1. The appellant being the complainant in C.C.No.128/2012, is before this Court impugning the judgment of acquittal dated 29.01.2016 passed in Crl.A.No.30/2014 on the file of the learned II Additional Sessions Judge, Vijayapur, acquitting the accused-respondent herein for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I.Act’) by setting aside the impugned judgment of conviction and order of sentence dated 07.08.2014 passed in C.C.No.128/2012 on the file of learned Civil Judge and JMFC, Sindagi, wherein, the accused was convicted under Section 255(2) of Cr.P.C., and was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.10,00,000/- and in default to pay fine, to undergo simple imprisonment for further period of six months.
2. Brief facts of the case are that the appellant/complainant filed the private complaint in P.C.No.9/2012 before the trial Court against the accused/respondent alleging commission of the offence under Section 138 of the N.I.Act. It is stated that the accused had availed hand-loan of Rs.5,00,000/- from the complainant to meet her family necessity on 11.12.2011. To repay the said amount, the accused issued a cheque in question bearing No.302532 drawn on Syndicate Bank, Sindagi Branch, Sindagi dated 11.02.2012. When the said cheque was presented for encashment, the same was dishonoured as ‘Funds Insufficient’. The complainant issued the legal notice to the accused calling upon to repay the cheque amount. The same was served on the accused. But the accused has not repaid the cheque amount nor he replied to the legal notice. Thereby, she committed the offence punishable under Section 138 of the N.I.Act. The trial Court took cognizance of the offence and criminal case was registered in C.C.No.128/2012 against the accused.
3. The accused appeared before the trial Court and she has not pleaded guilty but claimed to be tried. The complainant examined herself as PW.1, examined PW.2 and got marked Exs.P1 to P6 in support of her contention. The accused has denied all the incriminating materials available on record but has not chosen to lead any evidence in support of her defence. The trial Court after taking into consideration all the materials on record, came to the conclusion that the complainant is successful in proving the guilt of the accused and accordingly, convicted the accused for the above said offence.
4. Being aggrieved by the same, accused preferred the appeal before the First Appellate Court in Criminal Appeal No.30/2014. The First Appellate Court, after taking into consideration the materials on record, came to the conclusion that the complainant has not proved the existence of the legally recoverable debt and therefore acquitted the accused as stated above. Being aggrieved by the judgment of the First Appellate Court, the complainant is before this Court in this appeal.
5. Heard Sri. Basavaraj.R.Math, learned counsel for the appellant and Sri. B.C.Jaka, learned counsel for the respondent. Perused the materials on record including the Trial Court records.
6. Learned counsel for the appellant submitted that the complainant examined herself as PW.1 and got marked Exs.P1 to P6 in support of her contention. Moreover, PW.2 spoke about lending of the amount and issuance of the cheque. Thereby, the complainant has proved the existence of legal recoverable debt. The accused has not taken nor probabilized any defence. Under such circumstances, the trial Court was right in convicting the accused. However, the First Appellate Court revised the judgment and acquitted the accused without any valid reasons. Therefore, he prays for allowing the appeal by setting aside the impugned judgment of acquittal and to convict the accused for the above stated offences.
7. Per contra, learned counsel for the respondentaccused, supporting the impugned judgment of acquittal, contended that the cheque marked at Ex.P1 is a tampered cheque. The complainant has not proved the legally enforceable debt. There are glaring material contradictions in the evidence of PW.1 and PW.2. Moreover, the name of PW.2 was not mentioned either in the legal notice or in the complaint given by the complainant. Subsequently, he was planted as eye-witness. The First Appellate Court considering all the facts and circumstances of the case, has rightly came to the conclusion that the offence committed by the accused is not proved and there are no reasons to interfere with the same. Accordingly, he prays for dismissal of the appeal as devoid of merits.
8. In view of the rival contentions urged by learned counsel for the parties, the point that would arise for my consideration is:
“Whether the impugned judgment of acquittal passed by the First Appellate Court calls for any interference”
My answer to the above point is in ‘Affirmative’ for the following:
REASONS
9. It is the specific contention of the complainant that the accused has availed hand-loan of Rs.5,00,000/- on 11.12.2011 from her and towards repayment of the said hand-loan, Ex.P1-cheque for Rs.5,00,000/- was issued. The said cheque was dishonoured as there was insufficient funds in the account of the accused. Even though the complainant issued the legal notice calling upon the accused to repay the cheque amount, the accused had not repaid the said amount nor she issued reply notice. Thereby, the accused committed offence punishable under Section 138 of the N.I.Act.
10. To prove her contentions, the complainant stepped into the witness box and deposed as PW.1. She has reiterated the contention regarding accused availing handloan of Rs.5,00,000/- and issuance of cheque in discharge of said debt. PW.1-complainant was cross-examined at length by the learned counsel for the accused. During crossexamination, it is elicited from PW.1 that the accused had brought Ex.P1-cheque by writing all the particulars in her house and same was handed over to PW.1-complainant.
11. It is suggested to PW.1 during cross-examination that she had gone to the house of the accused and stolen the cheque without her knowledge. This suggestion was flatly denied by the witness. It is further suggested to the witness that date mentioned in Ex.P1-cheque is tampered. This suggestion was also denied by the witness. It is further suggested to PW.1 that no legal notice was issued and a fake postal endorsement was produced. It is also suggested that the signature found on Ex.P1 was obtained by the accused falsely. All these suggestions were denied by PW.1.
12. PW.2 is said to be the eye-witness, who filed his affidavit stating that on 11.12.2011, the accused had availed hand-loan of Rs.5,00,000/- from the complainant and had issued the cheque bearing No.302532 dated 11.02.2012. This witness was examined as PW.2 and he was cross-examined by the learned counsel for the accused. It is specifically elicited from this witness during cross-examination that the cheque in question was fully written and brought by the accused while handing over the same to PW.1-complainant. Nothing has been elicited from PW.1 or PW.2 to disbelieve their version or to probabilize any of the defence taken by these two. It is pertinent to note that the accused while denying the incriminating materials available on record in her statement recorded under Section 313 of Cr.P.C. stated that she is having evidence and documents in her favour. But she has not stepped in to witness box nor has produced any documents in support of her defence.
13. When the contention of the complainant is considered in the light of the evidence of PWs.1 and 2 and documents marked as per Exs.P1 to P6, which clearly shows that Ex.P1 is the cheque for Rs.5,00,000/- issued by the accused. Even though there is bald denial regarding signature found on the cheque, no attempt was made by the accused to contend that the cheque does not bear her signature. Several suggestions were made by the accused to PW.1 to contend that the cheque-Ex.P1 was secretly stolen by PW.1 from the bag kept in her house and the contents of Ex.P1 were written and cheque was fabricated. All these suggestions were flatly denied by PW.1. The accused has not made any effort to probabilize any of these defences. Even though half-hearted attempt is made to deny the signature on the cheque in question and also to contend that there is tampering of the cheque, none of these defences were probabilized as well.
14. Section 118 of the N.I.Act gives rise to presumptions as to negotiable instruments. Once the complainant places materials to prove his contentions, the burden shifts on the accused to rebut the presumption arising in favour of negotiable instruments. Similarly, Section 139 of the N.I.Act also gives rise to presumption in favour of the holder and it shall be presumed, unless the contrary is proved, that the holder of the cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
15. In the present case, the complainant has produced the cheque in question and got examined himself and one witness in his support. The burden shifts on the accused to rebut both these presumptions under Sections 118 and 139 of the N.I.Act. Of course, the accused can rebut these presumptions either during cross-examination of the complainant and his witnesses or by producing cogent materials or by stepping into the witness box and deposing about his defence. In the present case, the accused has not stepped into the witness box and no specific defence was taken. Even though an attempt was made to take a defence denying issuance of the cheque towards repayment of the loan amount, such defences are not probabilized. Even though the standard of proof for the accused to rebut the presumption is only preponderance of probability, even such proof is not produced by the accused. Under such circumstances, the accused is liable to be convicted.
16. It is pertinent to note that the Hon’ble Apex Court in its recent decision in the case of M/s Kalamani Tex and Another vs. P. Balasubramanian (2021)5 SCC 283 held in paragraph No.14 as under:
“14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and section 139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these ‘reverse onus’ clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystallised by this Court in Rohitbhai Jivanlal Patel vs. State of Gujarat [(2019) 18 SCC 106] in the following words:
“In the case at hand, even after purportedly drawing the presumption under Section 139 of NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the ones by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant’s case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellantaccused……”
17. Thus, the position of law is now well settled, it is no more the requirement of law for the complainant to prove the source of fund for advancing loan to the accused. When the accused has not seriously disputed the fact that Ex.P.1- cheque belongs to him and it bears his signature, it is for him to rebut the legal presumption that is available in favour of the complainant. As discussed above, no such serious attempt was made by the accused to rebut presumption under Section 118 and 139 of N.I. Act. Under such circumstances, the accused is liable for conviction.
18. I have gone through the impugned judgment of acquittal passed by the first appellate Court. It has placed reliance on the earlier decisions of the Hon’ble Apex Court to hold that heavy burden lies on the complainant to show that she had the requisite funds for advancing the amount to the accused and that issuance of cheque was towards discharge/repayment of the said money involved in the transaction. It is also held that burden of proving the legally recoverable debt is on the complainant. But the latest position of law is entirely different as highlighted by the Hon’ble Apex Court which is extracted above. Therefore, I am of the opinion that the impugned judgment of acquittal passed by the first appellate Court is liable to be set aside. The Trial Court after taking into consideration all the materials and records arrived at a right conclusion and convicted the accused as stated above. The same is liable to be restored.
19. Accordingly, I answer the above point in the affirmative and proceed to pass the following:
ORDER
The appeal is allowed.
The judgment of acquittal passed by the II-Additional Sessions Judge, at Vijayapur in Crl.Appeal No.30/2014 is set aside.
The judgment of conviction and order of sentence passed by the Civil Judge and JMFC, Sindagi, in C.C.No.128/2012 is restored.
Learned counsel for the appellant submitted that accused has deposited a portion of the amount before this Court.
Office is directed to transmit the said amount to the Trial Court to enable the complainant to withdraw the same on due identification.
Registry is directed to send back the Trial Court records along with a copy of this judgment to the Trial Court for information.
