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 Civil Judge and Judicial Magistrate First Class, Gandhinagar, on 6.6.2008 in Criminal Case No. 5463 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, the accused was former Secretary of Shreeji Prakashnagar Co-operative Housing Society Limited and had collected loan amount from the members of the Society and deposited in Ahmedabad District Co-operative Bank, Ahmedabad. Cheque No. 6768 dated 8.2.2005 for Rs. 61,000/- was issued by Ahmedabad District Co-operative Bank towards commission to the accused which was presented in the Bank and was got encashed. Therefore, he informed the accused that the amount of commission given by the bank belonged to the Society and demanded the amount. Therefore, the accused informed that out of Rs. 61,000/-, half of the amount was given to one Mr. V.K. Chaudhari and gave cheque No. 877419 dated 5.7.2005 for Rs. 30,500/- drawn in the name of Shreeji Prakashnagar Co- operative Housing Society Limited, Chandkheda. On presenting the cheque in the Bank it returned unpaid with endorsement “stop payment”. Therefore, notice dated 18.8.2005 was served to the accused. Despite that, the accused did not pay the unpaid cheque amount. Therefore, complaint was filed.
3. The trial Court issued summons to the accused who appeared and pleaded not guilty. Therefore, prosecution adduced evidence. On completion of recording of evidence further statement of the accused was recorded under Section 313 of the Code of Criminal Procedure. The accused in his further statement denied having committed the offence and stated that he had received the cheque in his personal capacity towards allowance under OTS scheme from Ahmedabad District Co-operative Bank but the complainant raised objection. Therefore, the cheque in question was given towards security till receipt of explanation from the Bank and therefore payment was stopped and no debt is outstanding against him. The accused also examined witness in his defence.
4. After hearing learned advocates for the parties, the trial Court by the impugned judgement acquitted the accused. Therefore, the complainant has preferred the present appeal.
5. I have heard learned advocate Mr. Hardik D. Muchhala for learned advocate Mr. Rajesh H. Sahjani for the appellant and learned advocate Mr. Hardik H. Pandit for learned advocate Mr. Brahmbhatt 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.
6. Learned advocate Mr. Muchhala for the appellant submitted that the cheque in question was issued against outstanding debt as the accused had received amount of commission from the Bank which in fact belonged to the complainant society. However, the accused deposited the cheque in his personal account. He also submitted that though the cheque returned unpaid on account of stop payment, it is an offence and therefore the trial Court committed error in acquitting the accused. He relied on the decision in the case of M/S. MODI CEMENTS LTD. VS. KUCHIL KUMAR NANDI reported in AIR 1998 SC 1057 .
7. Learned advocate Mr. Pandit for the respondent accused submitted that the complainant failed to prove that the amount of commission received by the accused belonged to the complainant. He also submitted that the cheque of commission was given in the name of the accused and therefore was entitled for encashment thereof. He also submitted that there was no legal due and therefore the trial Court was justified in acquitting the accused.
8. Under Section 139 of the Act it shall be presumed, unless contrary is proved, that the holder of cheque received the cheque for the discharge in whole or in part of any debt or liability. Presumption can be rebutted by the accused by adducing evidence. Presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby and it does not extend to the extent that the cheque was issued for the discharge of any debt or liability which is required to be proved by the complainant. The accused has to rebut the presumption by raising a probable defence. When the accused has to rebut the presumption, the standard of proof in 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 recoverable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such defence.
9. It appears from the allegations made in the complaint that the complainant alleged that the accused received cheque from Ahmedabad District Co-operative Bank, Ahmedabad, towards commission and it was encashed by the accused by presenting in his personal account though the amount belonged to the complainant and the cheque in question was given by the accused for return of such amount of commission received by the accused. It is not disputed by learned advocate for the appellant that no evidence was adduced before the trial Court to show that the accused received the amount of cheque of commission from Ahmedabad District Co-operative Bank was, in fact, belonged to the complainant. It is also not in dispute that the Bank issued the cheque of commission in the name of the accused in his personal capacity and not on behalf of the complainant society. Therefore, it cannot be said that cheque of Rs. 61,000/- issued by Ahmedabad District Co-operative Bank in the name of the accused belonged to the complainant and accused got it encashed in his personal account.
10. The accused has raised a probable defence that the cheque was given towards security as the Society raised an objection with regard to the amount received by him as commission from Ahmedabad District Co-operartive bank. The burden shifted on the complainant to prove that the cheque given by the Bank to the accused was in fact belonged to the complainant Society. As no evidence in that regard was produced before the trial Court, it cannot be said that the accused gave the cheque in question towards discharge of debt or liability of amount of commission received by him.
11. In the decision relied on by learned advocate for the appellant, the Hon'ble Supreme Court ruled that in case of stop payment by a drawer of cheque, it would be an offence under Section 138 of the Act. There cannot any dispute with regard to the proposition laid down by Hon'ble Supreme Court in the said decision but in the facts of this case, this decision cannot be made applicable.
12. In view of above, the appeal fails and stands dismissed.
(BANKIM N. MEHTA, J) (pkn)