Mr. S.G. Shah, J.—Heard learned advocate, Mr. Saurabh M. Patel for the applicant and learned APP, Mr. K.P. Raval, for the respondent No.1-State, who is a formal party, whereas, learned advocate, Ms. Sneha A. Joshi, for respondent No.2.
2. Petitioner is original accused and respondent No.2 is original complainant in Criminal Case No.180 of 2004 filed by him before the Court of Judicial Magistrate First Class at Modasa under Section 138 of Negotiable Instruments Act. Trial Court, after considering the evidence and submissions of both the sides, by its judgment and order dated 26th November, 2007, held the petitioner guilty of committing offence under Section 138 of Negotiable Instruments Act and thereby awarded him punishment in form of sentence to undergo simple imprisonment for 15 months. The Trial Court has also directed the accused to pay the amount of cheque to the complainant.
3. Being aggrieved by such judgment of conviction, petitioner has preferred an appeal before the Sessions Court at Modasa. The Additional District Judge, Modasa by its impugned judgment and order dated 30th November, 2011 dismissed such Criminal Appeal No.52 of 2007 and thereby confirmed the judgment and order of conviction of the Trial Court. The Sessions Court has directed the petitioner to surrender within 15 days.
4. When such concurrent judgment of conviction has been assailed in the revision, this Court has extended time to surrender and ultimately stayed execution of the impugned judgment on condition that petitioner shall deposit 50% amount of the cheque within a month. Therefore, when the petitioner has deposited Rs.1,75,000/- before the Trial Court, this revision was admitted in the year 2012 granting bail to the petitioner but with a direction to furnish fresh bond.
5. The sum and substance of the complainant''s case before the Trial Court is to the effect that petitioner-accused has taken an amount of Rs.3,50,000/- from him because of friendship between them but failed to repay such amount of cheque in question issued by the petitioner-accused in favour of the respondent-complainant had been bounced i.e. returned back unpaid by the banker of the petitioner. Therefore, complainant preferred complaint as aforesaid, wherein, he produced relevant oral evidences at Exh.13,37,47,50,23,24,26,27,28 and 44, whereas, the petitioner has neither stepped into witness box nor adduced any oral evidence but relied upon some documentary evidence which are produced on record at Exh.64,65,66 and 67.
6. After considering the rival submissions and evidence, the Trial Court has considered the defence version; wherein, it is submitted that prudent man would not lend money to the petitioner when his previous dues were not recovered and in support of such submission, he is relying upon the judgment of the Civil Court; wherein, a suit filed by the wife of the complainant to recover an amount of Rs.1,31,000/- was dismissed by the Court. Therefore, it is submitted that when suit of the wife of the complainant has been dismissed, complainant would never lend money to the accused and therefore, in absence of proper evidence that, in fact, complainant has paid any money to the accused or that accused is otherwise liable to pay any amount to the complainant, the cheque though possessed by the complainant is without consideration and therefore, in absence of any legal dues to be recovered by the complainant from the accused, complaint under Section 138 is not maintainable and thereby conviction is improper. It is also contended that the complainant has failed to disclose the name of the person from whom he has borrowed the amount for lending it to the petitioner when it is an admitted position that complainant has borrowed such amount from his friend for lending it to the accused. Therefore, in absence of evidence that how the complainant who was not having money to lend to the accused had paid such amount to the accused and thereby, in absence of evidence regarding pleading of the complainant to lend any such money to the accused, there cannot be presumption in favour of the complainant and thereby, in absence of any evidence regarding legal debt that may be payable by the accused to the complainant, the complaint is not maintainable and there cannot be conviction in absence of such evidence.
7. I have perused the record and proceedings so also documentary evidences adduced before the Trial Court. The perusal of such evidence makes it clear that except putting some questions here and there, the accused could not rebut the evidence of the complainant which confirms that accused has issued the cheque in favour of the complainant for making the payment of the amount which is disclosed in such cheque and therefore, there is no irregularity or illegality when Trial Court has presumed about acceptance of cheque and debt in favour of the complainant and against the accused. If we peruse the available record, it becomes clear that cheque was issued by the accused and it has returned unpaid by banker of the accused for want of sufficient fund in his account. Therefore, unless and until, the complainant is unable to identify the handwriting in such cheque, it cannot be said that accused has not issued the cheque at all. In all such cases, one basic thing to be recalled is that before filing of a complaint, a statutory notice is must and therefore, in present case also, the complainant has issued statutory notice of 31st December, 2004 by RPAD which is served upon the petitioner as per endorsement on acknowledgment slip of RPAD which is produced on record and thereafter, if petitioner fails to reply to such notice, prima-facie, it is to be believed that he has no defence to put forward and he is simply trying to kill time before he is obliged to pay the amount of cheque in question.
8. It is also undisputed fact that practically petitioner has tried to delay the matter at every stage because even before the Court of Magistrate when he has to cross examine the complainant, he has delayed the execution of cross examination for pretty long time and therefore, his right to cross examine was closed but same was reopened by recalling the complainant only at a nominal cost of Rs.250/- by order dated 24th May, 2006 below Exh.27.
9. If we scrutinise the evidence, the basic principle that is to be adopted is that entire evidence is to be appreciated in to and thereby there cannot be isolated reading of one or two lines from here and there for coming to any conclusion. But, the fact remains that after service of statutory notice, petitioner-accused has not put forward his defence in reply to the notice and therefore, prima-facie, it appears from the record that thereafter, petitioner is trying to take all available defence so as to avoid the payment.
10. Otherwise, provision of Section 139 of the Negotiable Instruments Act is quite clear and obvious and provides that unless the contrary is proved, it shall be presumed that the holder of a cheque received the same for the discharge, in whole or in part, of any debt or other liability by the person who has issued it.
11. Section 138 of the Act also specifically confirms that where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from the account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both.
12. It is undisputed fact that after the amendment of the Act in the year 2002, the sentence has been increased from 1 year to 2 years. However, in all such cases, an attempt was always made to get favour of the extension of such clause which provides that for the purpose of such section, "debt or other liability" means "legally unenforceable debt or other liability". Therefore, there are several decisions where the phrase, "legally unenforceable debt" or again "other liability", has been differently considered and interpreted but it is settled law that when in wordings of section are having clear and simple meaning then it should not be stretched or restricted or altered or modified by the Courts. Otherwise also, the basic aim of the provisions of the Act is to see that commercial transactions are regularised by timely payment of debt.
13. Whereas the petitioner is relying upon other transactions by him and some other person including wife of the complainant but only because of some other transactions and decision, it cannot be said that petitioner has proved that there is no legally unenforceable debt or that complainant was not able to lend any money to him. What is material is the act of the accused in issuing Negotiable Instrument i.e. cheque in such cases. Once cheque is issued in addition to presumption under Section 139, there could be presumption under Section 118 of the Act itself which is part of chapter No.XIII which deals with special rules of evidence. Section 118(a) specifically provides that until the contrary is proved, presumption of consideration shall be made that every negotiable instrument was executed and drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. Whereas, Section 120 of the Act provides that even maker of a cheque is not permitted to deny the validity of the endorsement as originally made or drawn by him. Similarly, Section 121 of the same Act also specifically provides for estoppel against denying capacity of payee to indorse when it is stated that no maker of a promissory note and no acceptor of a bill of exchange [payable to order] shall, in a suit thereon by a holder in due course, be permitted to deny the payee''s capacity, at the rate of the note or bill, to indorse the same. Therefore, there are certain sub-rules of evidence with restrictions of the Court to have some specific presumption in favour of the holder of the cheque and hence, unless and until, such presumption is rebutted by cogent and reliable evidence and not merely by pleading or submitting some objections or raising some doubt upon said negotiable instrument, the holder of the negotiable instrument is certainly entitled to proceed in accordance with law and drawer of the cheque may not have any benefit of such pleading based upon doubt and more particularly, in absence of any evidence to prove the same. It is undisputed and settled legal position that presumption available under the Act can be rebutted by the accused by adducing evidence and thereby burden of proof is on the accused.
14. Therefore, in absence of any cogent and reliable evidence by the accused and as aforesaid, when documentary evidence relied upon by the petitioner-accused is not sufficient to rebut the presumption, practically, there is no substance in the revision, more particularly, when there are concurrent findings of two Courts below confirming the conviction.
15. However, learned advocate for the petitioner is relying upon the decision in the case of John K. John v. Tom Varghese & Anr. reported in AIR 2008 SC 278 wherein, the Supreme Court has held that while appreciating the evidence regarding rebuttal of presumption, Court can take notice of conduct of parties wherein, according to the petitioner because in similar situation like the present case, Supreme Court has observed that if complainant has failed in his previous suit to recover the other amount then it is to be presumed that he would not lend any further money to the accused and therefore, Supreme Court has confirmed the decision of the High Court that accused did not issue any cheque in discharge of any debt. However, if we peruse the judgment, it becomes clear that in reported case of the transactions were between the same parties and therefore, when complainant in case has to institute three civil suits against the accused, the Supreme Court has believed that after repeated litigations between the parties, there may not be any transaction between them. Whereas, in the present case, there is no prior litigation between the petitioner and respondent. Therefore, if there is some other litigation with some other parties by the petitioner, including wife of the respondent, it cannot be said that there was no transaction as pleaded by the complainant and there cannot be a presumption which is otherwise proved by the statute. Therefore, only because of such judgment, it cannot be held that there is any substance in the revision so to interfere with concurrent findings of the Courts below, more particularly, in view of the fact that practically, Supreme Court has considered the fact that it is a petition under Article 136 of the Constitution of India against concurrent findings of acquittal and therefore, Supreme Court has considered the settled legal position that ordinarily, the Supreme Court should not interfere with the judgment of acquittal, if two views are possible, did not agree to interfere in concurrent findings of two Courts below. Therefore, this judgment would not be helpful to the petitioner when practically two concurrent findings are against him and revisional jurisdiction of this Court is also limited only to see that there may not be absolute illegality and irregularity and therefore, this Court should not appreciate the evidence which is otherwise appreciated by two Courts below in favour of respondent even if another view or interpretation is possible.
16. Petitioner is also relying upon the decision in the case of Rangappa v. Sri Mohan reported in (2010) 11 SCC 441 wherein, Hon''ble Supreme Court has held that the Courts have to consider that whether ingredients of offence enumerated in Section 138 have been met and if so, whether accused was able to rebut statutory presumption under Section 139. However, reading of entire judgment on the contrary makes it clear that practically the Supreme Court has held that complaint discloses, prima-faice, existence of a legally enforceable debt or liability and when accused has no reason to deny the signature on the cheque, statutory presumption under Section 139 comes into play and if same was not rebutted apart from raising a probable defence, conviction of the accused was upheld.
17. Therefore, practically when petitioner has failed to prove any cogent and reliable evidence, so as to rebut statutory presumption, as discussed herein above, only because he has put forward some defence and probabilities, it would not rescue him from the conviction. Thereby, it seems that practically only probable defence under Section 138 may be non issuance of cheque or lost cheque found by the complainant thereby, no relationship between the parties or any other similar defence, so as to believe that accused has never issued a cheque in favour of the complainant to clear any legal debt, which is never pleaded or proved by the petitioner.
18. In the present case, there is no issue regarding relationship between the parties. There is no issue or evidence regarding misuse of cheque or loss of cheque and therefore, because the complainant is silent on certain facts which otherwise are not material and relevant for the consideration of commission of offence under the Negotiable Instruments Act, it cannot be said that petitioner has succeeded in proving his innocence or that he has rebutted the evidence of the complainant so as to confirm the acquittal in his favour.
19. In view of the above facts and circumstances of the case, considering the settled legal position that otherwise revisinoal jurisdiction is limited which does not permit re-appreciation of the entire evidence when there are two concurrent findings of fact by two Courts below. Therefore, in view of the above facts and circumstances of the case and discussion, there is no substance in the revision application, and hence, revision application is dismissed. Record and proceedings be sent to the Trial Court immediately. The Trial Court shall proceed further to execute the impugned judgment of conviction in accordance with law.
Further Order
20. Learned advocate Mr. Saurabh M. Patel for the petitioner stated that this order may be stayed, since petitioner may challenge such order before appropriate Court. However, considering the fact that dispute is pertaining to non-payment of amount of cheque since 2004, order can be suspended and petitioner may be granted time to surrender within four weeks only on condition that petitioner shall deposit the balance amount of cheque before this Court within 10 days from today without fail. If such amount is not deposited within 10 days, then Registry shall forward the yadi to the trial Court for executing the impugned order. With this directions, this order is suspended for 4 weeks and, therefore, petitioner is permitted to surrender within 4 weeks.
