CR.A/53519/1998 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 535 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ==================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ==================================================== AKSHAY CHANDUBHAI KACHHIA - Appellant(s) Versus RUTUGNABHAI ARVINDBHAI TRIVEDI & 1 - Opponent(s) ==================================================== Appearance : MR YOGESH S LAKHANI for Appellant(s) : 1, MR JAYESH A DAVE for Opponent(s) : 1, MR LB DABHI, APP for Opponent(s) : 2, ==================================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 08/08/2008 ORAL JUDGMENT 1. Being aggrieved and dissatisfied with the impugned CR.A/53519/1998 2/13 JUDGMENT judgment and order delivered by learned Metropolitan Magistrate, Court No.16, Ahmedabad ('ld Magistrate', for short) on dated 30.12.1997 in Criminal Case No.1306/1995, the original complainant Shri Akshaybhai Chandubhai Kachhia preferred this appeal. By virtue of the impugned judgment, the ld.Magistrate was pleased to acquit the respondent no.1 herein, who was original accused in the aforesaid Criminal Case, for the offence punishable under section 138 of the Negotiable Instruments Act. 2. It is the case of the complainant that the complainant and the accused had business transactions regarding purchase of shares. The complainant was doing business in the name of Akshay Consultancy for selling and purchasing shares. That the accused used to purchase shares from the complainant. That even the father of the accused named- Arvindbhai and the father of the complainant named- Chandulal were serving together and were in good terms. That the accused purchased shares from the complainant worth Rs.54,900/-. That whenever the accused used to purchase shares from the complainant, the accused used to make payment by cheques. That for the purchase of shares worth Rs.54,900/-, the accused had issued a cheque dated 20.09.1994 of Rs.34,750/-. That when the complainant tendered the cheque in his bank on dated 10.3.1995, the same was dishonored with the endorsement of the bank - “funds insufficient”. That thereafter, on dated 16.3.1995, the complainant through his advocate issued notice to the accused. In turn, the accused replied the said notice on CR.A/53519/1998 3/13 JUDGMENT dated 30.03.1995 and again the complainant on dated 5.4.1995 replied to the reply of the notice given by the accused to the original notice of the complainant. Then, the complainant filed private complaint against the accused for the offence punishable under section 138 of the Negotiable Instruments Act ('Act', for short). The ld.Magistrate was pleased to issue summons against the accused for the offence alleged in the complaint. The accused appeared and did not plead guilty, and in the result the ld.Magistrate recorded the evidence adduced by the complainant. The deposition of complainant Akshaybhai was recorded at Exh.3. The complainant examined witness Hardikbhai Shah at Exh.11 and witness Kushroo Nariman at Exh.12. No more witnesses were examined by the complainant. Required documentary evidence was produced in the case. After the complainant side concluded its evidence, the ld.Magistrate recorded the further statement of the accused under section 313 of the Code of Criminal Procedure ('Code', for short). The accused generally denied all the allegations leveled against him by the complainant. However, in the further statement the accused stated that 1000 shares at the rate of Rs.34.75 ps. were purchased, and accordingly a cheque was issued. However, the complainant telephoned to the father of the accused and stated about the commission to the tune of Rs.1,500/-, and, therefore, the said amount came to be deducted and the second cheque was issued on dated 20.09.1994, and said second cheque was tendered by the complainant in his bank and had received the amount. CR.A/53519/1998 4/13 JUDGMENT That the first cheque was not returned back to the accused by the complainant and the false complaint was filed. The ld.Magistrate appreciated the evidence on record, and after considering the arguments advanced on behalf of both the parties, the ld.Magistrate delivered the impugned judgment on dated 30.12.1997 and was pleased to acquit the accused for the offence punishable under section 138 of the Act. 3. On behalf of the appellant – original complainant, ld.Sr.Advocate Shri Y.S.Lakhani submitted that the ld.Magistrate erred in delivering the impugned judgment and thereby acquitting the accused. That the impugned judgment delivered by the ld.Magistrate is contrary to law and evidence on record. That through the oral and documentary evidence produced by the prosecution, it is proved beyond reasonable doubt that the accused had delivered a cheque of Rs.34,750/- on dated 20.09.1994 and the complainant had tendered the said cheque in his bank on dated 10.03.1995 and the same was returned with the endorsement of insufficient fund by the concerned bank, and accordingly, the cheque was dishonored. That therefore, the complainant successfully proved all the required ingredients of Section 138 of the Act. That the accused came forward with false defence and concocting story of issuance of second cheque of Rs.33,250/- after deducting Rs.1,500/- by way of commission. That in fact, the complainant successfully proved its case with respect to the cheque of Rs.34,750/-. The so called second cheque of CR.A/53519/1998 5/13 JUDGMENT Rs.33,250/- has nothing to do with the present share transaction. That despite this, the ld.Magistrate erred in not accepting the evidence adduced by the prosecution, and on the contrary, accepted the defence raised by the accused. That if at all, it was an understanding between the parties that the first cheque was required to be returned by the complainant to the accused, then the accused would not have sat silent and would have immediately issued notice to the complainant requesting him to return the cheque. That nothing whatsoever was done. Therefore, it was submitted that the appeal be allowed and the impugned judgment delivered by the ld.Magistrate be set- aside and respondent no.1 – original accused be convicted for the offence punishable under section 138 of the Act and be sentenced appropriately in accordance with law. 4. On behalf of respondent no.1 – original accused, ld.Advocate Shri J.A.Dave, supporting the impugned judgment delivered by the ld.Magistrate submitted that no illegality or any irregularity is committed by the ld.Magistrate in acquitting the accused. That as a matter of fact, considering the deposition of the complainant as a whole, it becomes crystal clear that the defence of the accused is rather established. It is submitted that when the first cheque of Rs.34,750/- was given by the accused to the complainant, at that time, it has come in evidence that there was sufficient fund available in the account of the accused. However, as mutually agreed, Rs.1,500/- was required to be deducted towards the commission, and, CR.A/53519/1998 6/13 JUDGMENT therefore, on the same day i.e. on 20.9.1994, the second cheque of Rs.33,250/- was issued by the accused to the complainant. That even the second cheque of Rs.33,250/- was for the same transaction i.e. purchase of 1000 shares at the rate of Rs.34.75 ps. per share. That the second cheque was tendered by the complainant in his bank and was duly honoured and the complainant had received the said amount. That the first cheque of Rs.34,750/- was required to be returned back, but, the same was not returned and subsequently, the complainant misused the said cheque and filed false complaint. That the disputed cheque of Rs.34,750/- was issued in connection of the transaction of purchase of 1000 shares at the rate of Rs.34.75 ps., and as stated above, after deducting Rs.1,500/- by way of commission, in connection with the same transaction, the second cheque of Rs.33,250/- was given. The complainant had received the amount. The complainant is silent on the material point that if for the transaction of 1000 shares, after deducting Rs.1,500/- by way of commission, the payment of Rs.33,250/- was made by the accused to the complainant, and the complainant had received the amount, then the first cheque of Rs.34,750/- was issued by the accused to the complainant for which transaction is a material question, which was required to be replied by the complainant to prove its case, but, the complainant is totally silent about it. That admittedly though there was series of transaction between the parties, disputed cheque of Rs.34,750/- and the second cheque of Rs.33,250/- were in connection with only and only one transaction of the purchase of 1000 CR.A/53519/1998 7/13 JUDGMENT shares. That the complainant had received the amount, and, therefore, through the evidence of the complainant, the accused was successful in establishing the defence and the ld.Magistrate rightly acquitted the accused. It is submitted that this is an appeal under section 378 of the Code. Though the Appellate Court can appreciate and re- appreciate the evidence on record, but, the Appellate Court if finds that the judgment of acquittal rendered by the Trial Court is perverse or illegal or contrary to the evidence on record, then, only the Appellate Court can interfere with the judgment of the Trial Court. Even if two view are possible, the view leading to the innocence of the accused should be accepted. Therefore, it is submitted that the appeal be dismissed. 5. Heard ld.APP Mr.Dabhi. 6. Before the evidence adduced by the complainant in this case is appreciated or re-appreciated, it would be necessary to consider the principles established by Honourable Apex Court in the case of Chandrappa and others Vs.State of Karnataka reported in (2007)4 SCC 415 regarding the acquittal appeal under section 378 of the Code : (1)An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2)The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence CR.A/53519/1998 8/13 JUDGMENT before it may reach its own conclusion, both on questions of fact and of law. (3)Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4)An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5)If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not be disturbed by the appellate court.” 7. Keeping in mind the principles established in the above case, if the impugned judgment delivered by the ld.Magistrate is considered, it clearly appears that the ld.Magistrate took into consideration the oral and documentary evidence adduced on record. There is no dispute that shares worth Rs.34,750/- were purchased by the accused from the complainant. It is also undisputed that the accused purchased 1000 shares at the rate of Rs.34.75 ps. per share. Accordingly, the total comes to Rs.34,750/-. There CR.A/53519/1998 9/13 JUDGMENT is also no dispute that prior to this transaction, in past, other many transactions took place between the parties. There is also no dispute that even after this transaction, so many other transactions took place between the parties. It is pertinent to note that barring this transaction, neither prior to this transaction nor afterwards this transaction, any dispute took place between the parties, much less regarding dishonour of any cheque. The deposition of complainant Akhsaybhai was recorded at Exh.3. One important aspect which is emerging from his deposition is that in his entire examination- in- chief, neither he stated the date of the cheque of Rs.34,750/- nor the date on which the same was handed over to him by the accused. He only stated that the cheque in question was tendered by him in Syndicate Bank and the same was returned dishonored on dated 11.03.1995. Thereafter, in the examination-in-chief, he referred the notice transaction between the parties. In his examination-in-chief he stated that he maintained books of account and he used to incorporate in his books of account, any transaction which took place between himself and the accused. In his cross-examination he stated that the cheque in question was actually handed over to him by the accused on dated 07.03.1995. He admitted that in his notice to the accused he did not mention that the cheque was actually handed over to him on dated 07.03.1995. It is pertinent to note that even in his complaint, it is nowhere mentioned that the cheque in question was actually handed over to him by the accused on dated 07.03.1995. The date of the cheque is dated 20.09.1994. CR.A/53519/1998 10/13 JUDGMENT However, he admitted that on 20.09.1994, he had received cheque no.125591 from the accused and he had received the amount of said cheque. As stated above, he admitted that even after dated 20.09.1994, so many transactions took place between both of them and accused had issued cheques to him and he had realised the amount of those cheques. Considering his cross-examination, it further transpires that some of the cheques issued to him were of the account of the father of the accused, and the father of the accused issued those cheques to him. In his cross- examination, he clearly admitted that he had to give credit of Rs.1,500/- towards the bill of the accused. He further admitted that deducting Rs.1,500/- from Rs.34,750/-, on 20.09.1994 cheque of Rs.33,250/- bearing no.125591 was handed over to him. 8. The second witness examined by the complainant is Mr.Hardik Shah who was serving as Clerk in the Syndicate Bank. He deposed that account of the complainant was in his bank. Cheque, Exh.4 (the disputed cheque) was tendered by the complainant in his bank, but, the same was dishonored. Therefore, the cheque was returned with debit memo of the bank. In his cross-examination, he categorically admitted that cheque no.125591 of Rs.33,250/- in the name of Akshay Consultancy was received and the said cheque was duly honored and the amount of the cheque was reaslised. 9. Third witness examined by the complainant is Mr.Kushroo Nariman, who was serving in the Central Bank of India CR.A/53519/1998 11/13 JUDGMENT wherein there was account of the accused. During his cross- examination, he was shown a certificate issued by his bank, produced at Exh.14, and he stated that in the account no.2835 on dated 20.09.1994, the balance was of Rs.94,869.77 ps. He also admitted in his cross-examination that the cheque of Rs.33,250/- dated 20.09.1994 was duly honored and the amount of said cheque was realised. 10.In the impugned judgment, the ld.Magistrate elaborately discussed the oral and documentary evidence adduced by the complainant before him. Considering the impugned judgment as well as the entire evidence on record, there is no dispute that the disputed transaction was about the purchase of 1000 shares by the accused from the complainant at the rate of Rs.34.75 ps. per share. The total comes to Rs.34,750/-. The said amount was tendered by the accused to the complainant by the disputed cheque. Subsequently, as admitted by the complainant in his deposition, the concession of Rs.1,500/- was to be given in the bill of the accused by the complainant, and deducting the said amount, the accused issued a cheque of Rs.33,250/- to the complainant, and admittedly the complainant received the amount of said cheque i.e. he received Rs.33,250/-. In the impugned judgment, the ld.Magistrate rightly observed that when there was only one transaction of 1000 shares, and as against said transaction, if two cheques of different amount were delivered by the accused to the complainant, then considering the overall evidence on record, it can safely be said that the second CR.A/53519/1998 12/13 JUDGMENT cheque of Rs.33,250/- was delivered towards satisfaction of the share transaction. The complainant did not explain the position about the second cheque i.e. the cheque of Rs.33,250/-. In other words, it is not the specific case of the complainant that the second cheque of Rs.33,250/- was delivered by the accused to him in connection with some other transaction and not the disputed transaction. It is pertinent to note that the disputed cheque of Rs.34,750/- was delivered by the accused to the complainant on dated 20.09.1994. He tendered said cheque in his bank on dated 10.03.1995. No reasonable explanation is forthcoming from the side of the complainant, as to why he did not either immediately tender said cheque to his bank or why the same was not tendered within a reasonable period. To overcome this difficulty, it transpires that the complainant came forward with an explanation that the cheque dated 20.09.1994 was actually delivered by accused to him on dated 07.03.1995. In the impugned judgment, the ld.Magistrate rightly observed that neither in the notice nor in the complaint the complainant ever stated that the disputed cheque was actually handed over to him by the accused on dated 07.03.1995. For the first time, during the course of his deposition he stated that the cheque was actually handed over to him on dated 07.03.1995. When such is the situation, in the impugned judgment, the ld.Magistrate rightly observed that the complainant nowhere explained the situation about the payment received by him from the accused by a cheque of Rs.33,250/- and as to what was the consideration of said CR.A/53519/1998 13/13 JUDGMENT cheque. That he nowhere even alleged about any separate transaction other than the disputed transaction for which the cheque of Rs.33,250/- was delivered to him by the accused. Under such circumstances, the ld.Advocate Mr.Dave for respondent no.1 – original accused rightly submitted that the accused has duly rebutted the statutory presumption. 11.In light of the entire above discussions, and considering the scope and ambit of acquittal appeal, as contemplated under section 378 of the Code and as laid down by Honourable Apex Court in the case of Chandrappa and others Vs.State of Karnataka reported in (2007)4 SCC 415 (supra), I am of the opinion that there is no reason whatsoever to interfere with the impugned judgment delivered by the ld.Magistate. In the result, the appeal deserves to be dismissed. 12.The appeal is hereby dismissed. (J.C.UPADHYAYA, J.) (binoy)