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2025 DIGILAW 240 (GUJ)

Kanubhai Bhimjibhai Tank v. State of Gujarat

2025-03-07

S.V.PINTO

body2025
ORDER : 1. The present application is filed by the applicant-original complainant under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short “BNSS”) seeking leave to file an appeal against the judgment and order dated 04.12.2024 passed by the learned 2 nd Additional Chief Judicial Magistrate, Amreli (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 1427 of 2019, whereby the respondent No. 2 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N I Act”). 1.1 The respondent No 2 is hereinafter referred to as “the accused” as he stood in the original case for the sake of convenience, clarity and brevity. 2. The brief facts culled out from the memo of the present application as well as the impugned judgment and order and paper book filed by the applicant are as under: 2.1 The applicant filed a complaint against the accused under Section 138 of the Act, as the accused had a debt payable of Rs. 3,80,000/- to the applicant arising out of partnership with the applicant and the accused had issued cheque No.273597 for the amount of Rs. 1,50,000/- dated 19.08.2019 from his account with Axis Bank, Rajkot Branch. The applicant deposited the cheque on 27.08.2019 in his account with Bank of India and the cheque was dishonored. The accused issued another cheque No.273598for the amount of Rs. 1,00,000/- dated 29.08.2019. The applicant deposited the cheque on 03.09.2019 in his account and the same was dishonored and the reason mentioned in the return memo dated 04.09.2019 was “Balance Insufficient.” The applicant sent the statutory demand notice to the accused on 26.09.2019 by R.P.A.D which was duly served on 28.09.2019 and no payment was made and hence the applicant filed the criminal complaint before the Court of the Additional Chief Judicial Magistrate, Amreli under Section 138 of the N I Act, 1881 which was registered as Criminal Case no. 1427 of 2019. 2.2 The accused was served with the summons and the accused appeared before the learned Trial Court and his plea was recorded at exhibit 09 and the evidence of the applicant was taken on record. 1427 of 2019. 2.2 The accused was served with the summons and the accused appeared before the learned Trial Court and his plea was recorded at exhibit 09 and the evidence of the applicant was taken on record. The applicant was examined on oath and 09 documentary evidences were produced in support of his case and after the closing pursis was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused did not remain present and the right of further statement was closed. The arguments of the learned advocates for both the parties were heard and by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the NI Act. 3. Being aggrieved and dissatisfied with the same, the applicant has preferred the present application seeking leave to appeal mainly stating that the learned Trial Court has not properly interpreted the evidence and has misread the evidence and the impugned judgment is perverse, erroneous and contrary to law. 4. Heard learned advocate Mr. N.P. Pandya appearing for the applicant and learned APP Mr. Bhargav Pandya for the respondent-State. 5. Learned Advocate Mr. N.P. Pandya for the applicant submits that the learned Trial Court has not appreciated that the applicant has successfully established that the cheque in question was issued by the accused from the bank account maintained by him. The applicant has proved that the cheque was written by the accused and it was dishonoured and as the applicant is the holder in due course of the cheque in question the statutory presumption under Section 139 of the NI Act is to be drawn in favour of the applicant. The learned Trial Court has not appreciated the provisions of Section 118 and 138 of the NI Act in proper perspective. The oral contract is not negated by the accused and the fact of the amount paid by the applicant to the accused is also not negated, but the learned Trial Court has disbelieved the same. The accused had failed to rebut the presumption and hence the judgement and order of acquittal is bad in law and the leave to appeal must be granted. 6. Learned APP Mr. The accused had failed to rebut the presumption and hence the judgement and order of acquittal is bad in law and the leave to appeal must be granted. 6. Learned APP Mr. Bhargav Pandya for the respondent-State has submitted that the learned Trial Court has appreciated all the evidence in detail in light of the citations referred to in the judgement and has passed the judgement and order of acquittal which is proper and no interference is required and hence the application for leave to appeal must be rejected. 7. The Apex Court in the case of Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel & Anr., (2023) 1 SCC 578 has observed as under: “30. In view of the discussion above, we summarise our findings below: (i) For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation; (ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque; (iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted; (iv) The first respondent has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the ‘legally enforceable debt’ on the date of maturity. Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds; (v) The notice demanding the payment of the ‘said amount of money’ has been interpreted by judgments of this Court to mean the cheque amount. The conditions stipulated in the provisos to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of Section 138. The conditions stipulated in the provisos to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of Section 138. Since in this case, the first respondent has not committed an offence under Section 138, the validity of the form of the notice need not be decided.” 8. In light of the above settled principles of law and considering the arguments advanced by the learned advocates for the parties and on perusal of the record of the case the affidavit of examination in chief of the complainant has been produced at exhibit 04 wherein the complainant has narrated the facts of the complaint on oath. During the cross examination the complainant has stated that there is no legally recoverable debt due from the accused and applicant has repaid the amount in parts to the applicant as per the applications at exhibit 08 and 10. In light of the judgment of Dashrathbhai Trikambhai Patel (supra) the amount of cheque was not legally enforceable debt due to the applicant and the accused could not have deemed to commit the offence under Section 138 of the N I Act. 9. The learned Trial Court has appreciated all the evidence produced by both the parties and has concluded that the applicant has not proved debt and has concluded that from evidence on record the applicant has successfully rebutted the presumption under Section 139 of the N I Act. The accused had created a reasonable doubt and the applicant has failed to produce reliable and cogent evidence on record about the amount of cheque being the legally recoverable debt from the accused and the applicant has not proved his case beyond reasonable doubt and, in light of the above observation, the learned Trial Court has passed the impugned judgment and order of acquittal, which is just and proper and does not require any interference of this Court. 10. Consequently, the present application seeking leave to present an appeal under r Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 fails and is hereby dismissed. 11. Record and proceedings if any, be sent back to the learned Trial Court forthwith. 12. Since the leave to prefer appeal is rejected, no order is required to be passed in the Criminal Appeal, which is at filing stage and the same stands disposed accordingly.