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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
M.K. THAKKER, J.
Shaileshbhai Jivanbhai Patel – Appellant
Versus
State Of Gujarat – Respondents
R/Criminal Appeal (Against Acquittal) No. 303 of 2024
Decided on : 06-02-2024
N.I.Act - Disputed Cheque for Land Sale - Sections 118, 138, 139 - The court discussed the presumption under Sections 118, 138, and 139 of the N.I.Act and the burden of proof on the accused to rebut the presumption. The court also referred to the principles laid down by the Hon’ble Apex Court in the case of Basalingappa V/s. Mudibasappa (2019) 5 SCC 418.
Fact of the Case:
The complainant filed a private complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter) against the respondent-accused for dishonoring a cheque issued for the sale of land. The trial court acquitted the accused, and the appellant filed an appeal challenging the judgment and order of acquittal.
Finding of the Court:
The court found that the respondent-accused had successfully rebutted the presumption in favor of the complainant under Sections 118 and 139 of the N.I.Act. The court held that the burden to prove the case beyond reasonable doubt was not discharged by the complainant, and therefore, the acquittal of the respondent-accused was justified.
Issues: The issues revolved around the dishonor of the cheque issued for the sale of land, the presumption under Sections 118 and 139 of the N.I.Act, and the burden of proof on the accused to rebut the presumption.
Ratio Decidendi: The court emphasized the principles enumerated by the Hon’ble Apex Court in the case of Basalingappa V/s. Mudibasappa (2019) 5 SCC 418, which outlined the rebuttable presumption under Section 139 of the N.I.Act and the onus on the accused to raise a probable defense.
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.10830 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.20,00,000/by the respondent-accused dated 20.11.2012 bearing cheque No.013936 of Shri Savli Nagrik Cooperative Bank Limited.
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 Opening Balance is Insufficient’ on 06.02.2013. On receiving the return memo from the Bnak, the demand notice was issued on 25.02.2013 to the respondent-accused, which was served on 01.03.2013. 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 23, returned memo Exhibit 24, legal demand notice Exhibit 25, post acknowledgment slip Exhibit 26. On filing the closing pursis below Exhibit 27, 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 father which was recorded in the private complaint being No.10829 of 2013 below Exhibit 31 and the sale deed which was executed by the father of the complainant i.e. Jivanbhai Patel in favour of Kantibhai Ranchorbhai Tada below Exhibit 32.
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 issued to the
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 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 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 complainant under the N.I. Act is rebuttable, and the standard of proof required to prove a defense in a criminal case is preponderance of probabilities.
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 ....
Dishonour of cheque – Whereas prosecution must prove guilt of an accused beyond all reasonable doubt, standard of proof so as to prove a defence on part of accused is preponderance of probabilities.
The presumption of liability under Sections 138 and 139 of the N.I. Act is rebuttable, but the burden lies on the accused to provide evidence to disprove the existence of a legally enforceable debt o....
The main legal point established in the judgment is the significance of the accused raising a probable defense to rebut the presumption under Section 139 of the N.I. Act, and the requirement for the ....
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