Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Guj) 1233

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
NISHA M. THAKORE, J.
Nalini Vrajlal Maycha – Appellant
Versus
Govind Teja Aayar - Respondent
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 4708 of 2020 With R/CRIMINAL MISC.APPLICATION NO. 4716 of 2020 With R/CRIMINAL MISC.APPLICATION NO. 4740 of 2020 With R/CRIMINAL MISC.APPLICATION NO. 4710 of 2020
Decided on : 01-11-2023

Advocates:
Advocate Appeared:
For the Appellant :Mr. Jitendra Malkan, Advocate with Mr.VATSAL M PARIKH
For the Respondent: MR JAYESH A DAVE, Ms. Vrunda Shah,

The burden of proving the non-existence of consideration can be met by the defendant by raising a probable defense, and the complainant's failure to establish the existence of the legal debt and the issuance of the cheques for the discharge of a legally enforceable debt led to the belief that the consideration did not exist.

Headnote:
Criminal Procedure - Negotiable Instruments Act - 138 - 138
Fact of the Case:
The original complainant, a practicing lawyer, provided a loan to the respondent, who issued four cheques as assurance. When one of the cheques was dishonored, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act. The trial court recorded the acquittal of the accused due to the complainant's failure to prove the existence of the legal debt and issuance of the cheques for the discharge of a legally enforceable debt.
Finding of the Court:
The trial court found that the complainant failed to establish the existence of the legal debt and the issuance of the cheques for the discharge of a legally enforceable debt. The court shifted the burden upon the complainant to prove his case beyond reasonable doubt, and concluded that the complainant's non-explanation regarding the financial capacity and source of funds led to the belief that the consideration did not exist.
Issues: The main issue was whether the trial court erred in shifting the burden upon the complainant to prove his case beyond reasonable doubt and in concluding that the complainant failed to establish the existence of the legal debt and the issuance of the cheques for the discharge of a legally enforceable debt.
Ratio Decidendi: The court held that once the presumption in support of consideration arises, the burden is upon the defendant to prove the non-existence of consideration by raising a probable defense. The court found that the complainant's failure to clarify the date, place, and purpose of the loan, and to establish his financial capacity and source of funds, led to the belief that the consideration did not exist.
Final Decision: The court dismissed the applications seeking special leave to appeal and the criminal appeals, upholding the trial court's acquittal of the accused.

JUDGMENT :

1. Since all these special leave to applications filed under Section 378(4) of the Code of Criminal Procedure raise common question of law in similar set of facts, the same were heard together and were reserved for orders and are disposed of by this common judgment and order.

Criminal Miscellaneous Application No.4078 of 2020:

2. This application seeking special leave to appeal is filed under Section 378(4) of the Code of Criminal Procedure, whereby, the original complainant-present applicant seeks permission of this Court to prefer appeal against the impugned judgment and order dated 31.1.2020 passed by the learned 5th Additional Judicial Magistrate, Bhuj in Criminal Case No.54 of 2011. By the said judgment and order, the learned Magistrate has proceeded to record acquittal of the present respondent no.1-original accused for the offence alleged under Section 138 of the Negotiable Instruments Act.

Criminal Miscellaneous Application No.4710 of 2020:

2.1. This application seeking special leave to appeal is filed under Section 378(4) of the Code of Criminal Procedure, whereby, the original complainant-present applicant seeks permission of this Court to prefer appeal against the impugned judgment and order dated 31.1.2020 passed by the learned 5th Additional Judicial Magistrate, Bhuj in Criminal Case No.2189 of 2016. By the said judgment and order, the learned Magistrate has proceeded to record acquittal of the present respondent no.1-original accused for the offence alleged under Section 138 of the Negotiable Instruments Act.

Criminal Miscellaneous Application No.4716 of 2020:

2.2. This application seeking special leave to appeal is filed under Section 378(4) of the Code of Criminal Procedure, whereby, the original complainant-present applicant seeks permission of this Court to prefer appeal against the impugned judgment and order dated 31.1.2020 passed by the learned 5th Additional Judicial Magistrate, Bhuj in Criminal Case No.55 of 2011. By the said judgment and order, the learned Magistrate has proceeded to record acquittal of the present respondent no.1-original accused for the offence alleged under Section 138 of the Negotiable Instruments Act.

Criminal Miscellaneous Application No.4740 of 2020:

2.3. This application seeking special leave to appeal is filed under Section 378(4) of the Code of Criminal Procedure, whereby, the original complainant-present applicant seeks permission of this Court to prefer appeal against the impugned judgment and order dated 31.1.2020 passed by the learned 5th Additional Judicial Magistrate, Bhuj in Criminal Case No.56 of 2011. By the said judgment and order, the learned Magistrate has proceeded to record acquittal of the present respondent no.1-original accused for the offence alleged under Section 138 of the Negotiable Instruments Act.

3. The brief case as narrated in the original complaint of Criminal Case No.54 of 2011 is reproduced as under:

3.1. The complainant is engaged in the profession of law and is practicing lawyer. He came in contact of respondent no.1 as he was engaged by him to represent one of his case. It is the case of the complainant that since the said respondent was in need of financial assistance had prayed for friendly loan of an amount of Rs.1,50,000/-. Considering the brief relationship, the complainant had given hand loan of an amount of Rs.1,50,000/-which was assured by the respondent to be repaid in brief period.

3.2. The respondent had handed over four cheques bearing nos.366573, 366574, 366575 and 366572, dated 1st August 2010 drawn in favour of the complainant of the State Bank of Saurashtra, Anjar Branch. As per the instructions of the respondent said cheque was presented for realization of the aforesaid amount on 22.10.2010. However, the cheque No.366573 was dishonoured on 25.10.2010 as reported by the concerned Bank on the ground of “funds insufficient”.

3.3.