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SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, DINESH MAHESHWARI, JJ.
ROHITBHAI JIVANLAL PATEL – APPELLANT(S)
VERSUS
STATE OF GUJARAT AND ANR. – RESPONDENT(S)
CRIMINAL APPEAL No. 508 of 2019 (Arising Out of Special Leave Petition (Criminal) 1883 of 2018)
Decided on : 15-03-2019
(2009) 10 SCC 206 – Referred
(b) Negotiable Instruments Act, 1881 – Section 138 r/w section 118 and 139 – Ingredients of sections 138, 118 and 139 satisfied – Presumption rightly drawn that cheques in question were drawn for consideration and the holder of the cheques received the same in discharge of an existing debt – Onus thereafter shifts to accused to rebut the presumption – Mere denial would not fulfill requirements of rebuttal – Accused has to show preponderance of probabilities in his favour – Instantly trial court instead of examining defence of the accused in rebuttal, questioning complainant about source of his fund to advance to accused – Trial court acquitting accused on ground of 'creation of doubt' – Decision of the Trial Court held suffering from perversity and fundamental error of approach. (Para 14, 16, 17, 19, 20)
(2010) 11 SCC 441 – Relied upon
(c) Negotiable Instruments Act, 1881 – Section 138 r/w section 118 and 139 – Trial court even after drawing presumption against accused proceeding as if the complainant was to prove his case beyond reasonable doubt – Approach flawed. (Para 21)
(2010) 11 SCC 441; (2006) 6 SCC 39; (2009) 2 SCC 513 – Referred
(d) Negotiable Instruments Act, 1881 – Section 138 – High Court awarding punishment of simple imprisonment for a period of one year together with fine to the extent of double the amount of cheque (i.e., a sum of Rs. 6 lakhs in each case) with default stipulation of further imprisonment for a period of one year in each case; and, out of the amount payable as fine, the complainant-respondent No. 2 ordered to be compensated to the tune of Rs. 5.5 lakhs in each case – Sentence modified – Accused-appellant to undergo simple imprisonment for one year in case of default in payment of fine in each case. (Para 23)
Facts of the case:
Trial Court drew the presumption envisaged by Section 139 of NI Act but concluded that the accused was successful in bringing rebuttal evidence to the requisite level of preponderance of probabilities; and observed that the complainant had failed to prove, beyond all reasonable doubt, that the cheques were issued in part payment of the loan amount of Rs. 22,50,000/-. Hence, all the 7 complaint cases were dismissed by similar but separate judgment.
The High Court set aside the impugned orders and, convicted the accused-appellant for the offence under Section 138 of the NI Act.
Finding of the Court:
Conviction maintained but sentence modified.
Result: Conviction maintained but sentence modified.
JUDGMENT
Dinesh Maheshwari, J.
Leave granted.
2. This appeal is directed against the common judgment and order dated 08.01.2018 in R/Criminal Appeal No. 1187/2017 connected with R/Criminal Appeal Nos. 1191/2017 to 1196/2017 whereby, the High Court of Gujarat at Ahmedabad has reversed the respective judgment and orders dated 09.06.2017 as passed by the 8th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Vadodara in 7 criminal cases [Nos. 44345/2009, 46499/2008, 46254/2008, 48420/2008, 40321/2008, 48631/2008 and 46503/2008 respectively.] pertaining to the offence under Section 138 of the Negotiable Instruments Act, 1881 ('the NI Act') for dishonour of 7 cheques in the sum of Rs. 3 lakhs each, as said to have been drawn by the accused-appellant in favour of the complainant-respondent No. 2. In the impugned judgment and order dated 08.01.2018, the High Court has disapproved the acquittal of the accused-appellant and, while holding him guilty of the offence under Section 138 of the NI Act, has awarded him the punishment of simple imprisonment for a period of 1 year with fine to the extent of double the amount of cheque (i.e., a sum of Rs. 6 lakhs) with default stipulation of further imprisonment for a period of 1 year in each case; and, out of the amount payable as fine, the complainant-respondent No. 2 is ordered to be compensated to the tune of Rs. 5.5. lakhs in each case.
3. Briefly put, the substance of allegations and assertions of the complainant-respondent No. 2 in each of the 7 cases aforesaid had been as follows: He was having his office in Windor Plaza at Alkapuri, Vadodara and had been visiting the shop of his friend Shri Jagdishbhai in National Plaza in the same locality; the accused-appellant, a trader of edible spices, had his shop near the shop of Shri Jagdishbhai and in due course of time, the accused, the complainant and the said Shri Jagdishbhai became good friends. The complainant alleged that after developing such friendship, the accused demanded from him a sum of Rs. 22,50,000/- as loan for his immediate requirement; and he (the complainant) extended such loan to the accused for a short term by collecting money in piecemeal from his business group. According to the complainant, upon regular demand for re-payment, the accused gave him cheques of different dates drawn on Corporation Bank, Alkapuri Branch, Vadodara and also gave the acceptance for re-payment on a stamp paper. The complainant alleged that the cheques so issued by the accused, on being presented to the Bank for collection, were returned unpaid either for the reason that the "opening balance was insufficient" or for the reason that the "account was closed". While alleging that the intention of the accused had been of breach of trust and cheating, the complainant pointed out that he got served the notices on the accused after dishonour of the cheques but did not receive the requisite payment. It is noticed that in some of the cases, the accused-appellant did send his reply, denying the transaction as alleged.
4. With the allegations and assertions aforesaid, the complainant-respondent No. 2 filed the above-mentioned 7 complaint cases against the accused-appellant in the months of June to November, 2008. In trial, the complainant examined himself as PW-1 and the said Shri Jagdishbhai as PW- 2. The complainant also produced the relevant documentary evidence including the cheques in question; the Bank returning memos and intimation letters; the demand notices; the replies wherever sent by the appellant; and the written acknowledgement on a stamp paper by the accused. The accused was examined under Section 313 of the Code of Criminal Procedure, 1973 where he asserted that he had no money transaction with the complainant; and had neither issued any cheque nor written any note for any legal debt in favour of the complainant. The accused-appellant, however, asserted that several years in the past, he had some transaction with the said Shri
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