Gujarat High Court
Happy Sood - Sole Prop. Of M/S. National ... vs State Of Gujarat on 30 April, 2026
NEUTRAL CITATION
R/CR.RA/21/2013 JUDGMENT DATED: 30/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 21 of 2013
With
R/CRIMINAL REVISION APPLICATION NO. 22 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No ========================================================== HAPPY SOOD - SOLE PROP. OF M/S. NATIONAL TRADING COMPANY Versus STATE OF GUJARAT & ANR.
========================================================== Appearance:
MR LR PATHAN(2370) for the Applicant(s) No. 1MR AMIT R SHUKLA(13557) for the Respondent(s) No. 2 MR. TOMS C MATHAI(17708) for the Respondent(s) No. 2 MR ROHAN RAVAL, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 30/04/2026 COMMON JUDGMENT
1) On earlier occasions, when the matter was listed, learned counsel for the applicant sought adjournments stating that the petitioner has expired and wants to produce on record death certificate of the petitioner.
However, he failed to do so. Today also, when the matter is called out, learned counsel for the applicant remained absent. Therefore, it clearly transpires that learned counsel for the applicant is not interested in prosecuting the present matter. Hence, in view of the judgment of the Hon'ble Supreme Court in the case of Taj Mohammad Vs. State of Uttar Pradesh, in Criminal Appeal No.2421 of 2023, decided on 11.08.2023, this Page 1 of 5 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon May 04 2026 Downloaded on : Tue May 05 02:28:44 IST 2026 NEUTRAL CITATION R/CR.RA/21/2013 JUDGMENT DATED: 30/04/2026 undefined Court has considered the averments made in the present revision application as well as the material placed on record and has proceeded to decide the matter in absence of the applicant based on available material on record.
2) In view of the above facts of the case and at the request of learned APP and learned counsel for respondent No.2, the matter is taken up for final disposal forthwith.
3) By way of present revision applications under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short "CrPC"), the applicant - accused has prayed for quashing and setting aside of the judgment and order dated 13.10.2011 rendered by learned Metropolitan Magistrate, NI Act, Court No.8, Ahmedabad, in Criminal Case Nos.3477 and 3488 of 2008, whereby, learned JMFC has been pleased to hold the applicant guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, and sentenced to undergo simple imprisonment of one year and fine of Rs.5,000/-, which is confirmed by learned Additional Sessions Judge, Ahmedabad, in Criminal Appeal Nos.389 and 390 of 2011 vide order dated 18.12.2012.
4) It is the case of the complainant that the complainant has given Rs.3 lacs at 3% commission to the accused on 03.06.2006 and on very same day, the accused has executed one promissory note and also given the cheques in question. The complainant had deposited the said cheques which were returned unpaid for the reason "insufficient Funds" and the same had been informed to the complainant on 17.06.2006. Thereafter, the complainant had issued a notice under Section 138(b) of the NI Act on 20.06.2006. The said notice was served to the accused on 23.03.2006. However, the accused did not pay the amount and even did not reply to the said statutory notice. Then, complaints came to be filed before the court of learned JMFC, Ahmedabad.
Page 2 of 5 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon May 04 2026 Downloaded on : Tue May 05 02:28:44 IST 2026 NEUTRAL CITATION R/CR.RA/21/2013 JUDGMENT DATED: 30/04/2026 undefined 5) The learned Magistrate convicted the present accused for the
offence under Section 138 of the NI Act and imposed punishment of one year simple imprisonment upon the applicants and fine of Rs.5,000/-. Being aggrieved and dissatisfied, the accused preferred appeals being Criminal Appeal Nos.389 and 390 of 2011 under Section 374 of the CrPC which was dismissed by the learned Additional District and Sessions Judge, Ahmedabd vide judgment and order dated 18.12.2012 upholding the judgment and order passed by the learned Magistrate. Hence, present applicant has filed the present revision applications before this Court.
6) Having heard learned counsel for the complainant and perusing the record, it appears that the applicant accused has assailed the order of learned trial Court on the ground that both the learned Courts below failed to consider that the prosecution right from the date of issuance of statutory notice coming with the case that the amount was given to the accused against his cheque after deducting commission, therefore, it is crystal clear that the cheques in question is not issued against the existing debt or liability and therefore, section 138 of the Act is not applicable. However, learned trial Court after appreciating the evidence came to the conclusion that the accused failed to rebut the presumption under Section 139 of the NI Act.
7) The learned Addl. Sessions Court after appreciating the material placed on record has rightly observed that initial presumption always favours the complainant The accused can raise the defense wherein the existence of legally enforceable debt or liability can be contested and if accused is able to raise the probable defense, which creates doubt about existence of legally enforceable debt or liability, the reverse onus can be rebutted but in present case going through the entire cross-examination, the accused is failed to raise the probable defense and thereby to discharge the reverse onus and in absence of such, it can easily be said that the cheques in question were given for the legally enforceable debt or liability.
Page 3 of 5 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon May 04 2026 Downloaded on : Tue May 05 02:28:44 IST 2026 NEUTRAL CITATION R/CR.RA/21/2013 JUDGMENT DATED: 30/04/2026 undefined 8) Considering the decisions of the Hon'ble Apex Court in the cases of
Tedhi Singh v. Narayan Dass Mahant reported in (2022) 6 SCC 735 and Kalamani Tex v. P. Balasubramanian, reported in (2021) 5 SCC 283, the effect of admission regarding the signature on the cheque is explained. Once the signature is admitted, it is required to be presumed that the cheque was issued towards consideration for a legally enforceable debt. Further once, signature is accepted then cheque was issued towards the security and it was signed. As per explanation of legal position on how to rebut the presumption under Section 139 of the NI Act and to raise the presumption under Section 139 of the NI Act, the Hon'ble Apex court has clearly explained in the case of Rajesh Jain v. Ajay Singh reported in (2023) 10 SCC 148. Considering the aforesaid fact, presumption under Section 118 of the NI Act, even if for the sake of argument it is accepted that cheque was issued towards security, even then it is not a piece of paper and is a valuable security and under Sections 87 and 20 of the NI Act gives the power to holder of the cheque to complete inchoate instrument. It appears that both the Courts have properly exercised the jurisdiction as the cheque was presented before the Bank and same came to be dishonored with endorsement "funds insufficient". Within the prescribed time limit, the notice of demand was issued which was not replied to by the accused pursuant to which the complaint was filed within limitation.
9) The revisional jurisdiction can be exercised where there is a palpable error or non-compliance with the provision of law and where decision is completely erroneous and where the judicial discretion is exercised arbitrarily. Herein, if we examine the reasons assigned by the learned trial Court, it appears that learned trial Court has already appreciated the facts and finding of fact not to be upset unless it is found perverse and finding of fact not to be substituted keeping in mind the ratio of Hon'ble Supreme Court in the case of Amit Kapoor vs. Ramesh Chander & Anr. reported in (2012)9 SCC 460 as no perversity is found in the reasons assigned by the Page 4 of 5 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon May 04 2026 Downloaded on : Tue May 05 02:28:44 IST 2026 NEUTRAL CITATION R/CR.RA/21/2013 JUDGMENT DATED: 30/04/2026 undefined learned trial Court. Learned trial Court has properly assigned reasons and given the finding based on evidence led before him and hence also, no interference at the hands of this Court in exercise of revisional jurisdiction is required.
10) It would be appropriate to refer to the decision of the Hon'ble Supreme Court in the case of Malkeet Singh Gill vs. State of Chhatisgarh reported in (2022)8 SCC 204 wherein the Hon'ble Supreme Court held that section 397/401 CrPC vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction of law. There has to be well-founded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. It is a settled legal proposition that if the Courts below have recorded the finding of fact, the question of re-appreciation of evidence by the Court does not arise unless it is found to be totally perverse.
11) In wake of aforesaid conspectus, present revision applications fail and stand dismissed. Rule is hereby discharged. Ld. Trial Court is directed to issue conviction warrant and secure the presence of the applicant to serve the sentence, if he is alive. The applicant - accused to forthwith surrender before the learned trial Court to serve the remaining sentence, if any. The complainant shall be at liberty to file appropriate proceedings to recover the amount of compensation awarded by the trial Court.
(HASMUKH D. SUTHAR,J) SUCHIT Page 5 of 5 Uploaded by SUCHITKUMAR PATEL(HC01083) on Mon May 04 2026 Downloaded on : Tue May 05 02:28:44 IST 2026