The appellant – original complainant has preferred this appeal under section 378 of the Code of Criminal Procedure, 1973 and challenged the judgment of acquittal passed by the learned JMFC and Additional Senior Civil Judge, Bharuch on 8.5.2009 in Criminal Case No.977 of 2006 acquitting the respondent accused for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”). 2. According to the complainant, he and accused belonged to same caste and as his son-in-law Ashwinbhai M. Patel had a clinic at the village of accused, he had developed relations with the accused. The accused was doing the business of sending people to America. The accused was heavily indebted and several cases were filed against the accused. Therefore, the accused demanded money from him and with a view to help the accused, he gave loan of Rs.12,11,000/- to the accused. As he demanded the amount, the accused gave cheque No.540868 dated 24.11.2005 for Rs.12,11,000/- drawn on Bank of Baroda, Ankalav Branch to him. On presenting the said cheque in the bank, it returned dishonoured with endorsement “Insufficient Funds”. Therefore, notice dated 9.12.2005 was served to the accused, who gave reply dated 23.12.2005, but did not pay the amount of unpaid cheque. Therefore, the complaint under section 138 of the Act was filed.
3. The trial Court issued summons to accused, who appeared and denied having committed the offence and claimed to be tried. Therefore, the complainant adduced evidence in support of his case. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against the accused were explained to him. Accused in his further statement recorded under section 313 of the Code of Criminal Procedure, 1973 stated that in the year 2001, the complainant had sent his son-in-law to America, but there were disputes about the amount in that regard; that the son-in-law of the complainant Ashwin M. Patel came to his house, picked up quarrel and forcefully took away six blank cheques bearing Nos.540865 to 540870 and a 100/- rupees stamp paper; that he gave a writing to the bank on 19.10.2005 stating about the blank cheques; that after giving the writing, he filed a complaint on 21.11.2005 before DSP, Anand against the complainant; that the complainant misused the disputed cheques and false complaint is filed; that he has not taken any amount from the complainant or his son-in-law and after taking away six cheques, Dr. Ashwin M. Patel misused cheque No.540867 and gave cheque No.540866 to Jagdishbhai Dahyabhai Patel, who also misused the cheque. It is further explained that he is a poor farmer having 3 vighas of land and has never taken any amount from the complainant, son-in-law of the complainant or Jagdishbhai, but the cheques have been misused by them; that there is no debt, but the complaint is filed only with a view to extort money. After hearing learned advocates for the parties, the trial Court by impugned judgment, acquitted the accused. Being aggrieved by the said decision, the appellant – original complainant has preferred this acquittal appeal.
4. I have heard learned advocate Mr. Shah for the appellant, learned advocate Ms. Metghana Patel for learned advocate Mr. Dagli for respondent No.2 at length and in great detail. I have also heard learned APP Ms. Shah for the respondent No.1 – State. I have also perused the R & P of the trial Court.
5. Learned advocate Mr. Shah submitted that under the provisions of the Act, the presumption is in favour of the complainant in respect of dishonour of cheque. He also submitted that the complainant was not required to prove that the amount was advanced to the accused, but the accused was required to prove that he did not receive the consideration. He also submitted that the accused came up with a defence that the cheque along with other cheques were taken under threats. However, no evidence in that regard was adduced by the accused. He also submitted that the accused gave an application to send the cheque in question to FSL for examination. However, the accused did not pursue the application and that itself indicates that the accused was guilty of the offence. He further submitted that the contents of the application given to the bank for stop payment of cheque in question indicates that stop payment was sought on the ground that the payment of the cheque was made. Therefore, the accused has admitted his liability in respect of the cheque in question. Therefore, the trial Court committed error in acquitting the accused and hence, the impugned judgment is required to be set aside. He further submitted that the defence witnesses examined by the accused also supported the complainant with regard to cheque. However, the trial Court did not consider these aspects and therefore, the impugned judgment is required to be set aside. He relied upon the decision of ICDS Ltd. Vs. Beena Shabeer and another reported in (2002) 6 SCC 426.
6. Learned advocate Ms. Patel for respondent No.1 – original accused submitted that presumption under section 139 of the Act is a rebuttable presumption and the accused challenged the receipt of amount from the complainant by cross examination and thereby, the accused was able to raise a probable defence that there was no debt as claimed by the complainant. She also submitted that the accused made a complaint before the police with regard to cheque in question and thereafter, the cheque was presented in the bank. Therefore, much prior to presentation of the cheque, action was taken by the accused apprehending misuse of the cheque and in the reply to the notice also, the accused alleged that the cheque in question was obtained under threats. Therefore, the burden shifted on the complainant to prove debt, but the complainant failed to discharge his burden that the amount was advanced to the accused and cheque was given towards the debt. Therefore, the trial Court was justified in acquitting the accused and hence, no interference is warranted in the impugned judgment.
7. It appears from the allegations made in the complaint that the complainant and accused were known to each other and as the accused was heavily indebted and as several cases were failed against him, he made a request to the complainant to give him financial assistance. It also appears that the complainant advanced the amount in cash and no writing was obtained with regard to advance made to the accused. In order to prove his case, the complainant has examined himself at Exh-14. In the cross examination, the complainant has stated that he gave Rs.12,11,000/- between 2003 and 2004 and he did not withdraw the amount from the Bank. He has further stated that the amount was given in the division of Rs.2 lacs at the interval of two months and that he made a note in his diary with regard to the amount. The witness has also deposed that he brought $10,000 from America, but did not inform the airport authority with regard to such amount and the dollars were converted in rupees at Bharuch, but he has no written evidence in that regard and does not remember as to when the dollars were converted into rupees and that after conversion of dollars, he did not deposit the amount in the bank, but kept at his house. The complainant has also admitted that remaining amount was withdrawn from the Central Bank, but does not remember the date of withdrawal. The complainant has further deposed that he is not ready to produce bank account abstracts. The complainant has also admitted that the accused filed complaint against him and his son-in-law before DSP, Anand on 21.11.2005 and that the accused gave him notice dated 26.10.2005 stating that his son-in-law took away the cheque and not to misuse the same. The complainant has also admitted that the notice contained the cheque numbers.
8. On examination of the evidence of the complainant, it emerges that the amount allegedly given to the accused was not given at a time and the entire amount was in cash. It also emerges that in order to prove that he had financial capacity to advance such a huge amount, the complainant did not adduce any evidence that he brought dollars from America, converted them into rupees and kept the amount at his house, but no evidence in that regard was produced. Therefore, it is difficult to believe that part of the evidence that the amount was converted into rupees from dollars. Even, no evidence was adduced to show that remaining amount was withdrawn from the bank. Therefore, it is difficult to believe that the complainant had the amount to advance to the accused. It is also strange that the complainant knew that the accused was heavily indebted and cases were filed against him. Despite that, he advanced the amount without obtaining any writing and that too in cash. The complainant was serving as an Assistant Teacher and had retired at the time of alleged transaction. The last pay of the complainant was about Rs.4000 to Rs.5000. The complainant has admitted that he did not sell his agriculture land. The complainant was not an income tax payer. In my view, considering all these facts, it is difficult to believe that the complainant had the funds to advance the amount as claimed.
9. The evidence also indicates that the complainant presented the cheque in the bank on 24.11.2005, but before that the accused served a notice dated 26.10.2005 informing the complainant not to misuse the cheque and notice contained the cheque in question also. It also appears that a complaint was also filed against the complainant and his son-in-law with regard to cheque in question on 21.11.2005 i.e. prior to presentation of the cheque in the bank.
10. The complainant also examined Parsottam Mathurbhai Passala at Exh-39, witness Dineshbhai Shantilal Bhatt at Exh-45. Both these witnesses were witnesses from the bank to prove the return of cheque unpaid.
11. Under section 139 of the Act, presumption is in favour of a holder of a cheque that the cheque of the nature referred to in section 138 was received for the discharge in whole or in part of any debt or other liability unless contrary is proved. In the present case, as observed earlier, it emerges that the accused had challenged the receipt of advance by the complainant. The detailed cross examination of the complainant indicates that the complainant did not produce any evidence to show that he had financial capacity to advance the amount. It is settled proposition that presumption raised in favour of the holder of a 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 before presentation of cheque with the bank gave a notice to the complainant not to misuse the cheque. A complaint before the police in that regard was also filed on 21.11.2005. Even then, the cheque was presented in the bank. In light of this evidence, the accused was able to raise probable defence that he did not receive the amount and the cheque was misused. Therefore, burden of proof shifted on the complainant to prove that he had advanced the amount. The complainant did not adduce any cogent and convincing evidence to prove that he had funds and the amount was advanced and the cheque in question was given towards discharge of the liability. The complainant made note of the amount advanced to the accused in his diary, but did not produce the same in support of his case. Therefore, except bare words, there is no evidence to show that the amount was advanced to the accused. 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 materials submitted by the complainant in order to raise such defence. In the present case, by cross examining the complainant, the accused was able to raise a probable defence that he did not receive the amount as claimed by the complainant and the cheque was misused. Hence, doubt is created about the existence of a legally recoverable debt or liability. Therefore, the trial Court was justified in passing the impugned judgment acquitting the accused.
12. It was also submitted by learned advocate Mr. Shah that the witnesses examined by the accused supported the complainant's case and therefore, the complainant was able to prove debt. The accused examined Dr. Ashwin M. Patel Exh-67 and Jagdishbhai Dahyalal Patel at Exh-71 as his defence witnesses. Witness Dr. Ashwinbhai is the son-in-law of the complainant. According to the witness, the accused had filed a complaint against him and the complainant. The witness was a close relative of the complainant. According to the witness, the amount was given to the accused at his instance and he brought the amount in cash. This evidence is contrary to the prosecution case that the complainant gave the amount. Even, this witness has not given details of the advance made to the accused. Therefore, it cannot be said that the evidence of this witness gives support to the prosecution case.
13. The evidence of defence witness Jagdishbhai Patel at Exh-71 does not refer to transaction involved in this case.
14. It was also submitted by Mr. Shah that the accused gave application Exh-29 to send the cheque to hand writing expert. However, he did not pursue the application and therefore, inference may be drawn against him. It appears from the record that the accused filed application Exh-29 to refer the cheque in question for the opinion of hand writing expert. The Court deferred passing of any order on the said application. It is true that thereafter, no further action was taken by the accused to prosecute that application. No adverse inference can be drawn for non prosecution of the application. In a criminal proceedings, it is for the prosecution to prove its case and it cannot reply on the weakness of defence. Therefore, submission that adverse inference should be drawn cannot be accepted.
15. It was also submitted by Mr. Shah that the accused admitted his liability in the letter written to the bank to stop payment of the cheque in question. According to the complainant, the accused admitted his liability in the said letter. On perusal of the same, I do not find any admission as claimed by the complainant. On the contrary, stop payment of the cheque is sought on the ground that blank cheques were given without filling up any date and amount. It is true that letter indicates that writer of the letter had alleged that he has made the payment and therefore, payment of the cheque should be stopped, but that cannot be construed as admission. Therefore, this submission also cannot be accepted.
16. While dictation of this order as going on, learned advocate Mr. Shah relied upon another decision of this Court in the case of Girishbhai Natvarbhai Patel Vs. State of Gujarat and another reported in 2006(1) GLR 786 in respect of the presumption under section 139 of the Act. In the facts of this case, the accused was able to raise a probable defence and the complainant failed to discharge the burden shifted upon him to prove that the cheque was issued towards discharge of legally recoverable debt or liability. Therefore, this decision does not lend any support to the appellant. In view of above, the trial Court was justified in passing the impugned order and hence, no interference is warranted in the impugned judgment.
17. In the result, the appeal fails and stands dismissed.
shekhar* (BANKIM N.MEHTA, J.)