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2022 Supreme(Guj) 422
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
RAJENDRA M. SAREEN, J.
PATEL PRAKASHBHAI AMBALAL – Appellant
Versus
STATE OF GUJARAT & 1 other(s) – Respondent
R/CRIMINAL APPEAL NO. 1517 of 2017
Decided on : 18-04-2022
Advocate Appeared:
For the Appellant : MR. HARDIK P BAROT
For the Respondent: MR CHINTAN S POPAT, MR RC KODEKAR APP
The importance of ensuring no wrongful conviction of an innocent person, the rebuttable presumption under section 139 of the Negotiable Instrument Act, and the burden of proof on the accused to raise a probable defense.
Headnote:
Negotiable Instrument Act - Acquittal Appeal - Sections 138 - The court discussed the legal presumption under section 139 of the Negotiable Instrument Act, the rebuttable presumption, and the burden of proof on the accused to raise a probable defense. The court emphasized the importance of ensuring no wrongful conviction of an innocent person and the need for clear evidence of the guilt of the accused before a conviction can be made.
Fact of the Case:
The appellant filed a complaint against the respondent No. 2 for the offence punishable under section 138 of the Negotiable Instrument Act, alleging that the respondent borrowed Rs. 2 Lakhs and issued a cheque that bounced due to insufficient funds. The respondent denied the allegations, claiming that the cheque book was misused by the complainant.
Finding of the Court:
The trial court acquitted the respondent No. 2 based on the lack of documentary evidence of the books of accounts and source of income, the opinion of the handwriting expert, and the family's business transactions with the accused. The court emphasized the presumption of innocence and the need for clear evidence of guilt before a conviction can be made.
Issues: The issues revolved around the presumption under section 139 of the Negotiable Instrument Act, the burden of proof on the accused to raise a probable defense, and the need for clear evidence of guilt before a conviction can be made.
Ratio Decidendi: The court emphasized the importance of ensuring no wrongful conviction of an innocent person, the rebuttable presumption under section 139, and the burden of proof on the accused to raise a probable defense. The court also highlighted the need for clear evidence of guilt before a conviction can be made.
Final Decision: The Criminal Appeal was dismissed as the court found it devoid of merits.
JUDGMENT :
RAJENDRA M. SAREEN, J.
1. This Appeal is filed by the appellant under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 23.08.2017 passed by the learned Additional Chief Judicial Magistrate, Kalol in Criminal Case No.916 of 2014, acquitting the private respondent No. 2 – original accused from the offence punishable under sections 138 of Negotiable Instrument Act.
2. The brief facts of the prosecution case is that the respondent no 2 came upfront in 2005 before the wife of the complainant in his presence at his residential place for explaining the benefits of various post recurring schemes and convinced the wife of the complainant. Then after the wife of the complainant (Raginiben Prakashbhai Patel) convinced the complainant to do the savings in few of the schemes and they have started saving in post recurring in 2005-2006 and this is how the original accused and the complainant had a good bond of family relationship till November 2010.
2.1 The respondent no 2 gained blind trust of the complainant’s family till November 2010 and on the basis of their trustful relationship requested to borrow Rs. 2 Lakhs from the complainant due to some financial crisis with urgency and assured him to return back within a time limit of two and half years by withdrawing her own F.D.
2.2 The complainant lend the amount of Rs.2 lakhs to the respondent No.2 on 12/11/2010 by paying him cheque of AXIS BANK with cheque No.379592. The respondent deposited the same cheque in her own bank account and had withdrawn the cash of Rs.2 lakhs.
2.3. As per the said verbal promise and as per the instructions of the respondent no 2, the appellant demanded for his money in 2013 and the respondent no 2 gave him a cheque dated 15/11/2013 bearing No.120364 of AXIX BANK KALOL BRANCH and assured him for clearance of the cheque to withdraw the money.
2.4. The appellant gave the legal notice through his advocate to the respondent no 2, on 6/12/2013 and the same was served through RPAD. The respondent no 2 gave false and fabricated reply without any genuine grounds on 20/12/2013.
2.5. The appellant filed the complaint on 17/2/2014 u/s 138 of The Negotiable Instruments Act bearing the criminal case no 916/2014 in against of the respondent no 2 (Shah Nutanben Umeshkumar) for the disputed amount of Rs. 2,00,000/- before the JMFC Court of Kalol, District - Gandhinagar.
2.5. Then after during the expedition of the trail, the complainant gave his deposition at Ex.14.
2.6. Further on the proceedings of the trial, the defence witness named Urveshbhai Shah bank person gave his deposition with producing the specimen signature card at Ex.31
2.7. The disputed cheque was send for the opinion of the handwriting expert as per the Court’s direction at Ex.47.
2.8. The opponent no 2 was acquitted by the Hon’ble JMFC Court of Kalol, District - Gandhinagar, in Criminal case No 916/2014 order passed on 23/8/2017 below Exhibit 57 under sec 138 of The Negotiable Instruments Act ordered on mentioned above date.
3. Mr.Harik Barot, learned advocate for the appellant has submitted that The respondent no 2 original accused came upfront in 2005 before Raginiben and explained the benefits of various post recurring schemes and investments in shares and both the appellants were convinced. Then after, both the appellants had started savings in post recurring and shares in 2005-2006 through the son of the accused named (Mihir) and this is how the original accused and both the appellants had a good bond of family relationship till November 2010.
3.1. Mr.Harik Barot has further submitted that on the basis of their trustful relationship, the accused requested to borrow Rs. 5.16 lakhs in November 2010 from the complainant due to some financial crisis with urgency and assured them to return back within a time limit of 2 and half year by withdrawing her own F.D.
3.2. Mr.Harik Barot has further submitted that both the appellants lend the amount of Rs. 5 lakhs altogether to the acc
