Arun Dashmale Vs Rambharos Sahu

Rambharos Sahu, S/o Shivram Sahu, aged about 46 Years, R/o Khamtarai Road, Bhakt Karma Nagar, Bilaspur, PS Sarkanda, Civil and Revenue Distt. Bilaspur, C.G.

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... Respondent For Appellant : Mr. Arvind Kumar Shukla, Advocate. For Respondent : Mr. Suresh Kumar Pandey, Advocate.

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(Hon'ble Shri Justice Radhakishan Agrawal)

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CAV Judgment

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This appeal has been preferred by the Complainant under Section 378(4) of the Code of Criminal Procedure, 1973, against the judgment dated 15.03.2013 passed by the Third Additional Judge to the Court of First Additional Sessions Judge, Bilaspur, C.G. in Criminal Appeal No.22/2013, whereby the respondent/accused was acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act, 1881’).

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Brief facts of the case are that the complainant and the respondent had allegedly entered into an agreement for the purchase of a building developed by the accused/respondent at Kanchan Vihar, Sarkanda, Bilaspur. In pursuance of the said agreement, the respondent is stated to have issued a cheque dated 20.08.2009 for Rs.3,00,000/-, which, upon presentation, was dishonoured with the remark “insufficient funds”. After service of statutory notice and the respondent’s failure to make payment, the complainant filed a complaint under Section 138 of the Act, 1881.

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After trial, the learned Judicial Magistrate First Class, upon appreciating the entire evidence and material brought on record, convicted the accused/respondent under the aforesaid offence and sentenced him to undergo simple imprisonment for one year and further directed him to pay Rs.3,00,000/- as compensation to the complainant under Section 357(3) of the Cr.P.C., with a default sentence of two months’ simple imprisonment in case of non-payment. Aggrieved by the said judgment, the respondent preferred an appeal, which was allowed by the Appellate Court, resulting in his acquittal. Hence, the present appeal by the complainant.

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Learned counsel for the appellant/complainant submits that the learned Appellate Court is unjustified in acquitting the accused/respondent by recording perverse findings. He further submits that from the statement of the complainant, it is evident that the accused/respondent had issued the cheque in question in discharge of his legal liability and the alleged cheque bears his signature. He also submits that a legal notice was duly served upon the accused/respondent and that the statements of the defence witnesses are neither reliable nor credible, being

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afterthoughts and despite such clear and cogent evidence, the learned Appellate Court committed a grave error in acquitting the accused/respondent without properly appreciating the evidence on record in its correct perspective. Therefore, the impugned judgment of acquittal suffers from perversity and illegality and is liable to be set aside.

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Learned counsel for the accused/respondent, on the other hand, supports the judgment passed by the learned Appellate Court and submits that the complainant has utterly failed to establish the existence of any legal debt or liability. No agreement whatsoever was executed between the parties and the complainant has not produced a single reliable document to prove the alleged transaction or payment of earnest money. He further submits that the accused/respondent never issued the cheque in question towards discharge of any legal liability, and the complainant has also failed to explain the circumstances under which the alleged cheque came into his possession. In these circumstances, the foundational facts necessary to attract the statutory presumption under Section 139 of the Act, 1881, are absent and, therefore, the presumption is not applicable in the present case; even otherwise, the said presumption stands duly rebutted as the accused has proved that the alleged cheque was never issued by him in discharge of any debt or liability. In the absence of any credible evidence regarding the alleged liability, the learned Appellate Court has rightly acquitted the accused/respondent, which calls for no interference by this Court. Therefore, the appeal filed by the complainant deserves to be dismissed.

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I have heard learned counsel for the parties and perused the record.

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The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440 has considered the scope of interference in Appeal against acquittal, which reads as under:-

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“25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be terms as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

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PW-1 Arun/complainant has stated that he and the respondent had allegedly entered into an agreement for the purchase of a building developed by the accused/respondent at Kanchan Vihar, Sarkanda, Bilaspur. Pursuant to the said agreement, the respondent had issued a cheque for Rs. 3,00,000/-, which, upon presentation, was dishonoured with the remark “insufficient funds.” In cross-examination, he admitted that the land situated at Kanchan Vihar stands in the name of Sadanand Patel and that Sadanand Patel alone has the right to execute the sale deed of the said building. He further admitted that he had allegedly entered into an agreement for the purchase of House No. 01, Kanchan Vihar which was executed on 10.01.2009 in the presence of witnesses Rakesh Dhusia and Lakhan, however, neither of these witnesses was examined before the Court and it also came in evidence, particularly from Ex.D-3, that the said property had already been sold to another person in 2006, which renders the complainant’s version regarding the alleged agreement highly doubtful. He further admitted that he did not send any notice to the accused regarding the cancellation of the alleged

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deal. He also admitted that he has not produced any document showing withdrawal of money from the bank, nor has he shown any entry of Rs.3,00,000/- in his income tax return. He further admitted that on the alleged cheque, the writings marked C to C, D to D, E to E, and F to F are different, indicating variation in handwriting. He also admitted that Niti Dewangan is his friend and stated that he has no knowledge whether Niti Dewangan had taken any loan from Dwajaram Sahu, nor is he aware of any agreement allegedly executed between Niti Dewangan and Dwajaram Sahu. He further stated that he is not aware that the alleged cheque marked as Ex.C-1, bearing only the signature of the accused, was given to Niti Dewangan merely as security.

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The accused/respondent examined himself as DW-2 and in his deposition he has stated that the property which the complainant claims is situated in Kanchan Vihar Colony and that the said property belongs to Sadanand Patel, who had already sold it in the year 2006. He further admitted that, in relation to certain documents concerning the land of Niti Dewangan and Dwajaram Sahu, he had given a blank cheque to Niti Dewangan in July, 2009. Furthermore, DW-1 Bhagwati and DW-3 Dwajaram have also stated that the accused/respondent had given a blank cheque to Niti Dewangan.

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In the matter of Kamla S. vs Vidhyadharan M.J. and another reported in (2007) 5 SCC 264, the Hon’ble Supreme Court has held in paras 15 to 17 which read as under:-

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““15. The Act contains provisions raising presumption as regards the negotiable instruments under Section 118(a) of the Act as also under Section 139 thereof. The said presumptions are rebuttable ones. Whether presumption stood rebutted or not would depend upon the facts and circumstances of each case.

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The nature and extent of such presumption came up for consideration before this Court in M.S. Narayana Menon Alias Mani V. State of Kerala and Anr. [(2006) 6 SCC 39] wherein it was held : (SCC p.50, para 30)

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“30.Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration dos not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon."

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17.This Court clearly laid down the law that standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability, the inference therefor can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon. Categorically stating that the burden of proof on accused is not as high as that of the prosecution, it was held: (SCC p.51, para 33)

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“33.Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another."”

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When the present case is examined in the light of aforesaid decision of Supreme Court coupled with the above evidence and the material available on record, it is evident that the complainant/appellant has failed to prove the basic facts necessary to establish the existence of any legal liability or debt. The complainant has neither produced the alleged agreement for the purchase of the building nor specified the date, time, or place of such agreement. Although he stated that two persons were present during the transaction, but neither of them was examined, which seriously weakens his version. Further, there is no documentary proof, such as a bank statement, withdrawal slip, receipt,

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or any entry in his Income Tax Returns, to show that he actually paid Rs.3,00,000/- to the respondent. For a transaction of such amount, some sort of documentary evidence would normally be expected. Moreover, the registered sale deed (Ex.D-1) produced by the respondent demonstrates that the alleged property had already been sold in 2006 to another person. This directly contradicts the complainant’s version of entering into an agreement with the respondent for the same property, rendering his claim unreliable. The defence taken by the respondent that he had given a blank cheque as security/guarantee to Niti Dewangan and that the cheque might have been misused appears to be probable. The complainant himself admitted that Niti Dewangan is his friend. Additionally, the handwriting on the alleged cheque shows variations, which further supports the defence version.

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Considering all these factors together, it is clear that the complainant/appellant has failed to prove that any legal liability or debt existed. The respondent has successfully raised a probable defence sufficient to rebut the presumption under Sections 118 and 139 of the Act, 1881. The learned Appellate Court has rightly appreciated the evidence available on record and its judgment does not suffer from any illegality or perversity.

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Accordingly, this appeal by the complainant / appellant against the acquittal of the accused / respondent herein is hereby dismissed.

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Sd/- (Radhakishan Agrawal) Judge

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Akhilesh

Arun Dashmale v. Rambharos Sahu

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Arun Dashmale v. Rambharos Sahu

Case brief

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