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2024 Supreme(Guj) 264
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
M. K. Thakker, J.
Jaysinghani Vishal Murlidhar Proprietor of Bharti Trends – Appellant
Versus
State of Gujarat & Anr. – Respondents
R/Criminal Appeal (Against Acquittal) No. 693 of 2024
Decided On : 21-03-2024
Advocate Appeared:
For the Appellant : Mr B C Dave
For the Respondent: Mr Trupesh Karathia Addl.Public Prosecutor
IMPORTANT POINT
The main legal point established in the judgment is the rebuttable nature of the presumption under Section 139 of the Negotiable Instruments Act and the burden of proof on the accused to raise a probable defense to dislodge the presumption.
Headnote:
Dishonour of Cheque - Business Transaction - Code of Criminal Procedure, 1973, Negotiable Instruments Act - Section 118, Section 138, Section 139 - The court discussed the presumption under Section 139 of the Negotiable Instruments Act and the burden of proof on the accused to raise a probable defense. It emphasized that the presumption is rebuttable and the accused can rely on evidence to dislodge it. The court also highlighted the importance of the accused's defense and the standard of proof required to rebut the presumption.
Fact of the Case:
The appellant, a cloth trader, filed a complaint against the respondent-accused for dishonoring cheques issued for goods purchased. The trial court acquitted the accused, and the appellant appealed.
Finding of the Court:
The court analyzed the evidence and the presumption under Section 139 of the Negotiable Instruments Act. It found that the appellant failed to prove the existence of a debt or liability against the accused beyond reasonable doubt after the presumption was dislodged. The court concluded that the judgment of acquittal was in accordance with the law and confirmed it.
Issues: The issues revolved around the dishonoring of cheques for business transactions and the burden of proof on the accused to raise a probable defense to rebut the presumption under Section 139 of the Negotiable Instruments Act.
Ratio Decidendi: The presumption under Section 139 of the Negotiable Instruments Act is rebuttable, and the accused has the onus to raise a probable defense. The standard of proof required to rebut the presumption is that of preponderance of probabilities.
Final Decision: The appeal failed, and the judgment and order of acquittal passed by the trial court were confirmed.
JUDGMENT :
1.This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ hereinafter) by the appellant-original complainant challenging the judgment and order of acquittal passed in Criminal Case No.10180 of 2020 dated 17.08.2023 by the learned 19th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat acquitting the respondent-accused from the charges punishable under Section 138 of the N.I.Act.
2. It is the case of the complainant that the complainant is the proprietor of Bharti Trends and doing the business of cloth trading. The accused is doing the business in the name and style of Liladhar Saris. The accused had contacted the complainant and requested to make trading in purchasing the goods from the other vendors and assured that in the prescribed time the amount would be paid and if not paid within a time then the same would be paid with late payment charges. The complainant had sent the goods from Shivam Dried House Private Limited and AAA Creation and Tej Fabrics to the accused and along with the goods the challans were also sent along with the bills.
3. On receiving the bills, the cheque bearing No.000066 dated 20.01.2020 was issued in the name of the complainant firm of Rs.5,00,910/. On depositing the same, it was returned with an endorsement of ‘fund insufficient’. Along with the aforesaid cheque one more cheque was issued being No.000660 dated 20.01.2020 for the amount of Rs.47,566/-, which was also returned with an endorsement of ‘fund insufficient’.
4. On receiving the return memo the notice came to be issued on 23.01.2020. The aforesaid notice was not complied with, however, evasive reply was given, therefore, on following the procedure under the N.I.Act private complaint came to be filed.
5. On appearing, the verification came to be recorded of the respondent-accused wherein the accused had pleaded not guilty and claimed to be tried. To prove the case, the complainant has examined himself below Exhibit 4 and produce the bill as well as the challan from Exhibits 11 to 27 and two cheques below Exhibits 28 and 30. Thereafter, on filing the closing pursis, further statement under Section 313 of the Cr.P.C. came to be recorded wherein the accused had stated that the security cheque which was given earlier was misused by the complainant and though notice below Exhibit 35 was issued on 18.01.2020 not to deposit the blank cheque, the complainant had deposited the same. Therefore, the reply to the notice was given below Exhibit 36 wherein it is contended that there is no legally enforceable debt towards the complainant. After considering the material placed on record, learned trial Court has passed the judgment and order of acquittal, which is impugned before this Court.
6. Heard the learned advocate Mr.B.C.Dave for the appellant and as this Court has decided the matter at admission stage, no notice was issued to the respondent-accused.
7. The case of the complainant in the complaint is that he has acted as a broker and sent the goods to various firms for which challans and bills were produced and to make the payment of the aforesaid bills, the cheques which were issued were dishonored.
8.Considering the submissions advanced by the learned advocate for the appellant, relevant provisions of the Negotiable Instruments Act are required to be relooked, which are reproduced herein below:
Section 118 – Presumptions as to negotiable instruments-Until the contrary is proved, the following presumptions shall be made:
1. of consideration; that every negotiable instrument was made or 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;
2. as to date; that every negotiable instrument bearing a date was made or drawn on such date;
3. as to time of acceptance; that every accepted bill of exchange was accepted within a reasonable time after its date and b
