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2016 Supreme(Guj) 1453
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.G. Shah, J.
Indravadan Navneetlal Sheth - Appellant
Vs.
State of Gujarat & Ors. - Respondent
Criminal Revision Application No. 542 of 2011
Decided On : 29-07-2016
For the Appellant :Saurabh M. Patel, Advocate
For the Respondents: K.P. Raval, APP
IMPORTANT POINT: (1) Section 118(a) raises presumption of consideration that every negotiable instrument was executed and drawn for consideration.
(2) Section 139 raises the presumption that the holder of cheque received the same for discharge of any debt or other liability.
Headnote:Negotiable Instruments Act, 1881—Section 118(a), 138, 139—Present revision petition is filed by accused against his conviction for offence under section 138 which was confirmed by the appellate court—Accused contended that in absence of any evidence regarding legal debt that may be payable by him to the complainant, the complaint is not maintainable—Accused could not rebut the evidence of the complainant which confirms that accused has issued the cheque in favour of the complainant—Section 139 presumption provides that unless the contrary is proved, it shall be presumed that the holder of a cheque received the same for the discharge, in whole or in part, of any debt or other liability by the person who has issued it—Section 118 presumption provides that until the contrary is proved, presumption of consideration shall be made that every negotiable instrument was executed and drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration
Result—Revision application dismissed.
S.G. Shah, J.
1. Heard learned advocate, Mr. Saurabh M. Patel for the applicant and learned APP, Mr. K.P. Raval, for the respondent No.1-State, who is a formal party, whereas, learned advocate, Ms. Sneha A. Joshi, for respondent No. 2.
2. Petitioner is original accused and respondent No. 2 is original complainant in Criminal Case No. 180 of 2004 filed by him before the Court of Judicial Magistrate First Class at Modasa under Section 138 of Negotiable Instruments Act. Trial Court, after considering the evidence and submissions of both the sides, by its judgment and order dated 26th November, 2007, held the petitioner guilty of committing offence under Section 138 of Negotiable Instruments Act and thereby awarded him punishment in form of sentence to undergo simple imprisonment for 15 months. The Trial Court has also directed the accused to pay the amount of cheque to the complainant.
3. Being aggrieved by such judgment of conviction, petitioner has preferred an appeal before the Sessions Court at Modasa. The Additional District Judge, Modasa by its impugned judgment and order dated 30th November, 2011 dismissed such Criminal Appeal No. 52 of 2007 and thereby confirmed the judgment and order of conviction of the Trial Court. The Sessions Court has directed the petitioner to surrender within 15 days.
4. When such concurrent judgment of conviction has been assailed in the revision, this Court has extended time to surrender and ultimately stayed execution of the impugned judgment on condition that petitioner shall deposit 50% amount of the cheque within a month. Therefore, when the petitioner has deposited Rs. 1,75,000/- before the Trial Court, this revision was admitted in the year 2012 granting bail to the petitioner but with a direction to furnish fresh bond.
5. The sum and substance of the complainant's case before the Trial Court is to the effect that petitioner-accused has taken an amount of Rs. 3,50,000/- from him because of friendship between them but failed to repay such amount of cheque in question issued by the petitioner-accused in favour of the respondent-complainant had been bounced i.e. returned back unpaid by the banker of the petitioner. Therefore, complainant preferred complaint as aforesaid, wherein, he produced relevant oral evidences at Exh. 13, 37, 47, 50, 23, 24, 26, 27, 28 and 44, whereas, the petitioner has neither stepped into witness box nor adduced any oral evidence but relied upon some documentary evidence which are produced on record at Exh. 64, 65, 66 and 67.
6. After considering the rival submissions and evidence, the Trial Court has considered the defence version; wherein, it is submitted that prudent man would not lend money to the petitioner when his previous dues were not recovered and in support of such submission, he is relying upon the judgment of the Civil Court; wherein, a suit filed by the wife of the complainant to recover an amount of Rs. 1,31,000/- was dismissed by the Court. Therefore, it is submitted that when suit of the wife of the complainant has been dismissed, complainant would never lend money to the accused and therefore, in absence of proper evidence that, in fact, complainant has paid any money to the accused or that accused is otherwise liable to pay any amount to the complainant, the cheque though possessed by the complainant is without consideration and therefore, in absence of any legal dues to be recovered by the complainant from the accused, complaint under Section 138 is not maintainable and thereby conviction is improper. It is also contended that the complainant has failed to disclose the name of the person from whom he has borrowed the amount for lending it to the petitioner when it is an admitted position that complainant has borrowed such amount from his friend for lending it to the accused. Therefore, in absence of evidence that how the complainant who was not having money to lend to the accused had paid such amount to the accused and thereby, in absence of ev
