1. Petitioner-revisionist is the original complainant, who filed Criminal Case No.7139 of 2004 before the Judicial Magistrate (First Class), Bharuch for the offences punishable under Sections 138 and 142 of the Negotiable Instruments Act ( hereinafter referred to as “the N.I. Act”). Learned Judicial Magistrate (First Class) vide its order dated 9.3.2007 passed an order of acquittal against respondent No.1 herein Shri Rajeshbhai Sanabhai Gohil ( original accused). Aggrieved by the said order of acquittal, this Revision Application is preferred.
2. Brief facts of the case are as follows:
2.1 Complainant is the transporter who was visiting the hotel of the accused on frequent basis being Rajputana Hotel situated at Bharuch. This resulted into friendship between both of them. It is averred by the complainant that the accused with an intention to extort money from the complainant, had made a request for lending some amount. He also pleaded of financial crunch and ensured to pay back the amount to the complainant and trusting his words amount was given by way of loan. Thus, on account of their friendship, the complainant lent of Rs.1,25,000/- to the accused by cash and in consideration thereof, a cheque of account No.9708 numbering 319474 of Syndicate Bank, Bharuch Branch was given to the complainant by the accused himself under the signature of respondent-accused. This cheque when presented before the Indian Bank of Bharuch Branch, the same was returned with the endorsement of “insufficient fund” and was returned with the memorandum. When requested to the respondent, he impudently refused to pay back and therefore, a notice was issued demanding the amount and when no amount was paid pursuant thereto, a complaint was filed.
3. In the complaint filed by the present Revisionist, after recording of the evidence, further submission of accused was recorded where he denied the allegations and insisted that there was misuse of blank cheque by the Revisionist. After due consideration of submission, the Court below acquitted respondent No.1 vide its order dated 9.3.2007 which is challenged by the Revisionist in this petition.
4. It is fervently contended by learned advocate for the Revisionist Mr. P.M. Lakhani that there was a legal obligation on the part of the accused to pay back the amount of loan to him. He further pointed out that there was an apparent error in the findings of the trial Court as it did not take into consideration statutory presumption available when such an instrument like cheque is signed by the accused. The handwritings of the accused on the cheque was sufficient for him to so hold it. He relied upon the judgment in the case of P.K.Manmadhan Kartha vs. Sanjeev Raj & Anr. reported in 2004(2) DCR 344, wherein the Supreme Court held that in the case of dishonouring of cheque, statutory presumption is available and while appreciating the evidence when there was no contention raised that cheque was issued after closure of the account, mere difference in handwriting in fact was no ground for the High Court to set aside the order of conviction passed by the appellate Court on those factors as they were not potent enough to rebut statutory presumptions available under Sections 139 and 118 of the N.I. Act.
5. Learned advocate Mr. Chirag Patel vehemently submitted that nowhere the complainant has mentioned as to for what consideration this cheque was issued. He claims to have the business of transport. It does not keep any account. Moreover, after he filed complaint against brother and father of present respondent, there is no relation with respondent and, therefore, it is very unlikely that in post 2003 period, respondent would issue a cheque in favour of present revisionist. He heavily relied upon entire circumstantial evidence as also on the decision of the Apex Court in the case of Kumar Exports vs. Sharma Carpets reported in (2009)2 SCC 513, wherein the Apex Court has held that in order to determine the question whether offence under Section 138 is made out or not, scope and ambit of presumptions should be raised as envisaged by the provisions of Sections 118 and 139 of the Act. This ratio needs to be examined by reproducing relevant extract as under:-
“20. 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, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would 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.
21. The accused has also an option to prove the non- existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, this is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue.”
He also relied upon the judgment of this Court rendered in case of Sureshchandra Chandrashankar Joshi vs. State of Gujarat and another reported in 2010(1) GLH 271.
In that case, the accused had not disputed his signature on the cheques and he did not lead any evidence to prove any payment by him but clearly disputed in the defence and the Court held that an added burden was cast upon the complainant to prove not only that there was an existing debt or liability but that debt or other liability was legally enforceable, particularly in view of the fact that the dates in the cheques were filled up in different hands for the purpose of recovering the debt which had admittedly arisen five years before that date. The Court held thus:-
“8. The presumption under section 139 is mandatory but rebuttable by proof of facts contrary to the receipt of cheque for discharge of any debt or other liability. The initial burden, however, of proving that the cheque was drawn by the drawee for payment of any amount of money and it being returned by the bank unpaid remains with the complainant. The presumptions under section 118 are also mandatory but rebuttable and could be availed only until the contrary is proved. Even as a bill of exchange, by definition, requires signature of the maker as also direction to pay a certain sum of money only to or to the order of a certain person or to the bearer of the instrument, the provisions of section 20 permits signature and delivery of an incomplete negotiable instrument and provides that the maker thereby gives prima facie authority to the holder thereof to make or complete it into a negotiable instrument and makes the signatory of such instrument liable to any holder in due course to the extent of the amount intended to be paid thereunder. Therefore, harmonious reading of the provisions of sections 5, 6, 20, 118 and 139 would clearly indicate that a cheque could be drawn, delivered and received by the payee or holder in due course and could legally be completed under a legal authority and when such inchoate instrument is completed to make it a negotiable instrument, it would fall within the definition of “bill of exchange” and would render the signatory liable upon such instrument to the extent the amount mentioned therein is intended by him to be paid thereunder. Unless and until contrary is proved, such negotiable instrument would be presumed to be made or drawn for consideration and receipt thereof would be presumed to be for discharge, in whole or in part, of any debt or other liability. However, such debt or other liability is not by any legal presumption presumed to be a legally enforceable debt or other liability. Therefore, the onus of proving that the presumed or proved debt or legal liability was legally enforceable remains with the complainant. Consequently, in all given factsituations, the Court is required to examine whether the presumptions regarding consideration and there being any debt or other liability are rebutted by the accused person by preponderance of probabilities and whether the complainant has proved that the debt or other liability, presumed or proved by overwhelming evidence, was legally enforceable. Although there is no presumption as regards any debt or other liability being legally enforceable, it would be found that once a debt or other liability is presumed and not properly rebutted, it would be legally enforceable, unless and until it is shown to be legally unenforceable. Such scheme of the provisions of law clearly indicates the object of serving the purpose of realization of the promise apparently contained in a negotiable instrument, which is that the amount for payment of which the bill of exchange was intended to be made will be paid to the payee or the holder in due course”.
The Court in such circumstances held that the trial Court rightly had held that the complainant failed to prove beyond reasonable doubt that at the time of dishonour of the cheque legally enforcible liability against the accused person existed in discharge and the cheque could have been drawn or issued in favour of the complainant.
6. On hearing learned advocate of both the sides, this Revision Application is being decided. Mainly on three counts, the Court below has disbelieved the version of the complainant (1) Handwriting in the cheque bearing signature of the accused was not known to the complainant (2) It was not culling out from the record that the cheque was given on 11.5.2004.(3) This cheque was not given in lieu of any legal debt.
7. Learned advocate has submitted that in the matter before the Apex Court, of course, the trial Court had believed the version of the complainant and convicted the accused of course on the grounds mentioned above. However, the High Court had set aside the conviction by not upholding the order of the trial Court. The matter was remanded back to the High Court for duly considering this aspect. He further argued that there was no explanation from the accused as to why the cheque was given to the complainant.
8. As against that, learned advocate Mr. Chirag Patel appearing for the respondent accused has urged that the complainant is a transporter, who does not maintain his account. There is no source available with him to point out as to from where this amount has been lent to the accused in the year 2003. There was already a dispute and criminal complaint had been filed. In such circumstances, there was no question of the accused giving a cheque to the complainant, the present revisionist. He, therefore, urged the Court that the Court below had examined all the aspects properly and this revision does not require to be entertained.
9. Learned advocate Mr. P.M.Lakhani requested the Court to send the cheque to FSL for opinion of handwriting expert which was turned down by the trial Court.
10. As can be seen from the judgment of the learned Judicial Magistrate First Class, Bharuch in Criminal Case No. 7139 of 2004 the Court has considered at length the submission of both the sides where the decision of this Court and that of the Apex Court relied upon by the complainant are also duly considered, which are as follows:-
1) The case of Girishbhai Natwarbhai Patel vs. State of Gujarat reported in 2006(1) DCR 594, pertains to presumption available with the Court that the cheque given would be towards legal liability. Of course, such presumption is rebuttable.
2) Krishna Bhoopal vs. Sanam Jhansi Devi reported in 2003(2) D.C.R. 68.
3) A. Gangadhar vs. K. Prasad reported in 2005(2) DCR 30. (Orrisa High Court)
4) Ganga Ram Sinh vs. State of U.P. reported in 2005(2) DCR 700 ( Allahabad High Court)
11. From the accused side the decisions sought to be relied upon are as follows:-
1) Kiran Finance Company, Hoshiyarpur vs Sukhdev Kishan reported in 2006(1) DCR 257 (Punjab and Haryana High Court)
2) Mr. Suresh Shetye vs. Shri Prasad Khalidas Divkar reported in 2005(1) DCR 209 (Bombay High Court)
12. It further gets revealed from this order and judgment of the learned trial Court that the trial Court extensively and elaborately dealt with the deposition before him to conclude in respect of all three aspects.
13. It is inevitable for any Court before convicting an accused will need to presume that the cheque issued was in discharge of the debt even in cases where admittedly blank cheque is issued by the drawer. It is well laid down law that it is necessary for a complainant to specifically prove that cheque dishonoured was issued in discharge of debt or the liability but it would be for the accused to show that the same was not so issued so as to rebut the presumption under Section 139. However, rebuttable presumption under Section 139 operates in favour of the payee or holder in due course of the cheque.
14. When one examines Section 118 of the Negotiable Instruments Act, it lays down certain specific rules of evidence and certain special presumptions. The presumption arising under Section 118 can be rebutted until the contrary is proved. It is presumed that every negotiable instrument were made or drawn for consideration, and every such instrument when accepted or endorsed was accepted or endorsed for consideration. There are other presumptions available and it is not a mere technical provision. This provision has been brought on the statute book to facilitate negotiability as well as trade. Ordinarily, in a matter of prosecution under Section 138 of the N.I. Act, the presumption under Section 118 being a statutory one shall need to be raised, at the same time, as mentioned hereinabove, the presumption under Section 139 also has a rebuttable presumption, which would operate in favour of the person, who has become the holder of cheque on payment of consideration.
15. In the instant case, some of the glaring aspects noticed by the Court are that the complainant has not been able to point out as to in what manner there was a legal liability or a debt on consideration of which this cheque was given. The Court also noticed the fact that the cheque which was dated 11.5.2004 was given much after the complaint filed against the respondent. Thus in post June, 2005 period when their relationship had worsened, there would not be any question of accused writing any instrument like the the said negotiable instrument in favour of the present complainant. The Court also further noticed that when the signature of the accused was found in the instrument, the complainant himself was unable to know as to whose hand writings were there on the instrument. On having found that the petitioner failed to establish the basic requirement of pointing out that he was holder in due course and without the consideration and considering the overall circumstances of the case, the Court completely disbelieved the version of the complainant. The trial Court was of the opinion that the rebuttable presumption under Section 139 would operate in favour of the person, who would be holder in due course but not in favour of a person who without consideration became the holder of the cheque.
16. Thus, as can be seen from the discussion above as well as from the decision of the trial Court under challenge that the cheque was filled up in different hands for the purpose of recovering the debt. It is also admitted fact that in the year 2003 the complaint was filed against brother and father of respondent being the Criminal Case No. 98 of 2006 under Section 406, 420 and 427 of 504 etc. before Chief Judicial Magistrate First Class, Bharuch and there were serious allegations made which had spoilt the relationship of the parties and in such circumstances when the respondent is said to have given a cheque in favour of the complainant, the trial Court has rightly held that complainant failed to prove beyond reasonable doubt that there was a legally enforcible liability existing at the time of dishonouring of the said cheque. The Apex Court held that the respondent in such trial has option of showing that consideration did not exist or non-existence of consideration under particular circumstances of the case and also that debt was so improbable that a prudent man ought not to have supposed that debt existed. For rebutting such statutory presumption accused is not expected to prove his defence beyond reasonable doubt but principle of preponderance of probability requires to be proved and having regard to all the circumstances of the case when the Court has appreciated evidence appropriately, no error can be pointed out to interfere with such order and the judgment.
17. The complainant having failed to establish basic aspect even in wake of availability of the presumption under Sections 118 and 139 of the N.I Act, the case of the present revisionist has been rightly not believed by the trial Court.
18. There is no error or infirmity that could be pointed out by the revisionist, even if the ratio laid down in the decision of the Supreme Court rendered in the case of P.K.Manmadhan Kartha vs. Sanjeev Raj & anr.( supra), which is pressed into service, is considered.
19. In light of the fact that the present revisionist when did not satisfy the Court on this basic aspect that he was holder in due course, acquittal of the accused, in the opinion of this Court, calls for no interference. Revision is dismissed. No order as to costs.
(Ms. Sonia Gokani, J. ) sudhir