Gujarat High Court
Kalpesh Jamandas Dhamwani vs State Of Gujarat on 11 August, 2025
NEUTRAL CITATION
R/CR.MA/16386/2024 ORDER DATED: 11/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 16386
of 2024
In F/CRIMINAL APPEAL NO. 20364 of 2024
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KALPESH JAMANDAS DHAMWANI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR HR PRAJAPATI(674) for the Applicant(s) No. 1
MR ROHAN N. SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 11/08/2025
ORAL ORDER
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 passed by the learned 2 nd Additional Chief Judicial Magistrate, Godhra (hereinafter referred to as "the learned Trial Court") in Criminal Case No. 1682 of 2019 on 01.04.2024, 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 NI Page 1 of 12 Uploaded by F.S. KAZI(HC01075) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:45:08 IST 2025 NEUTRAL CITATION R/CR.MA/16386/2024 ORDER DATED: 11/08/2025 undefined 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 and the accused were dealing in the same business of cellphones and the accused had taken an amount of Rs.16,10,000/- in parts for business purpose and to enter the applicant as a partner in the business of the accused, and a partnership deed was to be executed for the same. After accepting the amount of Rs.6,10,000/- the accused refused to execute the partnership deed and towards the outstanding amount issued cheque No. 076287 dated 09.05.2019 for the amount of Rs.8,10,000/- from his account with Axis Bank, Godhra Branch.
The applicant deposited the cheque in his account with Bank of Baroda and the cheque was dishonored and the reason mentioned in the return memo was "Funds Insufficient". The applicant sent Page 2 of 12 Uploaded by F.S. KAZI(HC01075) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:45:08 IST 2025 NEUTRAL CITATION R/CR.MA/16386/2024 ORDER DATED: 11/08/2025 undefined the statutory demand notice to the accused on 02.07.2019 which was duly served but no payment was made within the stipulated period and hence the applicant filed a 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. 1682 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 07 and the entire evidence of the applicant was taken on record. The applicant and one witness were examined on oath and 10 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 denied all the contentions alleged against him and stated that a false complaint has been filed. The accused refused to step into the witness box but examined one witness on oath at exhibit 31 and did not produce any documentary evidence in his defence. After the arguments of the learned advocates for both the parties were heard, by the Page 3 of 12 Uploaded by F.S. KAZI(HC01075) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:45:08 IST 2025 NEUTRAL CITATION R/CR.MA/16386/2024 ORDER DATED: 11/08/2025 undefined 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 Mr. H. R. Prajapati appearing for the applicant and learned APP Mr. Rohan N. Shah for the respondent - State.
5. Learned Advocate Mr. H. R. Prajapati 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 Page 4 of 12 Uploaded by F.S. KAZI(HC01075) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:45:08 IST 2025 NEUTRAL CITATION R/CR.MA/16386/2024 ORDER DATED: 11/08/2025 undefined 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 the financial capacity of the applicant was never put to challenge and hence the judgement and order of acquittal is bad in law and the leave to appeal may be granted.
6. Learned APP Mr.Rohan N. Shah 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 may be rejected.
7. With regard to the facts in the present case at the outset, 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 Page 5 of 12 Uploaded by F.S. KAZI(HC01075) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:45:08 IST 2025 NEUTRAL CITATION R/CR.MA/16386/2024 ORDER DATED: 11/08/2025 undefined 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 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 Page 6 of 12 Uploaded by F.S. KAZI(HC01075) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:45:08 IST 2025 NEUTRAL CITATION R/CR.MA/16386/2024 ORDER DATED: 11/08/2025 undefined 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. 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 provisions of law, on Page 7 of 12 Uploaded by F.S. KAZI(HC01075) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:45:08 IST 2025 NEUTRAL CITATION R/CR.MA/16386/2024 ORDER DATED: 11/08/2025 undefined perusal of the evidence on record, the applicant has filed his examination in chief at exhibit 4 and has stated that he had given the amount in parts and had withdrawn an amount of Rs.80,000/- from his account with Bank of Baroda, had taken an amount of Rs.5,60,000/- from his sister Jagrutiben, who had withdrawn the amount from her account with Godhra City Cooperative Bank, an amount of Rs.1,20,000/- from Jaydev Rameshbhai and an amount of Rs.50,000/- from Nimishaben and had given the same to the accused. During the cross-examination by the learned advocate for the accused the applicant has stated that he does not know when his father had given the amount and he does not have an independent source of income. The applicant has admitted that he does not have any document to show that he had any partnership relationship with JD Communications and the talks of partnership with JD Communications and his father were initiated in April 2017. The witness has admitted that in April 2017, when the talks of partnership were going on, he and his father did not have the amount of Rs.16,00,000/- with them in hand and until April 2018, they could not arrange for the amount. The applicant has examined witness Vira Gandhi at exhibit 25 and the witness is the Page 8 of 12 Uploaded by F.S. KAZI(HC01075) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:45:08 IST 2025 NEUTRAL CITATION R/CR.MA/16386/2024 ORDER DATED: 11/08/2025 undefined Branch Operation Head in Axis Bank and the witness has produced the account statement of JD Communications in Axis Bank at exhibit 26.
8.1 During the cross examination of the applicant by the learned advocate for the accused the financial capacity of the applicant has been challenged. The applicant has come up with a case that he had borrowed the amount from his sister Jagrutiben, one Jaydev Rameshbhai and Nimishaben but he has not examined any of them as witnesses before the learned Trial Court. The applicant has admitted that he has no independent source of income, and there is no iota of evidence as to how this huge amount of Rs.8,10,000/- or Rs.16,10,000/- was advanced by the applicant to the accused. The applicant has produced the copy of his account statement with bank of Baroda at exhibit 14, account statement of Jagruti Rameshkumar Dhamwani with The Godhra City Cooperative Bank Limited, Sarkar Chowk Branch, Godhra, at exhibit 15 and exhibit 16 and the account statement of Jaydev Rameshbhai Dhamwani with The Godhra City Cooperative Bank Limited, Prabha Road, Branch, Bhagwat Nagar Society Godhra at Page 9 of 12 Uploaded by F.S. KAZI(HC01075) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:45:08 IST 2025 NEUTRAL CITATION R/CR.MA/16386/2024 ORDER DATED: 11/08/2025 undefined exhibit 17. There are entries of withdrawal shown in these accounts, but there is no evidence on record that these amounts were withdrawn by the account holders and given to the applicant or to any other person. As discussed above, the applicant has not examined any of these persons as witnesses before the learned Trial Court and not proved that the amounts were taken from the witnesses as stated and given to the accused. 8.2 Thus, considering the facts produced on record, the accused has created a reasonable doubt about the financial transaction of the loan and timing of payment and there are contradictory statements on whether the money was paid in 2017 or 2018. The accused has challenged the financial capacity of the applicant to lend money and the applicant has not produced any cogent evidence about his financial capacity, and no clear proof has been provided to remove the doubt created, and the accused has successfully rebutted the presumption and has raised a probable defence and the learned Trial Court has considered that it was incumbent on the applicant to prove the transaction beyond reasonable doubt.
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NEUTRAL CITATION R/CR.MA/16386/2024 ORDER DATED: 11/08/2025 undefined
9. The learned Trial Court has appreciated all the evidence produced by both the parties and has concluded that the applicant has not proved how the amount was paid to the accused. In the entire evidence on record the applicant has not been able to prove that the amount of Rs.16,10,000/-was given to the accused. From the evidence produced on record, the accused has succeeded in raising a probable defence and rebutting the presumption raised in favour of the applicant.
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 Page 11 of 12 Uploaded by F.S. KAZI(HC01075) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:45:08 IST 2025 NEUTRAL CITATION R/CR.MA/16386/2024 ORDER DATED: 11/08/2025 undefined 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. 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) F.S. KAZI Page 12 of 12 Uploaded by F.S. KAZI(HC01075) on Thu Aug 14 2025 Downloaded on : Thu Aug 14 21:45:08 IST 2025