Gujarat High Court
Hasmukhbhai Kantilal Patel vs Chandrikaben Pankajkumar Shah on 29 July, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/CR.A/200/2009 JUDGMENT DATED: 29/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 200 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
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Approved for Reporting No Yes
No
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HASMUKHBHAI KANTILAL PATEL
Versus
CHANDRIKABEN PANKAJKUMAR SHAH & ORS.
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Appearance:
MR.NANDISH THACKER for THAKKAR AND PAHWA
ADVOCATES(1357) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for Opponent(s)/Respondent(s) No. 1,2
MR GAURANG K PATEL(2613) for Opponent(s)/Respondent(s) No. 1,2
MR. SOAHAM M. JOSHI, APP for Opponent(s)/Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 29/07/2025
ORAL JUDGMENT
1. This appeal under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") filed by the appellant - original complainant against the respondent - accused Nos. 1 and 2 challenging the judgment and order of acquittal passed by learned Metropolitan Magistrate, Court No.2, Ahmedabad dated 05.05.2005 in Criminal Case No. 877 of 1999, whereby respondent - accused Page 1 of 12 Uploaded by Raj Subhash Dhobi(HC01779) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:25:37 IST 2025 NEUTRAL CITATION R/CR.A/200/2009 JUDGMENT DATED: 29/07/2025 undefined have come to be acquitted of the charge punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act").
1.1 For the sake of brevity, parties to the appeal would be referred to as per their original status in the trial. Appellant herein is the original complainant, whereas accused Nos. 1 and 2 are the original accused in the trial Court.
2. It is the case of the complainant in the complaint that the complainant as also accused are in the business of trading in Tea. Complainant supplied the goods, as ordered by accused No. 2 - firm - M/s. Babulal Trikamji and Sons. On demanding the amount for the goods supplied, Managing Partner of respondent No. 2 - accused gave cheque issued from Proprietor M/s. Jaimin Traders - Chandrikaben Pankajkumar Shah, which is the sister concern of the respondent No. 2 - firm for an amount of Rs. 1,22,238/-. The said cheque, on presentation with the bank of the complainant, returned unpaid for 'insufficient fund'. Therefore, a notice came to be issued by the complainant, which was not replied despite service of it by the accused. Therefore, aforesaid complaint has come to be filed.
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NEUTRAL CITATION R/CR.A/200/2009 JUDGMENT DATED: 29/07/2025 undefined 2.1 To prove the case against the accused, complainant examined in all 4 witnesses and produced and proved certain documents.
2.2 On conclusion of the recording of evidence, recording of further statement under Section 313 of "the Code" of the accused as also after hearing arguments of both the sides, learned Magistrate has passed the impugned judgment and order acquitting the accused of the charges leveled against them. Hence, present appeal came to be filed by the original complainant against the impugned judgment and order of acquittal.
3. Mr. Nandish Thacker, learned advocate, for Thakkar and Pahwa Advocates, learned advocate for the appellant, submitted that in a prosecution for an offence under Section 138 of "the Act", complainant has to prove that cheque given by the accused is returned unpaid, within limitation notice has to be issued and a complaint has come to be filed within permitted time limits.
3.1 He has further submitted that once cheque is issued by the accused, factum of issuance of notice is proved, burden shifts on the accused to rebut that the cheque is against Page 3 of 12 Uploaded by Raj Subhash Dhobi(HC01779) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:25:37 IST 2025 NEUTRAL CITATION R/CR.A/200/2009 JUDGMENT DATED: 29/07/2025 undefined legally enforceable debt. Therefore, he has submitted that complainant has already proved the aforesaid facts, and therefore, judgment and order of acquittal passed by the learned Magistrate is erroneous and requires to be interfered with.
4. As against that, Mr. Gaurang K. Patel, learned advocate for the respondents - accused, submitted that accused have raised defence that dues, as claimed by the complainant, is a time-barred debt, and therefore, it cannot be said that, on the date of issuance of cheque, there exists legally enforceable debt. Therefore, even if accused have not rebutted the presumption, in absence of proof of legally enforceable debt proved by the complainant, burden never shifts on the accused.
4.1 He has further submitted that factum of total dues, for which cheque is given, is not against any goods supplied to the respondent - accused, it contains not only the principal amount but the interest, which is admitted by the complainant in his cross-examination that interest is a substantial part of the total amount. However, he has failed to mention about adding of interest on the principal amount, which is not Page 4 of 12 Uploaded by Raj Subhash Dhobi(HC01779) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:25:37 IST 2025 NEUTRAL CITATION R/CR.A/200/2009 JUDGMENT DATED: 29/07/2025 undefined mentioned in the complaint, notice issued as also in the examination-in-chief on oath filed by him. Therefore, according to the submission of Mr. Gaurang K. Patel, learned advocate for the respondents - accused, there exists no legally enforceable debt, as claimed by the complainant, and cheque can never be said to have been issued against goods supplied by the complainant and received by the accused. 4.2 Complainant has also, according to the submission of learned advocate for the accused, admitted in his cross- examination that amount of interest has not been debited in his account maintained with him. It is further admitted that no such debit-note debiting amount of interest is sent to the accused. Thus, notice, which doesn't contain a reference to even interest added to the outstanding amount, as per the account, in all the aforesaid documents prior to giving deposition, creates doubt about the outstanding amount stood in the account of accused maintained by the complainant. 4.3 He has further submitted that accused No. 1 - proprietary concern, whose proprietor is Chandrikaben Pankajkumar Shah, has different dealing with the complainant
- firm.
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NEUTRAL CITATION R/CR.A/200/2009 JUDGMENT DATED: 29/07/2025 undefined 4.4 Accused No. 1 is not even alleged to have issued that cheque in the complaint. In the entire complaint, it is mentioned that cheque in question is issued by respondent No.2 - Managing Partner of M/s. Babulal Trikamji and Sons. Therefore, there exists no presumption against accused No. 1 as submitted by the learned advocate for the respondent - accused.
4.5 He has further submitted that to bring about the debt within the period of limitation for showing that as on the date of issuance of cheque, legally enforceable debt exists, complainant has attempted to credit Rs. 1,000/- in the account of accused. However, the said fact is not stated in the complaint, notice or in the examination-in-chief. He claimed that amount of Rs. 1,000/- said to have been deposited on 27.03.1998, but complainant has failed to produce any contemporaneous record that accused has deposited the same. As such, as submitted by the learned advocate for the accused, outstanding dues were of accused No. 2 - firm and cheque is never issued by accused No. 2 - firm. 4.6 He has further submitted that despite complainant assured in his cross-examination that he is ready to produce all Page 6 of 12 Uploaded by Raj Subhash Dhobi(HC01779) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:25:37 IST 2025 NEUTRAL CITATION R/CR.A/200/2009 JUDGMENT DATED: 29/07/2025 undefined the bills, delivery challans, etc. to show outstanding amount, which is mentioned in the cheque, but he has miserably failed to produce the same despite his assurance. Therefore, case pleaded by the complainant is not beyond doubt, and therefore, the judgment and order of acquittal recorded by the learned Magistrate is required to be sustained. 4.7 He has further submitted that even if two views are possible of the evidence, the view which is favorable to the accused and accepted by the learned Magistrate should not lightly be disturbed. Unless and until, no view other than the view that the offence is committed by the accused beyond reasonable doubt, normally this Court would be slow in interfering with the judgment and order of acquittal. Therefore, he has submitted that this appeal deserves to be dismissed.
5. Mr. Soaham M. Joshi, learned APP, submitted that it being a private dispute between the parties, Court may pass appropriate order.
6. Having heard the learned advocates for the appearing parties as also considering the impugned judgment and order of acquittal, re-appreciating the evidence adduced and documents produced and proved by the complainant, let it Page 7 of 12 Uploaded by Raj Subhash Dhobi(HC01779) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:25:37 IST 2025 NEUTRAL CITATION R/CR.A/200/2009 JUDGMENT DATED: 29/07/2025 undefined be examined whether any interference is to be called for in this acquittal appeal or not.
6.1 On re-appreciation of evidence, it is clear that dues claimed by the complainant is from accused No. 2 - firm where Managing Partner is one Pankaj Babulal Shah. However, according to the complaint, it is the case of the complainant that cheque in question was issued by proprietor of M/s. Jaimin Traders - Chandrikaben Pankajkumar Shah, who happens to be the wife of Pankaj Babulal Shah - Managing Partner of accused No. 2 - firm, by the accused No. 2 only. Though proprietary concern of accused No. 1 and partnership firm of accused No. 2, both are having dealings with complainant, there exists different accounts and different transactions between the complainant and both the accused separately. If at all for any firm, any other person gives the cheque, it has to be asserted in the complaint and even in the deposition that it has been issued towards the debt of accused No. 2. However, it is not the case of complainant that accused No. 1 has given the cheque acknowledging the debt of accused No. 2. 6.2 For showing an existing outstanding amount in the account of accused No. 2 - firm, while complainant was cross- Page 8 of 12 Uploaded by Raj Subhash Dhobi(HC01779) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:25:37 IST 2025
NEUTRAL CITATION R/CR.A/200/2009 JUDGMENT DATED: 29/07/2025 undefined examined, he assured to produce the bills, delivery challans, statement of accounts, etc. in proof of cheque being issued towards transaction by accused No. 2 with the complainant. However, complainant has failed to produce those documents despite his assurance in the witness-box. Therefore, an adverse interference is required to be raised against the complainant that he is unable to prove cheque being given as per the transaction between the parties, as claimed in the complaint and his examination-in-chief. 6.3 Not only that, in the notice, complainant has stated that goods worth Rs. 1,22,238/- were given to the accused as against which cheque in question issued, whereas in the examination-in-chief, he reiterated the same. In cross- examination of the complainant, he has admitted that he is unable to state without looking at the accounts whether outstanding amount shown in the cheque to be Rs. 1,22,238/- is of one bill or not.
6.4 In a cross-examination, complainant has admitted that Rs. 68,883/- is the outstanding amount and Rs. 54,355/- is added towards the interest, which comes to Rs. 1,22,238/-. However, in the notice, complaint as also nowhere in the Page 9 of 12 Uploaded by Raj Subhash Dhobi(HC01779) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:25:37 IST 2025 NEUTRAL CITATION R/CR.A/200/2009 JUDGMENT DATED: 29/07/2025 undefined examination-in-chief, complainant has bifurcated the said amount, which contains principal as also the interest. In his cross-examination, complainant has further admitted that he has never intimated the accused debiting amount of interest in his account.
6.5 He has further submitted that no debit-note was ever issued to the accused. Therefore, learned Magistrate has rightly concluded that complaint of the complainant and notice issued based on the cheque becomes suspicious as it doesn't contain any assertion about amount containing interest as well.
6.6 As referred to by the learned Magistrate in para 12 of its judgment that the complainant claimed that on 27.03.1998, accused had deposited Rs. 1,000/-. He has admitted in his cross-examination that in an office copy, which is kept with him, it bears no signature of anyone in it. Thus, learned Magistrate has concluded that if on 27.03.1998, no amount of Rs. 1,000/- as claimed is deposited, the said dues has become time-barred.
Thus, it is clear that complainant has failed to prove that accused has deposited Rs. 1,000/-, as claimed by the Page 10 of 12 Uploaded by Raj Subhash Dhobi(HC01779) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:25:37 IST 2025 NEUTRAL CITATION R/CR.A/200/2009 JUDGMENT DATED: 29/07/2025 undefined complainant on 27.03.1998, just to bring about dues within the period of limitation.
6.7 Apart from the fact that can it be termed as 'legally enforceable debt' or not, the day on which it is claimed that accused has issued a cheque, the debt had become time- barred, and therefore, it was at that time not legally enforceable debt in the Court of law. Once that conclusion is recorded by the learned Magistrate and it is not found to be weighing with the learned Magistrate, coupled with material and serious improvements in the deposition of the complainant, said finding of fact requires no interference in this acquittal appeal.
6.8 As discussed in para 13 of the impugned judgment and order of acquittal, proprietary concern of accused No. 1 - M/s. Jaimin Traders is also independently dealing with the complainant. It is the defense of the accused No. 1 that advance cheques were being given for the goods ordered by the accused No. 1, which has been misused by the complainant. Complainant at Exhibit- 12 produced bills issued to M/s. Jaimin Traders - proprietary concern. However, it is not the case of the complainant that cheque is issued by the Page 11 of 12 Uploaded by Raj Subhash Dhobi(HC01779) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:25:37 IST 2025 NEUTRAL CITATION R/CR.A/200/2009 JUDGMENT DATED: 29/07/2025 undefined accused No.1 towards any debt of accused No.1. If it is issued by accused No. 1 towards its debt, as recorded by the learned Magistrate, a presumption under Sections 118 and 139 of "the Act" is required to be raised.
7. On reappreciation and overall examination of the evidence, it reveals that the complainant has failed to prove legally enforceable debt, for which cheque in question is claimed to have been issued by the accused, and therefore, there exists no presumption, as claimed by the complainant, under Sections 118 and 139 of "the Act".
8. From the cross-examination of the complainant himself, even if there is any presumption, it has been already rebutted by the accused. Therefore, burden shifts on the complainant to show that there exists legally enforceable debt. Hence, I see no reason to interfere with the well-reasoned judgment and order of acquittal recorded by the learned Magistrate and it is hereby confirmed.
9. In view thereof, this appeal is dismissed. Record and Proceedings be sent back to the trial Court forthwith.
Sd/-
(UMESH A. TRIVEDI, J.) Raj Page 12 of 12 Uploaded by Raj Subhash Dhobi(HC01779) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:25:37 IST 2025