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2024 Supreme(Guj) 589
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
M.K. THAKKER, J.
Kamlesh Sundardas Hemnani – Appellant
Versus
State Of Gujarat & Anr. – Respondents
R/Criminal Misc.Application (For Leave To Appeal) No. 17303 of 2023 In F/Criminal Appeal No. 34842 of 2023
Decided on : 08-05-2024
Advocate Appeared:
For the Appellant : MR. R.D.KINARIWALA
For the Respondent: MS.VRUNDA SHAH ADDL. PUBLIC PROSECUTOR
IMPORTANT POINT
The burden of proof on the complainant to establish the existence of consideration and the nexus with the payee in cases involving cheques, as well as the rebuttable nature of the presumption under the N.I. Act and the shifting burden of proof.
Headnote:
N.I. Act - Negotiable Instruments Act - 138 - The court discussed the provisions of the Negotiable Instruments Act, 1881, particularly section 138, and the legal principles established in various cases related to maintaining a complaint under section 138 of the Act. The court emphasized the importance of proving the nexus or connection with the payee in cases involving cheques and the burden of proof on the complainant to establish the existence of consideration.
Fact of the Case:
The complainant sought leave to appeal the acquittal of the respondent-accused in a case involving transactions and partnership agreements. The complainant alleged non-payment and fraudulent activities by the accused.
Finding of the Court:
The court found that the complainant failed to produce evidence to establish his status as the proprietor, Power of Attorney holder, or authorized signatory, and did not prove the transfer of funds through NEFT. The court emphasized the rebuttable nature of the presumption under the N.I. Act and the shifting burden of proof.
Issues: The issues revolved around the complainant's failure to establish his legal status and the lack of evidence regarding the transactions and partnership agreements. The court also addressed the shifting burden of proof and the importance of proving the nexus with the payee in cases involving cheques.
Ratio Decidendi: The court emphasized the importance of proving the nexus or connection with the payee in cases involving cheques and the burden of proof on the complainant to establish the existence of consideration. The court also highlighted the rebuttable nature of the presumption under the N.I. Act and the shifting burden of proof.
Final Decision: The application for seeking leave to prefer an appeal was declined, and the registration of the Criminal Appeal was refused.
JUDGMENT :
1. This application for seeking leave to prefer an appeal is filed by the applicant-original complainant seeking leave to prefer an appeal challenging the judgment and order dated 22-08-2024 passed by the learned 18th Aditional Chief Judicial Magistrate, Surat in criminal case No.26623 of 2020 passed below Exh.37 whereby the respondent- accused was acquitted for an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I. Act”).
2. It is the case of the complainant in the complaint that the complainant is proprietor of Sai Jyot Fab and Bharati Fashion and knew the accused as they belonged to the same community. The complainant was offered partnership in the firm Nuboks Homes of the accused namely Dev Rajendra Sehejwani proprietor and for that the complainant has transferred the amount of Rs.2,00,000/- each on three occasions through NEFT in the account maintained with the SBI, Vesu Branch, likewise the other two transactions through NEFT for Rs.2,00,000/- each was also made in the account of the accused. Thereafter 3 cheques of Rs.50,000/- each was transferred in the account of Akash Textile and given the cash in part Rs.2,00,000/- in the year 2017.
2.1. The complainant has further given the amount of Rs.9,00,000/- in three parts of each Rs.3,00,000/- to the father of the accused namely Rajendra Sehejwani. The assurance was given by the accused that the partnership deed would be prepared and would be produced before the bank as well as at the relevant places. Upto year 2017-18 no such partnership deed was prepared and during this period the accused withdrawn the amount of Rs.80,00,000/- from the brother’s account through Deepsha. Thereafter without the consent, the maternal uncle of the accused was joined as partner for which the objection was raised by the complainant.
2.2. The complainant ultimately had demanded the amount which was invested and to retire from the partnership firm. To repay the amount three cheques bearing No.602252, 602253 and 602255 amounting to Rs.4,00,000/-, Rs.6,00,000/- and Rs.6,00,000/- respectively were issued in favour of the proprietorship firm namely Sai Jyot Fab, out of those, cheques No. 1 and 2 deposited in Sai Jyot Fab returned with an endorsement of “funds insufficient” and No.3 was deposited in Bharti Fashion which returned with an endorsement of “payment stopped by drawer”. Therefore, after following the due procedure under the law, a private came to be filed before the competent court.
2.3. On recording the verification, the summons came to be issued under section 204 of the Criminal Procedure Code, 1973 (hereinafter referred to as the “Cr.P.C.”) where the accused appeared and pleaded not guilty and claimed to be tried. To prove the guilt of the accused, the complainant has produced 10 documentary evidences and has examined himself below Exh.4 and Ashok Panjumal Lalwani below Exh.33. On filing the closing pursis, further statement under section 313 came to be recorded wherein, the accused pleaded that no documentary evidence was produced regarding lending of amount, the false complaints were filed by altering the cheque and there was no legally enforceable debt established by the complainant qua the respondent-accused.
3. After considering the evidence placed on record and the arguments advanced by learned advocate for the respective parties, the learned trial court has acquitted the respondent-accused which is the subject matter of present leave to prefer an appeal.
4. Heard learned advocate Mr.Kinariwala and as no notice was issued to the respondent-accused, therefore respondent was not heard.
4.1. Learned advocate Mr.Kinariwala submits that respondent-accused fails to rebut the presumption which is in favour of the complainant and dislodge the signature on the cheque, however learned trial court shifted the onus on the complainant to prove his case beyond reasonable doubt. Learned advocate Mr.Kinariwala submits that the judgmen
