Shobha vs Gajanan

A.P. Bhangale, J.—The instant appeal is by the complainant directed against the Judgment and Order, dated 16th April, 2008 passed by the learned Judicial Magistrate, First Class (Court No. VI), Akola challenging the acquittal of the respondent/accused u/s 138 of the Negotiable Instruments Act. The facts, briefly stated, are as under:

The complainant and the accused were in cordial terms with each other. In the month of April, 2004, the accused demanded a sum of Rs. 1,00,000/- from the complainant as he was in dire need of money. The amount was paid in cash on 19.4.2004. The accused had issued a Cheque bearing No. 351152, dated 4.10.2004 for the sum of Rs. 95,000/- drawn upon the Akola Janata Commercial Cooperative Bank Ltd., Akola Branch. The cheque when presented for realisation, was returned dishonored with remarks "fund insufficient" vide intimation memo, dated 5.10.2004. The demand notice was issued by R.P.A.D. and under postal certificate. It was duly received by the accused on 3.11.2004. The accused failed to pay the amount. Thus, a complaint was lodged. The trial Magistrate acquitted the accused.

The accused had denied the transaction. He stated that he never issued the cheque in the sum of Rs. 1,00,000/-. The accused defended the proceedings on the ground that he had given the blank cheque duly signed (Ex. 30) to Ramesh (AW-2). The defence of the accused was found reasonable and probable. The accused had led the defence evidence. The trial Court relied upon the evidence of Ramesh (AW-2).

No documentary evidence was tendered by the complainant to show whether the sum of Rs. 1,00,000/- was paid in cash to the accused. No entry was taken in the accounts regarding the amount advanced by way of loan. The cash transaction was also exceeding the limit of sum of Rs. 20,000/- as may be permissible under the Income Tax Act.

In such a case, if some material is brought on record by the accused consistent with innocence of the accused, which appears true and reasonable and accepted in rebuttal to the statutory presumption and the material brought on record by the accused passes the test of preponderance of probability, the case of the complainant may be rendered doubtful and then, on the basis of probability of defence, the accused is entitled for an order of acquittal.

In the ruling in Rangappa Vs. Sri Mohan, = Rangappa Vs. Sri Mohan, = Rangappa Vs. Sri Mohan, = Rangappa Vs. Sri Mohan, = Rangappa Vs. Sri Mohan, , the Apex Court observed the legal position thus:

14...The presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption u/s 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption u/s 139, the standard of proof for doing so is that of "preponderance of probabilities''. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.

Mr. Mohta, Advocate relied upon the ruling in Punjabrao Bhagwanrao Ghuge v. Rajkumar Kamalkishor Agrawal, I (2011) BC 312 : 2010 (2) Bom. C.R. 655 (Shri A.H. Joshi, J.). It was an appeal against acquittal which was dismissed. The impugned Judgment was held well founded on appreciation of evidence duly supported by record. In the case of Sandeep Shirodkar v. Shankar Dhawaskar and Anr., 2011 (4) AIR Bom R 303 (Goa Bench), the appeal was also an appeal against acquittal from a Judgment which was neither perverse nor holding an impossible view on the basis of record. The High Court would not normally disturb the Judgment and Order of acquittal passed by the Court below as the presumption of innocence is further strengthened by an order of acquittal. In the present case, the accused entered in defence after he put up his defence in the statement u/s 313 of the Criminal Procedure Code. The explanation of the accused was held reasonable. The accused had also entered in the witness box and led evidence of witnesses in defence and in the facts and circumstances of the case, succeeded to create doubt as to genuineness of the prosecution case by raising probable defence. I do not find any perversity and unreasonableness in the impugned Judgment and Order. The view of the trial Court appears reasonable and probable under the circumstances. No interference is warranted in an appeal against acquittal. The instant Criminal Appeal is, therefore, dismissed.