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2025 DIGILAW 440 (GUJ)

Sanjay Rasiklal Dave v. State Of Gujarat

2025-06-12

S.V.PINTO

body2025
ORDER : S.V. PINTO, J. 1. The present application is filed by the applicant – original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) seeking leave to file an appeal against the judgment and order dated 20.07.2023 passed by the learned 3 rd Additional Chief Judicial Magistrate, Porbandar (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 5622 of 2022, 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 taken a loan of Rs.2,00,000/- from the applicant and the accused had issued a cheque No.000071 for the amount of Rs.2,00,000/- dated 30.06.2022 from his account with HDFC Bank, Station Road, Porbandar Branch. The applicant deposited the cheque on 30.06.2022 in his account with IDBI Bank Ltd, Porbandar Branch and the cheque was dishonored and the reason mentioned in the return memo was “Funds Insufficient”. The applicant contacted the accused and as per the instruction of the accused the applicant deposited the cheque again but the same was dishonored once again and the reason mentioned in the return memo was “Funds Insufficient”. The applicant sent the statutory demand notice to the accused on 29.08.2022 which was duly served on 31.08.2022 and a reply was given on 03.10.2022 but no payment was made. The applicant filed the criminal complaint before the Court of the Chief Judicial Magistrate, Porbandar under Section 138 of the N I Act, 1881 which was registered as Criminal Case No. 5622 of 2022. 2.2 The accused was served with the summons and the accused appeared before the learned Trial Court and his plea was recorded at Exh.07 and the entire evidence of the applicant was taken on record. 2.2 The accused was served with the summons and the accused appeared before the learned Trial Court and his plea was recorded at Exh.07 and the entire evidence of the applicant was taken on record. The applicant was examined on oath and 08 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 stated that he has not issued any cheque in favor of the applicant and a false complaint has been filed. The accused refused to step into the witness box or lead evidence and after the arguments of the learned advocates for both the parties were heard, by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the N I 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 Ms. Shloka M. Pandya appearing for the applicant, learned APP Ms. Jirga Jhaveri for the respondent – State and learned advocate Ms. Nilam N. Chauhan appearing for the respondent No.02. 5. Learned Advocate Ms. Shloka M. 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 N I 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 fact of the amount paid by the applicant to the accused is 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. The fact of the amount paid by the applicant to the accused is 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 Ms. Jirga Jhaveri for the respondent – State and learned advocate Ms. Nilam N. Chauhan appearing for the respondent No.02 have 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. With regard to the facts in the present case, it would be fit to refer to the observations made the Apex Court in Rangappa Vs Sri Mohan reported in 2010 11 SCC 441 in para 14 which reproduced as under: “14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of ‘preponderance of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.” 7.1 The Apex Court in the case of Basalingappa Vs. Mudibasappa reported in 2019 0 AIR (SC) 1983 has observed in Para 23 and 28 as under: “23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: (i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. (ii) The presumption Under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the Accused to rely on evidence led by him or Accused can also rely on the materials submitted by the complainant in order to raise a probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the Accused to rely on evidence led by him or Accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the Accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the Accused to come in the witness box to support his defence. 24. xxxx 25. xxxx 26. xxxx 27. xxxx 28. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs. 6 lakhs given to the Accused, within 02 years, amount of Rs. 18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence.” 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 Exh.04 wherein the complainant has narrated the facts of the complaint on oath. From the record of the case, it transpires that after the cheque returned unpaid the demand statutory notice was served to the accused. As per the say of the applicant, Chirag Jatashankar Thanki, the husband of the accused had taken an amount of Rs.1,50,000/- from the applicant and had given cheque No. 084144 from his account with Indus Ind Bank, Porbandar but the cheque had returned unpaid with the endorsement “Funds insufficient”. After the demand statutory notice was given as the amount was not paid the applicant filed Criminal Case No. 4326 of 2022 in the Court of the 2nd Additional Judicial Magistrate, Porbandar. After the demand statutory notice was given as the amount was not paid the applicant filed Criminal Case No. 4326 of 2022 in the Court of the 2nd Additional Judicial Magistrate, Porbandar. That once again the husband of the accused required some amount for his business and had taken an amount of Rs.2,00,000/- from the applicant towards which cheque No.000071 dated 30.06.2022 from the account of the accused with HDFC, Station Road Branch, Porbandar was given. The cheque was deposited by the applicant in his account with IDBI Bank, Porbandar Branch but the same returned unpaid with the endorsement “Funds Insufficient”. The demand statutory notice was given which was served to the accused and on 03.10.2022 the accused sent a letter admitting that her husband had given the cheque and he was missing, and that she was responsible for the cheque and admitted to return the amount. During the cross examination by the accused the applicant has stated that the cheque is produced at Exh.11 and the letter of the accused is produced at Exh.18 and there is a difference in the signatures on both the documents. The letter at Exh.18 a computer typed letter and it was mentioned that the accused was unaware of the transactions and relations between her husband and the applicant. Moreover, it also states that the cheque was given by her husband without her knowledge. The applicant has stated that the letter produced at Exh.18 was given to him by his advocate and he was not willing to examine his advocate or the employee of the Post Office as a witness to prove that the letter was received by him or his advocate. In the year 2022 he has advanced an amount of Rs.2,60,000/- to Nirmalaben Jatashankar, Rs.2,00,000/- to Komal Chiragbhai Thanki, Rs.2,00,000/- to Jatashankar Thanki and Rs.1,50,000/- to Chiragbhai Thanki. His annual income is Rs.3,50,000/- and he was filing Income Tax Returns for the past three years. The applicant has filed Criminal Case No.1117 of 2022 against Anil Damjibhai Gajjar and Criminal Case No.4325 of 2022 against Ajaybhai Vajubhai Koriya and both the cases are filed under Section 138 of the N I Act regarding amounts loaned to them. That he did not have a license for finance, but was the President of Sadbhavna Credit Cooperative Society for the past two years. That he did not have a license for finance, but was the President of Sadbhavna Credit Cooperative Society for the past two years. That he has not mentioned the place and time when the amount was advanced and he has not made a note of the amount advanced at any place. In the year 2022 his annual income was Rs.3,50,000/- and he had advanced an amount of Rs.10,70,000/- but the same was not shown in his Income Tax Returns. That he had taken a loan of Rs.4,50,000/- from Adveta Finance and had taken a loan of Rs.10,80,000/- from ICICI Bank and was paying an amount of Rs.28,000/- as monthly instalment. In the complaint, statutory notice, and the affidavit of examination in chief he has not mentioned that he had given the amount to the accused and she had given the cheque to him. 9. In the entire evidence on record the applicant has not been able to prove that the amount of Rs.2,00,000/- was given to the accused and during the cross-examination, the accused has successfully challenged the financial capacity of the applicant. It is the case of the applicant that the amount of Rs.2,00,000/- was given to Chirag Jatashankar Thanki and it is not the case of the appellant that the amount was given to the accused and hence there was no legally enforceable amount due from the accused. The document produced at Exh.18 has also been challenged by the accused and the applicant has not been able to prove that Exh.18 was in fact written by the accused. Moreover, there is nothing on record to suggest that the document was sent by the accused to the advocate of the applicant in reply to the notice and the applicant has not examined his advocate or the employee of the Post Office. 10. The learned Trial Court has appreciated all the evidence produced on record and has concluded that the applicant has not proved the legally enforceable debt and has concluded that from evidence on record the applicant has successfully rebutted the presumption under Section 139 of the N I Act in light of the judgment of the Apex Court in Rangappa(supra) and Basalingappa(supra). 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. 11. Consequently, the present application seeking leave to present an appeal under Section 378(4) of the Code of Criminal Procedure, 1973 fails and is hereby dismissed. 12. Record and proceedings if any, be sent back to the learned Trial Court forthwith. 13. 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.