Gujarat High Court
Rajeshbhai Momaiyabhai Savseta vs State Of Gujarat on 21 July, 2025
NEUTRAL CITATION
R/CR.MA/12041/2025 ORDER DATED: 21/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION (NO. 12041 of 2025
FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 23713 of 2025
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RAJESHBHAI MOMAIYABHAI SAVSETA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR RATHIN P RAVAL(5013) for the Applicant(s) No. 1
MS CM SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 21/07/2025
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 22.04.2025 passed by the learned Judicial Magistrate First Class, Tankara (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 74 of 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 N.I.Act"). Page 1 of 11 Uploaded by F.S. KAZI(HC01075) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:07:32 IST 2025
NEUTRAL CITATION R/CR.MA/12041/2025 ORDER DATED: 21/07/2025 undefined 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 filed a complaint against the accused under Section 138 of the Act, as the accused had taken a hand loan of Rs.8,85,000/- in parts from the applicant and the accused had issued cheque No.003272 for the amount of Rs.8,85,000/- dated 13.12.2023 from his account with Saurashtra Gramin Bank, Tankara Branch. The applicant deposited the cheque in his account with The HDFC Bank, Tankara Branch and the cheque was dishonored and the reason mentioned in the return memo was "Funds Insufficient". The applicant sent the statutory demand notice to the accused on 20.12.2023 which was duly served but no payment was made. The applicant filed the criminal complaint before the Court of the Judicial Magistrate First Class, Tankara Page 2 of 11 Uploaded by F.S. KAZI(HC01075) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:07:32 IST 2025 NEUTRAL CITATION R/CR.MA/12041/2025 ORDER DATED: 21/07/2025 undefined under Section 138 of the N.I.Act, 1881 which was registered as Criminal Case No. 74 of 2024.
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 09 and the entire evidence of the applicant was taken on record. The applicant was 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 and stated that a false complaint has been filed against him. The accused refused to step into the witness box or examined witnesses but produced 04 documentary evidences in his defence and after the arguments of the learned advocates for both the parties were heard, by the 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 Page 3 of 11 Uploaded by F.S. KAZI(HC01075) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:07:32 IST 2025 NEUTRAL CITATION R/CR.MA/12041/2025 ORDER DATED: 21/07/2025 undefined 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. Rathin P. Raval appearing for the applicant, learned APP Ms. C. M. Shah for the respondent -
State.
5. Learned Advocate Mr. Rathin P. Raval for the applicant submits that the learned Trial Court has not appreciated that the applicant has successfully established that the cheque in question were 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 N.I.Act in proper perspective. The fact of the amount paid by the applicant Page 4 of 11 Uploaded by F.S. KAZI(HC01075) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:07:32 IST 2025 NEUTRAL CITATION R/CR.MA/12041/2025 ORDER DATED: 21/07/2025 undefined to the accused is not negated, but the learned Trial Court has disbelieved the same. The accused had failed to rebut the presumption and hence the judgement and order of acquittal is bad in law and the leave to appeal must be granted.
6. Learned Ms.C.M.Shah for the respondent - State 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. 7.1 With regard to the facts in the present case, we can also refer to the following observations made Apex Court in Rangappa vs Sri Mohan reported in (2010) 11 SCC 441 in Para 14 wherein it is observed 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 Page 5 of 11 Uploaded by F.S. KAZI(HC01075) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:07:32 IST 2025 NEUTRAL CITATION R/CR.MA/12041/2025 ORDER DATED: 21/07/2025 undefined 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."
7.3 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:Page 6 of 11 Uploaded by F.S. KAZI(HC01075) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:07:32 IST 2025
NEUTRAL CITATION R/CR.MA/12041/2025 ORDER DATED: 21/07/2025 undefined
(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 principles of law and considering the arguments advanced by the learned advocates for the parties and on perusal of the record of the case the affidavit of examination in chief of the complainant has been produced at Page 7 of 11 Uploaded by F.S. KAZI(HC01075) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:07:32 IST 2025 NEUTRAL CITATION R/CR.MA/12041/2025 ORDER DATED: 21/07/2025 undefined exhibit 05 wherein the complainant has narrated the facts of the complaint on oath. As per the case of the applicant, he had given a hand loan of Rs.8,85,000/- to the accused and the financial capacity of the applicant has been challenged in the cross- examination where he has stated that the transaction was 4 to 5 years prior to filing of the case and while the transaction had taken place, he did not give any receipt to the accused. Besides this transaction, they did not have any other transaction between them. The applicant has also admitted that on 27.11.2019, a Notarized deed was executed between the parties at Tankara in the presence of R. J. Bhagya, Notary, and at that time he had taken two cheques of Bank of Baroda and two cheques of Rajkot District Bank, Chachapar Branch and in all four cheques were taken from the accused. The applicant has also admitted that the cheque in question in the present case was one of the four cheques taken from the accused at the time of execution of the notarized deed. The applicant has also admitted that he had two more blank cheques with the signature of the accused with him and has not shown the amount advanced to the accused in his income tax Page 8 of 11 Uploaded by F.S. KAZI(HC01075) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:07:32 IST 2025 NEUTRAL CITATION R/CR.MA/12041/2025 ORDER DATED: 21/07/2025 undefined returns. The applicant has produced his Income Tax Returns for the assessment year 2021-2022 at exhibit 22, assessment year 2022- 2023 at exhibit 23 and assessment year 2023-2024 at exhibit 24 and in all these Income Tax Returns, the annual income of the applicant is Rs.2,26,125/-, Rs.2,90,914/- and Rs.3,81,535/- respectively. Hence, there is no evidence on record that the applicant could advance an amount of Rs.8,85,000/- to the accused 4 to 5 years prior to filing of the complaint. As far as the liability of the applicant is concerned, he has stated that he has four members in his family and his children go to a private college and he bears all their expenditure.
9. In the entire evidence on record the applicant has not been able to prove that the amount of Rs.8,85,000/- was given as a hand loan to the accused and during the cross-examination, the accused has successfully challenged the financial capacity of the applicant. It is the case of the applicant that the accused had taken the amount of Rs.8,85,000/- as hand loan from him, but there is no of evidence that the applicant had the financial capacity to give the amount of Rs.8,85,000/-. The applicant has categorically stated Page 9 of 11 Uploaded by F.S. KAZI(HC01075) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:07:32 IST 2025 NEUTRAL CITATION R/CR.MA/12041/2025 ORDER DATED: 21/07/2025 undefined that he has not shown the amount in his Income Tax Returns and there is no evidence on record to suggest that the applicant had the financial capacity and he could advance the huge amount of Rs.8,85,000/- to the accused. During the cross-examination of the applicant by the learned advocate for the accused, the presumption has been successfully rebutted and thereafter no evidence has emerged on record from the applicant to prove his case beyond reasonable doubts.
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 Page 10 of 11 Uploaded by F.S. KAZI(HC01075) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:07:32 IST 2025 NEUTRAL CITATION R/CR.MA/12041/2025 ORDER DATED: 21/07/2025 undefined 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 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 fails and is hereby dismissed.
12. Record and proceedings if any, be sent back to the learned Trial Court forthwith.
13. 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 11 of 11 Uploaded by F.S. KAZI(HC01075) on Fri Jul 25 2025 Downloaded on : Sat Jul 26 00:07:32 IST 2025