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2025 DIGILAW 441 (GUJ)

Ketan Naranbhai Patel 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 419 (4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short “ BNSS ”) seeking leave to file an appeal against the judgment and order dated 17.02.2025 passed by the learned Additional Judicial Magistrate, Gandhinagar (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 1251 of 2024, 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.15,00,000/- in January 2023 and Rs.12,00,000/- in April 2023 from the applicant and had issued cheque No.000156 dated 06.01.2024 for the amount of Rs.30,00,000/- from his account with Bank of Baroda, Unava, District Gandhinagar Branch. The applicant deposited the cheque on 06.01.2024 in his account with Bank of Baroda, Vidhansabha branch and the cheque was dishonored and the reason mentioned in the return memo dated 09.01.2024 was “Drawers Signature differs from specimen record with us and Refer to drawer”. The applicant sent the demand statutory notice to the accused on 06.02.2024 which was duly served on 09.02.2024 and no reply was given and no payment was made and hence the applicant filed the criminal complaint before the Court of the Judicial Magistrate, Gandhinagar under Section 138 of the N I Act, 1881 which was registered as Criminal Case No. 1251 of 2024. 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.06 and the 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.06 and the evidence of the applicant was taken on record. The applicant was examined on oath and 10 documentary evidences were produced in support of his case and after the closing pursis at Exh.54 was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded wherein the accused denied all allegations levelled against him and stated that he has not borrowed any amount nor issued any cheque in favor of the applicant and a false complaint has been filed. The accused refused to step into the witness box. 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.Vishwa M. Shah appearing for the applicant, learned APP Ms. Jirga Jhaveri for the respondent – State. 5. Learned Advocate Ms.Vishwa M. Shah 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. Learned APP Ms. 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 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. 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. (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. 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 wherein the applicant has mentioned that the reason for return of the cheque in the memorandum was “Being unable to obtain payment of the above Cheque/Dividend Warrant for the reason given overleaf we return the same year with”. The applicant has produced the return memo at Exh.13 which shows that the cheque in question has been returned for the reason “Drawers Signature differs from specimen recorded with us and referred to drawer”, reading the cross-examination by the learn advocate for the accused applicant, he has no license for finance and he had filed two complaints under section 138 of the NI act against the present accused out of which one complaint was for Rs.15,76,000/- and the other complaint was for Rs.18,00,000/-. In both the complaints, the accused has been acquitted and he does not remember whether he had mentioned the date on which the amount was given to the accused in his complaint. In the complaint, there was no mention that the applicant was a farmer and besides agriculture income, he has no other source of income. That when he had advanced the amount to the accused, he had taken a promissory note but it appears that the said promissory note has not been produced on record. The applicant has himself taken a loan of Rs.10,00,000/- from Bank of Baroda and has mortgaged his land and has not shown the amount advanced to the accused in his income-tax returns. The applicant has admitted that on 04.01.2017, he had advanced an amount of Rs.7,00,000/- to the accused and the amount has not been repay to him but he had taken a cheque from the accused and had filled the amount of Rs.30,00,000/- and had filed the complaint against the accused. The applicant has also admitted that he has filed a civil case for Rs.30,00,000/- against the accused. During the cross-examination of the applicant, the accused has challenged the financial capacity of the applicant and there is nothing on record to show that the applicant had the financial capacity to advance an amount of Rs. 15,00000/- and thereafter an amount of Rs.12,00,000/- to the accused. Admittedly, the cheque is for Rs.30,00,000/- and during the cross examination, the accused has successfully rebutted the presumption which was drawn in favour of the applicant. 15,00000/- and thereafter an amount of Rs.12,00,000/- to the accused. Admittedly, the cheque is for Rs.30,00,000/- and during the cross examination, the accused has successfully rebutted the presumption which was drawn in favour of the applicant. The applicant has admitted that he has not shown the huge amount of Rs.30,00,000/- in his Income Tax Returns and as per the admission of the applicant he had taken a loan of Rs.10,00,000/- by executing a mortgage deed of his agricultural land, the applicant has not proved even in a prima-facie way that he had the financial capacity to advance an amount of Rs.30,00000/- to the accused. 9. 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 accused 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 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.