2020 (9) TMI 105 - HC - Indian Laws

Leave sought under Sub-Section (4) of Section 378 of the Code of Criminal Procedure 1973 - respondent acquitted of the charge under Section 138 of the Negotiable Instruments Act - HELD THAT - It does not stand to the reason that somebody would repay the amount of issuance of cheque after such a serious matrimonial dispute with the daughter of the complainant. Furthermore as recorded by the trial Court the Bank Official examined on behalf of the accused deposed to that the impugned cheque is non CTS Cheque and that cheque book issued reflects two names i.e. Manish Kanubhai Vora and Dhara Manish Vora. Dhara Manish Vora appears to be ex-wife of the present accused and the disputed cheque leaf from the cheque book appears to have been issued in the year 2012. Therefore by leading evidence through the cross examination of the complainant as also producing his own witnesses the accused has been successful to rebut the presumption. By leading evidence the accused is successful in showing that the consideration and debt did not exist or under the peculiar circumstance 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. Since the accused is successful in rebutting the presumption then it is for the complainant to prove that existence of the debt and he is capable of lending money to the tune of 3, 05, 000/- as claimed by him. Considering the evidence brought on record the complainant is working as Security Guard and earning 6, 000/- per month. While cross examining the complainant the complainant has tried to explain that he had borrowed the money from his brother and other relatives and then it was lent to the accused. However it is nothing but an afterthought which is not reflected either in the complaint or in the notice or even in the examination in-chief of the complainant. Thus it is clear that the judgment of acquittal recorded by the learned trial Judge after considering the evidence minutely requires no interference under any circumstance. The application seeking special leave to appeal stands rejected.

Summary

Issues:
Challenge to order of acquittal under Section 138 of the Negotiable Instruments Act.

Analysis:
The applicant filed an application seeking leave to challenge the order of acquittal passed by the trial court. The case involved a financial transaction between the complainant and the accused, who were related as father-in-law and son-in-law. The accused had borrowed money from the complainant and issued a cheque which later bounced. The complainant alleged that the accused failed to honor the cheque despite legal notices. Both parties presented evidence and witnesses during the trial. The trial court acquitted the accused, leading to the current application for special leave to appeal.

The applicant argued that the trial court erred in not raising the presumption under Sections 139 and 118 of the Negotiable Instruments Act. The applicant contended that the accused failed to rebut the presumption of consideration and debt, as required by law. Citing relevant case law, the applicant emphasized that the burden of proof was on the accused to show the non-existence of consideration and debt, which was not adequately demonstrated in this case.

Furthermore, the applicant relied on another legal decision to support the argument that the accused's failure to dispute his signature on the cheque should lead to the presumption of consideration and legally enforceable debt. The applicant highlighted that the accused's defense was not credible, especially considering the circumstances surrounding the financial transaction and subsequent legal actions between the parties.

After hearing the arguments, the court examined the evidence presented during the trial. The court noted discrepancies in the complainant's statements regarding the date of the financial transaction and the issuance of the cheque. Additionally, the court observed that the accused successfully rebutted the presumption of consideration and debt through evidence, including cross-examination of witnesses. The court found that the complainant's explanation for the source of the loan was an afterthought and lacked consistency in the complaint and evidence presented.

Ultimately, the court rejected the application for special leave to appeal, upholding the trial court's judgment of acquittal. The court concluded that the evidence on record did not warrant interference with the trial court's decision. Consequently, the record and proceedings were to be returned to the trial court promptly.