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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
M. K. THAKKER, J.
Jivanbhai Narsinhbhai Patel – Appellant
Versus
State Of Gujarat – Respondents
R/Criminal Appeal (Against Acquittal) No. 366 of 2024
Decided on : 13-02-2024
N.I.Act - Dishonour of Cheque - Section 138, Section 139 - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Sections 118, 138, and 139 of the Negotiable Instruments Act, 1881, which deal with presumptions as to negotiable instruments, dishonour of cheques, and presumption in favor of the holder. The court emphasized the presumption of consideration, dishonour of cheques for insufficiency of funds, and presumption in favor of the holder, and how these provisions influenced the burden of proof and rebuttal in the case.
Fact of the Case:
The complainant alleged that the accused issued a cheque for an amount beyond the jantri value, which was dishonored, leading to a private complaint under Section 138 of the N.I.Act. The accused claimed innocence and argued that the complainant misused the cheque. The trial court acquitted the accused, leading to the appeal.
Finding of the Court:
The court found that the accused successfully rebutted the presumption in favor of the complainant under the N.I.Act. The complainant failed to discharge the burden of proof beyond reasonable doubt, and the trial court's acquittal was upheld.
Issues: The issues revolved around the dishonour of the cheque, burden of proof, and presumption under the N.I.Act, and the credibility of the complainant's claims.
Ratio Decidendi: The court emphasized that on rebutting the presumption, the burden shifts back to the complainant to prove the case beyond reasonable doubt. The appellate court cannot interfere with the findings of the trial court unless they are found to be perverse, illegal, or without proper weightage to the evidence.
Final Decision: The appeal was dismissed, 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) challenging the judgment and order passed by the learned 17th Additional Chief Judicial Magistrate, Vadodara in Criminal Case No.10829 of 2013 dated 05.09.2023.
2. The case of the complainant in the complaint is that the complainant had decided to sale the land bearing survey Nos.72 and 73 to the accused and the consideration of the aforesaid land per bigha was decided of Rs.16,00,000/.
As per the case of the complainant, Banakhat which was executed wherein the condition mentioned is that the sale deed is to be executed in the name of the person, whose name would be suggested by the respondent-accused.
As per the suggestion of the respondent-accused, the sale deed was executed in favour of Kantilal Ranchorbhai Tada and the amount of sale consideration was paid as per the jantri value. With regard to the amount beyond the jantri value, the cheque was issued of the amount of Rs.76,60,505/by the respondent-accused dated 18.02.2013 bearing cheque No.608610 of Bank of Baroda, Savali Branch.
2.1. It is further the case of the complainant that in addition to the aforesaid cheque, other cheques were also given with regard to the payment of the amount of sale consideration. The assurance was given at the time of issuance of cheque by the respondent-accused that on depositing the cheque, the same would be honored and the amount would be credited in the account of the complainant.
2.2. On depositing the cheque, it was dishonored with an endorsement of ‘Today’s refer to drawer “Insufficient Fund”. On 22.02.2013. On receiving the return memo from the Bank, the demand notice was issued on 04.03.2013 to the respondent-accused, which was refused by the accused and return on 07.03.2013. However, the respondent-accused neither complied with the demand notice nor replied to the same. As the amount was not paid therefore, private complaint came to be filed for the offence punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter) before the learned competent Court. On filing the private complaint, verification under Section 200 of the Cr.P.C. was recorded and thereafter process came to be issued under Section 204 of the Cr.P.C.
2.3. On being appeared by the respondent-accused, the plea came to be recorded below Exhibit 7 wherein the respondent-accused had pleaded innocent and claimed to be tried.
2.4. To bring home the guilt of the respondent-accused, the complainant himself was examined below Exhibit 11 and produced the cheque below Exhibit 29, returned memo Exhibit 30, legal demand notice Exhibit 31, post acknowledgment slip Exhibit 31. On filing the closing pursis below Exhibit 35, statement of the respondent-accused was recorded under Section 313 of the Cr.P.C. The respondent-accused contended in the further statement that no offence is committed by him. The land was sold by the complainant to the other person. The complainant had received the amount of sale consideration, however with a view to avoid the payment of amount of Rs.7,51,000/i. e. the amount given at the time of execution of Banakhat, the cheque which is lying with the complainant was misused.
2.5. To prove his defence, the complainant had produced the evidence of son which was recorded in the private complaint being No.10830 of 2013 below Exhibit 39 and the sale deed which was executed by the present complainant i.e. Jivanbhai Patel in favour of Kantibhai Ranchorbhai Tada below Exhibit 34.
2.6. Learned trial Court after considering the evidence placed by both the parties and the arguments advanced by the learned advocates for the respective parties, passed the judgment and order of acquittal on 05.09.2023 which is impugned before this Court.
3. Heard the learned advocate Mr.Darshit Thakkar for the appellant. As this Court has decided this appeal at admission stage after perusing the record and proceedings, no notice was issu
The main legal point established in the judgment is that under the N.I.Act, the presumption in favor of the holder of a cheque can be rebutted, shifting the burden of proof back to the complainant to....
The main legal point established in the judgment is the rebuttable presumption under Section 139 of the N.I.Act and the onus on the accused to raise a probable defense to rebut the presumption.
The burden of proof on the accused to raise a probable defense and the standard of proof for rebutting the presumption under Section 139 of the Negotiable Instruments Act.
The burden of proof to rebut the presumption of consideration under the N.I. Act lies with the accused, who must meet the standard of preponderance of probability.
The main legal point established in the judgment is the importance of evidence in rebutting the presumption available to the complainant under Sec. 139 of the N.I. Act and the impact of civil court j....
The presumption in favor of the cheque holder established under the Negotiable Instruments Act can be rebutted by the accused through a probable defense, and the prosecution must prove the existence ....
Presumption under Sections 118(a)/139 NI Act rebutted by probable defence evidence that cheque was security for shop 'Pagri' payable only on possession delivery, which failed; unregistered long-term ....
The presumption under Section 139 of the Negotiable Instrument Act can be rebutted by adducing evidence which is to be appreciated on the foundation of the principles of preponderance of probability.
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