LexROHITBHAI JIVANLAL PATEL versus STATE OF GUJARAT & ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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ROHITBHAI JIVANLAL PATEL
v.
STATE OF GUJARAT & ANR.
(Criminal Appeal No.508 of 2019)
MARCH 15, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Negotiable Instruments Act, 1881 – ss. 118, 138 and 139 –
Presumption u/ss. 118 and 139 – 7 cheques of Rs. 3 Lakhs each,
drawn by the accused-appellant in favour of the complainant-
respondent no.2 – Dishonoured – Trial Court dismissed the 7
complaints cases filed by respondent no. 2 – High Court set aside
the said orders and convicted the appellant for the offence u/s.138
– On appeal, held: Appellant could not deny his signature on the
cheques in question – Said cheques were presented to the Bank
concerned within the period of their validity and were returned
unpaid for insufficient funds or for account being closed – All the
basic ingredients of s.138 as also of ss.118 and 139 were apparent
on the face of the record – Trial Court took note of these facts and
had drawn the requisite presumption – Therefore, it was required to
be presumed that the cheques in question were drawn for
consideration and the holder of the cheques i.e., the respondent
no.2 received the same in discharge of an existing debt – Onus,
therefore, shifted on the appellant to rebut such presumption –
However, even after purportedly drawing the presumption u/s.139,
the Trial Court proceeded to question the want of evidence on the
part of the respondent no.2 as regards the source of funds for
advancing loan to the appellant and want of examination of relevant
witnesses who allegedly extended him money for advancing it to
the appellant – This approach of the Trial Court was at variance
with the principles of presumption in law – Appellant not able to
discharge his burden of bringing on record such material which
could tilt the preponderance of probabilities in his favour – Decision
of the Trial Court suffered from perversity and fundamental error
of approach – High Court justified in reversing the judgment of the
Trial Court – Punishment as regards monetary terms not interfered
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[2019] 5 S.C.R. 417
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SUPREME COURT REPORTS
[2019] 5 S.C.R.
but, sentence of imprisonment modified – In each of the 7 cases, the
appellant to pay fine, double the amount of each cheque (i.e. Rs. 6
lakhs) – In case of default in payment of fine, the appellant to
undergo simple imprisonment for one year – On recovery of the
amount of fine, the respondent no. 2 be compensated to the tune of
Rs. 5.5 lakhs in each case – In the event of imprisonment for default
in payment of fine, the sentences in all the 7 cases to run concurrently.
Partly allowing the appeal, the Court
HELD: 1.1 Ordinarily, the Appellate Court will not be
upsetting the judgment of acquittal, if the view taken by Trial
Court is one of the possible views of matter and unless the
Appellate Court arrives at a clear finding that the judgment of
the Trial Court is perverse, i.e., not supported by evidence on
record or contrary to what is regarded as normal or reasonable;
or is wholly unsustainable in law. Such general restrictions are
essentially to remind the Appellate Court that an accused is
presumed to be innocent unless proved guilty beyond reasonable
doubt and a judgment of acquittal further strengthens such
presumption in favour of the accused. However, such restrictions
need to be visualised in the context of the particular matter before
the Appellate Court and the nature of inquiry therein. The same
rule with same rigour cannot be applied in a matter relating to
the offence under Section 138 of the Negotiable Instruments Act,
1881, particularly where a presumption is drawn that the holder
has received the cheque for the discharge, wholly or in part, of
any debt or liability. Of course, the accused is entitled to bring on
record the relevant material to rebut such presumption and to
show that preponderance of probabilities are in favour of his
defence but while examining if the accused has brought about a
probable defence so as to rebut the presumption, the Appellate
Court is certainly entitled to examine the evidence on record in
order to find if preponderance indeed leans in favour of the
accused. [Para 11.1] [432-B-F]
1.2 The appellant could not deny his signature on the
cheques in question that had been drawn in favour of the
complainant on a bank account maintained by the accused for a
sum of Rs. 3 lakhs each. The said cheques were presented to the
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Bank concerned within the period Excerpt shown. Read the full judgment & AI analysis in Lexace.