Gujarat High Court
Karsandas Valjibhai Patel vs State Of Gujarat on 4 December, 2023
NEUTRAL CITATION
R/CR.MA/11098/2023 ORDER DATED: 04/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 11098
of 2023
With
R/CRIMINAL APPEAL NO. 1486 of 2023
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KARSANDAS VALJIBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR GIRISHKUMAR K TARWANI(13396) for the Applicant(s) No. 1
MS POOJA D RAVAL(11867) for the Applicant(s) No. 1
MS VRUNDA SHAH, ADDL.PUBLIC PROSECUTOR for the Respondent(s)
No. 1
RULE NOT RECD BACK for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 04/12/2023
ORAL ORDER
ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL)
NO. 11098 of 2023
1. Learned advocate Mr.Girishkumar Tarwani submits that
the accused remain fails to rebut the presumption, which
is in favour of the complainant under Sections 118 and
139 of the Negotiable Instruments Act, 1886 by pleading
the probable defence. The statement recorded under
Section 313 of the Code of Criminal Procedure, 1973,
there was no any denial with regard to the signature of
the cheque only false implication was pleaded. Learned
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R/CR.MA/11098/2023 ORDER DATED: 04/12/2023
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advocate Mr.Tarwani relies on the decision rendered by
the Apex Court in case of P.Rasiya vs. Abdul Nazer
and anr, reported in 2022 (0) AIJEL-SC 69849,
wherein in paragraph No.7 the Apex Court held as under:
"7...
Feeling aggrieved and dissatisfied with the judgment and
orders passed by the Appellate Court affirming the
conviction of the accused under Section 138 of the N.I.
Act, the accused preferred three different Revision
Applications before the High Court. By the impugned
common judgment and order, the High Court has
reversed the concurrent findings recorded by both the
courts below and has acquitted the accused on the
ground that, in the complaint, the Complainant has not
specifically stated the nature of transactions and the
source of fund. However, the High Court has failed to
note the presumption under Section 139 of the N.I. Act.
As per Section 139 of the N.I. Act, it shall be presumed,
unless the contrary is proved, that the holder of a cheque
received the cheque of the nature referred to in Section
138 for discharge, in whole or in part, of any debt or
other liability. Therefore, once the initial burden is
discharged by the Complainant that the cheque was
issued by the accused and the signature and the issuance
of the cheque is not disputed by the accused, in that
case, the onus will shift upon the accused to prove the
contrary that the cheque was not for any debt or other
liability. The presumption under Section 139 of the N.I.
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R/CR.MA/11098/2023 ORDER DATED: 04/12/2023
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Act is a statutory presumption and thereafter, once it is
presumed that the cheque is issued in whole or in part of
any debt or other liability which is in favour of the
Complainant/holder of the cheque, in that case, it is for
the accused to prove the contrary. The aforesaid has not
been dealt with and considered by the High Court. The
High Court has also failed to appreciate that the High
Court was exercising the revisional jurisdiction and there
were concurrent findings of fact recorded by the courts
below."
2. Learned advocate Mr.Tarwani draws the attention of this
Court with regard to the finding given by the learned trial
Court for acquitting the respondent-accused, which
shows that only on the ground of none-proving the
financial capacity to lend the amount, the respondent-
accused was acquitted from the charges. Learned
advocate Mr.Tarwani further submits that though there
was no any circumstance, which was proved during the
course of examination, learned trial Court had shifted the
burden on the complainant to prove the case and
therefore, the learned advocate prays to grant the leave
to prefer an appeal and to admit the appeal.
3. In view of the above submissions, this Court deems it fit
NEUTRAL CITATION
R/CR.MA/11098/2023 ORDER DATED: 04/12/2023
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to allow this application granting leave to prefer an
appeal. Hence, leave to prefer an appeal is granted.
Present application stands disposed of.
ORDER IN R/CRIMINAL APPEAL NO. 1486 of 2023
1. The appeal is admitted. Learned APP Ms.Shah
waives service of notice of admission on behalf of
respondent-State.
2. Issue Bailable Warrant in the sum of Rs.5,000/-
(Rupees Five Thousand Only) against the
respondent-original accused.
(M. K. THAKKER,J)
M.M.MIRZA
