Jayesh Ishwarlal Chauhan vs Karan Jitendrabhai Randeriya
2023 Latest Caselaw 6347 Guj

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      R/CR.MA/12271/2023                             ORDER DATED: 31/08/2023

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               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 12271 of 2023

                     In R/CRIMINAL APPEAL NO. 1665 of 2023

                                     With
                       R/CRIMINAL APPEAL NO. 1665 of 2023
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                             JAYESH ISHWARLAL CHAUHAN
                                       Versus
                           KARAN JITENDRABHAI RANDERIYA
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Appearance:
MR AKSHAY R VYAS(11455) for the Applicant(s) No. 1
MS RATNA VORA(2251) for the Applicant(s) No. 1
MR. NITESH G JAIN(7178) for the Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                 Date : 31/08/2023

                                   ORAL ORDER

1. Heard Ms. Ratna Vora, learned advocate on record for the

applicant-original complainant and Mr. Nitesh Jain, learned

advocate on record for the respondent-original accused.

2. This application is filed under Section 378(4) of Cr.P.C.

seeking leave to appeal against the judgment and order dated

03.04.2023 passed by the learned 7th Additional Senior Civil

Judge & Additional Chief Judicial Magistrate, Surat, in Criminal

Case No.4782 of 2019. By the said judgment and order, the

learned Magistrate has proceeded to record the order of

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acquittal of present respondent-accused for the offence alleged

under Section 138 of the N.I. Act.

3. At the outset, learned advocate for the applicant has

invited attention of this Court to the reasons assigned by the

learned Magistrate while passing the impugned order of

acquittal. Learned advocate for the applicant has drawn

attention of this Court to the fact that though the accused had

disputed his signature on the three cheques, however, no

criminal complaint was lodged in this regard. In such

circumstances, the defence raised by the accused with regard to

the dispute of his signature on the cheque was rightly not

accepted by the learned Magistrate. It is further submitted that

in such circumstances, the presumption would always arise in

favour of the complainant with regard to the existence of legally

enforceable debt as on the presentation of the cheque.

3.1. The learned advocate for the applicant has thereafter,

drawn attention of this Court to the findings with regard to the

part payment being made by the respondent-accused as against

the claim of an outstanding amount of Rs.7,50,000/- borrowed

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from the complainant. While referring to the averments made in

the original complaint, the learned advocate has submitted that

the accused had issued three cheques from his account towards

the outstanding amount of Rs.7,50,000/-. The aforesaid cheques

were dishonoured on the ground that the account was closed as

reflected from the memo of return issued by the concerned

bank. In absence of any challenge by the respondent to the

aforesaid fact, the learned Magistrate ought to have accepted

the factum of the dishonour of the cheque being established by

the original complainant following the offence under Section 138

of the N.I. Act. The learned advocate for the applicant has argued

that from bare reading of the statuary provision, more

particularly, Section 139 of the N.I. Act, the word "unless the

contrary is proved, it has to be presumed that the holder of the

cheque received the cheque for the nature referred to in Section

138 for discharge, in whole or in part, of any debt or other

liability" places the burden upon the original accused to rebut

such presumption, failing which, the presumption had remained

intact in the facts of the case. By making the aforesaid

submissions, learned advocate for the applicant, therefore, urges

this Court to grant leave to appeal.

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4. Mr. Nitesh Jain, learned advocate appearing for the

respondent-accused, has vehemently objected to grant of leave

to appeal. He has submitted that though the learned Magistrate

has not accepted the defence raised by the accused with regard

to the dispute of signature of the accused on the aforesaid three

cheques, the fact remains that the learned Magistrate has

accepted the defence raised by the accused about part payment

of an amount of Rs.2,50,000/-. It is further submitted that the

aforesaid fact has been proved by the accused by leading cogent

material on record. The attention of this Court is invited to the

evidence of the bank witness, which has come on record vide

Exh.34. The learned advocate for the respondent-accused has

also relied upon the observations of the learned Magistrate with

regard to the statement of the account brought on record vide

Exh.40 and Exh.41. By referring to the aforesaid evidence, he has

submitted that the learned Magistrate has rightly accepted the

defence of the accused about the part payment of an amount of

Rs.2,50,000/- being made by the accused towards the alleged

transaction.

4.1 It is further submitted that in fact, the accused had

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borrowed the amount of Rs.6,25,000/- as against the claim put

forward by the complainant for an amount of Rs.7,50,000/-.

However, what has transpired before the learned Magistrate is

that the probable defence has been accepted by the learned

Magistrate and the burden was shifted upon the accused to

prove his case beyond reasonable doubt. In absence of any

cogent material being led or any contradictory facts being

brought on record with regard to the part payment, the learned

Magistrate has rightly proceeded to record the acquittal. He

therefore, urged this Court that no arguable case is made out to

consider the present application for leave to appeal.

5. Having heard the learned advocates appearing for the

respective parties and having perused the record, more

particularly, the reasons assigned by the learned Magistrate, the

court finds that the accused has been successful in raising strong

defence about part payment being made towards the alleged

transaction of an amount of Rs.7,50,000/-. The aforesaid defence

has been established by leading evidence on record. The accused

has been able to prove his defence of amount of Rs.1,25,000/-

paid through his account as well as through his wife account,

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which has travelled to the account of the complainant. As

against the aforesaid fact, the complainant has failed to prove

the existence of any other transaction between the parties. The

learned Magistrate has taken note of the cross-examination of

the complainant, where he has admitted that he has not

produced any evidence regarding the cash amount of

Rs.1,25,000/-, and therefore, the day on which the cheques were

dishonoured, whether the amount outstanding of Rs.7,50,000/-

had existed, has not been established. Even otherwise, once the

part payment of the amount on the disputed cheque has been

brought on record, as per Section 56 of the N.I. Act, such

instrument can be accepted as valid for the purpose of

negotiation, if an endorsement is made for part payment of the

amount being reflected on such instrument.

6. In absence of any endorsement being found in the present

case, the amount reflected in disputed cheque does not

resemble the correct figure of the legally enforceable debt so as

to attract the offence under Section 138 of the N.I. Act. Even as

per the provisions under Section 56 of the N.I. Act, such

instrument in absence of any endorsement being made on the

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instrument cannot be treated as a valid document for the

purpose of negotiation.

7. In the opinion of this Court, no arguable case is made out to

attract the offence under Section 138 of the N.I. Act. Hence, the

present application seeking leave to appeal is hereby refused.

Consequently, criminal appeal also stands dismissed.

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA