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GUJARAT HIGH COURT
Bankim N. Mehta, J.
Dilipbhai Chimanbhai Patel —Petitioner
versus
Haji Shabbirbhai Hasanbhai Vora —Respondent
Criminal Appeal No. 222 of 2011
Decided on: 02.05.2012
IMPORTANT POINT
Accused is required to rebut presumption by preponderance of probabilities and not beyond reasonable doubt.
Headnote:Negotiable Instruments Act, 1881—Sections 138 read with Sections 118 and 139—Criminal Procedure Code, 1973—Section 378—Dishonour of cheque—Acquittal—There were financial transactions between accused and father of complainant—Complainant has not produced any documentary evidence to show that he had monetary transaction with accused and he advanced amount of Rs. 10 lakh to accused—Complainant is an income-tax payer—Complainant has not produced books of account or income tax return to show that he had paid amount to accused—Complainant even did not produce any documentary evidence to show that accused borrowed amount from his father—If accused is able to raise probable defence which creates doubts about existence of legally recoverable debt, prosecution can fail—Complainant failed to prove that there was existence of legally recoverable debt and cheque was given towards discharge of such debt or liability—No interference warranted in impugned judgment—Appeal dismissed. (Paras 10 to 15)
Result: Appeal dismissed.
Bankim N. Mehta, J.—The appellant, original complainant, has preferred this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgment and order of acquittal passed by learned Additional Judicial Magistrate First Class, Padra, on 1.7.2010 in Criminal Case No. 1987 of 2004 acquitting the respondent accused for the offences under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short).
2. According to the complainant, he is doing the business of building construction and accused is doing the business of sale and purchase of trucks. During the life time of his father, the accused obtained loan in his presence. On settlement of account, Rs. 10 lakh remained payable by the accused for the transactions between 7.6.1993 and 10.6.1999. On making demand of the outstanding amount, the accused gave cheque No. 063692 dated 5.8.2004 for Rs. 10 lakh drawn on Padra Nagar Nagrik Sahkari Bank Limited, Padra Branch. The cheque returned unpaid on account of insufficient fund when presented in the bank. Therefore, notice was served to the accused. Despite receipt of notice, the accused did not pay the amount of unpaid cheque but gave false and evasive reply. Therefore, complaint under Section 138 of the Act was filed in the Court of learned Judicial Magistrate First Class, at Padra and it was registered as Criminal Case No. 1987 of 2004.
3. The trial Court issued summons. The accused appeared and denied having committed the offence. Therefore, the prosecution adduced evidence. On completion of recording of evidence, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused in his further statement explained that he is not a debtor and the complainant was in need for finance in respect of his agricultural land and wanted to obtain money from the market and therefore asked him to remain as a guarantor and demanded the cheque. Therefore, he gave blank cheque to the complainant who filled in the details in the cheque and presented it in the bank. He is innocent. After hearing learned advocates for the parties, the trial Court by impugned judgment acquitted the accused. Being aggrieved by the said decision the complainant has preferred this appeal.
4. I have heard learned advocate Mr. Patel for the appellant at length and in great detail. The Court while admitting the appeal issued bailable warrant to the accused. The record indicates that bailable warranted was executed. However, the respondent did not appear in this Court. Therefore, again by order dated 13.12.2011 notice was issued to the respondent accused making it returnable on 23.1.2012. The notice was served to the respondent accused and the serving Officer recorded his statement on 30.12.2011 wherein the respondent accused stated that the notice is served to him and shall defend his case by engaging his advocate and he does not require legal aid.
5. Today when the matter was called out thrice, the respondent accused did not appear in the Court. Therefore, I have heard learned advocate Mr. Patel for the appellant and perused the impugned judgment and record and proceeding of the trial Court.
6. Learned advocate Mr. Patel submitted that the acquittal is recorded on the ground that the cheque in question was given for time barred debt but in view of the Full Bench Decision of this Court in the case of Hindustan Apparel Industries v. Fair Deal Corporation1 fresh period of limitation would start even the cheque issued after the period of limitation is bounced. He further submitted that under Section 139 of the Act, presumption is in favour of the drawer of the cheque that it was issued for discharge of liability and the accused is required to rebut the presumption but the accused failed to rebut the presumption. He also submitted that the accused did not dispute issue of cheque and therefore the burden was on the accused to prove that it was not given towards discharge of debt and ther
