w w w . L a w y e r S e r v i c e s . i n


Pukharaj Achaldas v/s Kantilal Bhimraj Shah & Others

    R. Criminal Appeal No. 2439 of 2008
    Decided On, 26 November 2021
    At, High Court of Gujarat At Ahmedabad
    By, THE HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
    For The Appellant: J.B. Dastoor(239), Advocate. For the Respondents: R1, Alpa J. Dave(3924), Khushboo V. Malkan(5932), Advocates, R2, Monali Bhatt, APP.


Judgment Text
1. Present appeal has been filed by the appellant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 01.09.2007, passed in Criminal Case No. 968 of 2003 by the Metropolitan Magistrate, Court No. 16, Ahmedabad, recording the acquittal.

2. The facts, in brief, are that complainant – Pukhraj Achaldas, Proprietor of M/s. Magniram Achaldas, Ahmedabad lodged a complaint before the Court that the complainant and the respondent No. 1 were engaged in the Cloth business and were known to each other and had business relations. It is the case of the complainant that, for the business purpose, the respondent No. 1 used to borrow money from the complainant and to that effect, the complainant was also maintaining his account and thereby, the respondent No. 1 had availed Rs.10,57,190/- from the complainant and was legal due to the complainant. On demanding such money, the respondent No. 1 issued a cheque bearing No. 404385 dated 16.05.2003, drawn on the Union Bank of India, Dhanlaxmi Market, Revdi Bazaar, Ahmedabad for Rs.10,57,190/- and had assured to the complainant that he would get back his money by depositing the cheque in the bank, however, when on 16.05.2003, the complainant deposited the cheque in the Nagrik Sahakari Bank, Maskati Market, the same was returned by the bank with an endorsement “Account Closed”. Accordingly, the complainant issued a legal notice dated 22.05.2003 under the provisions of the Negotiable Instruments Act, 1881 (herein after referred to as “the NI Act”), which was served upon the respondent No. 1 on 28.05.2003. Since the respondent No. 1 neither replied to the said notice nor paid the cheque amount, the complainant constrained to file the complaint under Section 138 of the NI Act before the learned Metropolitan Magistrate Court, Ahmedabad.

2.1 Upon such complaint being filed and subsequent service of summons upon the respondent No. 1, he appeared before the Court. Since the accused did not plead guilty, trial was proceeded against him. Vide impugned judgment and order dated 01.09.2007, the learned Magistrate acquitted the accused person. Being aggrieved by the same, the appellant – original complainant has preferred the present appeal.

3. Heard, learned advocate Mr. J. B. Dastoor for the appellant – original complainant, learned advocate Mr. Jitendra Malkan with Ms. Khushboo Malkan and Ms. Alpa Dave for the respondent No. 1 and learned APP Ms. Monali Bhatt for the respondent No. 2 – State.

3.1 Learned advocate Mr. Dastoor for the appellant – original complainant has mainly contended that the learned Magistrate ought to have convicted the accused inasmuch as the cheque in question was duly signed by the respondent No. 1 and came to be dishonoured when presented before the bank with an endorsement “Account Closed”. Furthermore, in his submission, the learned Magistrate ought to have appreciated the fact that the cheque was issued for discharge of legal liability towards complainant and the fact that the respondent No. 1, in his examination-in-chief, Exh. 15 also admitted the transaction with the complainant. Further, it is submitted that the learned Magistrate ought to have appreciated the facts that: the cheque in question was deposited in the bank in time; legal notice upon the respondent No. 1 was also issued within the stipulated time; the notice was not replied and the signature of the respondent No. 1 on the cheque in question was never disputed; the cheque was returned unpaid with an endorsement “Account Closed”; the respondent No. 1 had not arranged to repay the money within the notice period and that, the Further Statement did not establish the defence of the respondent No. 1. It is further submitted that the learned Magistrate has failed to decide the onus probandi for the proof of legal dues. It is submitted that the learned Magistrate has wrongly applied the decision of the Apex Court M. S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39. It is further submitted that the learned Magistrate has not considered the term “Conclusive Proof” as prescribed for in Section 4 of the Evidence Act, 1872 inasmuch as, in paragraph 8 of the impugned judgment, the learned Magistrate has observed that in the light of Section 120 of the NI Act, accused cannot run away from the fact that he had given the cheque and stopped the accused from questioning the legality of the cheque. It is submitted that if the said fact is accepted, then the proof of legality of the cheque runs concurrently with the fact of legal debt. In his submission, the learned Magistrate ought to have held in view of the evidence on record that the accused had failed to rebut the onus of proof and statutory presumption against him under Sections 118(a) and 139 of the NI Act.

3.2 The learned advocate, taking this Court through the oral as well as the documentary evidence on record, submitted that though the case against the accused was proved beyond reasonable doubt, however, the learned Magistrate has not properly appreciated the evidence on record and thereby, has committed an error in recording acquittal and therefore, the impugned judgment and order suffers from material illegality, perversity and contrary to the facts and evidence on record. Accordingly, he urged that present appeal may be allowed by quashing and setting aside the impugned judgment and order of acquittal.

3.3 In support, the learned advocate for the appellant has relied upon following decisions:

1) Laxmi Dyechem v. State of Gujarat and Others, (2012) 13 SCC 375;

2) Uttam Ram v. Devinder Singh Hudan and Another, (2019) 10 SCC 287;

3) Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197;

4) NEPC Micon Ltd. and Others v. Magma Leasing Ltd., (1999) 4 SCC 253;

5) Manishbhai Bharatbhai Shah v. State of Gujarat and Others, 2008 (1) GLR 392.

4. Per contra, learned advocate Mr. Jitendra Malkan with Ms. Khushboo Malkan and Ms. Alpa Dave for the respondent No. 1 – accused, while supporting the impugned judgment and order of the trial Court, submitted that the learned Magistrate has, after due and proper appreciation and evaluation of the evidence on record, has come to such a conclusion and has acquitted the accused, which is just and proper. He submitted that it is trite law that if two views are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality.

4.1 The learned advocate for the respondent No. 1 – accused submitted that for invoking the provisions of Section 138 of the NI Act, the debt or other liability means a legally enforceable debt or other liability, which the complainant has failed to prove and accordingly, the learned Magistrate has rightly recorded the acquittal.

4.2 The learned advocate for the respondent No. 1 has heavily submitted that the ingredients of the offence alleged against the accused are not proved beyond reasonable doubt and therefore, the learned Magistrate has rightly acquitted the accused of the charges levelled against him.

4.3 It is submitted that in response to the legal notice issued to the respondent No. 1, the respondent No. 1, by a communication at Exh. 17, had asked for the copy of the cheque in question and also stated that without such a copy, it would not be possible for the respondent No. 1 to answer the legal notice, however, the complainant had not reverted to such a notice. It is further submitted that the complainant has not produced on record the account of respondent No. 1 being maintained by the complainant as well as not provided any date-wise details with regard to the lending of money to the respondent No. 1 and in the circumstances, the learned Magistrate has rightly observed that the complainant has failed to prove the “legally enforceable debt” and has rightly applied the decision of the Apex Court in M. S. Narayana Menon (supra). It is also submitted that the bank account had already been closed and that, the handwriting on the cheque in question was also not of the respondent No. 1 and in the circumstances, the learned Magistrate has rightly disbelieved the case of the complainant. It was also submitted that the complainant has also failed to prove or produce any documentary evidence as regard he was having licence to provide services related to financing.

4.4 The learned advocate for the respondent No. 1 – accused further submitted that the learned Magistrate has rightly acquitted the accused as the complainant failed to bring home the charge against the accused. Accordingly, it is requested that no interference is required at the hands of this Court and eventually, it is urged that the present appeal may be dismissed.

4.5 In support, the learned advocate for the respondent No. 1 has relied upon following decisions:

1) Krishna Janardhan Bhat v. Dattaraya G. Hegde, passed by the Apex Court in Appeal (Cri.) 518 of 2006 on 11.01.2008;

2) Anil s/o. Baburao Kataria v. Purshottam s/o. Prabhakar Kawane, passed in Criminal Application No. 630 of 2009 on 21.11.2009;

3) Smt. Nanda W/o. Dharam Nandanwar, represented through Pao Dharam S/o. Kisandas Nandanwar v. Nandkishor S/o. Talakram Thaokar, passed by the High Court of Bombay at Nagpur in Criminal Appeal No. 467/2009 on 12.10.2010.

5. Heard the learned advocates for the respective parties and gone through the impugned judgment and order of the trial Court as well as the material on record. Before adverting to the facts of the case, it would be worthwhile to refer to the scope of interference in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, reappreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.

5.1 Further, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.

5.2 Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.

5.3 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, “The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court”.

5.4 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988the Apex Court has observed as under:

“9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) “… the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.”

14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42)

“(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court’s acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) “20. … an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused.”

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) “(i) The High Court’s decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court’s conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court’s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.” A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.”

9.2 When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under:

“20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P (2009) 10 SCC 636).” (emphasis supplied)

9.3 It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.

9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, this Court again had an occasion to consider the scope of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under:

“31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233)

“10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.”

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416)

“8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court’s judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.”

31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this Court observed and held as under: (AIR pp. 80910) “5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 Cr.P.C came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.

It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.” (emphasis supplied).”

6. In the aforesaid backdrop, if Section 138 of NI Act is seen, it speaks as under:

“138. Dishonour of cheque for insufficiency, etc., of funds in the account. — 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 of 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 that 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 be extended to one year.

Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.— For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.]

6.1 Thus, in the case under NI Act, the 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. Further, explanation to this section defines the debt and other liability to mean a legally enforceable debt or other liability. In this context, after due appreciation and evaluation of the evidence on record, the learned Magistrate has come to a conclusion that the debt cannot be said to be legally enforceable debt and the complainant has failed to prove otherwise. In this regard, if the deposition of complainant Shri Pukhraj Achaldas, Proprietor of M/s. Magniram Achaldas, Ahmedabad at Exh. 3 is referred to, in his examination-in-chief, he has narrated the facts of his complaint, however, if his crossexamination is referred to, he has clearly admitted that he has not produced the account of the respondent No. 1 before the Court. It is pertinent to note that, it is the case of the complainant himself that he used to maintain the account of the respondent No. 1 in his books. Further, indisputably, the complainant has not produced any details as to on which date and as to what amount had been paid by him to the respondent No. 1. Further, as emerges from the record, more particularly, from the communication Exh. 17 of the respondent No. 1 to the complainant, which is in response to the legal notice, Exh. 10 dated 22.05.2003, issued by the complainant, asking him to furnish the copy of the cheque in question, the complainant has not reverted to such a communication also. The learned advocate for the appellant, referring to paragraph 8 of the impugned judgment, has submitted that the learned Magistrate has accepted the fact of cheque in question was issued by the respondent No. 1, however, in view of Section 4 of the Evidence Act, has committed error in not believing the debt to be the legally enforceable debt. The fact remains that there appears nothing on record to substantiate the claim of the complainant that the debt was legally enforceable debt for want of any material to substantiate the same and therefore, in the overall facts and circumstances of the case, the learned Magistrate has come to the conclusion that the debt cannot be said to be the legally enforceable debt, which is sine qua non in such matters and the complainant has failed to prove the same beyond reasonable doubt and in view of the aforesaid facts and circumstances and the evidence on record, this Court agrees with the view taken by the learned Magistrate.

6.2 So far as the provision as regards presumption under Sections 118(a) and 139 of the NI Act is concerned, a beneficial reference may be made to a decision of the Apex Court in Basalingappa v. Mudibasappa, MANU/SC/0502/2019 : (2019) 5 SCC 418, wherein, the Court has observed as under:

“23. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:

23.1. 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.

23.2. 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.

23.3. To rebut the presumption, it is open for the Accused to rely on evidence led by him or the 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.

23.4. 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.

24.5. It is not necessary for the Accused to come in the witness box to support his defence.”

6.3 Thus, 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. In the instant case, the accused has succeeded in rebutting the presumption, showing preponderance of probability by leading evidence and hence, onus shifts upon the complainant to prove otherwise, however, as said earlier, the complainant has failed to prove that the cheque was drawn towards legally enforceable debt as neither any account nor any details of amount paid by the complainant is submitted by the complainant before the trial Court. Moreover, the respondent No. 1 – accused, in pursuance to the legal notice, had though asked for the copy of the cheque in question, the same was not supplied by the complainant. Accordingly, when the respondent – accused has succeeded in rebutting the presumption, the learned Magistrate has rightly come to the conclusion that the said provision would be of no help to the complainant.

6.4 On re-appreciation and reevaluation of the oral and the documentary evidence on record, it transpires that the complainant has failed to prove the case against the accused beyond reasonable doubt inasmuch as the ingredients of the offence alleged are not fulfilled. The Court has gone through in detail the impugned judgment and order and found that the learned Magistrate has meticulously considered the depositions of all the witnesses and came to such a conclusion and in the considered opinion of this Court, the learned Magistrate has rightly come to such a conclusion, which do not call for any interference at the hands of this Court.

7. If the decisions relied upon by the learned advocate for the appellant – original complainant are referred to, in Laxmi Dyechem (supra), the Court has held that, “Two contingencies required to constitute offence under Section 138. First contingency “either because of the amount of money standing to the credit of that account is insufficient to honour the cheque”, held, is a genus and dishonour for reasons such “as account closed”, “payment stopped”, “referred to the drawer”, “signatures do not match” or “image is not found”, are only species of that genus. It is further held that, “Two contingencies envisaged under Section 138 cannot be interpreted strictly or literally. So long as the change is brought about by a drawer of the cheque with a view to preventing the cheque from being honoured the dishonour would become an offence under Section 138 subject to other conditions prescribed being satisfied”. In the case on hand, firstly, as discussed earlier, the debt is not proved to be the legally enforceable debt. There is also nothing on record to show that only with a view to preventing the cheque from being honoured, the account has been closed and the cheque in question is dishonoured. Accordingly, this decision would be of no help to the appellant.

7.1 in Uttam Ram (supra), the Court had held that, “The courts below proceeded as if, the appellant is to prove a debt before civil court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his claim for the recovery of the amount due. A dishonour of cheque carries a statutory presumption of consideration. The holder of cheque in due course is required to prove that the cheque was issued by the accused and that when the same presented, it was not honured. Since there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability”. Further, in the case before the Apex Court, it was admitted that the cheque was handed over by respondent (accused) personally to appellant (complainant); the respondent had not denied even in his statement that cheque was not issued by him; signatures on cheque by respondent (accused) was not disputed. In the instant case, as said earlier, it is not proved that the cheque in question was issued towards the legally enforceable debt nor the respondent has admitted such issuance of cheque. Further, it was the specific case of the respondent – accused that the handwriting on the cheque was differing. Thus, the aforesaid decision also would be of no avail to the appellant.

7.2 In Bir Singh (supra), the Court has held that, “Section 139 mandates that unless the contrary is proved, it is to be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. However, the presumption is rebuttable by proving to the contrary. Section 139 introduces and exception to the general rule as to the burden of proof and shifts the onus on the accused to prove by cogent evidence that there was no debt or liability. Mere denial or rebuttal by the accused was not enough”. In the case on hand, from inception, it was the case of the respondent No. 1 that account was already closed much prior to deposition of cheque by the complainant in the bank. Further, as emerges from the record, more particularly, from the document at Exh. 12, which is the copy of bank statement, the bank account of the respondent No. 1 was already closed in February 2003, to be precise on 28.02.2003 only. Indisputably, the complainant has deposited the cheque in question on 16.05.2003, which was dishonoured with an endorsement “Account Closed”. Thus, the respondent No. 1 appears to have rebutted the presumption under the provisions of Section 139 of the NI Act besides the fact that, the debt is not proved to be the legally enforceable debt. Thus, the aforesaid decision also, would be of no help to the complainant.

7.3 In NEPC

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Micon Ltd. and Others (supra), the Court has held that, “The return of a cheque by the bank unpaid on the ground that the “account is closed” would mean that the cheque is returned as unpaid on the ground that “the amount of money standing to the credit of that account is insufficient to honour the cheque”. The reason is that the cheque was dishonoured as the amount of money standing to the credit of “that account” was “nil” at the relevant time apart from it being closed. The closure of the account would be an eventuality after the entire amount is withdrawn. It means that there was no amount in the credit of “that account” on the relevant date when the cheque was presented for honouring the same. The expression “the amount of money”… is insufficient to honour the cheque” is genus of which the expression “that account being closed” is a specie. After issuing the cheque drawn on an account maintained, if the drawer closes “that account” apart from the fact that it may amount to another offence, it would certainly be an offence under Section 138. Further, in view of provisions (a), (b) and (c) to Section 138, the cheque is to be drawn by a person for payment of any amount of money due to him “on an account maintained by him” with a banker and only on “that account” the cheque should be drawn”. In the case on hand, as discussed earlier, the account of which, the cheque in question claimed by the complainant to have been issued by the respondent No. 1 was already closed prior to the issuance of cheque as is transpired from the document Exh. 12 and it is not that the respondent No. 1 had got closed the account after issuance of the cheque in question. Further, the complainant has not stated anything about the amount due of the respondent No. 1 nor has produced the account and the details of amount and the debt is also not proved to be the legally enforceable debt. Accordingly, this decision would be of no help to the appellant. 7.4 In Manishbhai Bharatbhai Shah (supra), the Court has observed that, “The trial Court has also taken into consideration the non-production of money lending licence by the complainant as one of the factors for acquitting the accused. But that alone is not the ground for recording acquittal as it could be seen from the judgment of the trial Court”. In the case on hand, a perusal of the impugned judgment and order reveals that it is not the sole ground of non-production of money lending licence by the complainant to dismiss the complaint. As discussed herein above, the debt is not proved to be the legally enforceable debt, which is the basic requirement. Besides, the respondent No. 1 – accused has succeeded in rebutting the presumption to be drawn under Section 139 of the NI Act. Accordingly, the aforesaid decision also, would be of no help to the appellant. 8. The learned advocate for the respondent No. 1 has relied upon some, as referred to herein above. The Court deems it proper not to burden the judgment by referring all those decisions, however, if the decision in Krishna Janardhan Bhat (supra), is referred to, it is observed by the Apex Court that, “The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability”. Thus, the presumption under Section 139 of the NI Act merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability and existence of legally recoverable debt is not matter of presumption under the said section. Thus, in the case on hand the learned Magistrate has rightly concluded that the dues were not legally recoverable dues. 9. In view of the aforesaid discussion and observations, in the considered opinion of this Court, the complainant has failed to bring home the charge against accused for want of sufficient material. The findings recorded by the learned Magistrate do not call for any interference. Resultantly, in fleri, the appeal fails and is dismissed accordingly. Impugned judgment and order dated 01.09.2007, passed in Criminal Case No. 968 of 2003 by the Metropolitan Magistrate, Court No. 16, Ahmedabad, recording the acquittal is confirmed. R&P, if received, be transmitted back forthwith.
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