Deepak Rao vs Jamuna Das Badhwani

The applicant has filed this criminal revision under Section 397/401 of the Code of Criminal Procedure, 1973 feeling aggrieved by the judgment dated 08/01/2018 passed 6th Additional Sessions Judge, Bhopal in Criminal Appeal No.1008/2016 whereby setting aside the judgment of conviction and order of sentence under Section 138 of Negotiable Instruments Act passed by learned Additional Chief Judicial Magistrate, Bhopal against the respondent in Criminal Complaint Case No.7204/2014.

The facts giving rise to this petition, in short, are that the applicant was the complainant in the trial Court and the respondent was made accused in that complaint. The facts of the complaint, in short, are that both the parties were having cordial relationship. The respondent was in need of some money and requested the applicant to give Rs.10 lakh as loan. Applicant financed Rs.10 lakh to the respondent and after that respondent issued a cheque of his account of Dena Bank, Jyoti Shopping Complex, M.P. Nagar, Bhopal for payment of the amount received by him as a loan. On presenting the cheque by the applicant in his bank account in the Central Bank of India, the cheque was returned back without realization with an endorsement of insufficient amount. When the applicant demanded the cheque amount from the respondent, he denied for payment. The complainant served a notice to the respondent to that effect. Notice received back with an endorsement that the address was not correct. It is alleged in the complaint that the accused did not receive the notice and with collusion of other persons returned it with such endorsement. After that the applicant filed a complaint for the offence punishable under Section 138 of the Negotiable Instruments Act.

Learned trial Court after recording the evidence of both the parties and after hearing both the parties, passed judgment on 16/11/2016 convicting the respondent for the offence under Section 138 of N.I. Act and sentenced him to undergo one year RI and fixed compensation of Rs.12,50,000/-payable to the applicant. Being aggrieved by that judgment of conviction and order of sentence and compensation imposed against the respondent, the respondent preferred an appeal registered as Criminal Appeal No.1008.2016. Learned appellate Court after hearing both the parties delivered the judgment dated 08/01/2018 thereby setting aside the judgment of conviction and order of sentenced passed by the trial Court against the respondent and acquitted respondent of the charge.

Being aggrieved by that judgment of acquittal of the respondent for the offence punishable under Section 138 of NI Act passed by the appellate Court, the applicant has filed this criminal revision under Section 397 read with Section 401 of Cr.P.C. without filing any leave to appeal under Section 378(4) of Cr.P.C.

This criminal revision has been filed on the ground that learned appellate Court has not appreciated the evidence in proper way. The applicant was having sufficient funds for providing to the respondent. He sold out his house and received whole consideration at the time of giving money to the respondent, thus, the applicant was having sufficient fund and was capable to provide that amount to the respondent. Learned appellate Court has concluded that applicant was not in a position to provide Rs.10 lakh to the respondent and on that count allowed the appeal preferred by the respondent and set aside the judgment of conviction and sentence passed against the respondent. Learned appellate Court erred in dismissing the appeal on that ground. He further raised a ground that there is a presumption under Section 118(A) and 139 of Negotiable Instruments Act. There was ample evidence before the trial Court that the respondent is a habitual of borrowing the money from the various persons. So many cases are registered against the respondent for that reason. Learned appellate Court erred in appreciating the evidence, therefore, prays that while allowing this revision, the impugned judgment passed by the appellate Court may be set aside.

Learned counsel for the respondent submits that the applicant was serving under the respondent as a driver. If the salary of the applicant will be taken into account, it falls only 6 to 7 lakh and the applicant was not having Rs.ten lakh to give as a loan to the respondent. The respondent handed over a blank signed cheque to the applicant for giving the said cheque to Anil Wadhwani and the applicant not handed over the cheque to Anil Wadhwani and by writing his name over the cheque presented the same for realization in the bank. The appellate Court has rightly set aside the judgment of conviction and sentence passed by the trial Court, therefore, no error has been committed by learned appellate Court in appreciation of the evidence and prays for dismissal of the revision.

Heard learned counsel for the parties and perused the documents filed along with this revision and the record of Criminal Appeal No.1008/2016 and the record of R.T. No.7204/2014.

At the outset, this Court must consider that in this criminal revision as to what extent this Court can interfere into appreciation of evidence and finding thereupon.

Hon'ble Apex Court in the case of Amit Kapoor Vs. Ramech Chander and another, (2012) 9 SCC 460 in para- 12 has considered the jurisdiction and scope of this Court under Section 397 of Cr.P.C. which reads as under :

"12. The jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression 'prevent abuse of process of any court or  otherwise  to  secure  the  ends  of justice', the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice  to  be  done.  The  jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex liquid alicuiconcedit, conceder   videtur id quo res ipsa esse non protest, i.e., when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The Section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused."

This is not leave to appeal against the acquittal, but, it is a revision against the judgment of the appellate Court where the appellate Court has set aside the conviction and sentence passed by the trial Court. While exercising the appellate jurisdiction, the Court can consider the whole evidence very minutely and appreciated the evidence afresh, but, while exercising the revisional jurisdiction, the Court is restricted to appreciate the evidence only on the point of illegality, perversity, irregularity or misusing the process of law.

Perused the statement of both the witnesses recorded in the Court below. The applicant, in his statement, in para-10 has admitted that he is educated till 12th standard. In the year 1999 he was employed in the marketing company of Motilal Kundan Das Company and worked as a waterman and preparing bills. He worked there till 12th August, 2003 and was getting Rs.1800/- per month as salary. After that from 2003 to 2006 he worked as a Sales Representative in Parakh Food Industry at Gwalior where he received Rs.6,000/- to 8,000/- per month as salary and from 2006 to 2008 he worked in Parakh Agro Industry Limited, Pithampur which is concerned of the Parakh Food Industry and looked after the work of Sales and Purchase and got Rs.11,000/- per month as salary on perk including meal, residence. Thereafter from 2008 to 2009 he worked as Sales and Purchase Manager in the Agrawal Floor Mill, Indore where he eared Rs.14,500/-per month with other expenses. After that from 2009 to 2011 he joined the Central India Floor Mills, Bhopal where he got Rs.16,000/- per month as salary and other expenses and after that, he started self trading work and earned Rs.25-30 thousand per month and since 2014 he started self business of floor mill. In para-11 of his statement, he categorically stated that after 2011 he did not join services any where and started his own business. In para-12 he admitted that from 1999 to 2013 he earned Rs.five lakh to six lakh. After 2003 he left the firm of Jamuna Das. There are contrary statement of the applicant as stated in para-10 and 11 of his statement. The allegation made in the complaint filed by the applicant is that he gave Rs.10 lakh to the respondent but not discloses the date in the complaint. In his examination-in-chief filed in the form of affidavit under Section 145 of N.I. Act, he also did not mention the date when respondent received Rs.10 lakh and he provided him Rs.10 lakh. Before the trial Court he has not submitted any documents of his source of income.

Learned appellate Court while discussing the fact that whether the applicant was having the amount of Rs.10 lakh for giving as loan to the respondent, concluded while considering the judgment passed by the Apex Court in the case of John K. Abraham Vs. Simon C. Abraham and another, (2014) 2 SCC 236, that the applicant was not in a position to lend Rs.10 lakh to the respondent and considered the defence raised by the respondent that the applicant was his employee working as a driver as well as doing the billing work earned only Rs.5 to 7 lakh, as admitted in his statement, was not having money of Rs.10 lakh to provide the respondent as a loan. No doubt, presumption contemplated under Section 139 of NI Act is a rebuttal as Hon'ble Apex Court in the case of Anita Hada Vs. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661 has specifically held that presumption is rebuttal. This Court does not find any misuse of process of law illegality or perversity in the finding recorded by the appellate Court. While considering the scope of revision as aforementioned, this Court has considered the objection raised in this revision and find that no error has been committed by the appellate Court.

Hon'ble Apex Court in the case of M/s Kumar Exports Vs. M/s Sharma Carpets, AIR 2009 SC 1518 in para-11 has observed as under :

"11. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."

In view of forgoing discussions and the aforesaid enunciation of law, this Court finds that the respondent has categorically rebutted the presumption as envisaged under Section 139 of NI Act and succeeded to establish that applicant was not having Rs.10 lakh at the time of financing the loan to the respondent. The applicant no where mentioned the date when he has given the loan to the respondent. Respondent succeeded in establishing his defence. He has given a cheque to the applicant for delivering the said cheque to Anil Wadhwani, but, instead of delivering the cheque to Anil Wadhwani, he filled his name and presented the said cheque in his account. That cheque has not been given for enforceable liability. This Court does not find any illegality, perversity and irregularity in the impugned judgment passed by the appellate Court.

In view of aforesaid discussion, this revision is devoid of any merit and the same is hereby dismissed.