Gujarat High Court
Dharmendra Amarsingh Hanjra vs State Of Gujarat on 7 February, 2025
NEUTRAL CITATION
R/CR.MA/1071/2025 ORDER DATED: 07/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 1071 of 2025
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 1863 of 2025
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DHARMENDRA AMARSINGH HANJRA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.NANDISH H THACKAR(7008) for the Applicant(s) No. 1
MR BHARGAV PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/02/2025
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 18.12.2024 passed by the learned Judicial Magistrate First Class Court No.3, Surat in Criminal Case No. 18838 of 2020, whereby the original accused - respondent No. 2 herein came to be acquitted from the charge levelled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act"). 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.
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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 is the holder of a Money Lenders License, and the accused had borrowed an amount of Rs.15,00,000/- from the complainant and had executed two promissory notes on 18.03.2020 and 11.06.2020 and had given cheque No. 000018 of his account with Bank of India for Rs.15,00,000/-. The cheque was deposited by the applicant in his bank and the same was returned on 29.06.2020 with the endorsement "Funds Insufficient". The applicant sent the demand notice which was served to the accused on 29.07.2020 but the accused did not send any reply and did not return the amount and hence the applicant filed the complaint before the Court of the Chief Judicial Magistrate, Surat under Section 138 of the N I Act.
2.2 The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded at Exhibit 07 and the evidence of the applicant was taken on record. The applicant at Exhibit 04 and Ankitaben Milanbhai at Exhibit 22 were examined on oath and 12 documentary evidences Page 2 of 12 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:02:04 IST 2025 NEUTRAL CITATION R/CR.MA/1071/2025 ORDER DATED: 07/02/2025 undefined 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 the facts in examination in chief and in the complaint are false and a false complaint has been filed. The accused stepped into the witness box and was examined on oath at Exh.33 and produced three documentary evidences in support of his defence. After the evidence of the accused was closed the arguments of the learned advocates for both the parties were heard and by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the NI 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. Nandish H. Thackar appearing for the applicant and learned APP Mr. Bhargav Pandya for the respondent - State.Page 3 of 12 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:02:04 IST 2025
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5. Learned Advocate Mr Nandish H Thakkar 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 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 must be granted.
6. Learned APP Mr.Bhargav Pandya 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 Page 4 of 12 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:02:04 IST 2025 NEUTRAL CITATION R/CR.MA/1071/2025 ORDER DATED: 07/02/2025 undefined 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. 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 Page 5 of 12 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:02:04 IST 2025 NEUTRAL CITATION R/CR.MA/1071/2025 ORDER DATED: 07/02/2025 undefined 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. 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 Page 6 of 12 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:02:04 IST 2025 NEUTRAL CITATION R/CR.MA/1071/2025 ORDER DATED: 07/02/2025 undefined explained his financial capacity. Court cannot insist on a person to lead negative evidence."
7.2 The Apex Court in the case of Dashrathbhai Trikambhai Patel vs Hitesh Mahendrabhai Patel & Anr. reported in (2023) 1 SCC 578 has observed as under:
"30. In view of the discussion above, we summarise our findings below:
(i) For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation;
(ii) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque;
(iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted;
(iv) The first respondent has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the 'legally enforceable debt' on the date of maturity. Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds; and
(v) The notice demanding the payment of the 'said amount of money' has been interpreted by judgments of this Court to mean the cheque amount. The conditions stipulated in the provisos to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of Section 138. Since in this case, the first respondent has not committed an offence under Section 138, the validity of the form of the notice need not be decided."Page 7 of 12 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:02:04 IST 2025
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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 as per the case of the applicant he had given an amount of Rs.15,00,000/- to the accused and two promissory notes were executed on 18.03.2020 and 11.06.2020 which have been produced at Exh.11 and Exh.12. On perusal of both the promissory notes, it is stated that the amount of Rs.15,00,000/- was taken today i.e. the date on which the promissory note is executed. During the cross-examination of the applicant by the learned advocate for the accused, the applicant has stated that when the accused had come to demand for money, he was having a non-veg larri and he had brought the cheque of Rs.15,00,000/- with him. The promissory notes produced at Exh.11 and Exh.12 do not have his license number or name and they are printed forms which are easily available in the market. That he has not produced any evidence to show that he has showed the amount of Rs.15,00,000/- in the Income Tax Returns. 8.1 The complaint of the applicant and the examination in chief do not state whether the amount was paid in cash or by cheque to the accused and the accused has stepped into the witness box and has been examined at Exh.38, but the learned advocate for the applicant has not cross examined the accused and Page 8 of 12 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:02:04 IST 2025 NEUTRAL CITATION R/CR.MA/1071/2025 ORDER DATED: 07/02/2025 undefined hence his statement on oath has remained unchallenged. As per the case of the accused, he had borrowed an amount of Rs.2,00,000/- at the interest rate of 12% and had paid an amount of Rs.24,000/- as interest for two months and thereafter he could not pay the amount and hence the applicant had called him to his office and demanded an amount of Rs.6,35,000/- towards which the accused has paid an amount of Rs.5,15,000/- and nothing is due from the accused. As per the settled principles of law, the initial presumption is in favour of the applicant, but once the accused has stepped into the witness box and has raised a probable defence which has not been challenged by the applicant, the same ought to be considered. Moreover, the applicant has produced two promissory notes of the dates of 18.03.2020 and 11.06.2020 and both the documents state that the amount was taken by the accused on the date on which the promissory note was executed, and hence the date on which the amount was taken is not proved. There is no explanation as to why the two promissory notes have been executed for the same amount on different dates and as to why the second promissory note was executed without cancelling or mentioning about the earlier promissory note. It is not the case of the applicant that the amount of Rs.15,00,000/- was taken on two different dates, but the promissory notes were executed for the same amount. The applicant has not clearly stated on which date Page 9 of 12 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:02:04 IST 2025 NEUTRAL CITATION R/CR.MA/1071/2025 ORDER DATED: 07/02/2025 undefined the amount was taken and has not produced his Income Tax Returns or any other documents to show that the amount was in fact taken by the accused. The applicant is doing the business of finance and he would have to maintain all the accounts and if the accused had in fact taken the amount of Rs.15,00,000/- it would be reflected in his accounts, but the same have not been produced by the applicant on record for reasons, best known to the applicant. The accused has successfully rebutted the presumption and has stepped into the witness box 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. The accused has stated that he had repaid some amount to the applicant but the same is not challenged by the applicant and hence it is also proved that the amount mentioned on the cheque was not the "legally enforceable debt" on the date of maturity.
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. Moreover the Income Tax Returns of the applicant were not produced on record and the say of the applicant that the amount of Rs.15,00,000/- was given to the accused is not proved. The accused had also produced the copies of the FIRs filed against the Page 10 of 12 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:02:04 IST 2025 NEUTRAL CITATION R/CR.MA/1071/2025 ORDER DATED: 07/02/2025 undefined applicant under the Money Lending Act and it was proved that the applicant was habitual of filing such type of cases.
10. The learned Trial Court has relied upon the law laid down by the Apex Court in the case of Rohit Jivanlal Patel vs State of Gujarat reported in 2019 3 SC 662, Rangappa (Supra), Kumar Export vs Sharma Carpets reported in 2008 0 AIJEL_SC 42685, Hiten P. Dalal vs Bratindranath Banerjee reported in 2001 6 SCC 16, K. N. Beena vs Muniyappan and others reported in AIR 2001 SC 2895, M/s. Kalamani Tex & Anr vs P. Balasubramanian reported in 2021 1 DCR 625, Asp Forex Service Pvt. Ltd. vs Shakti International Fashion Linkers reported in 2020 0 AIJEL-SC 65765 and T.P.Murugan vs Boja reported in 2018 0 AIJEL-SC 62547 and in light of the same, has concluded that from evidence on record accused had created reasonable doubt and the applicant has failed to produce reliable and cogent evidence on record about the legally recoverable debt from the accused and applicant has not proved his case beyond reasonable doubt. The learned Trial Court has concluded that the accused has successfully rebutted the presumption based on preponderance of probability 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. Page 11 of 12 Uploaded by F.S. KAZI(HC01075) on Fri Feb 07 2025 Downloaded on : Sat Feb 08 03:02:04 IST 2025
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11. Consequently, the present application seeking leave to present an appeal under Section 419(4) of the Bhartiya Nagrik Suraksha Sanhita 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.
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