Gujarat High Court
Vikrambhai Kanubhai Rabari vs State Of Gujarat on 9 September, 2025
NEUTRAL CITATION
R/CR.A/2274/2025 JUDGMENT DATED: 09/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2274 of 2025
(AGAINST ACQUITTAL)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
========================================================
Approved for Reporting Yes No
√
========================================================
VIKRAMBHAI KANUBHAI RABARI
Versus
STATE OF GUJARAT & ANR.
========================================================
Appearance:
VISHAL K ANANDJIWALA(7798) for the Appellant(s) No. 1
MR DILIPKUMAR H PATEL(12228) for the Opponent(s)/Respondent(s) No. 2
MS.C.M.SHAH, APP for the Opponent(s)/Respondent(s) No. 1
ROHANKUMAR M AMIN(8851) for the Opponent(s)/Respondent(s) No. 2
========================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 09/09/2025
ORAL JUDGMENT
1. The present appeal is filed by the appellant - original complainant under Section 419 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (for short "BNSS") against the order passed by the learned 4th Additional Chief Judicial Magistrate, Anand (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 4520 of 2021 dated 05.05.2023, whereby, the Page 1 of 9 Uploaded by F.S. KAZI(HC01075) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 22:10:32 IST 2025 NEUTRAL CITATION R/CR.A/2274/2025 JUDGMENT DATED: 09/09/2025 undefined learned Trial Court has acquitted the respondent No. - original accused from the offence under Section 138 of the Negotiable Instruments Act, 1881 (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 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 complainant are as under:
2.1. The complainant and the accused were known to each other and were friends and as the accused wanted to purchase agricultural land had requested the complainant for an amount of Rs.35,00,000/- as hand loan. The complainant paid an amount of Rs.1,60,000/- through RTGS and the remaining amount in cash and in all paid an amount of Rs.34,50,000/-.
Towards the outstanding amount, the accused gave cheque no.057757 dated 03.04.2021 for an amount of Rs.6,00,000/- from his account with Indian Overseas Bank, Anand Branch. The cheque was deposited by the appellant in his account with Page 2 of 9 Uploaded by F.S. KAZI(HC01075) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 22:10:32 IST 2025 NEUTRAL CITATION R/CR.A/2274/2025 JUDGMENT DATED: 09/09/2025 undefined Central Bank of India, Mogri Branch Anand but the cheque returned unpaid with the endorsement "Drawer Signature Differs". The demand statutory notice was given which was duly served to the accused but the accused did not repay the amount within the stipulated period and hence, the complainant filed a complaint under Section 138 of the NI Act before the Court of the Chief Judicial Magistrate, Anand which came to be registered as Criminal Case No. 4520 of 2021.
2.2. The complainant was duly served with the summons and he appeared before the learned Trial Court and after his plea at Exh.7 was recorded, the complainant produced oral and documentary evidence on record. After the closing pursis was filed by the complainant, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused stated that the facts in examination in chief and in the complaint are false and a false complaint has been filed. The accused refused to step into the witness box and did not lead any oral or documentary evidence in his defence and after the arguments of the learned advocates for both the parties were heard, by the impugned judgment and Page 3 of 9 Uploaded by F.S. KAZI(HC01075) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 22:10:32 IST 2025 NEUTRAL CITATION R/CR.A/2274/2025 JUDGMENT DATED: 09/09/2025 undefined order, the learned Trial Court acquitted the accused from the offence under Section 138 of the Act.
3. Being aggrieved and dissatisfied with the same, the appellant - original complainant 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 and order is perverse, erroneous and contrary to law.
4. Heard learned Advocate Mr.Vishal Anandjiwala appearing for the appellant, learned APP Ms.C.M.Shah for the respondent - State and learned advocate Mr. Dilipkumar Patel for the respondent no.2. Perused the impugned judgment and order of acquittal and the entire evidence on record of the case.
5. Learned Advocate Mr.Vishal Anandjiwala for the appellant has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the learned Trial Court has not appreciated the evidence properly qua witness Rajkumar Rathod, Senior Manager, Indian Overseas Bank, Anand, who is examined at Exh.22 and the Page 4 of 9 Uploaded by F.S. KAZI(HC01075) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 22:10:32 IST 2025 NEUTRAL CITATION R/CR.A/2274/2025 JUDGMENT DATED: 09/09/2025 undefined documents at Exh.23 and 24, which are relevant and the same has not been considered by the learned Trial Court. Learned advocate further submits that though the complainant has successfully proved his case by producing cogent evidence, the learned Trial Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by the learned Trial Court is contrary to law, evidence on record is perverse and illegal. Learned advocate has urged this Court to quash and set aside the impugned judgment and order of acquittal and find the respondent no.2 guilty for the offence.
6. Learned APP Ms.C.M.Shah for the respondent no. 1 - State and learned advocate Mr.Dilipkumar H. Patel for the respondent no. 2 have jointly 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 judgement and order of acquittal passed by the learned Trial Court and have urged this Court to reject the appeal.
Page 5 of 9 Uploaded by F.S. KAZI(HC01075) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 22:10:32 IST 2025
NEUTRAL CITATION R/CR.A/2274/2025 JUDGMENT DATED: 09/09/2025 undefined
7. It is settled law that the learned Trial court has to consider all the oral and documentary evidences produced by both the parties, and after proper appreciation, has to come to a conclusion whether the issues that are determined have been proved or not. On perusal of the impugned judgment and order passed by the learned Trial Court, in Para 3, the learned Trial Court has framed the following issues and has answered the same in Para-4, as under:
Sr. Issues framed by the Ld. Trial Court in Para-3 Answer of the No. issues in Para-3 1 Whether complainant prove that the accused has issued Affirmative the cheque no.057757 of Rs.6,00,000/- of "Indian Overseas Bank", Anand Branch, dated 03.04.2021, for a loan by complainant. ?
2 Whether the complainant proved that, the same cheque Affirmative is dishonoured by accused's banker for reason "Fund Insufficient" in accused's account.? 3 Whether complainant proved that, his complaint is Affirmative within time lime and tenable as prescribed by N.I.Act and tenable as per law?
4 Whether coimplainant proved that, accused has Affirmative committed the offense punishable u/s. 138 N.I.Act ? 5 Whether complainant proved that the accused is liable Partly to be punished as claimed by complainant ? Affirmative 6 What order ? As per the final order
8. In the impugned judgment and order, the learned Trial Court has reproduced the provisions of Sections 118, 138 and 139 the N.I.Act and has described the provisions of law and Page 6 of 9 Uploaded by F.S. KAZI(HC01075) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 22:10:32 IST 2025 NEUTRAL CITATION R/CR.A/2274/2025 JUDGMENT DATED: 09/09/2025 undefined has concluded that if the accused admits the signature on the cheque, the Court has to draw a presumption under sections 118 and 139 of the N.I.Act in favour of the complainant and it is obligatory on the Court to draw the presumption in favour of the complainant and the accused is required to rebut the presumption.
9. If the evidence on record is perused, the complainant has stepped into the witness box and has deposed an oath at Exh.5 and has examined witness Rajkumar Rathod, Senior Manager of Indian Overseas Bank, Anand Branch at Exh.22. The complainant has produced 6 documentary evidences at Exh.10 to Exh.15 and witness no.2 Rajkumar Rathod has produced 02 documentary evidences at Exh.23 and Exh.24. The document at Exh.23 is the account opening from and all the documents submitted by the accused for opening the account and the document at Exh.24 is the extract of the Cheque Book Issue Register from Indian Overseas Bank, Anand Branch. Even though, the complainant has examined the Senior Manager, Indian Overseas Bank, Anand Branch, the learned Trial court in Para-6.3(3) has stated as under: Page 7 of 9 Uploaded by F.S. KAZI(HC01075) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 22:10:32 IST 2025
NEUTRAL CITATION R/CR.A/2274/2025 JUDGMENT DATED: 09/09/2025 undefined "(3) Toward full and part payment of legaldebt and liability, and the complainant himself is admitting that the first and second condition is not fulfilled by cheque drawn to him by accused. So, as the complainant has not examine any banker in his favour showing that the accused maintained his account in "Indian Overseas Bank" and second the accused has signed the cheque this cheque does not attract Sec.138 of N.I.Act and he cannot be liable for its encashment. Of course, the complainant may recourse the remedy by way of filing complain under I.P.C. so, as the complailnant has failed to bring on record the issue no. 1 to 5 in his favour....."
10. It appears that the learned Trial Court has answered the issues. Issue nos. 1 to 4 in the affirmative and issue no. 5 partly in the affirmative, and even though, the banker was examined, has observed that the banker is not examiend and the evidence of the Senior Manager of Indian Overseas Bank, Anand Branch has not been considered. In view of the above, as the evidence has not been properly appreciated, there appears to be an infirmity and illegality in the impugned judgment and order of acquittal and this Court is of the considered opinion that the findings recorded by the learned Trial Court are not just and proper and the matter must be remanded back to the learned Trial Court for the limited purpose of hearing the arguments and delivering the judgment after due appreciation as the entire evidence has come on record.
Page 8 of 9 Uploaded by F.S. KAZI(HC01075) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 22:10:32 IST 2025
NEUTRAL CITATION R/CR.A/2274/2025 JUDGMENT DATED: 09/09/2025 undefined
11. in view of the above discussion, the appeal is allowed. The order passed by the learned 4th Additional Chief Judicial Magistrate, Anand in Criminal Case No. 4520 of 2021 dated 05.05.2023 is hereby quashed and set aside. The matter is remanded back to the learned Trial Court for the limited purpose of hearing the arguments of the learned advocates for both the parties and for delivering the judgment after appreciation of the entire evidence that is already on record.
12. It is clarified that the matter is remanded only for the limited purpose of hearing the arguments and delivering the judgment and it would not be open for the parties to adduce any further evidence. The learned Trial Court is directed to consider the evidence on record on its own merits and the parties are directed to co-operate with the learned Trial Court in the proceeding without seeking any unnecessary adjournments and the judgment be delivered as expeditiously as possible.
Sd/-
(S. V. PINTO,J ) F.S.KAZI Page 9 of 9 Uploaded by F.S. KAZI(HC01075) on Tue Sep 16 2025 Downloaded on : Tue Sep 16 22:10:32 IST 2025