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2012 (2) GCD 1764 (Guj)
Hon’ble Mr. Justice Bankim N. Mehta
Kapadvanj Peoples Co-operative Bank Ltd.
Versus
Jayantibhai Talasaji Marawadi & Anr.
Criminal Appeal No. 2344 of 2009—Decided on 01/03/2012
Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Section 378 — Negotiable Instruments Act, 1881 (Central Act 26 of 1881) — Sections 138 and 139 — Dishonour of cheque — Offence of — Acquittal — Appeal — Scope — On perusal of the cheque it emerges that complainant was not the payee of the cheque therefore Court could not have taken the cognizance of the matter as complaint was not filed as required under law — The contention that cheque in question was given towards discharged of legally recoverable debt was also not acceptable because presumption under Section 139 of the Act is rebuttable presumption and if accused raises a probable defence as in the case burden shift on prosecution to prove that cheque was given towards legally recoverable debt or liability — In the case the prosecution did not produce any statemtent of account to discharge the burden on it that amount was due and payable by accused on date of issuance of cheque — The lower appellate Court was therefore justified and has committed no error in acquitting the accused for the alleged offence.
Held :
As the complainant was not the payee of the cheque, the Court could not have taken cognizance of the matter as the complaint was not filed as required under the law. Therefore, lower appellate Court was justified in acquitting the accused. [Para 8]
As regards contention that the cheque in question was given towards discharge of legally recoverable debt, it is settled proposition that presumption under Section 139 of the Act is rebuttable presumption and when an accused has to rebut the presumption the standard of proof is that of preponderance of probabilities.
If the accused is able to raise probable defence which creates doubts about the existence of a legally recoverable debt or liability, the prosecution can fail. [Para 9]
It is not in dispute that the prosecution did not produce any statement of account to indicate the amount of loan given to the accused and the amount due and payable by the accused on the date of issuance of cheque in question. It also emerges that the vehicle purchased from the loan amount was sold away and the amount received was credited in the account but in absence of statement of account, it is difficult to ascertain the exact outstanding amount and hence it cannot be said that the cheque was given towards discharge of such debt or liability. Therefore, the accused was able to raise probable defence that there was no existence of legally recoverable debt on the day of issuance of the cheque. The prosecution failed to produce any evidence to show that the cheque amount was outstanding when the cheque in question was given to the complainant. [Para 12]
Law Laid Down :
The presumption raised in favour of holder of cheque does not extend to the extent that cheque was issued for discharge of any debt or liability — It is required to proved by complainant.
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 judgement and order of acquittal passed by 3rd Additional Sessions Judge, Nadiad, on 31.3.2009 in Criminal Appeal No. 24 of 2007 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short).
2. According to the complainant, the accused had obtained loan for purchase of a motor vehicle and his vehicle H.P. A/c. Number is 641. The accused gave cheque No. 21812 dated 24.7.2002 for Rs. 5,48,231/- drawn on Kapadwanj Peoples Co-operative Bank Limited towards discharge of the amount payable by him. On presentation of the cheque in the bank, it returned unpaid on account of insufficient fund. Therefore, notice was served to the accused demanding the amount of unpaid cheque. Despite receipt of notice, the accused neither paid the amount of unpaid cheque nor gave reply to the notice. Therefore, complaint under Section 138 of the Act was filed in the Court of learned Judicial Magistrate, First Class, at Kapadwanj and it was registered as Criminal Case No. 1795 of 2002.
3. The trial Court issued summons to the respondent accused who appeared in the Court and denied having committed the offence and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to him. The accused explained incriminating circumstances in his further statement recorded under Section 313 of the Code of Criminal Procedure. The accused in his further statement explained that the Manager Hasmukhbhai Shankarbhai Patel had obtained the amount and motor vehicle was purchased by the said Manager and he had paid the amount of vehicle tax, insurance and RTO charges and some of the instalments were paid by said Hasmukhbhai. After hearing learned advocates for the parties, trial Court by judgement dated 18.4.2007 convicted the accused. Therefore, Criminal Appeal No. 24 of 2007 was preferred in the Court of learned Sessions Judge at Nadiad. The lower appellate Court after hearing learned advocates for the parties set aside conviction and acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
4. I have heard learned advocates for the parties at length and in great detail. I have also perused the record and proceedings of the trial Court.
5. Learned advocate Mr. Asthavadi submitted that the cheque in question was given towards discharge of debt and the prosecution was able to prove that the cheque was given towards legally recoverable debt. However, the lower appellate Court set aside the conviction on the ground that the debt is not proved. He also submitted that presumption under Section 139 of the Act is in favour of the complainant and the accused failed to rebut the presumption. Therefore, the trial Court was justified in convicting the accused but the lower appellate Court committed error in acquitting the accused. Therefore, the impugned judgement is required to be set aside. He relied on the decision in the case of U. Ponnappa Moothan Sons vs. Catholic Syrian Bank Ltd. reported in (1991) 1 SCC 113 and Rangappa vs. Mohan reported in AIR 2010 SC 1898 = 2010 AIR SCW 2946 more particularly Paragraph Nos. 7, 8 and 9.
6. Learned advocate Mr. Barot for the respondent accused submitted that presumption under Section 139 of the Act is rebuttable presumption and the complainant had no right to initiate proceedings under the Act as the complainant was not payee or holder in due course as required under law. He also submitted that the complainant did not produce any documentary evidence to show that there was existence of legally recoverable debt and the accused gave cheque towards discharge of such debt. Hence the trial Court committed error in convicting the accused bu
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