TMI Blog2005 (11) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... land in Ahmedabad City, Taluka Ghatlodiya and constructed 8 Row Houses. The Row House No. G/183 was sold to the accused for consideration of Rs. 13,61,000=00. As per the understanding between the complainant and accused the payment of consideration i.e. Rs. 13,61,000=00 was to be made by the accused and the papers like allotment letter, share certificate, receipt etc. were to be issued in the name of one Devendra Chandulal Bhavsar. According to that understanding between the complainant and the accused all the relevant papers were delivered to the accused along with possession of the Row House No. G/183. The accused also signed an indemnity bond dated 19/8/2000 to this effect. The accused issued following cheques in the name of the complainant; i. Cheque No: 150124 dated 7/3/2001 for Rs. 7,61,000/- drawn on Bank of Baroda, Naranpura Branch, Ahmedabad; ii. Cheque No. : 150125 dated 2/3/2001 for Rs. 6,00,000/- drawn on Bank of Baroda, Naranpura Branch, Ahmedabad. Accused assured the complainant that the said cheques would be duly honoured and complainant will receive the amount mentioned in the cheque. The complainant relying upon the assurance of the accused handed over the possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter. In other words the accused submitted that he had signed the blank paper and given it to the complainant for the purpose of seeking adjournment. The application of the accused dated 27/9/2001 was kept for hearing by the trial court. As it appears from record the trial court recorded plea on 27/9/2001 at exhibit-12. The accused applicant did not press for exhibit-11 application in view of the fact that the plea was recorded at exhibit-12 by the court. The exhibit-11 contains an endorsement on the part of the advocate of the accused made on 8/11/2001 that as the court has issued charge sheet and recorded plea at exhibit-12, he was not pressing the application at that stage. 4. The complainant was examined and his testimony is recorded at exhibit-13. The complainant has completely supported his version in the complaint. The complainant has stated in his testimony that in the Sarvoday Society there were total 8 row houses built, each of 160 sq. yard. The row house No. G/183 was purchased by the accused pursuant to his meeting with the complainant in presence of one common friend Bhupendrabhai Natvarlal Shah. At that time the accused had also brought with him one Devendrabhai Bhavs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drabhai Maganlal Shah of Kheralu Nagrik Sahkari Bank to which the cheques were presented has been examined and his testimony is recorded at exhibit-40. The accounts statement of Kheralu Nagrik Sahkari Bank Ltd. run dated 24/3/2003 is produced at exhibit-42. 5. The accused has chosen not to examine any witness except producing one Memorandum of Understanding between the complainant and one Bhupendrabhai Natvarlal Shah. In the cross examination of the complainant suggestions were made to indicate that there was no transaction worth the name between the complainant and the accused. The cheques at the best were therefore required to be treated as guarantee and it can not be said that the complainant had successfully established his entitlement to, and the accused's liability for payment of the cheques amount. Learned trial Judge has also permitted advocate of the parties to make their written submissions which have been placed on record at exhibit-46 and 48 respectively. Further statement of the accused came to be recorded on page 75 below exhibit-12, wherein the accused has completely denied the case of the prosecution, though the accused has stated that the cheques in question we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be rebutted but it is required to be positively proved by the accused or the drawer that the cheques were not issued against discharge of any liability or debt. In absence of any such cogent evidence on the part of the accused the trial court ought not to have come to the conclusion that the cheques were not issued against any existing liability. Shri. Bhatt has submitted that the trial court ought to have appreciated the fact that the requirement of the act and especially Section 138 and 139 were completely met with when the complainant produced the cheques which were duly signed by the accused and the accused has nowhere denied signature on the cheques. Out of the two cheques, on one cheque i.e. cheque at exhibit-15, the accused had appended his signature near the correction, when the date of cheque came to be altered. Reading this evidence with the purshish declaration at exh.9 left no scope whatsoever for the trial court to come to any contrary conclusion as it has done and, therefore, the impugned order suffers from patent illegality, perversity and therefore it has resulted into miscarriage of justice, requiring it to be quashed and set aside. 10. Shri Bhatt, learned advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused under his own signature to the trial Court shall render all his earlier explanations into insignificance as it suggest that on that day, it is unequivocally admitted by the accused that he has liability to pay the cheque amount to the complainant and 5 lacs has already been paid and remaining Rs. 8,61,000=00 would be paid within a period of one and half month therefrom. Shri Bhatt has relied upon the decision of the Apex Court in case of Nagindas Ramdas v. Dalpatram Iccharam Alias Brijram and Ors. reported in [1974]2SCR544 in support of his contention that admission made in the pleading or under Section 58 of the Evidence Act by the parties or their agents at or before the hearing of the case stands on a higher footing than evidentiary admission. Shri. Bhatt has submitted that in the instant case, as could be seen from the records that accused had on many occasions sought time for settling the matter. The earlier application for adjournment Exh. 5 contains request for time to settle the matter. Again in Exh. 6 it was reiterated that time was sought for settling the matter. In light of this, Ex. 9 deserves to be viewed, which would clearly show that the accused respondent N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th plea taken to this effect in the written statement placed at Ex.46 on behalf of complainant. Thus, the Scheme of Section 139 of Negotiable Instrument Act is not applied at all, which has rendered the entire judgment perverse and contrary to the established provisions of law and therefore, this perversity deserves to be rectified and the appeal, therefore deserves to be allowed. Shri. Bhatt has submitted that the accused has not denied his signature on the cheques nor has he denied his counter signing of the cheques at Ex.15. The fact that the accused has under his own signature made an admission at Ex. 9 admitting his liabilities and the fact of his non-denial of the signature at Ex.9, coupled with his failure in leading any positive evidence with regard to so called absence of liabilities led to one and the only conclusion that, accused was guilty and he did not deserve to be acquitted, and therefore, the impugned order deserves to be quashed and set aside. 15. Shri. Patel, learned advocate for the Respondent No. 2 ? original accused has submitted that this being an acquittal appeal, this Court may not interfere with the findings of the trial court unless until it is amply demo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o produce the documents like share certificate or copy of share certificate, possession letter or any other document in respect of the row house No. G/183 which is stated to have been sold by the complainant at the behest of the accused for the consideration of Rs. 13,61,000=00, i.e. amount of two cheques. Thus the complainant has failed in crossing the first hurdle in establishing that there was any transaction as mentioned in the complaint itself. When the complainant himself has not successfully established the transaction itself, there can not be any presumption under Section 139 of the Act. 17. Shri. Patel has further submitted that the document at exhibit-23 is Memorandum of Understanding or an agreement between the complainant and one Bhupendra N. Shah. In this document it appears that the Bhuprendra N. Shah, second party has admitted his various liabilities to the complainant. It is also admitted by Bhupendrabhai N. Shah that Rs. 8,61,000=00 is required to be paid by him against the difference of consideration for row house No. G/183. This document has been admitted by the complainant. This document is dated 20/11/2000 and therefore, it can well be said that the accused did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the accused respondent No. 2. Shri. Patel has submitted that the receipt of 5 lacs from respondent No. 2 had not been proved by the complainant and therefore, on this count, also the purshish at Ex.9 cannot be said to be an admission on the part of accused. On the contrary, as can be seen, the amount of Rs. 5 lacs must have been received by the complainant from Bhupendrabhai N. Shah in pursuance of the agreement dated 20.11.2000 and as it is in force, the present respondent No. 2 ? original accused cannot be said to be liable and therefore, the acquittal order is absolutely proper and just. 19. It is further submitted by Shri. Patel on behalf of accused that facts regarding payment of Rs. 5 lacs also should be a factor to be noted that original transaction of Row House No. G/183 was only between Bhupendrabhai N. Shah and present appellant original complainant. Thus, Ex.9 purshish cannot be treated as a plea of guilty or admission regarding transaction as alleged by the complainant appellant. Shri. Patel has also submitted that Ex.23 shows that the debt or liability, if at all any was only of Bhupendrabhai N. Shah towards present appellant. Shri. Patel has submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No. 2 did not insist for specific order below Ex.11 and the endorsement came to be made below Ex. 11 by the advocate only after the plea was recorded at Ex. 12. Therefore, that itself was the ground for withdrawing Ex.11 and the respondent No. 2 can not be said to be bound by the purshish Ex. 9. Shri. Patel has also submitted that Ex.23 holding Bhupendrabhai N. Shah responsible to pay for the price of Tenement has been admitted in total terms by appellant complainant in his cross-examination and so under the provision of Section 58 of the Evidence Act, the facts admitted need not be proved by any further evidence. The respondent No. 2 has therefore, established specifically that no liability existed and this was sufficient to meet with requirement of Section 139 of the Act. 23. Shri. Patel has alternatively pleaded that this court can issue the direction to the trial Court to hold an inquiry regarding Ex.9 and 11 by permitting both the parties to lead evidence before the trial Court and report of finding of the Court may be called for, by fixing the date and meanwhile, the present appeal may be adjourned to a suitable date in the interest of justice or in the alternative, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has nowhere denied the factum of signing the cheques in question. The signature of the accused on the cheques in question is not disputed at all by the accused. The accused has also not disputed his signature on the indemnity bond at Ex.16. The fact of receipt of notice stands proved. The postal acknowledgment card bears signature of the accused which has not been questioned by the accused at any point of time. Mere denial of having it received by the accused, would therefore, not amount to saying that he had not received the notice in question. The trial court has also proceeded on the footing that the statutory notice was received by the accused. The accused has not issued any reply to the statutory notice issued on behalf of the complainant calling upon him to make payment against two cheques exhibit- 14 and 15. The accused has initially sought adjournment from the lower court on the ground of settling the matter with the complainant. The application for adjournment at Ex. 5 dated 7/6/2001 and Ex. 6 dated 25/6/2001 go to show that all along the accused was seeking adjournment for settling the matter with the complainant. Ex.9 purshish / declaration deserves to be viewed against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Banks under Section 139 of the Negotiable Instruments Act. This section provides that 'it shall be presumed, unless the contrary is proved, that the holder of a 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. 'The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability. 21. Because both Section 138 and 139 require that the Court 'shall presume' the liability of the drawer of the cheque for the amounts for which the cheque are drawn, as noted in State of Madras v. A. Vaidyanatha Iyer 1958CriLJ232 , it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. 'It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision can not be said to be rebutted.... Thus the two types of presumptions discussed by the Apex Court in para-23 makes it clear that the presumption as envisaged under Section 139 is a statutory and mandatory presumption and not the discretionary presumption. The mandatory presumption can not be dislodged merely by bare explanation which may appear only plausible as it is observed by the Apex Court that 'a fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists.' Thus, in view of this, unless there is a cogent evidence led by the accused it can not be said that he has discharged the burden. 28. On the similar line the Apex Court has also held in case of K.N. Beena v. Muniyappan and Anr. reported in 2001CriLJ4745 . The relevant paragraphs of the Apex Court deser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is a duty cast upon the accused to lead cogent and plausible evidence demolishing the presumption that the cheques were issued against some existing liability or debt. In the instant case the accused has not chosen to examine himself nor has he chosen to examine one of the signatory of the documents which he relies upon at exh.23. In respect of exhibit-23 document he has omitted to examine Bhupendrabhai Natwarlal Shah who is said to have signed document accepting the liability in respect Rs. 8,61,000=00 towards the row house in question. Except exh. 23, which came to be produced with an application for production, no other evidence is produced on behalf of accused. The same is not proved as the deponent of affidavit is not examined by the accused. This document in itself can not be said to be significant enough for discharging the accused's burden of showing that the cheque in question were not issued against any existing debt or liability. 30. Considering this document Ex. 23 against exh.9 purshish and exh.11, no reasonable man would have come to the conclusion that the accused has succeeded in discharging the liability of demolishing the mandatory presumption under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial Court may not be altered. In the instant case, this Court is constrained to observe that the trial Court has misconceived the Scheme of the Act and has proceeded on the footing as if it was the duty cast upon the complainant and the complainant only to prove his case beyond doubt relying upon the cardinal principle of Criminal Procedure Code. The Scheme of the Act and Section 139 of the Act makes it obligatory mandatory upon the trial court to raise a mandatory presumption that the cheque were received against existing liability. 34. The contention of Shri. Patel, learned advocate of the accused that the bond at Ex. 16 contains infirmity like father's name of the accused was written with hand, the date of execution was not mentioned etc. and the contention with regard to prosecution's failure in explaining the requirement of alteration on the date of one cheque are of no avail to the accused. The admission of the accused in purshish declaration at Exh. 9, as it is stated hereinabove, renders all other so called infirmity into insignificance. The Exh. 11 application contains ex facie improbable and incorrect grounds for withdrawing or resiling from the admission at Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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