Gujarat High Court
Atul Champaklal Gandhi vs Sanjay Pitamber Agarwal Director Of M/S ... on 26 August, 2025
NEUTRAL CITATION
R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025
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Reserved On : 22/07/2025
Pronounced On : 26/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION -
NEGOTIABLE INSTRUMENT ACT) NO. 53 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
✔
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ATUL CHAMPAKLAL GANDHI
Versus
SANJAY PITAMBER AGARWAL DIRECTOR OF M/S RAGHAV SILK MILLS
PVT LTD AND SOLE ADMINISTRATOR & ANR.
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Appearance:
MR ARPIT A KAPADIA(3974) for the Applicant(s) No. 1
MR PREMAL S RACHH(3297) for the Respondent(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
CAV JUDGMENT
1) Rule. Learned APP waives service of Rule on behalf of the respondent - State.
2) By consent of the learned advocates for both respective parties, the matter has been taken for the final hearing. Page 1 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025
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3) The present Criminal Revision Application has been preferred by the present applicant - original accused under Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (In short "BNSS") directed against the judgment passed by learned 11th Additional Sessions Judge, Surat in Criminal Appeal no.63 of 2024 by judgment dated 01.01.2025 dismissed the appeal of the present applicant - original accused and confirmed the judgment and order passed by the learned 15th Additional Chief Judicial Magistrate, Surat in Criminal Case No.46980 of 2013.
4) The factual matrix of the present case is as under:
5) The present respondent no.1 - original complainant has filed one complaint under Section 138 of the Negotiable Instruments Act, 1881 against the present applicant -
original accused and it is the case of the original complainant that the complainant is the private limited company registered under the provisions of the Companies Act and the complainant is the Director and Page 2 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined authorized person of the company and the accused has come to the complainant's shop and told the complainant that he deals in saree business and told the complainant that he used to buy goods on credit from many traders and also made payments to them in time and so, he asked the complainant to give the goods on credit and the complainant has accepted the proposal of the accused and entered into the business relationship with the accused and thereafter, the accused sold sarees on credit to different two parties through their agencies and also sold sarees on credit to the accused and subsequently, as the complainant on trust and reliance, sold the goods to the accused and by sending the goods by 25 different invoices and total amount of these invoices of Rs.37,20,113/- and the accused has received all goods and no complainant has been made regarding the quality and quantity of the goods and in turn, the accused has a cheque for the part payment for Rs.34,36,838/- and the said cheque was presented by the complainant to their banker which was dishonoured by the complainants banker on 28.03.2013 with endorsement "insufficient fund" and thereafter, the Page 3 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined complainant issued the legal notice to the accused on 16.04.2013 which was served to the accused on 17.04.2013 and accused has not paid heed to the notice and hence, the complaint came to be filed before the learned Trial Court and thereafter, the original complainant has given his oral evidence and total 12 documentary evidence has been produced and subsequently, advocate for the accused side has cross- examined the complainant and after the evidence of the complainant side is over, the statement under Section 313 of the Cr.P.C of the accused was recorded and thereafter, after hearing rival submissions, learned Trial Judge has, by delivering the judgment on 27.12.2023 convicting the present applicant under Section 138 of the N.I. Act and sentencing him to 1 year simple imprisonment and also imposed fine of Rs.68,73,676/- and in default of payment of fine also awarded further six months simple imprisonment.
6) The said judgment of conviction has been challenged by the present applicant - accused before the learned Additional Sessions Judge, Surat by preferring the Page 4 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined Criminal Appeal No.63 of 2024 and the said appeal came to be dismissed by the learned 11 th Additional Sessions Judge, Surat by judgment dated 01.01.2025 and confirmed the judgment of conviction. Being aggrieved and dissatisfied by the said judgment, the revision application has been preferred.
7) Heard learned advocate Mr. Arpit A. Kapadia for the present applicant - original accused and it is submitted that the learned Trial Court and Appellate Court have not appreciated the facts and aspects of the matter. Further, it is submitted that the service of statutory notice is a mandatory for the offence punishable under Section 138 of the N.I. Act and the service of the statutory notice is not proved in the present case. Further, it is submitted that there is no legally enforceable debt and the cheque in question is not by holder in due course. Further, it is submitted that in the cross-examination of the complainant, it has been clearly established that the invoices which have been produced by the complainant, he admitted that when the goods have been received by other party then, he has put his Page 5 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined signature regarding the goods have been received but in the present case, there is no signature of accused that the goods had been received by the accused and even no documentary evidence has been produced that the address of the accused shown in the invoices, in fact, the accused is residing at that address or not and hence, in the cross-examination, by putting these questions, the accused has rebutted the presumption under Section 139 of the N.I. Act but this fact has not been considered. Further, it is submitted that further statement of the original accused states that he wanted to give evidence on oath and wanted to examine the witness. However, no sufficient opportunity has been given to the accused to defend his case. Further, it is submitted that in the invoices produced by the complainant, has no lorry number has been mentioned, so, the complainant has not proved the legally enforceable debt, hence, it is submitted that the present revision application is required to be allowed and the order passed by the learned Appellate Court is required to be quashed and set aside. Further, it is submitted that the present applicant is in judicial custody.
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8) Further, in support of his arguments, learned advocate for the applicant has relied upon the judgment of the Hon'ble Apex Court in the case of M/s. Kumar Exports Vs. M/s. Sharma Carpets reported in Criminal Appeal No.2045 of 2008 as well as in the case of K. Subramani Vs. K. Damodara Naidu reported in Criminal Appeal No.2402 of 2014 and the judgment of the Hon'ble Apex Court in the case of Muskan Enterprises & Anr. Vs. The State of Punjab & Anr. reported in Criminal Appeal No.5491 of 2024 and it is submitted that the present revision application is required to be allowed.
9) On the other hand, learned advocate Mr. Premal Rachh has vehemently opposed the said revision application and submitted that there are concurrent findings of conviction by the two Courts and now, the jurisdiction of the revisional Court is concerned, is a very narrow. The applicant has to establish that both Courts below have committed an error of jurisdiction or error of law then and then only, it can be interfered. Further, it is submitted that the signature on the cheque has not been Page 7 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined disputed by the accused and not rebutted the presumption under Section 139 of the N.I. Act and both Courts have rightly decided matters. Further, in support of his argument, learned advocate Mr. Premal Raj has relied upon the following judgments:
(i) Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai Patel reported in 2022(18) SC 614;
(ii) Rajesh Jain vs Ajay Singh reported in 2023 (10) SC 148;
10) Heard the arguments advanced by the learned advocates for respective parties. Perused the Record & Proceedings from the learned Trial Court and the learned Appellate Court and perused the judgment passed by the learned Trial Court and the learned Appellate Court.
11) The Section 438 read with Section 442 of the BNSS is concerned, The Court is vested with the power to call for and examine the record of any inferior Court for the purpose of satisfying itself as to legality and regularity of Page 8 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined any proceedings or order made in the case. The object of this provision is to correct the patent defect or an error of jurisdiction or the perversity which has crept in the proceedings.
12) Further, the High Court, in revision, exercises supervisory jurisdiction of a restricted nature. It cannot re-appreciate the evidence as second Appellate Court for the purpose of determining whether the concurrent findings of fact reached by the learned Magistrate and the learned Sessions judge was correct.
13) In the case of State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri reported in (1999) 2 SC 452 in paragraph no.5 observed as under:
"(5) Having examined the impugned Judgment of the High Court and bearing in mind the contentions raised by the learned counsel for the parties, we have no hesitation to come to the conclusion that in the case in hand, the High Court has exceeded its revisional jurisdiction. In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the Page 9 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-
appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tentamount to gross miscarriage of justice. On scrutinizing the impugned Judgment of the High Court from the aforesaid stand point, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re- appreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge, while confirming the conviction of the respondent. In this view of the matter the impugned Judgment of the High Court is wholly unsustainable in law and we, accordingly set Page 10 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined aside the same."
Further, in the case of Malkeet Singh Gill Vs. The State of Chhattisgarh reported in (2022) 8 SC 204 in paragraph no.10, the Hon'ble Apex Court observed as under:
14) "(10) Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two Courts after detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate Court and the scope of interference in revision is extremely narrow.
Section 397 of Criminal Procedure Code (in short 'CrPC') vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be wellfounded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the revisional Court does not dwell Page 11 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined at length upon the facts and evidence of the case to reverse those findings.
15) In the light of the aforesaid proposition of law, it is required to examine the present case before the learned Trial Court. The complaint came to be filed by the original complainant for the offence punishable under Section 138 of the N.I. Act. The case of the complainant in the nutshell is that the complainant who is a director as well as the authorized person of Raghav Silk Mills Pvt. Ltd. - Mr. Sanjay Agarwal has filed this private complaint before the Magistrate and stated that their company is engaged in the business of selling the sarees in wholesale and they came into contact with the accused as he was frequently coming to their shop and accused told the complainant that he is doing some business of sarees and stated that he is purchasing sarees on credit from various businessmen and he is regularly paying them subsequently and pursuant to that, the accused has supplied the sarees to different parties on credit and subsequently, from April, 2012 to October 2012, total goods of Rs.37,20,113/- was given by Page 12 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined the complainant to the accused and the said goods were received by the accused and the complainant has demanded the money from the accused and accused has given on cheque bearing no.580803 dated 22.02.2013 drawn on Oriental Bank of Commerce, Surat for Rs.34,36,838/- for the part payment of the total dues of Rs.37,20,113/- and the said cheque was presented by the complainant to his banker - HDFC Bank, Surat but the said cheque was returned by the complainant's bankers on 28.03.2013 with endorsement "Today's balance insufficient" and the cheque was dishonored. Thereafter, the complainant had issued legal notice through his advocate on 16.04.2013 demanding the money and the said notice was sent through RPAD, and it was received by the accused on 17.04.2013 and in spite of the receipt of the notice, accused has not pay heed to the notice and not paid the amount within 15 days or not even took care to give reply to the notice. Hence, the complaint came to be filed before the court on 03.05.2013. Subsequently, the complainant has given his examination-in-chief vide Exhibit-21, and along with his examination-in-chief, the complainant has produced 12 Page 13 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined documents from Exhibit-43 to Exhibit-78 and mainly produced the original search report of the company, vide Exhibit-43, company's resolution vide Exhibit-44, original bills vide Exhibits-45 to 69, bank statement of the accused vide Exhibit-70, Audit Report of the complainant company vide Exhibit-71, original check vide Exhibit-72, Return memo of the cheque vide Exhibit-73, Return Memo of the another cheque vide Exhibit-74, Demand Notice vide Exhibit-75, Postal Receipt vide Exhibit-76, Original Letter written to Post Office vide Exhibit-77, Reply by Post office vide Exhibit-
78. The said complainant was cross-examined by the advocate of the accused and mainly in the nutshell, it is stated that the question has been put regarding fact that the normally, they prepared the chalan in two copies and if the goods have been received by the other party, they will obtain signature on one copy of the chalan and signed chalan has not been produced and in the invoices or the bills produced, there is no signature of the accused regarding the accused has received the bill and the defence taken that the cheque was given as a security and he has only signed the cheque and the Page 14 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined signed blank cheque was given to the complainant and also took a defence that the notice has not been received by the accused. Thereafter, the complainant has closed his evidence and the statement under Section 313 of the accused was recorded and in the further statement of the accused, he denied everything and subsequently, the learned Trial Court was pleased to convict the present accused and sentenced him to 1 year simple imprisonment and also imposed a fine of Rs.68,73,676/- on accused in case of default and also be ordered to undergo further 6 months simple imprisonment. The said judgment was delivered on 27.12.2023 and the same was challenged by preferring an appeal before the learned Sessions Court by Criminal Appeal No.63 of 2024 and the said appeal of the present applicant - original accused has been dismissed by the learned Sessions Court after re-appreciating and appreciating all the evidence produced before the Court. Learned Trial Court in its judgment, more particularly, in Paragraph nos.15, 16 and 17, considered all the defences taken by the accused and also regarding to veracity of the prosecution evidence and ultimately, in paragraph no.18 Page 15 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined found that the present applicant - original accused has committed an offence under Section 138 of the N.I. Act and in this regard, it is required to consider the authorities on which the learned advocate for the original complainant relied upon the judgment of the Hon'ble Apex Court in the case of Rajesh Jain Vs. Ajaysinh reported in (2023) 10 SC 148:
33. The Evidence Act provides for presumptions, which fit within one of three forms: 'may presume' (rebuttable presumptions of fact), 'shall presume' (rebuttable presumption of law) and conclusive presumptions (irrebuttable presumption of law). The distinction between 'may presume' and 'shall presume' clauses is that, as regards the former, the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved, [G.Vasu V. Syed Yaseen (Supra)] Section 139 NI Act-Effect of Presumption and Shifting of Onus of Proof;
34. The NI Act provides for two presumptions:Page 16 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025
NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability'. It will be seen that the 'presumed fact' directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138.10"
35. Section 139 of the NI Act, which takes the form of a 'shall presume' clause is illustrative of a presumption of law. Because Section 139 requires that the Court 'shall presume' the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. The rules discussed hereinbelow is common to both the presumptions under Section 139 and Section 118 and is hence, not repeated-Reference to one can be taken as reference to another But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase 'unless the contrary is proved'.Page 17 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025
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36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35]
37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar11]. Therefore, mere admission of the drawer's signature, without admitting the execution of (2019) 4 SCC 197 the entire contents in the cheque, is now sufficient to trigger the presumption.
41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein Page 18 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]
42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at Page 19 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was 'no debt/liability'. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.
44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when Page 20 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-
existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.
16) So, considering the dictum of the Hon'ble Apex Court and as discussed above, no probable defence has been made out by the accused before the learned Trial Court. He has not adduced any documentary evidence or oral evidence in support of his defence, merely by putting a suggestion in the cross-examination that in the bill produced, the signature of the accused has not been obtained merely by this suggestion only, accused cannot rebut the presumption under Section 118 of the N.I. Act and Section 139 of the N.I. Act. Further, the signature on the cheque is not in dispute.
17) Considering this aspect, this Court is of the view that the Page 21 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined present revision application is devoid of any merits. I do not find any illegality or the findings or any error or jurisdiction or an error of law recorded by the learned Trial Court and the learned Sessions Court and the findings recorded by the learned Trial Court and the learned Sessions Court is just and proper and does not require any interference.
18) So far as the judgment of the learned Trial Court is concerned, the learned Trial Court has imposed a fine of Rs.68,73,676/- which is double the amount of the cheque and sentencing the present applicant - original accused to undergo 1 year simple imprisonment, further, in default of the payment of fine, the learned Trial Court has directed the accused to undergo simple imprisonment for 6 months so far as Section 24 of the BNSS (Old Section 30 of the Cr.P.C) is concerned, pertained to sentence of imprisonment in default of fine and as per the Section, imprisonment awarded under Section may be in addition to a substantive sentence of imprisonment, more particularly, Section 24(i)(v) is concerned, sentence in default of fine is concerned, Page 22 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025 NEUTRAL CITATION R/CR.RA/53/2025 CAV JUDGMENT DATED: 26/08/2025 undefined issue not the exceed 1/4th of the substantive sentence. Hence, considering this, as the substantive sentence is of one year awarded by the learned Court and in default of 6 month has been awarded so that the sentence is of six months in default of fine is to be reduced to three months only.
19) Considering this, the present revision application is hereby rejected. Rule is discharged. The judgment passed by learned 11th Additional Sessions Judge, Surat in Criminal Appeal no.63 of 2024 by judgment dated 01.01.2025 is hereby confirmed. The present revision application is disposed of accordingly.
(L. S. PIRZADA, J) JCP Page 23 of 23 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Tue Aug 26 2025 Downloaded on : Tue Aug 26 22:16:45 IST 2025