Gujarat High Court
Nitesh Rameshchandra Dave vs State Of Gujarat on 28 April, 2025
NEUTRAL CITATION
R/CR.MA/4522/2025 ORDER DATED: 28/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 4522 of
2025
In F/CRIMINAL APPEAL NO. 4783 of 2025
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NITESH RAMESHCHANDRA DAVE
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. MAULIK M SONI(7249) for the Applicant(s) No. 1
MS. JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 28/04/2025
ORAL 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 06.11.2024 passed by the learned Chief Judicial Magistrate, Godhra (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 3465 of 2021, 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"). Page 1 of 12 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:21:35 IST 2025
NEUTRAL CITATION R/CR.MA/4522/2025 ORDER DATED: 28/04/2025 undefined 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 father of the accused and the applicant had executed an agreement to sale for the house of the father of the accused for an amount of Rs.6,50,000/- and the father of the accused had taken an amount of Rs.6,50,000/- in two parts against the agreement to sale. The house was sold to another person and the accused had issued cheque No.020388 to return the advanced amount including damage for an amount of ₹8,50,000/- dated 02.08.2021 from his account with ICICI Bank, Godhra Branch. The applicant deposited the cheque on 05.08.2021 in his account and the cheque was dishonored and the reason mentioned in the return memo dated 06.08.2021 was "Dormant Account". The applicant Page 2 of 12 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:21:35 IST 2025 NEUTRAL CITATION R/CR.MA/4522/2025 ORDER DATED: 28/04/2025 undefined sent the statutory demand notice to the accused on 25.08.2021 which was duly served on 27.08.2021 and no payment was made and hence the applicant filed the criminal complaint before the Court of the Chief Judicial Magistrate, Godhra under Section 138 of the N I Act, 1881 which was registered as Criminal Case no. 3465 of 2021. 2.2 The accused was served with the summons and the accused appeared before the learned Trial Court and after his plea was recorded at Exh. 07 the evidence of the applicant was taken on record. The applicant and one witness were examined on oath and 13 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 there was no transaction with the applicant and the cheque has been misused and a false complaint has been filed. The accused refused to step into the witness box and after the arguments of the learned advocates for both the parties were heard, by the impugned judgment and order, the Page 3 of 12 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:21:35 IST 2025 NEUTRAL CITATION R/CR.MA/4522/2025 ORDER DATED: 28/04/2025 undefined 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 Mr. Maulik M. Soni appearing for the applicant and learned APP Ms. Jirga Jhaveri for the respondent - State.
5. Learned Advocate Mr. Maulik M. Soni 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 Page 4 of 12 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:21:35 IST 2025 NEUTRAL CITATION R/CR.MA/4522/2025 ORDER DATED: 28/04/2025 undefined 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. 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 Page 5 of 12 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:21:35 IST 2025 NEUTRAL CITATION R/CR.MA/4522/2025 ORDER DATED: 28/04/2025 undefined 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. 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 Page 6 of 12 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:21:35 IST 2025 NEUTRAL CITATION R/CR.MA/4522/2025 ORDER DATED: 28/04/2025 undefined 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.Page 7 of 12 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:21:35 IST 2025
NEUTRAL CITATION R/CR.MA/4522/2025 ORDER DATED: 28/04/2025 undefined
(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 Page 8 of 12 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:21:35 IST 2025 NEUTRAL CITATION R/CR.MA/4522/2025 ORDER DATED: 28/04/2025 undefined 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. 09 wherein the complainant has narrated the facts of the complaint on oath. It is the say of the complainant that he had executed an agreement to purchase property situated in Kalol bearing City Survey No. 806 admeasuring 18.06 square meters and City Survey No. 807 admeasuring 16.72.26 square meters and City Survey No.520 admeasuring 35.11.74 square meters with the father of the accused. The property was to be purchased for an amount of ₹6,50,000/- towards which an amount of ₹3,00,000/- was paid to the father of the accused. During the cross examination of the complainant by the learned advocate for the accused, the applicant has admitted that the document of agreement to sale was executed on 31.08.2015 and an amount of ₹3,00,000/- was paid, but Page 9 of 12 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:21:35 IST 2025 NEUTRAL CITATION R/CR.MA/4522/2025 ORDER DATED: 28/04/2025 undefined there is no mention as to how and at what place was the amount of ₹3,00,000/- paid. The applicant has also admitted that the complaint has been filed for the cheque amount of ₹8,50,000/- and he has stated that he does not remember whether he had paid the amount of ₹6,50,000/- in parts in 2015. The complaint has been filed in 2021 and in the cross examination the applicant has categorically admitted that the financial transactions were with the father of the accused and there was no financial dealings with the accused. The applicant has produced the copy of the agreement to sale at Exh. 17 and on perusal of the same it is the deed executed between the applicant and the father of the accused.
8.1 The main defence of the accused is that there was no legally enforceable due of ₹8,50,000/- from him to the applicant and the same is proved in the cross-examination of the applicant with regard to the categorical admission of the applicant that the transaction for the sale of the property was with the father of the applicant and there was no financial transaction with the accused. The learned Trial Page 10 of 12 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:21:35 IST 2025 NEUTRAL CITATION R/CR.MA/4522/2025 ORDER DATED: 28/04/2025 undefined Court has appreciated this aspect in the proper manner and as there was no legally enforceable due from the accused has concluded that the applicant has not proved the case beyond reasonable doubts.
9. On appreciation of the entire evidence of the applicant on record the version of the applicant is not believable and the accused has successfully rebutted the presumption in light of the judgments of the Apex Court in Rangappa (supra) and Basalingappa (supra) and no offence is made out under Section 138 of the N I Act.
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 the evidence on record that 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 Page 11 of 12 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:21:35 IST 2025 NEUTRAL CITATION R/CR.MA/4522/2025 ORDER DATED: 28/04/2025 undefined 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 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 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.
(S. V. PINTO,J) VASIM S. SAIYED Page 12 of 12 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Mon Apr 28 2025 Downloaded on : Tue Apr 29 13:21:35 IST 2025