(2024) ibclaw.in 275 HC
IN THE HIGH COURT OF GUJARAT
Vijay Chhotalal Shah
v.
State of Gujarat and Anr.
R/Criminal Revision Application (Against Conviction – Negotiable Instrument Act) No. 1283 of 2018
Decided on 08-Apr-24
Coram: Mr. Justice J. C. Doshi
Add. Info:
For Appellant(s): Mr. Pritesh M Shah
For Respondent(s): Mr. SM Joshi, Addl.Public Prosecutor
Order:
ORAL ORDER
1. On 04.03.2024, this court has passed the following order:-
“Learned Advocate representing the applicant is reported to have expired. Issue Advocate Notice returnable on 08/04/2024.”
2. The advocate notice is issued to petitioner No.1. He did not choose to remain present before the Court to argue the matter.
3. In view of the above, considering the oldness of the case, the grounds mentioned in the revision memo have been taken as submissions on behalf of the petitioner to decide this revision. The record of the case indicates that petitioner has not surrendered to the custody.
4. This Criminal Revision Application is preferred under Section-397 read with Section-401 of Cr.P.C. challenging the concurrent findings recorded by the learned Additional Chief Metropolitan Magistrate, Ahmedabad (N.I. Act) in Criminal Case No.2755 of 2011, whereby, by order dated 16.04.2014, the revisionist – accused has been convicted for the offence under Section-138 of N.I. Act and sentenced to undergo 02 years simple imprisonment and fine of Rs.10,000/- failing which he was ordered to undergo six months simple imprisonment and awarded to pay compensation aggregating of Rs.25,00,000/- under Section-357(3) of Cr.P.C. to the complainant.
5. Being aggrieved by the same, the revisionist has preferred appeal under Section-374 of Cr.P.C. before the learned Additional Sessions Judge, City Civil & Sessions Court, Ahmedabad being Criminal Appeal No.151 of 2014, which was dismissed by the learned Additional Sessions Judge and confirmed the order passed by the learned Additional Chief Metropolitan Magistrate, Ahmedabad. Hence, this revision.
6. The facts of the prosecution case in nutshell as under:-
6.1 The accused was required to pay back the outstanding amount of Rs.48,00,000/- to the complainant. Against the said amount, the accused issued Cheque No.011603 on 01.08.2011 for Rs.21,00,000/- drawn upon Uco Bank, Sabarmati Branch and when the said cheque was deposited by the complainant before ICICI Bank, Naranpura Branch for its realization, the same was dishonoured on 18.08.2011 as there was no sufficient fund in the account of the accused. The complainant came to know of the said fact on 19.08.2011 and therefore, the complainant through his advocate issued demand notice through Registered Post A.D. on 27.08.2011 to the accused and the same was served upon the accused on 19.09.2011. However, the accused did not repay the said amount to the complainant and gave false and evasive reply to the said notice. Therefore, the cause of filing complaint against the accused had arisen and the complainant filed criminal case before the learned Trial Court and the learned Trial Court vide order dated 16.04.2014 odered that the revisionist – accused is convicted for the offence under Section-138 of N.I. Act and sentenced him to undergo 02 years simple imprisonment and also awarded fine of Rs.10,000/- failing which he was ordered to undergo six months simple imprisonment and awarded to pay compensation aggregating of Rs.25,00,000/- under Section-357(3) of Cr.P.C., which order was confirmed by the learned Additional Sessions Judge, Ahmedabad in Criminal Appeal No.151 of 2014. Hence, the present revision.
7. The ground, upon which the revision is filed, are that there is error apparent on the face of the record of the orders of the learned trial Court as well as learned appellate Court that the revisionist is the owner of the business firm but it is not clear on which name the revisionist is carrying his business. It is also contended that upon perusal of the order, it does not appear whether the said business transaction has been entered into by the parties and it has been only observed that there was financial give and take occurred between the parties. It is also contended by the revisionist that the he has given the cheque to the complainant as security even though same has been deposited by the complainant. By way of the present revision, the revisionist has also asked for time upto February, 2019 to pay the said amount to the complainant. It is also contended that the revisionist has paid Rs.3,00,000/- to the complainant and Rs.2.00.000/- has been already deposited before the learned Trial Court.
8. It could be noticed that one cheque of Rs.21,00,000/- was issued by the accused in the name of the complainant, which is produced before the learned trial Court vide Exh.8 and the same is returned vide Exh.9. The legal notice was issued on 27.08.2011 vide Exh.10. The notice was served vide Exh.11. The reply has been given by the accused and some other evidences are also produced before the learned trial Court. The further statement under Section 313 of Cr.P.C. was recorded that by except saying that the cheque was given towards the security purpose. The revisionist has not forwarded any plausible defence. The learned trial has appreciated the evidence of the complainant at Exh.19.
9. The paragraph-9 and 10 of the impugned judgment are important material, whereby, the learned trial Court has given cogent reasons for convicting the accused. The judgment and order of learned Additional Chief Metropolitan Magistrate has been examined by the learned Sessions Court in appeal. A reference has been taken to the various judgments as well as sections-118, 138 and 139 of the N.I. Act. It is believed that Section-118 and 139 of the N.I. Act would apply to the facts of the case. The revisionist – accused admitted the signature on the cheque. It is also believed that to discharge the burden, the accused has required to lead the evidence in preponderance of probability, which may include the cross-examination offered by him to the complainant. In other words, it is also believed that the accused is not required to rebut the burden. However, on going through the impugned orders, what appears that the learned trial Court has not committed any error and the judgment and orders are well reasoned analyzing the facts vis-a vis the provisions of law, no case is made out. If we go through the ground taken up by the revisionist, the revisionist has nowhere denied the execution of the cheque, signature thereof or consideration or put any point, which may allow this Court to think otherwise.
10. At this juncture, I may also refer to the ground (l) stated in the petition. Perusing the above ground (l), it seems that the revisionist – accused has also accepted that he is required to pay the amount and he has also accepted to pay the amount of the disputed cheque before February, 2019. This implies that there are more than sufficient reason to believe that revision has no legs to stand.
11. Some of the judgments which are relevant to decide the issue are referred by this Court as under. In the case of Kumar Exports Vs. Sharma Carpets [(2009) 2 SCC 513], the Hon’ble Apex Court examined as to when complainant discharges the burden to prove that instrument was executed and when the burden shall be shifted. Para 18 to 20 are relevant, which reads as under :-
“18. Applying the definition of the word “proved” in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that undefined is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.
19. The use of the phrase “until the contrary is proved” in Section 118 of the Act and use of the words “unless the contrary is proved” in Section 139 of the Act read with definitions of “may presume” and “shall presume” as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.
20. 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 nonexistence 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…..”
12. Noting various judgments including well celebrated judgment in the case of Rangappa v/s. Sri Mohan [(2010) 11 SCC 441, the Hon’ble Apex Court in Basalingappa v/s. Mudibasappa [2019 (5) SCC 418], summarized the principle as under :-
“23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.”
13. A recent decision of a three Judges Bench of this Court in the case of Kalamani Tex and Another vs. P. Balasubramanian [(2021) 5 SCC 283], by which, the Hon’ble Apex Court has examined the scope and ambit of the presumption under Sections-118 and 139 of the N.I. Act and observed thus:-
“14. Once the 2nd appellant had admitted his signatures on the cheque and the deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial Court fell in error when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. Such approach of the trial Court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law.
xx xx xx
17. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite “Bir Singh v. Mukesh Kumar”, where this court held that: “Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.”
14. In view of the above, I do not find any illegality in the impugned orders. The present revision is bereft of merit and therefore, required to be dismissed. Accordingly, the present criminal revision application is hereby dismissed. It would be open for the learned trial Court to issue necessary warrant to secure the custody of the accused to serve the sentence. If any amount is deposited by the revisionist before the learned Trial Court, same shall be released in favour of the complainant.
(J. C. DOSHI, J)
Original judgment copy is available here.
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