Gujarat High Court
Suryadeep Finance Thro Dilipbhai ... vs State Of Gujarat on 13 February, 2025
NEUTRAL CITATION
R/CR.MA/17391/2024 ORDER DATED: 13/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO.17391 of 2024
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 20817 of 2024
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SURYADEEP FINANCE THRO DILIPBHAI BABBHAI KHACHAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR SANDEEP R LIMBANI(5977) for the Applicant(s) No. 1
M S PADALIYA(7406) for the Respondent(s) No. 2
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 13/02/2025
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 dated 08.02.2024 passed by the learned 7th Additional Chief Judicial Magistrate, Rajkot in Criminal Case No. 16396 of 2022, 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 Page 1 of 9 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:21 IST 2025 NEUTRAL CITATION R/CR.MA/17391/2024 ORDER DATED: 13/02/2025 undefined "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 are as under:
2.1. The applicant has the business of finance in the name of Suryadeep Finance in Rajkot and the accused had taken a loan of Rs.3,00,000/- on 03.01.2022 and had executed the necessary documents. The accused had issued cheque No. 003512 dated 24.03.2022 for Rs.3,00,000/- from his account with Jeevan Commercial Cooperative Bank Limited, Dhebar Road, Rajkot. The cheque was presented by the applicant in his bank and the same returned with the endorsement "Funds Insufficient" on 28.03.2022. The applicant gave the statutory demand notice through his advocate on 16.04.2022 which was duly served to the accused, but the accused did not repay the amount and hence the complainant filed the complaint before the court of the Chief Judicial Magistrate, Rajkot. 2.2. The accused was served with the summons and appeared before the learned Trial Court and his plea was Page 2 of 9 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:21 IST 2025 NEUTRAL CITATION R/CR.MA/17391/2024 ORDER DATED: 13/02/2025 undefined recorded at Exh.05 and the evidence of the applicant was taken on record. The applicant was examined on oath and 06 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 applicant had filed a false complaint as the accused had lodged a FIR against applicant before Gandhigram-1 (Uni.) Police Station and pleaded that he is innocent. The arguments of the advocates for both the parties were heard and by impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the 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.Sandeep Limbani for the applicant and learned APP Ms.Jirga Jhaveri for the respondent -
State and Mr.M.S.Padaliya for the respondent - accused. Page 3 of 9 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:21 IST 2025
NEUTRAL CITATION R/CR.MA/17391/2024 ORDER DATED: 13/02/2025 undefined
5. Learned Advocate Ms Vanshika Pritmani for learned Advocate Mr Sandeep Limbani submits that the accused was liable to pay the amount which was the legitimate dues of the applicant who had every right to recover the same. The accused has also signed Form No. 11 and submitted to the applicant and has not paid up the outstanding amount but the learned Trial Court has not considered the same. The accused has not responded to the notice and has impliedly accepted his liability, and the defence put up by the accused is an after thought and the applicant has a good case on merits and hence the leave to appeal be granted.
6. Learned APP Ms.Jirga Jhaveri for the respondent State has submitted that the learned Trial Court has considered all the documents produced by the applicant and has also considered the evidence and has passed the impugned order of acquittal considering the settled principles of law and hence the leave to appeal may not be granted.
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:
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NEUTRAL CITATION R/CR.MA/17391/2024 ORDER DATED: 13/02/2025 undefined "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."
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:
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NEUTRAL CITATION R/CR.MA/17391/2024 ORDER DATED: 13/02/2025 undefined
(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."
8. In light of the above settled principles of law and on perusal of the evidence produced by the applicant before the learned Trial Court the applicant has filed his examination in chief at Exh.4 and has narrated all the facts of the complaint on oath. The applicant has been cross examined at length and Page 6 of 9 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:21 IST 2025 NEUTRAL CITATION R/CR.MA/17391/2024 ORDER DATED: 13/02/2025 undefined during the cross-examination the applicant has stated that he has to maintain the books and has to file the statement of amounts loaned to various persons. That he has not stated the duration of the loan taken by the accused, the rate of interest and the number of instalments to be paid in the complaint. That the accused had through Google Pay deposited various amounts in his account and in the statement produced at Exh.20, the duration of the loan is not mentioned. The accused had deposited an amount of Rs.50,000/- on 10.12.2022 and an amount of Rs.40,000/- on 01.12.2022 through Google Pay and the amount of loan was given in cash, even though as per the rules of the Money Lenders Act, any amount of loan has to be given by cheque. The accused had filed a criminal complaint against him and he had not shown any amount as interest in the present case.
8.1. It is the case of the applicant that he had loaned the amount of Rs.3,00,000/-, but during the cross-examination, the applicant has admitted that the accused had deposited Rs.50,000/- and Rs.40,000/- in his account by Google Pay and it is clear that the amount of Rs.3,00,000/- is not the actual amount that is due from the accused, and the said fact is not mentioned Page 7 of 9 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:21 IST 2025 NEUTRAL CITATION R/CR.MA/17391/2024 ORDER DATED: 13/02/2025 undefined by the applicant in the notice, the complaint or his examination in chief. The applicant has not come with clean hands and has suppressed material facts from the learned Trial Court and the amount of cheque is not the legally enforceable debt from the accused on the date of its maturity or presentation and hence in light of the judgment of the Apex Court in Dashrathbhai Trikambhai Patel (Supra) the accused has not committed any offence under Section 138 of the N.I.Act.
9. The Learned Trial Court has considered all the documents produced by the applicant and has also considered that the applicant has failed to prove beyond reasonable doubt that the cheque in question was given as repayment of a legal debt for a legally enforceable debt and the accused has successful rebutted the presumption to the extent of preponderance of probabilities.
10. The learned Trial Court has relied upon the law laid down by the Apex Court in the case of Bir Singh Vs Mukesh Kumar reported in 2019 1 GLH 338, D. K. Chandal Vs M/s Wockhardt Ltd. & Anr in Criminal Appeal No. 132 of 2020, Srimati Ragini Gupta Vs Piyush Dutt Sharma reported in 2019 3 DCR 358 and Kumar Export vs Sharma Carpets reported in 2008 Page 8 of 9 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:21 IST 2025 NEUTRAL CITATION R/CR.MA/17391/2024 ORDER DATED: 13/02/2025 undefined 0 AIJEL SC 42685 and has concluded that from evidence on record the applicant has not proved his case beyond reasonable doubt. The accused has successfully rebutted the presumption based on preponderance of probability under Section 139 of the NI Act and the applicant has failed to prove the essential requirements to constitute the offence under Section 138 of the N.I.Act that the applicant has failed to prove that the cheque was given to repay a legally recoverable debt 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 378(4) of the Code of Criminal Procedure 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 9 of 9 Uploaded by F.S. KAZI(HC01075) on Thu Feb 13 2025 Downloaded on : Thu Feb 13 23:08:21 IST 2025