Mr v. D. Gunale
Legal Reasoning
( 1 ) crap762.04IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 762 OF 2004Tukaram s/o Narayan Reddy,Age 52 years, Occu. Agri.,R/o Jewali, Tq. and Dist. Latur,At present residing at Kailasnagar,Barshi Road, Latur,District Latur.… Appellant[Original Complainant]Versus01.Dileep s/o Shashikant Deshpande,Age 42 years, Occu. Agri.,R/o Laxmi Niwas, Khore Galli,Latur, at present residing at Jewali,Tq. and Dist. Latur.02.The State of Maharashtra.… Respondents[R.No.1 Orig. accused]…..Mr. V. D. Gunale, Advocate for the Appellant.Mr. V. S. Kadam, Advocate for Respondent No.1.Mrs. Chaitali Choudhari Kutti, APP for Respondent No.2-State.…..CORAM: ABHAY S. WAGHWASE, J.RESERVED ON: 17.04.2024PRONOUNCED ON: 11.06.2024 ( 2 ) crap762.04J U D G M E N T :-1.The original complainant, who instituted proceeding under Section 138of the Negotiable Instruments Act, 1881 (N.I. Act), is dissatisfied by thejudgment and order of acquittal passed by the learned 3rd Judicial Magistrate,First Class, Latur in S.T.C.C. No.3288 of 1997 dated 04.08.2004.2.Present appellant filed above proceedings on the premise that he andaccused are agriculturists. The accused purchased 60 tons of sugarcane budsworth Rs.46,000/- and accused agreed to pay the price of buds within amonth. Accused failed to repay, but only on repeated demand he issuedcheque drawn on Latur District Co-operative Bank, Branch Kapad Bazar. Onits presentation, the cheque returned dishonoured and therefore the accusedwas put to legal notice. In spite of receipt of same, the cheque amount wasnot paid and therefore the above proceedings were instituted.3.JMFC conducted trial vide S.T.C.C. No.3288 of 1997 and onappreciating the oral and documentary evidence, reached to a finding thatcomplainant failed to make out a case beyond reasonable doubt and there
Legal Reasoning
( 3 ) crap762.04being no legally enforceable debt, learned trial Judge acquitted the accusedvide judgment and order dated 04.08.2004.Precisely above order of acquittal is questioned by way of instantappeal.SUBMISSIONSOn behalf of the appellant/complainant :4.Learned Counsel for the appellant would point out that complainantand accused are well acquainted, they both being agriculturists. That, therewas transaction of purchase of sugarcane buds and towards price of the same,cheque was issued. It is pointed out that issuance of cheque and signatureover it was not disputed. Therefore, there was strong presumption availableunder law i.e. under Sections 118 and 139 of the N. I. Act.5.Learned counsel for the appellant further submitted that, accused failedto rebut the said presumption. That, there was clear legally enforceable debtin the backdrop of above transaction. However, learned trial court failed toconsider and appreciate the case of the complainant and according to him, ( 4 ) crap762.04learned trial court arrived to an erroneous conclusion in spite of ingredientsfor attracting Section 138 of the N.I. Act being patently available. Hence, heseeks indulgence at the hands of this Court in setting aside the judgmentpassed of the learned trial Judge by allowing the appeal.On behalf of the respondent/accused :6.In answer to above, learned counsel for the respondent/accused pointedout that the complainant utterly failed to establish legally enforceable debt orissuance of any cheque towards the same. In that backdrop, he pointed outthat in fact the cheque which was handed over by his father in a distincttransaction of mortgage of land, was misused. There was no transaction ofpurchase of any sugarcane buds and therefore, according to him, no errorwhatsoever is committed by the learned trial court in acquitting the accused.SUM AND SUBSTANCE OF EVIDENCE IN TRIAL COURT7.It appears that the complainant has examined himself as well as a bankofficial in order to prove his case. The sum and substance of their evidence isas under: ( 5 ) crap762.04P.W.1Tukaram at Exhibit 60 testified that he and accused were having landsat Jewali. According to him, accused took 60 tons of sugarcane budsworth Rs.46,000/-. Towards payment of the same, he issued chequedated 16.04.1997, but on its presentation, it was returned dishonouredand therefore, as required by law, legal notice was dispatched by way ofboth modes, i.e. R.P.A.D. as well as U.P.C. The postal acknowledgmentswere placed on record. According to this witness, in spite of notice,accused failed to pay the cheque amount. Hence, the complaint.P.W.2Madhukar – a bank official deposed at Exhibit 79 that he is Accountantin Latur DCC Bank. The accused has account in their bank and it isoperated by way of use of cheques. He deposed that accused issuedcheque to the complainant and the same was presented in the bank. Hegave the number of the cheque and identified the same and the amountover it to be Rs.46,000/-. He further deposed that the balance in theaccount of accused was only Rs.912/-. Therefore, as there was nobalance worth the cheque amount, the cheque was dishonoured. ( 6 ) crap762.048.The accused has also adduced evidence of his own father Shashikant-DW1, who is examined at Exhibit 105. The sum and substance of the defencewitness is that accused is his son and that he knew the complainant who isresident of their own village. He deposed that, in 1993 he had obtainedamount of Rs.25,000/- from the complainant and in lieu of the same, heexecuted a sale-deed of land admeasuring 19 Gunthas in gat no. 170.According to him, at that time it was agreed that possession of the said landwas not to be transferred and only on repayment of Rs.25,000/- to thecomplainant, there was to be a reconveyance deed in favour of this witness.He deposed that complainant in the year 1994 got his own name mutated tothe land. In 1997, complainant demanded the amount. He had no money atthat time and therefore the complainant demanded a cheque. However, asthis witness did not maintain any account in the bank, on suggestion of thecomplainant, a blank cheque of his son was issued and it was specificallyagreed that the complainant should return the blank cheque to this witness onpayment of Rs.25,000/-. As this witness could not repay the amount, accusedtook possession of the land. Therefore, the blank cheque was demanded backby this witness, but accused refused to return and moreover misused the sameand filed false complaint. ( 7 ) crap762.049.Section 138 of the N.I. Act has three essential ingredients viz. ;Firstly, that there is legally enforceable debt.Secondly, that the cheque was drawn from account of bank fordischarge in whole or in part any debt or other liability whichpresupposes a legally enforceable debt.Thirdly, cheque so issued has been dishonoured.Sections 118 and 139 of the N.I. Act make available statutorypresumption. However, wording of Section 139 explicitly shows that the saidpresumption is rebuttable. Law is fairly settled that defence can rebut thepresumption even by preponderance of probabilities, rely on the evidenceadduced by the complainant or even available circumstances can be takenrecourse to, to rebut the presumption.10.It is further fairly settled position that, fundamental burden is oncomplainant to prove existence of legally enforceable debt and only if it is soproved, only then presumption available under law i.e. under Sections 118and 139 of N.I. Act, automatically comes into play. The Hon’ble Apex Court in ( 8 ) crap762.04the case of Krishna Janardhan Bhat v. Dattatraya Hegde [AIR 2008 SC 1325],has also clarified that existence of legally enforceable debt is not a matter ofpresumption. It merely raises a presumption in favour of the holder of thecheque that the same has been issued for discharge of any liability or debt.Only when accused fails to rebut the presumption, offence under Section 138can be said to be brought home. 11.Therefore, the whole question here involved in this proceeding iswhether the cheque in question was issued in discharge of legally enforceabledebt and further, whether accused is able to rebut the presumption. Here, onre-appreciating and re-analyzing the entire evidence discussed above, it seemsto be the complainant’s case that accused respondent purchased 60 tons ofsugarcane buds worth Rs.46,000/-. Towards payment of such transaction,accused issued cheque but the same was dishonoured. 12.On the other hand, accused has denied the very above said transactionat the threshold and precise defence set up by accused is that there was nosuch transaction of purchase or sale of sugarcane buds. On the contrary, caseset up is that there was a transaction between DW1, who is father of accused, ( 9 ) crap762.04and the complainant. DW1 father had borrowed Rs.25,000/- from thecomplainant and in lieu, had executed a sale deed and there was furtherunderstanding between DW1 and complainant that on repayment ofRs.25,000/-, complainant would reconvey the land. Because of inability torepay, complainant demanded cheque from DW1. However, as DW1 was notmaintaining any bank account and therefore, only on insistence andsuggestion of complainant, DW1 handed over cheque, but from the accountwhich was held by his son/accused and the same was misused. 13.In view of above discussed legal proposition, initial burden oncomplainant is to first prove the foundational facts alleged by him regardingso called transaction of sale and purchase of sugarcane buds. On re-appreciating the entire evidence it is noticed that, evidence of complainant isconspicuously silent as to exactly when and where said transaction took place.There is no oral or documentary supportive evidence of complainant to beinvolved in the business of sale of sugarcane buds and he selling buds toaccused as is claimed by him. Where this transaction took place is not comingon record. There is no evidence to suggest that accused was also owning andpossessing land which was available for cultivation of sugarcane crop. ( 10 ) crap762.0414.In the light of above defence and stand taken by accused, that in factthere was transaction between DW1, who is father of accused, andcomplainant, line of cross to complainant taken up in the trial court goes toshow that there are specific questions in that direction and even complainanthas admitted that there was transaction of some portion of land gat no. 170with DW1. Such admission has fortified and probabilized the defence set upby accused that the cheque in possession of complainant, though signed byaccused, was not towards transaction of sale or purchase of sugarcane buds,but was towards guarantee of repayment of loan taken by DW1. 15.Consequently, here it is emerging that though initial presumption wasavailable by virtue of issuance of cheque and signature over it, onus hadshifted to accused to rebut the said presumption and to greater extent, saiddefence has been probabilized. Accused is expected to establish his stand bymere preponderance of probabilities, and here, by examining DW1, whosetestimony has remained intact throughout in cross also, it can safely be heldthat presumption has been dislodged. ( 11 ) crap762.0416.To sum up, complainant failed to establish and demonstrate transactionand sale of sugarcane buds to accused worth Rs.46,000/- and accused issuingcheque towards price of the buds and not otherwise. Though presumptionavailable under Section 118 and 139 of N.I. Act was shown to be in existence,there is material demonstrating defence taken up by accused. Therefore,acquittal from offence under Section 138 of N.I. Act cannot be said to beillegal or against evidence and law so as to disturb the findings reached at bylearned trial court. No case is made out to interfere. There being no merit inthe appeal, I proceed to pass the following order:ORDERThe appeal stands dismissed.[ABHAY S. WAGHWASE, J.]vre