Gujarat High Court
Rameshchandra Arjunbhai Vegada vs The State Of Gujarat on 27 February, 2025
NEUTRAL CITATION
R/CR.A/1730/2006 ORDER DATED: 27/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1730 of 2006
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RAMESHCHANDRA ARJUNBHAI VEGADA
Versus
THE STATE OF GUJARAT & ANR.
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Appearance:
TORAL M RATHOD(7935) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR HARSH N PAREKH(6951) for the Opponent(s)/Respondent(s) No. 2
PRIYAL M PARIKH(7593) for the Opponent(s)/Respondent(s) No. 2
MR. BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 27/02/2025
ORAL ORDER
1. The present appeal is filed by the appellant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") against the judgment and order dated 29.10.2005 passed by the learned 6th Additional Judicial Magistrate First Class, Gandhinagar (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 161 of 2005, 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 Act"). 1.1 The appellant is hereinafter referred to as "the complainant" and the respondent No 2 is referred to as "the accused" as they 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 appeal as well as the impugned judgment and order and paper book filed by the appellant are as under:
2.1 The complainant filed a complaint against the accused under Section 138 of the Act, as the accused had taken a friendly loan of ₹ 40,00,000/- from the complainant and the accused issued cheque No.338134 for ₹ 40,00,000/- dated 23.11.2004 of his account with Vijaya Bank, Sector 11 Branch, Gandhinagar. The complainant deposited the cheque on 23.11.2004 in his Bank and the cheque was dishonoured and the reason mentioned in the return memo dated 24.11.2004 was "Today's Opening Balance Insufficient". The complainant sent the statutory demand notice to the accused on 03.12.2004 by U.P.C. and R.P.A.D. and an evasive reply was given and no payment was made and hence the complainant filed the criminal complaint under Section 138 of the NI Act, 1881, before the Court of the Additional Judicial Magistrate First Class, Gandhinagar which was registered as Criminal Case No. 161 of 2005.
2.2 The accused was served with the summons and appeared before the learned Trial Court and his plea was recorded at Exhibit 08 and the evidence of the complainant was taken on record. The complainant was examined on oath and 08 documentary evidences were produced in Page 2 of 14 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:54:33 IST 2025 NEUTRAL CITATION R/CR.A/1730/2006 ORDER DATED: 27/02/2025 undefined support of his case and after the closing pursis at Exhibit 20 was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused refused to stepped into the witness box or examine witnesses on his behalf and after the arguments of the learned advocates for both the parties were heard, by the impugned judgment and order, the learned Trial Court was pleased to acquit the accused from the offence under Section 138 of the N I Act.
3. Being aggrieved and dissatisfied with the same, the appellant has preferred the present 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 Ms. Toral M. Rathod appearing for the appellant, learned APP Mr. Bhargav Pandya for the respondent No. 1 -
State and learned advocate Mr Harsh N Parekh for the respondent No. 2. Perused the impugned judgment and order of acquittal and have re- appreciated the entire evidence of the prosecution on record of the case.
5. Learned Advocate Ms. Toral M. Rathod for the appellant submits that the learned Trial Court has not appreciated that the appellant has successfully established that the cheque in question was issued by the accused from the bank account maintained by him. The appellant has Page 3 of 14 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:54:33 IST 2025 NEUTRAL CITATION R/CR.A/1730/2006 ORDER DATED: 27/02/2025 undefined proved that the cheque was written by the respondent No. 2 and it was dishonoured and as the appellant 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 appellant. The learned Trial Court has not appreciated the provisions of Section 118 and 138 of the N I Act in proper perspective. The oral contract is not negated by the respondent No. 2 and the fact of the amount paid by the appellant to the respondent No. 2 is also not negated, but the learned Trial Court has disbelieved the same. The respondent No. 2 had failed to rebut the presumption and hence the judgement and order of acquittal is bad in law and the appeal must be allowed.
6. Learned APP Mr. Bhargav Pandya for the respondent No. 1 - State and learned advocate Mr Harsh N Parekh for the respondent No. 2 have jointly 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 impugned judgement and order of acquittal which is proper and no interference is required and hence the appeal must be rejected.
7. Since this is an acquittal appeal if would be fit to reproduce the observations made by the Apex Court regarding the scope of interference of appellate Courts in acquittal appeals in the case of Constable 907 Page 4 of 14 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:54:33 IST 2025 NEUTRAL CITATION R/CR.A/1730/2006 ORDER DATED: 27/02/2025 undefined Surendra Singh & Anr Vs State of Uttarakhand reported in 2025 0 INSC 114 which is as under:
"11. Recently, in the case of Babu Sahebagouda Rudragoudar and others v. State of Karnataka, (2024) 8 SCC 149 a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus:
"38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging acquittal of the accused recorded by the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp. 482-83, para
29) "29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words : (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , SCC p. 432, para 42) '42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of "flourishes of language"
to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
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(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.' "
40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC as follows : (SCC p. 584, para 8) "8. ... 8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:
41.1. That the judgment of acquittal suffers from patent perversity; 41.2. That the same is based on a misreading/omission to consider material evidence on record; and Page 6 of 14 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:54:33 IST 2025 NEUTRAL CITATION R/CR.A/1730/2006 ORDER DATED: 27/02/2025 undefined 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
8. In light of the above it is well settled law that in an appeal against acquittal, the appellate Court is circumscribed by the limitation that no interference has to be made with the order unless the approach made by the trial Court to the consideration of evidence is vitiated by some manifest illegality or the conclusion recorded by it is such, which could not have been possibly arrived at by any Court acting reasonably and judiciously and is therefore, to be characterised as perverse. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.Page 7 of 14 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:54:33 IST 2025
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9. In light of the above settled principles of law in acquittal appeals and on re appreciating the evidence on record of the case the complainant has been examined on oath at Exhibit 11 and he has reiterated the contents of the complaint. During the cross-examination by the learned advocate for the accused, the complainant has stated that he was a clerk earning ₹14,600/- per month as salary. That his wife is doing the business of construction in the name of Gail Construction. The accused had placed a scheme in the name of Shiv Darshan Housing Society and the complainant has admitted to his signature in the document produced at exhibit 19. That he has no other source of income, except his salary and no accounts were maintained regarding the financial transaction with the accused. That he has no evidence to show that he had given an amount of ₹40,00,000/- to the accused in the year 2002 and no receipt or promissory note was executed for the huge amount of ₹40,00,000/- and he has no documentary evidence to show that he had given the amount of ₹40,00,000/-. The amount was given without interest and he had not borrowed the amount from any other person and no such fact is mentioned in the complaint. The handwriting in the cheque are not of the accused and the complainant has voluntary stated that they are his handwriting and in the document produced that Exhibit 19 there is no mention about any amount of ₹40,00,000/-. The accused had filed a Page 8 of 14 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:54:33 IST 2025 NEUTRAL CITATION R/CR.A/1730/2006 ORDER DATED: 27/02/2025 undefined reply to the notice which is produced at exhibit 17 and the accused that clarified the entire matter in the reply to the notice. 9.1 As per the complaint, the accused had given cheque No. 338134 dated 23.11.2004 and it is the say of the complainant that the amount was taken in the year 2002. The document produced at Exhibit 19 is executed on a stamp paper of ₹50/- is dated 13.02.2004 and the complainant has admitted that below, the typed matter is his signature and the writing states that all the accounts have been settled. That if the amount was taken in the year 2002, this document which is executed on this stamp paper of ₹50/- dated 13.02.2004 would mention that the huge amount of ₹40,00,000/- is unpaid. In the cross examination of the appellant, there is nothing on record to show how the huge amount of ₹40,00,000/- in cash was given by the applicant to the accused in the year 2002. There is no clarification regarding the date and time when the amount was given and in the cross-examination, the applicant has admitted that he is earning a salary of ₹14,600/- per month and he has no other source of income, besides the salary. Except for the bald allegations of the appellant that he had given the amount of ₹40,00,000/- to the accused there is nothing on record to show that the amount was ever paid and there is a legally enforceable debt due to the applicant. The accused has successfully challenged the financial capacity of the Page 9 of 14 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:54:33 IST 2025 NEUTRAL CITATION R/CR.A/1730/2006 ORDER DATED: 27/02/2025 undefined appellant and has also proved that there was no legally enforceable debt due to the complainant by the document produced that exhibit 19. As per the settled principles of law when the accused had brought on record that the complainant was earning an amount of ₹14,600/- per month as salary and had no other source of income, besides salary, it was the onus of the complainant to prove as to how he had the huge amount of ₹40,00,000/- in cash in the year 2002 to lend to the accused, but no such evidence has been brought and recorded by the complainant and the accused has successfully rebutted the presumption.
10. 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 Page 10 of 14 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:54:33 IST 2025 NEUTRAL CITATION R/CR.A/1730/2006 ORDER DATED: 27/02/2025 undefined 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."
10.1 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.
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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."
11. In light of the above settled principles of law the learned Trial Court has appreciated all the evidence produced by both the parties and has concluded that the appellant has not proved how the huge amount of ₹ 40,00,000/- was paid in cash to the accused in the year 2002. Moreover the document produced at exhibit 19 on the stamp paper dated 13.02.2004 clearly states that all the accounts were settled between the parties and if the amount of ₹40,00,000/- was due as a legally enforceable debt it would have been mentioned in the stamp paper.
12. The learned Trial Court has concluded that from evidence on record the complainant has failed to prove his financial capacity to lend and how he had arranged such a huge amount of Rs.40,00,000/- to lend and it seems that the cheque has been misused and the accused has successfully rebutted the presumption under Section 139 of the NI Act. The accused has created a reasonable doubt and the complainant has Page 12 of 14 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:54:33 IST 2025 NEUTRAL CITATION R/CR.A/1730/2006 ORDER DATED: 27/02/2025 undefined failed to produce reliable and cogent evidence on record about the legally recoverable debt from the accused and the complainant has not proved his case beyond reasonable doubts and, in light of the above settled principles of law, the learned Trial Court has passed the impugned judgment and order of acquittal. It is settled law that unless the evidence is clear, cogent and reliable, no conviction can be recorded and on re- appreciating the entire evidence, the evidence is far from convincing. As settled by the Apex Court the scope of interference of the appellate Courts in acquittal appeals is limited and unless there is some perversity and illegality found in the judgement and order of the learned Trial Court, the appellate Court will interfere only to ensure that no miscarriage of justice has occurred. This court has perused the findings of the learned Trial Court and the learned Trial Court has appreciated the evidence and has acquitted the accused and there is no perversity or legality in the findings recorded by the learned Trial Court. This Court is in complete agreement with the findings, reasons and ultimate conclusion and resultant order of acquittal and finds no reason to interfere with the impugned judgement and order of acquittal.
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13. Consequently, the present appeal is devoid of merits and resultantly the appeal fails and is hereby dismissed.
14 . Notice stands discharged. Record and proceedings if any, be sent back to the learned Trial Court forthwith.
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