Merely
because the complainant did not file copy of income-tax
return, one cannot jump to the conclusion that complainant
who was businessman had no financial ability to advance
hand-loan in the sum of Rs. 50,000/-. Further more, the
accused alleged that complainant’s family indulged into
illegal business of money-lending without licence.
However, there was no evidence led by the accused nor any
material could be elicited during the course of crossexamination of witnesses on behalf of the complainant to
substantiate such defence contention. The accused cannot
succeed to defeat the prosecution merely by raising such
courageous but bald or baseless contention.
Bombay High Court
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 528 of 2009
Appellant : Smt Kiran w/o Yugalkishore Bhattad,
versus
Respondents : 1. Smt Sushila wife of Ramcharan
Kattamwar,
Coram : A.P. Bhangale, J
Dated : 24th February 2010
1. The present appeal is directed against judgment
and order passed by learned 7th Judicial Magistrate, First
Class, Nagpur (Special Court under the Negotiable
Instruments Act) whereby learned Magistrate acquitted
accused of an offence under Section 138 of the Negotiable
Instruments Act in Criminal Complaint Case No. 4334 of 05.
2. According to the complainant (appellant) handloan in the sum of Rs. 50,000/- was advanced by him to the
accused on her request for her business on or about 21st
January 2002. In order to discharge the said debt or
liability, cheque bearing no. 039654 dated 22.4.2002 in
the sum of Rs. 50,000/- drawn on Bank of India,
Sitabuldi branch, Nagpur was issued as per exhibit 52 on or
about 22nd April 2002. The cheque was presented within the
period of its validity in June 2002, but on 5.6.2002 it
returned dishonoured with remarks “funds insufficient” vide
exhibits 53 and 54. The complainant had demanded the
amount of Rs. 50,000/- by demand notice in writing dated
10.6.2002 (exhibit 55). Although the notice was sent by
registered post with A/d and served upon the accused,
accused failed to comply and according to complainant,
gave false reply to avoid repayment due on the cheque in
question (exhibit 58). As such, complaint came to be filed
on 4.7.2002.
3. The evidence was led in support of the complaint
by affidavit of the Kamalkishor Bhattad who was also crossexamined with reference to the contentions in the evidence
on affidavit and documents on record. It appears that in
the course of cross-examination, the deponent on behalf of
the complainant was questioned about one case filed against
Nandkishor Harsh. It is also questioned as to whether
amount paid to the accused was shown in the income-tax
return. The witness on behalf of the complainant admitted
that no receipt was obtained from the accused in token of
receiving sum of Rs. 50,000/- as also the fact that no
income-tax returns were filed. The witness on behalf of
complainant also denied suggestion that disputed cheque was
given to Nandkishor Harsh to arrange finance.
4. Under these circumstances, it is contended that
when it was specific defence pleaded by the accused in her
reply notice that she had cordial relations with Nandkishor
Harsh and he had requested the accused to allow him to
request some smaller amount of money in business and took
away blank cheque which, according to the accused, was
misused by the complainant. To substantiate this defence,
the material witness Nandkishor Harsh was not summoned
although his evidence may have supported the defence
contention had he been examined by the accused. Further,
it is contended on behalf of the complainant that the
accused is admittedly having business in the name of M/s
Ambika Enterprises at Khare Town, Dharampeth, Nagpur.
Further, it is contended that during the pendency of
proceedings before learned Magistrate on behalf of the
accused, her husband applied before learned Magistrate
informing that the matter has been settled by proposing
payment of Rs. 40,000/- only out of which sum of Rs.
10,000/- was paid on 24.7.2008 which appears to have been
acknowledged by the complainant vide exhibit 72 along with
acknowledgment in writing.
5. Thus, according to learned counsel for
complainant in view of the statutory presumptions under
Sections 118 and 139 of the Act, learned trial Magistrate
ought to have concluded in the facts and circumstances of
the case that the accused was liable to pay the amount due
on cheque which was dishonoured by non-payment on account
of insufficient funds since the complainant had also led
evidence of a bank employee to bring the fact of dishonour
of cheque on record by documentary as well as oral evidence
indicating that the accused had no intention to honour the
cheque as cheque in question was presented for encashment,
balance in her account was meagre at Rs. 1450.13 ps.
Learned Advocate for complainant submitted that the
complainant has proved all ingredients of offence
punishable under Section 138 of the Negotiable Instruments
Act.
6. To counter these submissions, learned counsel
for accused submitted with reference to ruling in Mrs
Sayeeda Iqbal v. Mr Javed Abdul and anr reported in 2008
All MR (Cri) 2743 to argue that view of the learned
Magistrate was reasonable and possible and, therefore,
there shall be no interference in the impugned judgment and
order. Reference is also made to ruling in Rajaram Gulabi
Naik v. Vithal Appa and anr reported in 2008 All MR (Cri)
3462 to substantiate the above submission. As against
this contention, learned Advocate for the complainant has
pressed into service judgment of this Court in Devidas v.
Harishchandra reported in 2009 (3) Bom C.R.(Cri) 458. In
the said case, learned Magistrate concluded that it could
not be accepted that such huge amount of Rs. 1,80,000/- was
advanced by complainant. It has been held by this Court in
the said case that this amounts to reading in law a
provision which does not exist and also overlooks
presumption of liability in Section 139 of the Act. It is
further held that such an approach amounts to perversity
warranting interference and judgment of acquittal was set
aside and the Court convicted the accused for offence
punishable under Section 138 of the Act.
7. Looking to the impugned judgment and order it
appears that learned Magistrate framed a solitary
cumulative point for determination and proceeded to deliver
judgment. In my view, the points for determination in such
case must involve at least five ingredients which are
required to be dealt with preferably by separate points for
determinations. There are five vital ingredients of the
offence punishable under Section 138 of the Act as laid
down by the Supreme Court in Kusum Ingots v. Pannar
reported in 2002 (2) SCC 745. Ingredients laid down by
the Apex Court are as under :
“(i) a person must have drawn a cheque on an
account maintained by him in a bank for payment of a
certain amount of money to another person from out of that
account for the discharge of any legally enforceable debt
or other liability;
(ii) that cheque has beeen 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;
(iii) that cheque is returned by the bank unpaid,
either because the amount of money standing to the credit
of the 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 the bank;
(iv) the payee or the holder in due course of
the cheque makes demand for the payment of the said amount
of money by giving a notice in writing to the drawer of
the cheque within 15 days of the receipt of information by
him from the bank regarding the return of the cheque as
unpaid;
(v) the drawer of such cheque fails to make
payment of the said amount of money to the payer or the
holder in due course of the cheque within 30 days of the
receipt of the said notice.”
8. These ingredients are required to be considered
with reference to Sections 118 and 139 of the Act. In this
case cheque no. 039654 dated 22.4.2002 was issued by
accused drawn on Bank of India, Sitabuldi Branch, Nagpur.
Cheque in question was returned by Bank of India to UCO
Bank (banker of complainant) under memo dated 5.6.2002. It
is thus obvious that the cheque was presented to the Bank
within a validity period of six months. In its memo,
bankers of accused have assigned the reason of
insufficiency of funds in the account of accused for
dishonour of cheque. It is evident from record that
complainant who received intimation dated 5.6.2002 from his
bankers, issued notice dated 10.6.2002, within fifteen
days. It is a matter of record that accused did not make
payment within fifteen days of the receipt of notice and
sent reply notice dated 20.6.2002 denying his liability as
provided under Section 138 (c) of the Act. Thus, all the
five ingredients laid down by the Apex Court appear to have
been satisfied in this case.
9. The trial Court is required to start with
statutory presumption until the contrary is proved that the
cheque was issued or drawn for consideration. It was
bearing the same date on which it was made or drawn; that
the holder of the negotiable instrument is holder in due
course etc. under Section 118 of the Act and that the
holder of a cheque had received it for the discharge of
whole or part of any debt or liability. Under these
circumstances, learned trial Magistrate ought to have
observed that since signature on cheque was not disputed as
that of the accused, the presumption envisaged in Section
118 of the Negotiable Instruments Act, as stated above,
ought to have been raised that the cheque in question was
made or drawn for consideration on the date which the
cheque bears and further under Section 139 of the Act to
raise a presumption that the complainant had received it
for the discharge of existing debt or liability. The
burden in such case is on the accused in view of the
statutory presumption to rebut the presumption by leading
adequate and satisfactory evidence to substantiate
contention in defence to the prosecution. Although it is
not necessary for the accused to enter into a witness box,
the burden of proof is required to be discharged by
adducing satisfactory evidence by bringing on record
admission or documents in the course of cross=examination
of witnesses examined on behalf of complainant. If that
cannot be done, it may become necessary for the accused to
lead evidence that the cheque in question was not issued
for discharge of any legally enforceable debt or other
liability. It is true that accused is not required to lead
evidence beyond all reasonable doubts, but satisfactory
evidence of rebuttal must be such which would satisfy the
minds of prudent person upon preponderance of probability
in respect of case in defence. As defined under Section 3
of the Evidence Act, a fact is said to be proved when,
after considering the matter before it, the Court either
believes it to exist, or considers its existence so
probable that a prudent man ought, under the circumstances
of the particular case, to act upon the supposition that it
exists.
10. In the facts and circumstances revealed in this
case, the learned trial Magistrate appears to have misled
herself, first of all, by framing an all-inclusive point
for determination and secondly, by overlooking statutory
presumption as also the relevant provisions of the Evidence
Act as to when the fact is said to be “proved”. In fact,
in paragraph 12 of the impugned judgment and order, learned
Magistrate is making a passing reference to presumptions
under Sections 118 and 139 of the Act in favour of the
complainant, but failed to consider their value in the
requirement of proof from the accused in rebuttal which can
satisfy a prudent person about the probability of defence
for to dislodge the said statutory presumption. Merely
because the complainant did not file copy of income-tax
return, one cannot jump to the conclusion that complainant
who was businessman had no financial ability to advance
hand-loan in the sum of Rs. 50,000/-. Further more, the
accused alleged that complainant’s family indulged into
illegal business of money-lending without licence.
However, there was no evidence led by the accused nor any
material could be elicited during the course of crossexamination of witnesses on behalf of the complainant to
substantiate such defence contention. The accused cannot
succeed to defeat the prosecution merely by raising such
courageous but bald or baseless contention. For these
reasons it appears that the trial Magistrate misled herself
to believe that Bhattad family was doing business of
money-lending. Such conclusion cannot be reached without
any rational basis from record. Learned trial Magistrate
ought to have considered that in fact the application was
made on behalf of accused during the pendency of
proceedings about having settled the case by express
willingness to pay sum of Rs. 40,000/- out of which amount
of Rs. 10,000/- was already acknowledged by the
complainant. For all these reasons the impugned judgment
and order is indefensible and has resulted in miscarriage
of justice. Necessarily, therefore, impugned judgment and
order will have to be set aside looking to the above
ingredients which have been satisfied in the facts and
circumstances of the case and evidence led on behalf of the
complainant, the accused is liable under Section 138 of the
Negotiable Instruments Act for dishonoured cheque in the
sum of Rs. 50,000/- which remained unpaid despite demand
notice in writing issued against the accused which the
accused duly received, but continued to avoid payment as
against the cheque. The accused is, therefore, found
guilty for offence punishable under Section 138 of the Act.
11. Learned counsel for accused contends that this
Court is sitting in appeal and, therefore, it should not
allow the complaint only because another view is possible.
12. In Arun v. State of Tamilnadu reported in (2009)
3 SCC (Cri) 1097, the Apex Court has held as under :
“It is true that appellate court has full power to
review, re-appreciate and reconsider the evidence
upon which the order of acquittal is founded and
its power to review and re-appreciate the evidence
and come to its own conclusion is not controlled by
any provisions of the Code of Criminal Procedure,
1973. This Court is in more than one case
cautioned that an appellate court, however, must
always 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
innocence is further reinforced, reaffirmed and
strengthened by the trial court. If two reasonable
views are possible on the basis of the evidence on
record and one favourable to the accused has been
taken by the trial court, it ought not to be
disturbed.”
13. The Apex Court has also held in Bhagwan Singh v.
State of MP reported in (2002) 4 SCC 85 that paramount
consideration of the Court is to ensure that miscarriage of
justice is avoided. A miscarriage of justice which may
arise from the acquittal of guilty is no less than from the
conviction of an innocent. The Apex Court further holds
that where the trial court has taken a view ignoring the
admissible evidence, a duty is cast upon the High Court to
re-appreciate the evidence in acquittal appeal for the
purposes of ascertaining as to whether all or any of the
accused has committed any offence or not. Probable view
taken by the trial court which may not be disturbed in the
appeal is such a view which is based upon legal and
admissible evidence. In the present case, I find that the
trial Court has not taken a view which is based on legal
and admissible evidence. View taken by the trial court
needs to be interfered with and acquittal of respondent/
accused will have to be set aside.
14. In the result, accused is held guilty for the
offence under Section 138 of the Negotiable Instruments
Act. On the point of sentence, it would not be just
and proper to insist upon incarceration of accused in jail,
but she shall suffer simple imprisonment until rising of
the Court and pay fine in the sum of Rs. 60,000/- payable
within two months from the date of this order, failing
which the amount shall be recovered by learned trial Court
by following procedure for recovery of fine. The amount of
fine when recovered shall be paid to the complainant as
compensation in view of Section 357 (3) Cr.P.C. The
accused appear before learned Magistrate within two months
and surrender herself to the custody of the Court to
undergo simple imprisonment till rising of the Court on the
date to be fixed by the trial Court. Appeal disposed of
accordingly.
A.P. BHANGALE, J
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