Gujarat High Court
Jagdishbhai Chaturbhai Patel vs State Of Gujarat on 4 May, 2026
NEUTRAL CITATION
R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026
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Reserved On : 01/04/2026
Pronounced On : 04/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2409 of 2008
With
R/CRIMINAL APPEAL NO. 2419 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
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JAGDISHBHAI CHATURBHAI PATEL & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PRADEEP PATEL(642) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4
MR YUVRAJ BRAHMBHATT, APP for the Opponent(s)/Respondent(s) No. 1
MR SHAILESH C SHARMA(3450) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1.1 As the common questions of fact and law arise in both these matters, both these matters are heard and decided together by this common judgment. 1.2 Feeling aggrieved by and dissatisfied with the judgments and orders of acquittal dated 27.02.2007, passed by rd the learned 3 Additional Senior Civil Judge and Judicial Magistrate, First Class, Anand in Criminal Case Nos.5422 of 2006 and 5331 of 2006, for the offence punishable under Page 1 of 16 Uploaded by U. SRILATHA(HC00185) on Tue May 05 2026 Downloaded on : Tue May 05 22:17:40 IST 2026 NEUTRAL CITATION R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026 undefined Section 138 of the Negotiable Instruments Act, the appellant
- original complainant has preferred these appeals under Section 378 of the Code of Criminal Procedure, 1973 (for short, "the Code").
2. The brief facts leading to filing of these appeals are such that the appellant (original complainant) was an agriculturist and carrying out agricultural operations; that respondent No.2 was in need of money and the appellant, as a friend of respondent No.2, lent a sum of Rs.3,26,000/- in cash; respondent No.2 promised to repay the said amount within a period of three months; but as he did not repay the same, the appellant demanded the same. Therefore, respondent No.2, issued the following cheques towards payment of Rs.3,26,000/-.
Cheque No. and Date Drawn On Amount
No.428085 - United Bank of India 3,00,000/-
07.07.2006
No.428082 - United Bank of India 10,000/-
08.06.2006
No.428083 - United Bank of India 10,000/-
25.07.2006
No.428084 - United Bank of India 6,000/-
05.08.2006
Total... 3,26,000/-
On presentation of the cheque No.428085 dated 07.07.2006 for Rs.3,00,000/-, the same was returned unpaid on Page 2 of 16 Uploaded by U. SRILATHA(HC00185) on Tue May 05 2026 Downloaded on : Tue May 05 22:17:40 IST 2026 NEUTRAL CITATION R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026 undefined account of 'insufficient funds' and on presentation of the cheque No.428082 dated 08.06.2006 for Rs.10,000/-, the said cheque was also returned unpaid on account of 'insufficient funds'. The complainant issued a statutory notice as per the requirements of the Negotiable Instruments Act, (for short, 'the NI Act'), but as the amount was not paid, the complainant filed complaints against the accused, being Criminal Case Nos.5422 of 2006 and 5331 of 2006, respectively.
3. Considering the verification of the complainant and the documents, the complaints were registered, the accused was called for by serving the summons, the accused remained present before the Court, and he was provided with the complaint and the documents. On recording the statement of the accused, he pleaded not guilty and claimed to be tried.
4. To prove the case, various oral and documentary evidence were produced before the trial Court, which are described in the impugned judgments :
: ORAL EVIDENCE :
Sr. Particulars Exh. Nos. of Exh. Nos. of
No. C.C. No.5422 of C.C. No.5331 of
2006 2006
1. Deposition of the 20 22
complainant
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NEUTRAL CITATION
R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026
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: Documentary Evidence :
Sr. Particulars Exh. Nos. of Exh. Nos. of
No. C.C. No.5422 of C.C. No.5331 of
2006 2006
1. Cheque 12 21
2. Pay Slip 13 22
3. Bank return memo 14 23
4. Bank letter 15 24
5. Notice 16 25
6. Postal receipt 17 26
7. U.P.C.Certificate 18 27
8. R.P.A.D. receipt 19 28
The following evidence is produced by the defence :
Sr. Particulars Exh. Nos. of Exh. Nos. of No. C.C. No.5422 of C.C. No.5331 of 2006 2006 1. Copy of the reply to the 21/1 31/1 notice 2. Original Passbook of 21/2 31/2 Account No.900 3. Original Passbook of 21/3 31/3 Account No.887
5. After hearing both the parties and after analysis of evidence adduced by the complainant, the learned trial Judge acquitted the accused for the offence, by holding that the complainant has failed to prove the case beyond reasonable doubt.
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NEUTRAL CITATION R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026 undefined 6.1 Learned advocate for the appellant-original complainant has pointed out the facts of the case and having taken this Court through both, oral and documentary evidence, recorded before the learned trial Court, would submit that the learned trial Court has failed to appreciate the evidence in true sense and perspective; and that the trial Court has committed error in acquitting the accused. It is submitted that the learned trial Court ought not to have given much emphasis to the contradictions and/or omissions appearing in the evidence and ought to have given weightage to the dots that connect the accused with the offence in question. It is submitted that the learned trial Court has erroneously come to the conclusion that the prosecution has failed to prove its case. It is also submitted that the learned Judge ought to have seen that the evidence produced on record is reliable and believable and it was proved beyond reasonable doubt that the accused had committed an offence in question. It is, therefore, submitted that this Court may allow this appeal by appreciating the evidence led before the learned trial Court.
6.2 It is submitted by learned advocate for the appellant-complainant that the learned trial Court has erred in coming to the conclusion that the notice was not duly Page 5 of 16 Uploaded by U. SRILATHA(HC00185) on Tue May 05 2026 Downloaded on : Tue May 05 22:17:40 IST 2026 NEUTRAL CITATION R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026 undefined served on the respondent No.2; that Section 139 of the NI Act creates a statutory presumption that a cheque is issued in the nature referred to under Section 138 of the NI Act and it is always issued in discharge of debt or other liability and that it is for the accused to show that the cheque in question was not issued in discharge of any debt or liability. He, therefore, submitted that the learned trial Court has erred in acquitting the accused and therefore, this appeal may be allowed.
7. As against that, learned advocate for the contesting respondent/s would support the impugned judgment passed by the learned trial Court and has submitted that the learned trial Court has not committed any error in acquitting the accused. The trial Court has taken a possible view, as the complainant has failed to prove its case beyond reasonable doubt. Therefore, it is prayed to dismiss the present appeal by confirming the impugned judgment and order passed by the learned trial Court.
It is noted that the State is the formal respondent in these matters. However, learned APP would support the impugned judgment passed by the learned trial Court.
8. In the aforesaid background, considering the oral Page 6 of 16 Uploaded by U. SRILATHA(HC00185) on Tue May 05 2026 Downloaded on : Tue May 05 22:17:40 IST 2026 NEUTRAL CITATION R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026 undefined as well as documentary evidence on record, independently and dispassionately and considering the impugned judgment and order of the trial Court, the following aspects weighed with the Court :
8.1 On perusal of the complaint, it transpires that the complainant gave a friendly loan to the accused, for which, the accused had given four cheques, out of which, two cheques amounting to Rs.3,00,000/- and Rs.10,000/- were dishonoured, for which, the criminal complaints are filed by the complainant. It transpires that the complainant issued the notice to the accused, which was duly received by the accused, and the accused has filed a reply to the said notice.
8.2 In the reply to the notice, the original accused has taken a defence that the said cheque was, though signed by him, was given as security and the account holder of the said cheque was his brother. The defence, to prove the said fact, has also produced documentary evidence. Even in the statement given under Section 313 of the Cr.P.C., the accused had categorically stated that the said cheque was given from the account of his brother.
8.3 The fact remains that the original accused himself has stated that he has signed the said cheque and the amount stated in the cheque is also written by him. The Page 7 of 16 Uploaded by U. SRILATHA(HC00185) on Tue May 05 2026 Downloaded on : Tue May 05 22:17:40 IST 2026 NEUTRAL CITATION R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026 undefined acknowledgement, which has been received from the bank, states that the said cheque has been dishonoured because of 'insufficient funds' and that the signature on the cheque does not tally, but the fact remains that the said cheque was issued from the account of the brother of the accused viz., Kiritbhai Darji.
8.4 If the documents produced by respondent No.2 before the learned trial Court are taken into consideration, document No.2 is the passbook of Account No.900, from which, the said cheque was issued. The account holder of the said cheque is Kiritbhai Darji, who is the brother of the accused. Therefore, the cheque bears the signature of the accused and the account holder is Kiritbhai Darji; which means that the cheque was drawn from the account maintained by Kiritbhai Darji and not by the accused.
8.5 In the present case, after considering the defence and cross-examination of the witnesses, the complainant had filed an application to add the offences under Sections 420, 465, 467, 468 and 471 of the Indian Penal Code, but the learned trial Court rejected the said application.
8.6 A reference is made to Section 138 of the NI Act, which reads as under :Page 8 of 16 Uploaded by U. SRILATHA(HC00185) on Tue May 05 2026 Downloaded on : Tue May 05 22:17:40 IST 2026
NEUTRAL CITATION R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026 undefined "138. Dishonour of cheque for insufficiency, etc., of funds in the account.
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for "a term which may extend to two year", or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.
(b) The payee or the holder indue course of the Page 9 of 16 Uploaded by U. SRILATHA(HC00185) on Tue May 05 2026 Downloaded on : Tue May 05 22:17:40 IST 2026 NEUTRAL CITATION R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026 undefined cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer, of the cheque, "within thirty days" of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and
(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: For the purpose of this section, "debt or other liability"
means a legally enforceable debt or other liability."
8.7 A similar situation arose before the Hon'ble Supreme Court in the case of Jugesh Sehgal V/s Shamsher Singh Gogi reported in 2009(14) SCC 683. In the facts of the said case, the cheque was drawn by the accused not of his account but from an account managed by another person. The Hon'ble Supreme Court held that the first ingredient of Section 138 of the NI Act, that the cheque should have been drawn on an account managed by him, was not satisfied. It was observed in paragraph Nos.13, 14 and 15 as under : Page 10 of 16 Uploaded by U. SRILATHA(HC00185) on Tue May 05 2026 Downloaded on : Tue May 05 22:17:40 IST 2026
NEUTRAL CITATION R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026 undefined "13. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;Page 11 of 16 Uploaded by U. SRILATHA(HC00185) on Tue May 05 2026 Downloaded on : Tue May 05 22:17:40 IST 2026
NEUTRAL CITATION R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026 undefined
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;
Being cumulative, it is only when all the afore-mentioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.
14. In the case before us, it is clear from the facts, briefly noted above, and in para 3 of the complaint as extracted, that on receipt of the return memo from the bank, the complainant is stated to have realized that Page 12 of 16 Uploaded by U. SRILATHA(HC00185) on Tue May 05 2026 Downloaded on : Tue May 05 22:17:40 IST 2026 NEUTRAL CITATION R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026 undefined the dishonoured cheque was issued from an account which was not maintained by accused No.1--the appellant herein, but by one Shilpa Chaudhary.
15. As a matter of fact and perhaps having gained the said knowledge, on 20th January, 2001, the complainant filed an FIR against all the accused for offences under Sections 420, 467, 468, 471, 406 of the Indian Penal Code (IPC). Thus, there is hardly any dispute that the cheque, subject matter of the complaint under Section 138 of the Act, had not been drawn by the appellant on an account maintained by him in the Indian Bank, Sonepat branch. That being so, there is little doubt that the very first ingredient of Section 138 of the Act, enumerated above, is not satisfied and consequently the case against the appellant for having committed an offence under Section 138 of the Act cannot be proved."
8.8 In yet another recent case, in the case of Bijoy Page 13 of 16 Uploaded by U. SRILATHA(HC00185) on Tue May 05 2026 Downloaded on : Tue May 05 22:17:40 IST 2026 NEUTRAL CITATION R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026 undefined Kumar Moni V/s Paresh Manna & Anr. reported in 2024 INSC 1024, it is observed and held by the Hon'ble Apex Court in paragraph 73 as under:
"73. Section 138 of the NI Act clearly postulates that the cheque returned for insufficiency of funds should have been drawn by a person on an account maintained by him. It will amount to doing violence to the language of the statute if Section 138 of the Act is interpreted to mean that even if a person draws a cheque on an account not maintained by him; he shall be liable if the cheque is returned for insufficiency of funds. Such an interpretation will lead to absurd and holly unintended results."
8.9 Therefore, in view of the binding precedent of the Hon'ble Supreme Court and on bare reading of Section 138 of the NI Act, all the ingredients of Section 138 of the NI Act should be fulfilled to constitute an offence under the said Act. In the present case, though it is proved that the cheques are issued for repayment of the loan, the said cheques are signed by the accused and the amount is also written thereon by the accused, the fact remains that the cheque should have been drawn on account managed by the accused and if the said cheque is not drawn on the account which was managed by the accused and has been managed Page 14 of 16 Uploaded by U. SRILATHA(HC00185) on Tue May 05 2026 Downloaded on : Tue May 05 22:17:40 IST 2026 NEUTRAL CITATION R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026 undefined by some other person, which is the first ingredient of Section 138 of the NI Act, the same would not attract the provisions of Section 138 of the NI Act.
8.10 There is hardly any dispute that the cheque in question have not been drawn by the accused on account managed by him in the United Bank of India. On being so, there is little doubt that the very first ingredient of Section 138 of the Act is not satisfied and consequently, the case against the accused for having committed the offence under Section 138 of the NI Act cannot be proved. The account from which the cheque was issued was not held in the name of the accused and therefore, one of the requisite ingredients of Section 138 of the NI Act was not satisfied.
9. Further, learned advocate for the appellant is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Court below is vitiated by some manifest illegality or that the decision is perverse or that the Court below has ignored the material evidence on record. In above view of the matter, this Court is of the considered opinion that the Court below was completely justified in passing impugned judgment and order.
10. Considering the aforesaid facts and circumstances Page 15 of 16 Uploaded by U. SRILATHA(HC00185) on Tue May 05 2026 Downloaded on : Tue May 05 22:17:40 IST 2026 NEUTRAL CITATION R/CR.A/2409/2008 CAV JUDGMENT DATED: 04/05/2026 undefined of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, 1973, no case is made out to interfere with the impugned judgment and order of acquittal.
11. In view of above facts and circumstances of the case, on my careful re-appreciation of the entire evidence, I found that there is no infirmity or irregularity in the findings of fact recorded by learned trial Court and under the circumstances, the learned trial Court has rightly acquitted the respondent/s - accused for the elaborate reasons stated in the impugned judgment and I also endorse the view/finding of the learned trial Court leading to the acquittal.
12. In view of the above and for the reasons stated above, the present Criminal Appeals fail and the same deserve to be dismissed and is dismissed, accordingly. Record & Proceedings be remitted to the concerned trial Court forthwith.
(SANJEEV J.THAKER,J) SRILATHA Page 16 of 16 Uploaded by U. SRILATHA(HC00185) on Tue May 05 2026 Downloaded on : Tue May 05 22:17:40 IST 2026