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Judgment
M. K. Thakker, J
This appeal is filed under section 378 of Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C”) challenging the judgment and order of acquittal passed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”) by the learned Special Judge, Negotiable Instrument Act, Surat in Criminal Case no. 22401 of 2019 dated 21.08.2023.
It is the case of the complainant that complainant is known to the respondent-accused through one Rameshbhai Soni and lend the amount of Rs.4,50,000/-at 21% interest at the shop of Rameshbhai Soni on 14.06.2016. The respondent-accused had executed the promissory note accepting the aforesaid amount and thereafter, issued the cheque bearing no.917676 dated 24.04.2019 for the amount of Rs.4,50,000/- on assurance that this amount will be paid as principle amount and with regard to the interest, the accounts would be settled later on.
2.1. On depositing the cheque, it was returned with an endorsement of “funds insufficient”. Therefore, after following the due procedure under the N.I.Act, private complaint came to be filed before the competent court.
On being summoned, the respondent-accused appeared and his plea was recorded wherein, he pleaded not guilty and claimed to be tried. To prove his case, the complainant has produced 18 documentary evidences and examined himself below Exh.4. On filing the closing pursis, the statement under section 313 of Cr.P.C came to be recorded wherein, the accused had pleaded false implications. To prove the defence, the accused examined two witnesses below Exh.49(a) and has produced 10 documentary evidences on record.
3.1. After considering the evidences and the documents lead by the learned advocate for the respective parties as well as the arguments, the learned trial court has acquitted the respondent-accused from the charges which is impugned before this Court.
Heard the learned advocate Mr.Jigar Patel for the applicant and as this matter has been decided at admission stage, no notice was issued to the respondent-accused.
Perusing the record and proceeding thoroughly it transpires that complainant filed this case with allegations that the amount of Rs.4,50,000/- which was lent on 14.06.2016 was repaid through cheque on 24.04.2019. On depositing the said cheque, it was returned with an endorsement of “funds insufficient”. It is settled principle of law that the presumption which is provided under section 118 and 139 of the N.I.Act regarding that every negotiable instrument made or drawn for consideration the court has to presume and proceed on the basis of the presumption unless it is dislodged by the accused on the strength of leading cogent and convincing evidence in support of his case.
5.1. In order to dislodge the presumption, the respondent-accused cross-examined the complainant wherein, the complainant has admitted that “complainant is doing the business of money lending since last 15 years. The cheque which was issued was not given by the respondent-accused on the day of transaction i.e 14.06.2016 and at the shop of Rameshbhai Soni at Bharuch the promissory note was given by the respondent-accused which is produced below Exh.40 wherein, except the signature all handwriting are not of respondent-accused. The bank statement of Sutex Co-operative Bank produced below Exh.38 reveals no transactions during 13.05.2016 to 13.06.2016 of Rs.8,50,000/- or Rs.4,50,000/-. I was given the facility of overdraft of Rs.6,00,000/-. No documents regarding ledger account, statements was produced before the learned trial court. Licence for money lending is only for Surat district. Prior to one month of the date of transaction i.e on 13.05.2016, the father-in-law of the accused had executed the sale deed with possession for the property no.218 was given towards the earnest money and the total amount of consideration was fixed for Rs.6,00,000/-. On 11.05.2016 Banakhat was also executed without possession before the Registrar. On 13.05.2016 the Power of Attorney was given by the father-in-law of the accused with regard to the property no.218. Prior to 1 month from 14.06.2016 i.e on 13.05.2016 I lent amount of Rs.4,00,000/- to father-in-law of the accused and with regard to the same, promissory note was given of on Rs.50/- non-judicial stamp. Regarding Banakhat transactions dispute arises with the father-in-law of accused therefore, I issued notice on 27.03.2019. The family members of the respondent-accused denied to execute the sale deed and had given the reply to my notice on 8.04.2019 wherein, they had disputed the transactions with regard to the interest. I filed suit against the father in law of the accused and the heirs before the Bharuch Court for specific performance of the Banakhat. Amount of Rs.4,50,000/- has not been shown in Exh.34 and 35 i.e the balance sheet. Exh.36 return was filed on 20.08.2019 wherein, the amount has been mentioned in the balance sheet. The said return was filed after the issuance of the notice by the father-in-law dated 08.04.2019. The reply on 08.04.2019 reveals that the amount is repaid and the transactions are mentioned therein. From the reply to the notice dated 08.04.2019 it reveals that on 24.02.2017 Rs.50,000 was paid, on 15.12.2017 Rs.40,000/-, 25.01.2018 Rs.30,000/- was paid, on 25.03.2018 Rs.10,000/-, on 25.04.2018 Rs.10,000/-, on 25.05.2018 Rs. 10,000/-, on 27.08.2018 Rs.20,000/- and on 27.09.2018 Rs.5,000/- was paid. In all Rs.1,05,000 was paid.”
5.2. In addition to the cross-examination, reply to the notice dated 08.04.2019 by the heirs of the father-in-law of the respondent-accused was produced below Exh.45(a) wherein, it is contended that though amount is paid and that is twice of the principle amount, complainant is charging exorbitant compound interest. It is contended in the said reply that against the amount of Rs.1,00,000/- one blank cheque of IDBI Bank of father-in-law of Maganbhai and one blank cheque of wife of Bhargavbhai i.e respondent-accused was taken by the complainant alongwith forged Banakhat. It is alleged that the respondent-accused is connected with one Surat Bhajiawala (kaka) and against the minor amount they are grabbing the huge property of the present applicant by taking the advantage of his economical crunch. The details of the repayment of the amount is also mentioned in the replied dated 08.04.2019. The suit is filed for specific performance of the Banakhat on 10.06.2019 before the learned Principal Senior Civil Judge, Bharuch. The copy of the suit is also produced below Exh.46(a) which reveals that the suit is filed against the heirs of Maganbhai Mistry including the present respondent-accused.
5.3. The respondent-accused had also examined husband namely Bhargavbhai Maganbhai Mistry below Exh.49(a) from which it establishes that the respondent-accused is doing job in the bank since many years and the father had availed the financial facilities from the respondent-accused of Rs.1,00,000/- at the rate of interest of 5% in year 2016 against which the complainant had taken the blank cheque of the father as well as wife and executed the Bahedari karar (promissory note), Power of Attorney, Bana karar without position and Banak karar with position during a short span of 3 days i.e from 11.05.2016 to 13.05.2016. During the cross-examination except the fact that sister of the witness is serving as government advocate before the Bharuch Court no other incriminating facts were placed on record.
5.4. The respondent-accused also examined the notary below Exh.60 who notarized the documents which was executed by the father-in-law. From the evidence it transpires that complainant had lent the amount of Rs.1,00,000/- to the father against which numerous documents were executed including the promissory note produced below Exh.40. During the cross-examination it is admitted that except the signature on Exh.40 all the other handwritings are not of the respondent-accused. One more crucial fact that comes on the record is that though dispute arouse between the father-in-law of the respondent-accused, the complainant has given the notice dated 27.03.2019 which was replied on 08.04.2019 it is difficult to believe that thereafter the accused would give the disputed cheque on 24.04.2019.
5.5. It is admitted by the complaint that at the time of landing the amount two cheques were taken towards security. One is of the present respondent-accused which appears to be the disputed cheque. The reply dated 08.04.2019 produced below Exh.45(a) it is contended that various amounts were repaid through different transactions by respondent-accused. However, with a view to grab more money, the cheque in question was deposited. It also transpires that the Banakhat which was executed by the father-in-law was misused in the civil suit filed by the complainant against the heirs of the father-in-law including the present respondent-accused. The accused has an option to prove the non-existence of the consideration and debt or liability either by leading the evidence in some rare and exceptional cases from the case set out by the complainant i.e the averment in the complaint and evidence adduced by the complainant during the trial. Having regard to all circumstances of the case and preponderance of probability the evidential burden shifts back to the complainant and thereafter, presumpiton under section 118 and 139 of the N.I Act will not come to the complaint’s rescue.
The learned trial court after giving detailed consideration on the evidence and material, has come to the conclusion that complainant fails to establish his case after rebuttal of the presumption by the respondent-accused and therefore, the respondent-accused was acquitted from the charges.
This Court finds no infirmity or illegality in the impugned judgement and order of acquital which was given after detailed examination of the evidence and submissions and therefore, no interference is called for. Hence, this appeal is devoid of merits and therefore, it is dismissed.
Resultantly, this appeal is dismissed and judgement and order of acquital passed by the learned Special Judge, Negotiable Instrument Act, Surat in Criminal Case No. 22401 of 2019 dated 21.08.2023 is hereby confirmed.