The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure and challenged the judgement and order of acquittal passed by learned 4th Additional Senior Civil Judge and Judicial Magistrate First Class, Anand, in Criminal Case No. 4765 of 2004 on 25.2.2008 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, he is doing business of saffron in the name of Shreeji brand from Anand and other places and has an office at Mumbai. The accused is doing business of chemicals from Mumbai and had developed friendship with him. As the accused demanded 20,000/-, he gave same to the accused on 15.3.2004. The accused gave cheque No. 184691 dated 15.5.2004 for Rs. 20,000/- drawn on The Vaishya Co-operative Bank Limited, Mumbai on the same day i.e. on 15.3.2004. On the date of the cheque, the accused requested him not to present the cheque as he could not arrange for the amount and therefore he did not present the cheque in the bank on the date of cheque. Thereafter, the cheque was presented in the bank on 24.5.2004 as per the instructions given by the accused but the cheque returned unpaid with the endorsement “account closed”. Therefore, notice through advocate was served to the accused demanding the amount of unpaid cheque. The notice was received by the accused but the accused did not pay the amount and gave false reply. Therefore, complaint under Section 138 of the Act was filed in the Court of learned Civil Judge (J.D.) at Anand and it was registered as criminal case No. 4765 of 2004.
3. The trial Court issued summons and the accused appeared in response to the summons and denied having committed offence. Therefore, the prosecution adduced evidence. At the end of recording of evidence, further statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973. The accused in his further statement stated that he gave cheques in the year 1999 to Vijay Upadhyay and the complainant has obtained cheque from Vijay Upadhyay and false case is filed. It is also stated that he informed Vijay Upadhyay by notice and letter not to misuse the cheque and that the account is closed. It is also stated that he does not know the complainant and has no relation with the complainant. After hearing learned advocates for the parties, the trial Court acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
4. I have heard learned advocate Ms. Kruti Shah for the appellant and learned advocate Mr. Masoom Shah for the respondent accused at length and in great detail. I have also perused record and proceedings of the trial Court.
5. Learned advocate Ms. Kruti Shah for the appellant submitted that the complainant gave amount to the accused who gave cheque in discharge of his liability but the cheque returned unpaid with endorsement “account closed”. She submitted that under Section 139 of the Act, presumption is in favour of the drawer of cheque that the cheque was given towards discharge of debit and/or liability and the accused is required to rebut the presumption but the accused has failed to rebut the presumption. She also submitted that the defence raised by the accused is not probable as notice Exh. 61 given to Vijay Upadhyay shows that ten cheques of Rs. 10,000/- were given to said Vijay Upadhyay which have been misused but the cheque in question is of Rs. 20,000/-. She further submitted that the accused did not lead evidence in support of his defence and therefore the accused failed to rebut the presumption. She also submitted that the dispute with regard to alteration in the cheque is raised for the first time in appeal and therefore it cannot be considered and hence the trial Court committed error in acquitting the accused. Therefore, the impugned judgement is required to be set aside. She relied on the decision in the case of RANGAPPA VS. SRI MOHAN reported in 2010(11) SCC 441.
6. Learned advocate Mr. Masoom Shah for the respondent accused submitted that alteration in date is made in the cheque. Therefore, the cheque ceases to be a negotiable instrument under Section 87 of the Act. He also submitted that the complainant did not adduce any evidence to show that the amount was paid to the accused and cheque in question was given towards discharge of such debt. He further submitted that the complainant failed to prove existence of legally recoverable debt as no books of account were produced to prove that the amount was given to the accused and therefore the trial Court was justified in acquitting the accused. He further submitted that it is settled proposition that when two views are possible, the view favourable to the accused is required to be accepted and therefore the present appeal is required to be dismissed.
7. It is stated by learned advocate for the parties that the complainant gave different amounts to the accused on three occasions and the accused gave three cheques towards such amounts but all the three cheques were dishonoured. Therefore, three separate complaints were filed and the trial Court acquitted the accused in all the complaints. Therefore, the complainant has preferred three separate appeals. As all the three appeals are between the same parties, the appeals were heard and decided by separate judgements.
8. It appears that the complainant gave Rs. 20,000/- in cash to the accused on 15.3.2004 and the accused allegedly gave cheque dated 15.5.2004 to the complainant in discharge of his liability. In order to prove the existence of legally recoverable debt, the complainant examined himself at Exh.
16. In the cross-examination the complainant deposed that he does business in partnership in the name of Vijaykumar & Brothers and Vijay Upadhyay, Bharat Upadhyay and Vinodbhai are the partners. The witness also admitted that he has no evidence to show that the amount was advanced to the accused. The witness also admitted that he did not advance the amount to the accused by cheque and that except the cheque in question, he has no evidence to show that the amount was advanced to the accused. The witness also admitted that in cheque Exh. 21 “19” is scored off. The witness also admitted that the alteration made on “19” in Exh. 21 does not bear signature of the drawer of the cheque.
9. The prosecution produced cheque at Exh. 21 and the cheque return memo at Exh. 22. It appears from cheque Exh. 21 that alteration is made in year “19”. The alteration does not bear signature of drawer of the cheque. The cheque return memo Exh. 22 indicates that the cheque was returned unpaid as the account was closed.
10. The prosecution also produced notice given to the accused at Exh. 24 and the reply given by the accused at Exh.
40. It appears from the notice Exh. 24 that the complainant demanded the amount of unpaid cheque as it was returned unpaid with the endorsement “account closed”. It is not in dispute that the notice was given to the accused as required under Section 138(b) of the Act. The reply to the notice given by the accused produced at Exh. 40 indicates that the accused raised a defence that ten blank cheques including the cheque in question was given to one Vijay Upadhyay and by letter dated 14.1.2004 to Vijay Upadhyay, he made a demand to return the cheques but Vijay Upadhyay did not give reply to the letter and the cheque in question is misused. It also indicates that copy of the said reply was sent to Vijay Upadhyay and postal acknowledgement due Exh. 40 and 41 indicate that it was received by Vijay Upadhyay.
11. In view of above evidence, it emerges that the accused raised a defence that the cheque in question with other cheques was given to Vijay Upadhyay who was partner of complainant and the cheque was misused by the complainant.
12. It is not in dispute that except cheque in question no evidence was produced by the complainant to show that amount of Rs. 20,000/- was advanced to the accused on 15.3.2004. It is settled proposition that presumption under Section 139 of the Act is rebuttable presumption and 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 the plea 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 a probable defence which creates doubts about existence of legally recoverable debt, prosecution can fail. It is also settled proposition that in order to raise a probable defence the accused is not required to enter into witness box or lead evidence but can rely on the evidence produced by the complainant. Considering the corss- examination of the complainant, the accused was able to bring on record such facts and circumstances which creates doubts that the complainant advanced the amount to the accused. Therefore, burden shifted on the complainant to prove that there was existence of legally recoverable debt and the cheque was given towards discharge of such debt. The complainant did not produce any documentary evidence to show the advance made to the accused. The complainant did not examine Vijay Upadhyay who was his partner to counter the allegation that cheque was misused. It is true that in letter Exh. 61 written to Vijay Upadhyay the accused has alleged that ten cheques each of Rs. 10,000/- were given to him but in view of the fact that the complainant failed to discharge his burden to prove existence of legally recoverable debt, the accused is not required to prove his defence. Therefore, the complainant failed to discharge the burden shifted on him and to prove that cheque in question was given by the accused towards discharge of existing recoverable debt.
13. It also appears from cheque Exh. 21 that alteration in the year was made but alteration did not bear signature of drawer of the cheque. Learned advocate for the respondent submitted that as there is alteration in cheque, it did not remain negotiable instrument under Section 87 of the Act. This contention is not taken in the trial Court. In view of the fact that the complainant failed to prove that the cheque in question was given towards discharge of legally recoverable debt, finding in that regard would be academic. Therefore, this Court does not go into that contention.
14. In view of above, in my view, the complainant failed to prove existence of legally recoverable debt and that the cheque was given towards discharge of such debt. The accused was able to raise probable defence by preponderance of probabilities and rebut presumption under Section 139 of the Act. In the decision of RANGAPPA VS. SRI MOHAN (supra) relied on by learned adovcate for the appellant, Hon'ble Supreme Court held that presumption mandated by Section 139 of the Act includes presumption that there is existence of legally enforceable debt or liability but such presumption is rebuttable in nature. The Court also ruled that standard of proof for rebutting the presumption is preponderance of probabilities and the accused can rely on material produced by the prosecution. In the present case, the respondent accused was able to rebut the presumption by preponderance of probabilities and therefore the said decision does not render assistance to the appellant.
15. In view of above, as the complainant failed to prove that cheque Exh. 21 was given towards legally recoverable debt, the trial Court was justified in recording acquittal. Learned advocate Ms. Kruti Shah for the appellant failed to point out any legal infirmity in the impugned judgement. Therefore, the appeal fails and stands dismissed.
(BANKIM N. MEHTA, J) (pkn)