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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Nisha M. Thakore, J.
Jay Narayan Ruwala - Appellant
Vs.
State Of Gujarat - Respondent
Criminal Misc. Application (For Leave To Appeal) No. 14266, 14268, 14273 of 2022
In Criminal Appeal No. 1529, 1530, 1533 of 2022
Decided On : 16-02-2024
Section 378(4) - Criminal Appeal - Code of Criminal Procedure - 138 of the Negotiable Instruments Act - [Section 378(4) of the Code of Criminal Procedure] - [Section 138 of the Negotiable Instruments Act] - [Summary of the acts and sections referenced and discussed by the court]
Fact of the Case:
The original complainant advanced a loan to the accused, who issued three cheques that were dishonored. The complainant filed criminal complaints under Section 138 of the Negotiable Instrument Act. The trial court convicted the accused, but the appellate court acquitted the accused based on the lack of proof of the complainant's financial capacity to lend the amount.
Finding of the Court:
The appellate court found that the complainant failed to prove his financial capacity to lend the amount, and the accused raised a probable defense by pointing out contradictions in the complainant's testimony. The court shifted the burden to the complainant to prove his case beyond reasonable doubt.
Issues: The issues included the complainant's financial capacity, the sufficiency of the evidence to rebut the statutory presumption, and the interference with the trial court's judgment.
Ratio Decidendi: The court held that the accused successfully raised a probable defense challenging the complainant's financial capacity, shifting the burden to the complainant to prove his case beyond reasonable doubt. The court also found discrepancies in the evidence, leading to doubts about the existence of the loan transaction.
Final Decision: The court refused the applications seeking special leave to appeal and dismissed the appeals.
JUDGMENT :
1. Since all these application seeking leave to appeal, filed under Section 378(4) of the Code of Criminal Procedure, raises common question of law in similar set of facts, the same were finally heard together and were reserved for orders and are disposed of by this common judgment and order.
Criminal Miscellaneous Application No.14266 of 2022
2. This application is filed by applicant- original complainant under Section 378(4) of the Code of Criminal Procedure, whereby, he intends to challenge the judgment and order dated 22.1.2022 passed by the learned 11th Additional Sessions Judge, Surat in Criminal Appeal No.168 of 2021. By the said judgment and order, the learned Additional Sessions Judge has allowed the appeal and has quashed and set aside the judgment and order dated 09.11.2020 passed by the learned 4th Additional Judicial Magistrate, Surat in Criminal Case No.2102 of 2011. The learned Additional Sessions Judge has acquitted the present respondent – original appellant –accused of the offence alleged under Section 138 of the Negotiable Instruments Act. The First Appellate Court has further directed to refund fine amount, if any, deposited by the original appellant and has further directed the appellant to comply with the provisions contained in Section 437 A of the Code.
Criminal Miscellaneous Application No.14268 of 2022:
2.1. This application is filed by applicant- original complainant under Section 378(4) of the Code of Criminal Procedure, whereby, he intends to challenge the judgment and order dated 22.1.2022 passed by the learned 11th Additional Sessions Judge, Surat in Criminal Appeal No.169 of 2021. By the said judgment and order, the learned Additional Sessions Judge has allowed the appeal and has quashed and set aside the judgment and order dated 09.11.2020 passed by the learned 4th Additional Judicial Magistrate, Surat in Criminal Case No.2101 of 2011. The learned Additional Sessions Judge has acquitted the present respondent – original appellant –accused of the offences alleged under Section 138 of the Negotiable Instruments Act. The First Appellate Court has further directed to refund fine amount, if any, deposited by the original appellant and has further directed the appellant to comply with the provisions of Section 437 A of the Code.
Criminal Miscellaneous Application No.14273 of 2022
2.2. This application is filed by applicant- original complainant under Section 378(4) of the Code of Criminal Procedure, whereby, he intends to challenge the judgment and order dated 22.1.2022 passed by the learned 11th Additional Sessions Judge, Surat in Criminal Appeal No.167 of 2021. By the said judgment and order, the learned Additional Sessions Judge has allowed the appeal and has quashed and set aside the judgment and order dated 09.11.2020 passed by the learned 4th Additional Judicial Magistrate, Surat in Criminal Case No.2109 of 2011. The learned Additional Sessions Judge has acquitted the present respondent – original appellant –accused of the offences alleged under Section 138 of the Negotiable Instruments Act. The First Appellate Court has further directed to refund fine amount, if any, deposited by the original appellant and has further directed the appellant to comply with the provisions of Section 437 A of the Code.
3. The brief facts as narrated by the original complainant are reproduced as under:
3.1. It is the case of the complainant that accused and original complainant had friendly relations and since the accused was in need of financial assistance, the complainant had advanced friendly loan/financial assistance for sum of Rs.15,00,000/- in cash to the accused for a period of 10 days on 6.11.2010.
3.2. It is further the case of the Complainant that, after the expiry of period of 10 days on 15.11.2010 he approached the Accused seeking repayment. Against the aforesaid debt, the Accused instead of repaying the loan in cash, issued three Cheques of "The Sarvodaya Cooperative Bank Ltd" bearing No. 531882, 531
The accused can raise a probable defense challenging the complainant's financial capacity, shifting the burden to the complainant to prove the case beyond reasonable doubt.
Presumption under Sections 118(a) and 139 of NI Act rebutted on preponderance of probabilities where cross-examination shows complainant's lack of financial capacity as housewife with unproven remitt....
The statutory presumption under Section 139 of the Negotiable Instruments Act places the initial burden on the complainant to prove the circumstances under which the cheque was issued and that it was....
The burden is on the complainant to prove financial capacity when questioned; a mere presumption does not suffice if evidence is lacking.
The presumption under Section 139 of the Negotiable Instruments Act is rebuttable; the burden shifts to the complainant to prove existence of debt when the accused raises a probable defense challengi....
The presumption of debt under Section 139 of the NI Act is rebuttable, requiring only a probable defense from the accused, not proof beyond reasonable doubt.
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