Bombay High Court
Hitendra Vinayakrao Uapdhayay vs Shankar Rajram Gaud on 8 January, 2025
2025:BHC-AUG:1442
{1} Cri. Appeal 882-2023
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 882 OF 2023
1. Hitendra s/o. Vinayakrao Upadhyay ... APPELLANT
(Original Complainant)
VERSUS
1. Shankar s/o. Rajaram Gaud ... RESPONDENT
(Original Accused)
...
Mr. V.D. Hon, Senior Advocate i/b. Mr. Mayur Subhedar -
Advocate for Appellant
....
CORAM : SANJAY A. DESHMUKH, J.
DATE : 8th JANUARY, 2025
JUDGMENT :
1. Heard learned advocate for appellant.
2. This appeal is preferred by the complainant against the
judgment delivered by the learned Judicial Magistrate First Class,
Parbhani, Tq. and Dist. Parbhani (hereinafter referred to as “the
learned Trial Court”) in Summons Criminal Case No. 930 of 2017
dated 03.03.2022. It was a complaint against the
accused/respondent under the Negotiable Instruments Act, 1881
(hereinafter referred to as “the N.I. Act” for short). It was
dismissed.
Pooja Kale
{2} Cri. Appeal 882-2023
3. The complainant/appellant contended that, he was a partner
in a firm named and styled as a Country Liquor Shop No. CL-III-13
situated at Zari, Tq. and Dist. Parbhani, having license in the
name of Vinayakrao Narmadashankar Upadhyay, who is his father
and partner of firm. The complainant used to supervise the said
shop as a partner. The accused and his sons were appointed as a
Manager to look after the day to day affairs of the shop and
conduct of that business. The complainant was not interested in
that business. The accused made request to him to transfer the
license of said Country Liquor Shop in his name. The complainant
agreed to transfer license of CL-III-13 of the said shop and its good
will in favour of accused. As there was goodwill of shop, it was
agreed to sell it for consideration of Rs.25,00,000/- (rupees Twenty
Five Lacs only). Subsequently the consent of complainant and his
father for transferring license was obtained and on the basis of
that a liquor shop license was transferred in the name of
respondent/accused. For that the application was forwarded by
the complainant to the Collector, Parbhani. The accused had
agreed to pay that amount of Rs.25,00,000/- through the cheques.
The agreement was executed before the Notary. The accused
issued five cheques bearing Nos.4011, 4012, 4013, 4014 and 4015
Pooja Kale
{3} Cri. Appeal 882-2023
of amount of Rs.5,00,000/- each dated 05.04.2017, 10.04.2017,
15.04.2017, 20.04.2017 and 25.04.2017 respectively in favour of
the complainant.
4. The cheques were deposited in the bank account of
complainant but those were dishonoured. A statutory notice was
sent to the accused dated 27.04.2017 through advocate of
complainant. It was served on the accused. On 08.05.2017 the
accused replied to the said notice and denied to pay that amount
of Rs.25,00,000/- of cheques. Therefore, the complaint was filed.
5. The process was issued against the accused. The oral and
documentary evidences were adduced by the complainant. The
accused did not adduce any oral evidence. He submitted
documents of civil suit, etc. at Exhibit-76. The learned Judicial
Magistrate First Class dismissed the complaint and acquitted the
accused on the ground that, there was no legal liability of accused
to pay that amount to the complainant.
6. The grounds of objections of this appeal are that, the learned
Trial Court did not consider the presumption under Section 138 of
the N.I. Act. The evidence was not properly appreciated. The
reasons and findings were neither legal nor correct. It is lastly
Pooja Kale
{4} Cri. Appeal 882-2023
prayed that the appeal be allowed, the impugned judgment be set
aside, the complaint be allowed and accused be sentenced.
7. The learned advocate for complainant/appellant argued that,
the learned Trial Court failed to consider admitted fact that
agreement to sale of said shop in its proper perspective. He pointed
out that, the reasoning given by the learned Trial Court are not
legal and correct. He is relying upon the precedental law of Sri
Sujies Benefit Funds Limited Vs. M. Jaganathuan in Criminal
Appeal No.3369 of 2024 [@ Special Leave Petition (CRL.) No. 4022
of 2022] decided by the Hon’ble Supreme Court on 13.08.2024.
Paragraph No.15 of it reads as under :
15. This Court in Dashrath Rupsingh Rathod V. State
of Maharashtra, (2014) 9 SCC 129 held that, “An offence
under Section 138 of the Negotiable Instruments Act,
1881 is committed no sooner a cheque drawn by the
accused on an account being maintained by him in a
bank of discharge of debt/liability is returned unpaid for
insufficiency of funds or for the reason that the amount
exceeds the arrangement made with the bank.” The fact
that the cheque was issued as a consequence of failure
to repay the loan taken by the respondent from the
appellant to which the interest was added would more or
less settle the issue. However, in the present case, a
discrepancy apropos the rate of interest, whether it bePooja Kale
{5} Cri. Appeal 882-20231.8%, 2.4% or 3% per month was not sufficient to
disbelieve the claim of the appellant. Though the
respondent before the learned Trial Court had contended
that there was no loan transaction between the parties,
but still, before the Appellate Court, by way of additional
evidence, he marked receipts to show the re-payment of
loan. Even there, the respondent did not produce all the
receipts showing total discharge of the loan amount, as
was noted by the Appellate Court, and only the difference
in the rates of interest as well as the finding that
substantial amount has been repaid led to the acquittal
of the respondent.
8. Following points emerged for consideration :-
(i) Was it proved by the complainant that those five
cheques of an amount of Rs.25,00,000/- were issued
for legally enforceable liability of the accused?
(ii) Is the impugned judgment illegal and require
interference?
9. It is case of the accused that, he gave those cheques to his
brother when the construction of the liquor shop was completed.
Those cheques were given for security. The complainant denied
that those cheques were accepted by him as security.
10. The agreement for the sale of good will of that shop is at
Exhibit – 28. The disputed cheques are at Exhibit 29 to 33. The
Pooja Kale
{6} Cri. Appeal 882-2023
cheques written memos are at Exhibit 34 to 38. The statutory
notice issued to the accused is at Exhibit – 39. The reply to the
notice is at Exhibit – 41. The copy of the form CL -III is at Exhibit
42 to 44. The accused had not adduced the evidence. The
agreement to transfer shop between the complainant and accused
is at Exhibit-28. The admitted fact is that, the disputed cheques
were issued by the accused. Now the question before this Court is
whether those cheques were issued as per the agreement executed
by him for transferring the said license in his name or it were given
as security.
11. The evidence of complainant (C.W.-1) at Exhibit-22 is mostly
in accordance with the complaint. During his cross-examination,
he had admitted that, the country liquor partnership firm is
registered but has not yet been dissolved. However, he could not
recall its registration. He admitted that, all the partners made an
applications before the Collector, Parbhani for transferring the
license. In his further cross-examination, he had admitted that, he
had not made any complaint to the Collector or Excise Department
against the accused regarding the transfer of license. He also
admitted that, the original agreement is in the custody of the
accused. It was also lastly suggested that the bank cheques were
Pooja Kale
{7} Cri. Appeal 882-2023
misused to harass the accused.
12. The defence of the accused is that, an agreement at Exhibit –
28 was executed between the brother of complainant and him. The
land was purchased by the wife of accused and in that transaction
the brother of complainant obtained the blank cheques from the
accused, which were subsequently misused by the complainant.
13. The learned Trial Court held in para No.44 of impugned
judgment that an agreement at Exhibit-28 was executed and in
view of that post dated cheques were issued in favour of the
complainant. In para No. 49 of the impugned judgment, the
learned Trial Court held that, written agreement is a basic
document and original of it was not produced on record. In para
No.54 of the reasons of the judgment of the learned Trial Court,
the learned Trial Court erred in holding that, the fact of amount of
Rs.25,00,000/- was not stated by the complainant before the
Collector when his statement was recorded for transferring the
licnese in the name of accused. Particularly when the fact of
issuance of chequs of Rs.25,00,000/- is proved.
14. It is admitted fact that an agreement (Exhibit-28) was
executed. In para No. 58 of the impugned judgment, the learned
Pooja Kale
{8} Cri. Appeal 882-2023
Trial Court erred in holding that Navalkishor was not present at
the time of finalising that amount. However, the learned Trial
Court erred in not believing the evidences of complainant and
Navalkishor (C.W. 3), which are not disproved by the accused.
15. In view of the admitted fact of issuance of five cheques and
proved evidence of complainant the burden of proof of issuance of
cheque has been discharged by the complainant and therefore
presumption under Section 139 of the N.I. Act is applicable to this
case to dispense with the partial proof of issuance of the cheque
for legal liability. Therefore, the onus to disprove that accused had
not issued those cheques for his legal liability lies on him to prove
his defence that, the cheques were given for security purposes to
the complainant. But for that the accused did not enter into the
witness box. Therefore adverse inference can be certainly drawn
against him under Illustration (g) of Section 114 of the Indian
Evidence Act, 1872 that if he would have entered into the witness
box and adduced his evidence that must go against him. The
accused did not enter into witness box to prove his defence by
facing the cross-examination and disprove the evidence of
complainant and rebut presumption against him as per Section
139 of the N.I. Act. It is not even disproved by any of the
Pooja Kale
{9} Cri. Appeal 882-2023
documentary evidence filed with list (Exhibit-76) filed while
recording his statement under Section 313 of the Code of Criminal
Procedure, 1973.
16. From this conduct of complainant and accused with the
entire evidence discussed above, it is undoubtedly proved that, the
accused intentionally issued the chques in favour of the
complainant for legally enforceable liability as per an agreement at
Exhibit – 28, which are undoubtedly proved facts. The learned
Trial Court erred in considering all these aspects in its proper
perspective and on the basis of admissions of the complainant and
Navalkishor (C.W. 3) it came to the wrong conclusion that, the
accused is not liable to pay that amount of Rs.25,00,000/- of
cheques and it is not his legal liability to pay that amount to
complainant.
17. The admitted fact is that the said transaction was acted upon
and its benefits were received by the accused. The good will of the
partnership of plaintiff is also property. The respondent/accused
cannot approbate and reprobate about that transaction by denying
his liability after taking benefit from the agreement at Exhibit – 28.
It is against the principle of qui approbat non reprobat which is
Pooja Kale
{10} Cri. Appeal 882-2023
held by Hon’ble Supreme Court in the following precedental laws :
(a) Shyam Telelink Limited Vs. Union of India reported in (2010)
10 Supreme Court Cases 165. Paragraph No.23 it held as follows :
23. The maxim qui approbat non reprobat (one who
approbates cannot reprobate) is firmly embodied in English
common law and often applied by courts in this country. It is
akin to the doctrine of benefits and burdens which at its most
basic level provides that a person taking advantage under an
instrument which both grants a benefit and imposes a burden
cannot take the former without complying with the latter. A
person cannot approbate and reprobate or accept and reject
the same instrument.
(b) Harshad Kumar Natwarlal Dalal and Ors. Vs. State of Bihar
in Writ Petition No.47 of 1975. In paragraph No.48 it is held as
follows :
48. It is a fundamental principle of general application that
if a person of his won accord, accepts a contract on certain
terms and works out the contract, he cannot be allowed to
adhere to and abide by some of the terms of the contract
which proved advantageous to him and repuddiate the other
terms of the same contract which might be disadvantageous to
him. The maixm is qui approbat non reprobat (one who
approbates cannot reprobate). This principle, though originally
borrowed from Scots Law, is now firmly embodied in English
Common Law. According to it, a party to an instrument or
transaction cannot take advantage of one part of a document
or transaction and reject the rest. That is to say, no party can
accept and reject the same instrument or transaction.
Pooja Kale
{11} Cri. Appeal 882-2023
18. From the matter before this court and the fact that
substantial benefit is taken by the accused. He cannot approbate
and reprobate to take advantage only as held in above case laws.
19. On re-appreciation of entire evidence, impugned judgment
and the grounds of the objections raised in the appeal, this Court
is of the view that all the cheques of amount of Rs.25,00,000/-
were issued by the accused for his legal liability to pay it to the
complainant and therefore, the accused is liable to pay it. He had
not paid it even though the statutory notice under Section 138 of
N.I. Act was served to him. His explanation under Section 313 of
the Code of Criminal Procedure, 1973 is not acceptable. He failed
to prove his defence that those five cheques were issued for
security purposes. Thus, from the entire evidence of complainant,
presumption of innocence of accused is rebutted. It is both civil as
well as criminal liability of the accused to pay that amount.
Therefore, the criminal liability of the accused is held to be proved
by cogent and acceptable evidence beyond all reasonable doubts.
The impugned judgment therefore deserves to be set aside. The
appeal and complaint deserves to be allowed. The accused
deserves to be convicted.
Pooja Kale
{12} Cri. Appeal 882-2023
20. As far as quantum of sentence is concerned, the accused is
not present before the Court. In view of the reasons stated above
and considering the matter before this Court, it would be proper to
award three (3) months simple imprisonment to the accused
alongwith double of the cheque amount as a fine amount and in
default of payment of fine, the accused shall undergo four (4)
months rigorous imprisonment, which will meet the ends of
justice. The point Nos.1 and 2 are answered in affirmative. Hence
following order :
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment is set aside and the
complaint is allowed as follows :-
(a) The accused is held liable under Section 138 of
the Negotiable Instruments Act, 1881 and he is
sentenced to suffer three (3) months simple
imprisonment with fine amount of Rs.50,00,000/-
(rupees Fifty Lacs only) and in default of fine
amount, the accused shall undergo rigorous
imprisonment for four (4) months.
(b) The accused is absent therefore the copy of
this judgment be sent to the learned Judicial
Magistrate First Class, Parbhani, Tq. and Dist.
Parbhani for execution of this judgment and
Pooja Kale
{13} Cri. Appeal 882-2023
sentence awarded to him.
(c) The registry is directed to sent copy of this
judgment to the learned Judicial Magistrate First
Class, Parbhani, Dist. Parbhani with the special
letter to ensure compliance with the above
directions and to place the compliance report before
this Court accordingly.
(d) Record and proceeding be sent back.
[ SANJAY A. DESHMUKH ]
JUDGE
Pooja Kale
[ad_1]
Source link