Gujarat High Court
Mehta Nileshkumar Vishnuprasad vs State Of Gujarat on 4 November, 2025
NEUTRAL CITATION
R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 199 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
√
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MEHTA NILESHKUMAR VISHNUPRASAD
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR DILIP L TRIVEDI(3059) for the Appellant(s) No. 1
MR JIGAR G GADHAVI(5613) for the Appellant(s) No. 1
MS VISHWA SHAH, for MR DM DEVNANI, (5880) for the Respondent No. 2
MS.C.M.SHAH, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 04/11/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - original complainant under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') against the judgment and the order passed by the learned 3rd Judicial Magistrate First Class, Mehsana (hereinafter referred to as 'the learned Trial Court), in Criminal Case No. 3367 of 2005 on Page 1 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined 18.10.2010, whereby, the learned Trial Court acquitted the respondent no.2 - accused for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the N.I.Act').
1.1. The parties are hereinafter referred to as the complainant and the accused as they stood in the original case, for the sake of convenience, clarity and brevity.
2. The relevant facts leading to filing of the present appeal are as under:
2.1 The complainant filed a complaint under Section 138 of the N.I.Act against the accused on 30.08.2005 mainly stating that the complainant and the accused both are residing at Mehsana and the complainant was working in Urban School. The accused was doing the business of taking contracts from the Gujarat Electricity Board and had his place of business in GIDC and about 8 months prior to filing of the complaint, the accused came to the house of the complainant and asked for an amount of Rs.2,00,000/- for expansion of his business. The complainant borrowed the amount from his friend circle and advanced an Page 2 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined amount of Rs.2,00,000/- to the accused and the accused stated that the amount would be repaid within a period of 6 months.
After the period of 6 months was over, the complainant demanded for the amount and 3 months prior to filing of the complaint, the accused gave two cheques i.e. cheque no. 106240 and dated 12.05.2005 and cheque no. 106241 dated 10.06.2005 both of Rs.1,00,000/- each from his account with Nagrik Sahakari Bank, Mehsana Branch. The cheques were deposited by the complainant in his account with Mehsana Urban Cooperative Bank Limited, Mehsana Branch on 15.07.2005, but both the cheques returned unpaid with the endorsement funds insufficient. The demand statutory notice was sent by R.P.A.D. and UPC which were duly served to the accused. The accused gave an evasive reply and did not repay the amount within the stipulated period, and hence, the complainant filed a complaint under Section 138 of the N.I.Act before the Court of the Chief Judicial Magistrate, Mehsana which came to be registered as Criminal Case No. 3367 of 2005. 2.2 The accused was duly served with the summons and appeared before the learned Trial Court and his plea was Page 3 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined recorded at Exh.9 and the evidence of the complainant was taken on record. The complainant was examined on oath at Exh.11 and one witness Dashrathbhai Haridas Patel was examined at Exh.32. The complainant produced 09 documentary evidences in support of his case. 2.3 After the closing pursis was filed by the complainant at Exh.40, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused stated that the facts stated in the examination-in- chief and in the complaint are false and a false complaint has been filed by the complainant. The accused stepped into the witness box and deposed on oath and examined 01 witness and produced 04 documentary evidences in support of his defence. 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 Act.
3. Being aggrieved and dissatisfied with the judgment and order of acquittal passed by the learned Trial Court, the Page 4 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined appellant has preferred the present appeal mainly stating that the judgment and order of acquittal passed by the Learned Trial Court is absolutely bad, illegal and erroneous and deserves to be quashed and set aside. The judgment and order is against the weight of evidence on record and against the cardinal principles of law. The issues have not been properly dealt with by the learned Trial Court and the learned Trial Court has committed a serious error of law and has passed the impugned judgment acquitting the respondent no.2 and has wrongly made a presumption that the appellant may not have the financial capacity of Rs.2,00,000/- that was advanced to the respondent no.2. The learned Trial Court has not considered that the respondent no.2 has changed his version and the respondent no.2 had clearly stated that the cheques were given to the complainant by one Vinodbhai who is the brother-in-law of the respondent no.2 and earlier had given a different version and the contradiction has not been considered by the learned Trial Court. The respondent no.2 has failed to show that if the cheques were stolen, he did not file any complaint against his brother-in-law Vinodbhai or the complainant and did not cancel Page 5 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined the cheques or intimate the bank about the missing cheques but the learned Trial Court has not considered this aspect. The learned Trial Court has also wrongly acquitted the respondent no.2 on the ground that the appellant did not have any familiarity or friendship with the respondent no.2 and did not believe that the appellant would have advanced an amount of Rs.2,00,000/- to the respondent no.2, and hence, the judgment and order passed by the learned Trial Court is illegal and is required to be quashed and set aside.
4. Heard learned advocate Mr. Jigar Gadhavi for the appellant, learned APP Ms.C.M.Shah for the respondent no.1 - State and learned advocate Ms. Vishwa M. Shah for learned advocate Mr.D.M.Devnani 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 Mr. Jigar Gadhavi for the appellant has submitted that the learned Trial Court has not considered the contradictions in regard to the signature of the Page 6 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined cheques in question and the defence that the cheques were lost and misused by the appellant gets contradicted by the stand of the respondent no.2 that he gave the cheques to Vinodbhai who gave them to the appellant. This makes the defence put up by the respondent no.2 improbable. Moreover, as per the defence of the respondent no.2, the cheques were lost and given to Vinodbhai in the year 2000 but for five long years no action was taken by the respondent no.2 to get the cheques back by issuing any notice or filing any complaint against the said Vinodbhai, and hence, the story of the respondent no.2 loses credibility. Moreover, no stop payment was intimated to the bank and even though the respondent no.2 has stated that he had closed his business in the year 2001, he did not close the bank account till the year 2005 and this makes the defence absolutely improbable. The respondent no.2 has not chosen to examine Vinodbhai in support of his defence and this shows that there is no truth in the defence story. Moreover, in the reply to the statutory notice, the respondent no.2 did not question the financial capacity of the appellant whereas the appellant has clarified that he had managed the funds with help from his Page 7 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined friend circle. The learned Trial Court has committed a serious error in disbelieving the financial capacity of the appellant and has believed the defence raised by the respondent no.2 without any cogent material on record. In fact, the learned Trial Court has committed a grave and material error and perversity can be found from the impugned judgment and order as the learned Trial Court has made a general observation that there is nothing to show that the appellant has any savings and has failed to indicate any date with regard to the transaction and how he had managed the funds and the date when Rs.50,000/- was borrowed from a friend and that the appellant has not named those persons, from whom, he had borrowed the amount. Moreover, as the cheque itself is a negotiable instrument considering the provisions of Section 139 of the N.I.Act, no separate agreement or promissory note is required. Learned advocate further submits that the findings are erroneous, illegal and perverse in nature and the appeal of the appellant must be allowed and the impugned judgment and order of acquittal must be quashed and set aside.
6. Learned APP Ms.C.M.Shah for the respondent No.1 - Page 8 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025
NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined State has submitted that the learned Trial Court has appreciated all the evidence in true perspective and has not committed any error in acquitting the accused. Therefore, no interference of this Court is required in the impugned judgment and order of acquittal passed by the learned Trial Court and has urged this Court to reject the appeal.
7. Learned advocate Ms.Vishwa M. Shah for the respondent no.2 has submitted that the accused has raised a defence in the reply to the notice and has denied the existence of any loan transaction and has denied issuing the cheques in discharge of any liability. Moreover, the respondent no.2 has also challenged the financial capacity of the appellant to advance such a significant loan amount and has proved that the cheques were from an old cheque book that have been misused by the appellant. Learned advocate submits that the appellant has failed to prove the foundational facts of the existence of a legally enforceable debt as no loan agreement, promissory note or any other documentary proof regarding the transaction has been produced by the appellant on record. Moreover, the financial capacity of the appellant to lend Rs.2,00,000/- was Page 9 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined highly doubtful given his low monthly income of Rs.3000/- per month and considering the fact that he had two sons and one daughter thereby making the loan transaction improbable. Learned advocate further submits that the respondent no.2 has successfully rebutted the statutory presumption under section 139 of the N.I.Act by establishing a probable defence and shifting the onus back to the appellant to prove the debt which the appellant has failed to do so, and hence, the findings of the learned Trial Court that the respondent no.2 has successfully raised a probable defence and has rebutted the statutory presumption on the preponderance of probability is just and proper and no interference is required in the impugned judgment and order and has urged this Court to reject the appeal of the appellant
8. On perusal of the evidence on record, the complainant has deposed on oath at Exh.11 and has mainly narrated the facts as stated in the complaint. In the cross- examination, the complainant has stated that he is working in Urban School for the last 10 years as a teacher and was drawing a salary of Rs.3000/- per month for a period of 5 years, and Page 10 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined thereafter, had received the grade and was drawing an amount of Rs.4200/- as salary from the year 2006. He has 2 children one aged 7 years and the other aged 1½ years and in the complaint, notice and his deposition, he has not mentioned the date or the month in which the accused had come to borrow the amount of Rs.2,00,000/-. The complainant has stated that he had borrowed an amount of Rs.50,000/- from his friend and the remaining amount of Rs.1,50,000/- was given from his house but he has not mentioned the name of the friend from whom he had borrowed the Rs.50,000/-. In the complaint he has stated that he had borrowed the entire amount of Rs.2,00,000/- from his friend circle and had given the amount to the accused and as per his say, the transaction had taken place in October, 2004. The accused did not give the cheques at that time and at the time of the financial transaction, he did not execute any document or a promissory note from the accused. He had gone 2 to 3 times to the accused for demanding the amount and the accused had closed his business in GIDC in the year 2001. In the complaint, notice and deposition, he has not mentioned the date or the place when the accused had given him the cheques and he did Page 11 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined not make a note about the financial transaction with the accused in any diary. The complainant has denied knowing that the accused and his family members had attempted to commit suicide due to financial constraints and has also denied knowing that the wife of the accused had filed a case under Section 498-A of the IPC against the accused.
8.1. The complainant has produced the cheques at Exh.12 and Exh.13, the return memos at Exh.14 and Exh.15, the notice sent to the accused at Exh.17 and reply to the notice received from the accused at Exh.21. In the reply to the notice, the accused has mainly stated that he does not know the complainant, has denied borrowing any amount from the complainant and has demanded an explanation from the complainant as to how the cheques came to the possession of the complainant. The accused has stated that he was doing business in the name of "Nividha Metals Industries" in GIDC, Mehsana in Plot No.137 after renting the plot from the owner Rajesh Kantilal Patel and in the year 2001, the business was closed and possession of the plot was handed back to the owner. At that time, the accused had opened Current Account Page 12 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined No. 05664 in the Mehsana Nagarik Bank, and as the business had closed, he did not make any transactions in the current account. The cheques in question were given to Vinodbhai Dashrathlal Modi, his brother-in-law who was residing at Tulsi Bungalows, Ratanpur Road, Mehsana in July, 2000 for business purpose and the accused had demanded the cheques from his brother-in- law, but his brother-in-law had told him that the cheques were lost and after a long period of five years, the cheques came to the possession of the complainant and the accused had demanded an explanation from the complainant as to how he came to the possession of the cheques.
8.2. The complainant has examined PW-2, Dashrathbhai Haridas Patel at Exh.32 and the witness was working as an officer in Mehsana Nagarik Bank and he has produced the details of the Account No. 5664 of the accused. The witness has also been examined as a defence witness by the accused and in the evidence of the witness, it has emerged that Current Account No. 5664 was opened in the name of "Nividha Metals"
in a Partnership Firm, and thereafter, as the partnership was dissolved the accused was using the account as a proprietor.Page 13 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025
NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined The necessary documents were given by the accused for the account and also the undertaking was given and cheque books were issued to the accused. The witness has also produced the document regarding the closure of account at Exh.36, which shows that the account was closed on 29.09.2005.
8.3. After the evidence of the complainant was closed, in the further statement of the accused, the accused has raised the same defence and has stated that he had closed the business in the year 2001, and in the year 2002, because of financial constraints he, his younger brother Bipinbhai and his parents had tried to commit suicide and Criminal Case No. 3924 of 2003 was filed against them. As he had closed the business in the year 2001, there was no question of borrowing any money from the complainant for expansion of his business. The accused denied all the evidence and stated that he did not know the complainant and stepped into the witness box and deposed on oath at Exh.45 and examined Dashrathbhai Haridas Patel at Exh.51. In his deposition, the accused has reiterated the contents and defence raised in the reply to the notice and produced a complaint filed by Gajdinkhan Kasamkhan, Page 14 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined Unarmed Head Constable, Buckle No.1926, Mehsana Taluka Police Station at Exh.46, wherein, the witness has stated that on 16.02.2003 the accused, his brother and his parents had consumed Pioban TC medicine to commit suicide and they were brought to Mehsana Civil Hospital for treatment. The accused has produced the judgment of Criminal Case No.3924 of 2003 at Exh.47 and the bail application preferred by him before the Sessions Court, Mehsana for the offence registered under Sections 498 and 306 of the IPC at Mehsana City Police Station I-
C.R.No.305 of 2007 at Exh.48. The accused has also produced the judgment of Criminal Case No. 3469 of 1993 at Exh.49. In the cross-examination of the accused, it has emerged that he had started the business in the year 1996 and had closed the business in 2001 and had thereafter closed Current Account No.5664 in the year 2005.
9. Learned advocate Mr. Jigar S. Gadhavi for the appellant has relied upon a decision of the Apex Court in case of Rajesh Jain Vs. Ajay Singh reported in 2023 (0) AIJEL - SC 72588, wherein in para Nos.38 to 45, the Apex Court has observed as under:
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NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined "38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
39. John Henry Wigmore [7] on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule."
[7] Rules of Evidence- The Hidden Origin of Modern Law
40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non-existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of 'preponderance of probabilities', similar to a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR 2010 SC 1898)]
41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]
42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist-is to lead defence evidence and conclusively establish with Page 16 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non- existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes:
the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was 'no debt/liability'. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.
44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the Page 17 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441]
46. It is against the backdrop of the afore-stated legal principles that we proceed to consider if there is any interference that is called for.
47. The accused has neither replied to the demand notice nor has led any rebuttal evidence in support of his case. The case set up by him needs to be drawn from the suggestions put during the cross examination and from his reply given in the statement recorded under Section 313 of Cr.P.C.
48. It has been suggested to the complainant that accused had not borrowed any loan from him. It was suggested to him that no legal notice had been issued on dishonor of cheque. It was further suggested that the complainant has misused a blank cheque - the said cheque having been obtained from his employee, Gita Sunar, who also happens to be the sister-in law of the accused. It was suggested that Gita Sunar had some financial transactions with the complainant and towards that end, he had received a blank cheque (signed by the accused) from Gita Sunar and misused it. It is pertinent to note that the suggestions mentioned above were denied by the complainant."
9.1. The Apex Court, in the case of Ashok Singh V. State of Uttar Pradesh reported in 2025 (0) AIJEL - SC 75004, has observed in Para-22 as under:
"22. The High Court while allowing the criminal revision has primarily proceeded on the presumption that it was obligatory on the part of the complainant to establish his case on the basis of evidence by giving the details of the bank account as well as the date and time of the withdrawal of the said amount which was given to the accused and also the date Page 18 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined and time of the payment made to the accused, including the date and time of receiving of the cheque, which has not been done in the present case. Pausing here, such presumption on the complainant, by the High Court, appears to be erroneous. The onus is not on the complainant at the threshold to prove his capacity/financial wherewithal to make the payment in discharge of which the cheque is alleged to have been issued in his favour. Only if an objection is raised that the complainant was not in a financial position to pay the amount so claimed by him to have been given as a loan to the accused, only then the complainant would have to bring before the Court cogent material to indicate that he had the financial capacity and had actually advanced the amount in question by way of loan... ... ... ... ..."
10. Learned advocate Ms. Vishwa Shah for the respondent no.2 has relied upon a decision in the case of Dattatraya Vs. Sharanappa reported in (2024) 8 SCC 573, wherein in para No.32, the Apex Court has observed as under:
"32. Moreover, affirming the findings of the trial Court, the High Court observed that while the signature of the respondent on the cheque drawn by him as well as on the agreement between the parties herein stands admitted, in case where the concern of financial capacity of the creditor is raised on behalf of an accused, the same is to be discharged by the complainant through leading of cogent evidence."
10.1. The Apex Court, in the case of Basalingappa V. Mudibasappa reported in 2019 (0) AIJEL - SC 63955, has observed in Para-23 and 24 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 19 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025
NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 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 28 139 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. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of the PW1, when the specific question was put that cheque was issued in relation to loan of Rs.25,000/- taken by the accused, the PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received monetary benefit of Rs.8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs.4,50,000/- to Balana Gouda towards sale consideration. Payment of Rs.4,50,000/- being admitted in the year 2010 and further payment of loan of Rs.50,000/- with regard to which complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex.D2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of Rs.18 lakhs. Page 20 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025
NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined During his cross-examination, when financial capacity to pay Rs.6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts."
11. On perusal of the evidence on record, in light of the judgments referred above, after the cheques in question were deposited by the complainant and they had returned with the endorsement "Funds Insufficient", the demand statutory notice was given by the complainant to the accused and after the notice was received by the accused, the accused had submitted a reply to the notice wherein he had denied knowing the complainant. The accused had in the reply to the notice itself stated that the cheques in question were given to his brother-in- law Vinodkumar Dashrathlal Modi in the year 2000 and he had closed his business in the year 2001. The accused has challenged the financial capacity of the complainant to advance an amount of Rs.2,00,000/- and in the entire evidence, the complainant has not mentioned the date when the amount of Rs.2,00,000/- was given as an advance to the accused. Moreover, the complainant has admitted that he was earning an amount of Rs.3000/- per month and he had his family including Page 21 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined two children to support and there is no explanation as to how the amount of Rs.2,00,000/- was given to the accused. It is the case of the complainant that the accused had come to the house of the complainant and had demanded the amount and Rs.1,50,000/- which was lying in the house and an amount of Rs.50,000/- which was borrowed from friends was given to the accused but there is no iota of evidence that any amount was borrowed from any friend or that the complainant had withdrawn the amount from any of his bank account or that he had the financial capacity to give to advance the amount of Rs.2,00,000/- to the complainant. In light of the decision of the Apex Court in the cases of Ashok Singh (Supra) and Basalingappa (Supra), the accused has raised a probable defense which shifted the burden on the complainant to prove his financial capacity but evidence about the financial capacity has been brought on record by the complainant.
12. The learned Trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the Page 22 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025 NEUTRAL CITATION R/CR.A/199/2011 JUDGMENT DATED: 04/11/2025 undefined evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the offence leveled against him. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed.
13. The impugned judgment and the order dated learned 3rd Judicial Magistrate First Class, Mehsana, in Criminal Case No. 3367 of 2005 on 18.10.2010 is hereby confirmed.
14. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) F.S. KAZI Page 23 of 23 Uploaded by F.S. KAZI(HC01075) on Thu Nov 06 2025 Downloaded on : Thu Nov 06 23:55:21 IST 2025