability.
12. As regards contention that the cheque given for a time barred debt would amount to acknowledge, there cannot be dispute with regard to law laid down by the Full Bench of this Court in the case of HINDUSTAN APPAREL INDUSTRIES VS. FAIR DEAL CORPORATION (supra). However, in view of the fact that the complainant failed to prove existence of legally recoverable debt, this decision does not render any assistance to the appellant.
13. As regards presumption under Section 118 and 139 of the Act, in the decision of A.V. MURTHY VS. B.S. NAGABASAVANNA (supra), Hon'ble Supreme Court held that consideration for cheque is presumed and it is also held that presumption is rebuttable presumption and the accused is required to rebut the presumption by preponderance of probabilities and not beyond reasonable doubt as required by prosecution to prove a case beyond reasonable doubt. In the present case the accused was able to raise probable defence and therefore was able to rebut the presumption and hence this decision does not render any assistance to the appellant.
14. As regards decision of S. PARAMESHWARAPPA VS. S. CHOODAPPA (supra), in the said decision the Karnataka High Court ruled that once cheque is issued, the accused cannot contend that it is not in respect of legally enforceable debt. In the present case, as observed earlier, the accused was able to rebut the presumption and the burden shifted on the complainant to prove legally enforceable debt. However, the complainant failed to prove the same. Therefore, this decision is also not helpful to the appellant.
15. In view of above, as learned advocate for the appellant failed to point out any legal infirmity in the impugned judgement, no interference is warranted in the impugned judgement. The appeal fails and stands dismissed.
(BANKIM N. MEHTA, J) (pkn) Top