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Bhinang Mahendrabhai Bharodiya v/s State Of Gujarat

    R/Special Criminal Application No. 908 of 2019
    Decided On, 14 July 2021
    At, High Court of Gujarat At Ahmedabad
    By, THE HONOURABLE MS. JUSTICE GITA GOPI
    For the Appellant: Amrita Ajmera, Daifraz Havewalla, Advocates. For the Respondent: Tanmay B. Karia, Advocate, Monali Bhatt, Addl. Public Prosecutor.


Judgment Text
1. The petitioner herein is the original accused in Criminal Case No.46395 of 2015 instituted by the respondent No.2 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N.I. Act"). The challenge is given to the order passed by the Court of learned 5th Additional Sessions Judge, Surat in Criminal Revision Application No.290 of 2018 dated 19.12.2018 whereby the said revision application was dismissed and the order passed by the Court of learned 9th A.C.J.M., Surat below application Exhibit-43 in Private Criminal Case No.46395 of 2015 dated 27.06.2018 was confirmed.

2. The petitioner herein had moved application Exhibit-43 seeking permission to examine six witnesses as defence witnesses. By order dated 27.06.2018, the trial Court partly allowed the said application and granted permission to examine witness No.6, Alen Mahendrabhai Barodiya, who is the brother of the petitioner as a Defence Witness. Aggrieved by the said order, the petitioner had preferred revision application under Section 397 of the Code of Criminal Procedure being Criminal Revision Application No.290 of 2018 before the Sessions Court, Surat. The revisional Court dismissed the said application preferred by the petitioner by way of impugned order dated 19.12.2018. Hence, this petition.

3. Learned Advocate Ms. Amrita Ajmera appearing for Mr. Daifraz Havewalla for the petitioner submitted that both the Courts below have erred in concluding that Witness Nos.1 to 5 cited by the petitioner do not appear to be relevant Defence Witnesses. She submitted that the Courts below ought to have considered the fact that the witnesses, who were sought to be examined as Defence Witnesses, were acquainted with the facts and circumstances of the case and that there is no embargo that relatives of the complainant could not be cited as defence witness/s of the accused.

3.1 Learned advocate submitted that the case of the complainant is on the footing that he had borrowed Rs.25 Lacs from his close relatives and has to establish his financial capacity and source of funds. Therefore, the witnesses cited by the petitioner are relevant for the purpose of rebutting the presumption under Section 139 of the NI Act. It was submitted that the petitioner intends to examine the Income Tax Officer as Defence Witness in order to verify the facts of the order passed on the Income Tax Reference of the complainant for Assessment Years 2012-13 to 2016-17 so as to test the genuineness of the case of the complainant.

3.2 Relying on the judgment of this Court rendered in the case of Abdul Rauf Abdul Rashid Shaikh V. Shaikh Nuruddin Sarfuddinand another, 2018 (1) G.L.R. 617, it was submitted by learned advocate Ms. Ajmera that examination of Defence Witnesses, as per the witness list produced by the petitioner, would be necessary as a rebuttal evidence to satisfactorily discharge the burden of proof lying on the accused. Therefore, it was submitted that the Courts below ought to have considered this fact and should have permitted the accused to lead evidence for the purpose of discharging the burden of rebutting the presumption under Section 139 of NI Act. It was submitted that the rejection of the prayer made by the accused would seriously prejudice his rights and that it would immensely affect the conduct of fair trial.

4. On the other hand, learned advocate Mr. Tanmay Karia appearing for respondent No.2 submitted that both the Courts below have examined the facts and circumstances of the matter as also the relevancy of the proposed witnesses to come to the conclusion that out of the proposed six witnesses, the witness cited as Sr. No.6, who is the brother of the petitioner, would be the only relevant defence witness. He submitted that no justifiable cause or reason was given by the accused to examine the relatives of the complainant, being the parents, uncle and aunt, as defence witness of the accused. He submitted that the Income Tax Returns were placed on record of the trial Court vide Exhibits - 23 to 26. The source of the funds, proof of income and the financial capacity of the complainant gets reflected from the Income Tax Returns and it being a public document, there would not be any requirement to examine any Income Tax Officer and therefore, the trial Court has rightly come to the conclusion that those witnesses are not relevant for discharging the burden from the side of the accused that the cheque was issued for consideration in discharge of any debt or liability. It was submitted that the revisional Court has rightly concurred with the observations made by the trial Court and hence, this Court may not interfere with the concurrent findings recorded by the Courts below.

4.1 In support of his submissions, learned advocate for respondent No.2 placed reliance on the following judgments:-

(a) On the judgment rendered by the Delhi High Court in the case of R.K. Chandolia v. CBI reported in 2012 SCC OnLine Delhi 2047.

(b) On the judgment rendered by the Kerala High Court in the case of Muthulakshmi Amma v. P.K. Prabhakaran reported in [2008] 3 KHC 149.

(c) On the judgment rendered by the Bombay High Court in the case of Aruna W/o. Vishwas Shinde v. Sanjay S/o. Shankar Bhalkar and another passed in Criminal Writ Petition No. 1764 of 2019 dated 13.01.2020.

(d) On the judgment rendered by the Allahabad Bench of the High Court in the case of Rajesh Kumar v. State of U.P. and another reported in 2019 ACD 522 (ALL).

4.2 By placing reliance upon the above judgments, learned advocate Mr. Karia submitted that the petitioner was required to show justifiable cause for examination of the relatives of the complainant as Defence Witnesses. He submitted that a deliberate attempt has been made by the petitioner-accused to harass the near relatives of the complainant, who are aged persons and are not concerned with the transaction in question in any manner whatsoever.

5. Heard learned advocates on both the sides. In the case of AbdulRauf Abdul Rashid Shaikh (supra), this Court has held that the accused has the right to adduce evidence of his choice, which would be considered as part of fair trial and the Magistrate may issue summons to the witness/s directing them to attend or produce documents. But at the same time, if the Magistrate finds that the witness/s cited have nothing relevant to justify before the Court or that they have been cited with the ulterior motive to dodge the proceedings, then the summons can be refused. It has also been observed that the burden is on the accused to establish his innocence through the defence witness/s and therefore, such an attempt of the accused should not be thwarted and the Court should permit the accused to lead appropriate evidence for the purpose of discharging the burden of rebuttal under the NI Act.

6. In the case of Rangappa v. Sri Mohan reported in (2010) 11 SCC 441, the Apex Court has explained the scope, purpose and operation of the provisions of Section 139 of the NI Act. It has been held that Section 139 of the NI Act is an example of reverse onus clause which has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the NI Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebut table presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof. The Apex Court further held that reverse onus clauses usually imposes an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, 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 doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his / her own.

7. In the present case, while partly allowing the application the trial Court has held that the witnesses at Sr. Nos.1 to 5 could not be termed as Defence Witnesses and permitted the accused to examine only the witness at Sr. No.6, who is the brother of the petitioner, as Defence Witness. The trial Court observed that it is only on examination of the circumstances of the case it could be decided whether such permission of examining the witnesses can be given or not. Referring to the judgment rendered by this Court in Abdul Rauf Abdul Rashid Shaikh case (supra), the trial Court rightly held that the witness/s have been cited with the ulterior motive to dodge the proceedings. The revisional Court has come to the conclusion that none of the witnesses, as held by the trial Court, are relevant for discharging the burden on the side of the accused so as to prove that the cheque was not issued as consideration for the discharge of any debt or liability.

8. The copy of the complaint is placed on record of this Court, which reflects that there is no reference of these persons, who are cited in the defence witness list. The complainant, in his examination in chief too, has not referred to any of those persons being connected with the transaction in question. It is the accused, who in the cross-examination, has put up a probable defence. In the cross-examination, the complainant has deposed that he had borrowed the money from his family members and has named his parents in the cross-examination. He has also deposed in the cross-examination regarding the Tax Consultant. The complainant has also shown his willingness to produce the Books of Accounts of his Tax Consultant. After the evidence from the complainant's side, the present petitioner as accused has examined himself as Defence Witness No.1, who was cross-examined by the other side.

9. In the case of Muthulakshmi Amma (supra) relied upon by the learned advocate for respondent No.2, similar facts were noticed by the Court where the complainant's mother, an old lady, was summoned to the Court as a defence witness in a complaint under Section 138 of the NI Act at the request of the accused. It was held that there was no justifiable cause or reason for the accused to examine her as a witness and it was evident that it was an attempt to harass the petitioner therein.

10. Here, in this case too, the petitioner could not draw any justifiable ground or reason for examining the relatives of the complainant, i.e. the parents, uncle and aunt. The transaction alleged is reflected in the Income Tax Returns, which is a public document. As observed in Abdul Rauf Abdul Rashid Shaikh's case (supra), if witnesses are cited with the ulterior motive to dodge the proceedings, then such request can

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be refused. The judgment rendered in Rangappa's case (supra) clarifies the concept of reverse onus clause. The accused can rely on the material submitted by the complainant in order to raise such a defence and Section 139 of the NI Act, as observed, is a device to prevent undue delay in the litigation, thus, no party can be permitted to protract the trial without any justifiable cause. The standard of proof for rebutting the presumption under Section 139 of the NI Act is on the principle of preponderance of probabilities. If the accused is able to raise the probable defence, which creates doubts about the legally enforceable debt or liability, then the presumption can fail. The application for examining the parents, uncle and aunt of the complainant can be considered to be an attempt by the petitioner to harass the complainant. Thus, the trial Court rightly rejected the prayer for examining the relatives of the complainant as defence witnesses of the petitioner since the said witnesses had nothing relevant to justify before the Court. This Court is in complete agreement with the concurrent findings recorded by the Courts below and hence, find no reasons to entertain this petition. 11. In the result, the petition is dismissed. Notice is discharged.
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