Gujarat High Court
Narsangbhai Mansangbhai Patel vs State Of Gujarat on 8 April, 2025
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R/CR.MA/17657/2024 ORDER DATED: 08/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO.17657 of 2024
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 28282 of 2024
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NARSANGBHAI MANSANGBHAI PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
ARCHANABEN B GOSWAMI(8154) for the Applicant(s) No. 1
MR MAHENDRA U VORA(3034) for the Applicant(s) No. 1
MS DHWANI TRIPATHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 08/04/2025
ORAL ORDER
1. The present application is filed by the applicant -
original complainant under Section 378(4) of the Code of Criminal
Procedure, 1973 (for short "Cr.P.C.") seeking leave to file an
appeal against the judgment and order dated 04.06.2024 passed by
the learned Judicial Magistrate First Class, Vadgam, Dist.
Banaskantha (hereinafter referred to as the "learned Trial Court")
in Criminal Case No. 673 of 2018, whereby the respondent No. 2 -
original accused came to be acquitted from the offence under
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Section 138 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as 'the N I Act").
1.1. The respondent No. 2 is hereinafter referred to as "the
accused" as he 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
application as well as the impugned judgment and order and
paper book filed by the applicant are as under:
2.1. The applicant filed a complaint against the accused
under Section 138 of the Act, as the accused had taken a hand loan
of Rs.20,00,000/- from the applicant to purchase land and the
accused had issued cheque No.000018 dated 02.08.2018 for the
amount of Rs.20,00,000/- from his account with Bank of Baroda,
Chhapi Branch. The applicant deposited the cheque in his account
with Bank of Baroda, Chhapi Branch on 13.08.2018 and the cheque
was dishonored and the reason mentioned in the return memo
dated 18.08.2018 was "Funds Insufficient". The applicant sent the
statutory demand notice to the accused on 22.08.2018 which was
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duly served on 25.08.2018 and an evasive reply was given and no
payment was made and hence the applicant filed the criminal
complaint before the Court of the Judicial Magistrate First Class,
Vadgam under Section 138 of the N I Act, 1881 which was
registered as Criminal Case no. 673 of 2018.
2.2. The accused was served with the summons and the
accused appeared before the learned Trial Court and his plea was
recorded at exhibit 10 and the evidence of the applicant was taken
on record. The applicant and one witness were examined on oath
and 09 documentary evidences were produced in support of his
case and after the closing pursis at exhibit No. 64 was filed, the
further statement of the accused under Section 313 of the Code of
Criminal Procedure was recorded, wherein the accused stated that
the disputed cheque was not given to applicant and he had never
instructed the applicant to deposit the cheque. A blank cheque has
been misused by the applicant and a false complaint has been
filed. The accused and one witness were examined on oath and 17
documentary evidences were produced in his defence and after
the arguments of the learned advocates for both the parties were
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heard, by the impugned judgment and order, the learned Trial
Court was pleased to acquit the accused from the offence under
Section 138 of the N I Act.
3. Being aggrieved and dissatisfied with the same, the
applicant has preferred the present application seeking leave to
appeal mainly stating that the learned Trial Court has not properly
interpreted the evidence and has misread the evidence and the
impugned judgment is perverse, erroneous and contrary to law.
4. Heard learned advocate Mr. Mahendra U. Vora
appearing for the applicant and learned APP Ms. Dhwani Tripathi
for the respondent - State.
5. Learned Advocate Mr. Mahendra U. Vora for the
applicant submits that the learned Trial Court has not appreciated
that the applicant has successfully established that the cheque in
question was issued by the accused from the bank account
maintained by him. The applicant has proved that the cheque was
written by the accused and it was dishonoured and as the
applicant is the holder in due course of the cheque in question the
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statutory presumption under Section 139 of the N I Act is to be
drawn in favour of the applicant. The learned Trial Court has not
appreciated the provisions of Section 118 and 138 of the NI Act in
proper perspective. The fact of the amount paid by the applicant
to the accused is not negated, but the learned Trial Court has
disbelieved the same. The accused had failed to rebut the
presumption and hence the judgement and order of acquittal is
bad in law and the leave to appeal must be granted.
6. Learned APP Ms.Dhwani Tripathi for the respondent -
State has submitted that the learned Trial Court has appreciated all
the evidence in detail in light of the citations referred to in the
judgement and has passed the judgement and order of acquittal
which is proper and no interference is required and hence the
application for leave to appeal must be rejected.
7. With regard to the facts in the present case, we can also
refer to the following observations made Apex Court in Rangappa
vs Sri Mohan reported in (2010) 11 SCC 441 in Para 14 wherein it
is observed as under:
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"14. In light of these extracts, we are in agreement with the
respondent-claimant that the presumption mandated by Section
139 of the Act does indeed include the existence of a legally
enforceable debt or liability. To that extent, the impugned
observations in Krishna Janardhan Bhat (supra) may not be
correct. However, this does not in any way cast doubt on the
correctness of the decision in that case since it was based on the
specific facts and circumstances therein. As noted in the
citations, this is of course in the nature of a rebuttable
presumption and it is open to the accused to raise a defence
wherein the existence of a legally enforceable debt or liability
can be contested. However, there can be no doubt that there is
an initial presumption which favours the complainant. Section
139 of the Act is an example of a reverse onus clause that has
been included in furtherance of the legislative objective of
improving the credibility of negotiable instruments. While
Section 138 of the Act specifies a strong criminal remedy in
relation to the dishonour of cheques, the rebuttable presumption
under Section 139 is a device to prevent undue delay in the
course of litigation. However, it must be remembered that the
offence made punishable by Section 138 can be better described
as a regulatory offence since the bouncing of a cheque is largely
in the nature of a civil wrong whose impact is usually confined
to the private parties involved in commercial transactions. In
such a scenario, the test of proportionality should guide the
construction and interpretation of reverse onus clauses and the
accused/defendant cannot be expected to discharge an unduly
high standard of proof. In the absence of compelling
justifications, reverse onus clauses usually impose an
evidentiary burden and not a persuasive burden. Keeping this
in view, it is a settled position that when an accused has to rebut
the presumption under Section 139, the standard of proof for
doing so is that of 'preponderance of probabilities. Therefore, if
the accused is able to raise a probable defence which creates
doubts about the existence of a legally enforceable debt or
liability, the prosecution can fail. As clarified in the citations, the
accused can rely on the materials submitted by the complainant
in order to raise such a defence and it is conceivable that in some
cases the accused may not need to adduce evidence of his/her
own."
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7.1 The Apex Court in the case of Basalingappa vs.
Mudibasappa reported in 2019 0 AIR (SC) 1983 has observed in
Para 23 and 28 as under:
"23. We having noticed the ratio laid down by this Court in above
cases on Sections 118(a) and 139, we now summarise the
principles enumerated by this Court in following manner:
(i) Once the execution of cheque is admitted Section 139 of
the Act mandates a presumption that the cheque was for
the discharge of any debt or other liability.
(ii) The presumption Under Section 139 is a rebuttable
presumption and the onus is on the Accused to raise the
probable defence. The standard of proof for rebutting the
presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the Accused to
rely on evidence led by him or Accused can also rely on
the materials submitted by the complainant in order to
raise a probable defence. Inference of preponderance of
probabilities can be drawn not only from the materials
brought on record by the parties but also by reference to
the circumstances upon which they rely.
(iv) That it is not necessary for the Accused to come in the
witness box in support of his defence, Section 139
imposed an evidentiary burden and not a persuasive
burden.
(v) It is not necessary for the Accused to come in the witness
box to support his defence.
24. xxxx
25. xxxx
26. xxxx
27. xxxx
28. We are of the view that when evidence was led before the Court
to indicate that apart from loan of Rs. 6 lakhs given to the
Accused, within 02 years, amount of Rs. 18 lakhs have been
given out by the complainant and his financial capacity being
questioned, it was incumbent on the complainant to have
explained his financial capacity. Court cannot insist on a person
to lead negative evidence."
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8. In light of the above settled principles of law and
considering the arguments advanced by the learned advocates for
the parties and on perusal of the record of the case the affidavit of
examination in chief of the complainant has been produced at
exhibit 05 wherein the complainant has narrated the facts of the
complaint on oath. From the record of the case, it transpires that
after the cheque returned unpaid the demand statutory notice was
served to the accused and the accused sent a reply to the notice
which is not produced by the applicant but is produced by the
accused at exhibit 43. The main contentions raised by the accused
in the notice was that the accused and the applicant had never met
each other and no documents had been executed between them.
That no cheque was given by the accused to the applicant and the
cheque of the accused has been misused and all the contents of the
notice were denied by the accused. In the cross-examination of the
applicant by the learned advocate for the accused, the applicant
has admitted that he has agricultural lands at Kotdi and he had
taken a loan of Rs.4,00,000/- in the year 2004 and another loan of
Rs.10,00,000/- in the year 2007 on these lands and had mortgaged
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his land. Once again in 2012, he had taken a loan of Rs.10,00,000/-
and Rs.4,00,000/- and mortgaged the lands and thereafter his son
taken a crop loan of Rs.3,00,000/- from Bank of Baroda. That even
before 2004, he had taken loans for farming. That he had not
executed any document for the amount given to the accused, but
he had executed a written document from the accused for
Rs.12,50,000/- and in the amount of Rs.20,00,000/- he had added
Rs.4,00,000/-, which was the amount for tilling the land, but the
same was not mentioned in the complaint. The applicant has
thereafter stated that he had withdrawn Rs.4,00,000/ from the
bank and Rs.8,00,000/- was withdrawn by a bearer cheque from
the bank by the accused and the remaining amount of
Rs.3,00,000/- was taken in cash from his son. That he did not
verify whether the accused had purchased the land and, in the
complaint, he has not stated on which date the amount was given
to the accused. The applicant has thereafter stated that the
amounts were given in parts and there is no mention as to when
the amount was demanded by him from the accused. The
applicant has admitted that besides the signature, all the other
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writings on the cheque were in his handwriting and this was the
first occasion when any financial transaction had taken place
between him and the accused. That he had started taking crop
loans from 02.06.2000 and the amount of crop loan was increased
to Rs.7,00,000/- on 12.01.2015.
8.1. The applicant has produced a contract executed
between the accused and Jesingbhai Narsangbhai Gudol,
Nathubhai Narsangbhai Gudol and the applicant at exhibit 52 and
as per the document the accused had taken an amount of
Rs.6,30,000/- on 25.09.2017 from account number 01760500000161
and an amount of Rs.6,05,000/- on 03.09.2017 from account
number 01760600001421 and in all an amount of Rs.12,35,000/-
was taken as loan for purchase of land. With regard to the cross
examination of this document the applicant has stated that he does
not know who had purchased the stamp paper which is produced
at exhibit 52. The document was not registered or notarised and he
has not filed any civil suit for recovery of the amount of 12,35,000
from the accused. That he has not mentioned the fact of
Rs.12,35,000/- in his complaint and the complaint was filed for the
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cheque amount of Rs.20,00,000/-. The wife of the accused had
filed a complaint before the DSP against him and Mukeshbhai
Chelabhai Aedranwala and the document produced at exhibit 52
does not bear the signature of any party on page 1 and page 2.
8.2. The applicant has examined witness Saradbhai
Vinodkumar Vijavargiya at exhibit 24 and the witness was
working as the Bank Manager, Bank of Baroda, Chhapi Branch.
The witness has identified the cheque produced at Exhibit 19 and
the return memo produced at exhibit 20. During the cross-
examination by the learned advocate for the accused the witness
has stated that the Bank gives finance for agriculture and non-
agriculture purposes and has admitted that the applicant has taken
crop loan and whenever a loan is given to a person, it has to be
used for the same purpose. The witness has produced the
statement of the savings account of the applicant at exhibit 26 and
as per the statement, the average balance in the account of the
applicant was between Rs.10,000/- to Rs.15,000/-.
8.3. After the evidence of applicant was closed by a closing
pursis at exhibit 64, the further statement of the accused under
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Section 313 of the Code of Criminal Procedure was recorded. The
accused denied all the evidence of the applicant and mainly stated
that he had not given the complainant the cheque produced at
Exhibit 19 and stepped into the witness box and his affidavit of
examination in chief is produced at exhibit 49. The accused has
taken the same defence as stated in the reply to the notice and has
denied that he had taken any loan amount from the applicant. The
accused stated that his wife Hansaben had given an application to
the DSP on 16.08.2018 against the applicant and one Mukeshbhai
Chelabhai Uplana as they were threatening to kill her and assault
her, and the application is produced at exhibit 54. That his wife
had also threatened to commit suicide and the Chhapi Police had
recorded the statement of his wife on 18.08.2018 where she has
admitted that an amount of Rs.7,00,000/- was taken from the
applicant and Mukeshbhai Chelabhai Uplana about three years
ago. The statement of his Hansaben the wife of the applicant
recorded by the In-Way Head constable Chhapi Police Station is
produced at exhibit 57. On perusal of the document produced at
exhibit 54, it is an application given by Hansaben Jitendrabhai
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Bhutadiya to the DSP, Banaskantha at Palanpur wherein she has
stated that her husband had taken some amount from the
applicant and one Mukeshbhai Chelabhai Uplana and the entire
amount was paid after selling his property, but the accused were
harassing them.
8.4. The accused has examined witness Karmaorao
Mangrarao at exhibit 66 and the witness was working as the
Branch Manager, Bank of Baroda, Chhapi Branch and has
produced the bank statement of the applicant at exhibit 71. The
witness has stated that the applicant had taken a loan for a
Borewell and in his account number 01760600001421 an amount of
Rs.8,50,000/- was taken as loan on 11.08.2015 out of which on the
same day, an amount of Rs.5,00,000/- was transferred to account
number 1760100006020 of Mansanghbhai Sardarbhai Bhutadiya.
The transfer voucher is produced at exhibit 68 and the remaining
amount of Rs.3,50,000/- on 11.08.2015 was transferred to account
number 0176040000547 of Ashirwad Pipes and the transfer
voucher is produced at exhibit 69. The statement of loan account
No. 017605000000161 of the applicant is produced at Exhibit 70.
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9. On appreciation of the entire evidence produced by the
applicant and the accused on record of the case, it appears that the
applicant had filed the complaint for the cheque amount of
Rs.20,00,000/- but in the reply to the notice the same was denied
by the accused and during the cross-examination of the applicant
the presumption has successfully been rebutted by the accused as
per the judgements of the Apex Court in Rangappa (Supra) and
Basalingappa (Supra). As per the settled principles of law the
accused can rely on the materials produced by the applicant and
the standard of proof for rebutting the presumption is that of
preponderance of probabilities. In the instant case, the accused
has stepped into the witness box and has also examined one
witness and has produced 17 document evidences in support of
his case, whereas the applicant has not been able to prove that the
amount of Rs.20,00,000/- was in fact given as a loan to the accused.
The evidence of the applicant with regard to giving of the amount
of loan is contradictory evidence and the applicant has stated that
this was the only time that he had entered into a financial
transaction with the accused, but has subsequently stated that the
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amount was given in parts but has not stated the dates on which
the amounts were given. The document produced at exhibit 52,
which is the stamp paper has not been purchased by the accused
and page number 1 and page number 2 do not bear the signatures
of any persons. The document is executed by the accused with
three persons, including the applicant, but there is no mention as
to out of the amount of Rs.12,35,000/- what amount was given by
the applicant and amount was given by the others. Moreover, the
document produced at exhibit 52 does not mention that the cheque
in question was given by the accused towards the amount loaned.
The financial capacity of the applicant has been challenged and the
applicant has himself stated that he had been taking regular loans
from the bank for agriculture, and the same is also proved in the
deposition of the witnesses. There is no iota of evidence as to how
the applicant had given the huge amount of Rs.20,00,000/- in cash
to the accused as loan. Moreover, during the cross-examination of
the accused, the documents produced at exhibit 54 and 57 have
come on record and it appears that Hansaben the wife of the
accused had filed an application before the DSP, Banaskantha at
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Palanpur and in the application and her statement she had
admitted that some amount was taken from the applicant and one
Mukeshbhai Chelabhai Uplana but she has stated that her
husband had repaid the entire amount after sale of his property.
The documents have come on record from the custody of the
applicant and it appears that the applicant had filed an RTI
application before the Chhapi Police Station which is produced at
exhibit 53, and had received the information from the Chhapi
Police Station and has and produced them on record. The
applicant has categorically admitted that he has not filed any civil
suit for recovery of the amount of Rs.12,35,000/- from the accused
and the applicant has not been able to prove that the amount of
Rs.20,00,000/- was the legally enforceable due on 02.08.2018 from
the accused. The applicant has stated that he had taken an amount
of Rs.3,00,000/- from his son, but he has not examined his son as a
witness to prove that he had taken the amount from his son to give
to the accused. The document produced at exhibit 52 bears the
signatures of Jesingbhai Narsangbhai Gudol and Nathubhai
Narsangbhai Gudol and one witness Bhemjibhai M Patel, but the
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applicant has not examined any of these persons as witnesses
before the learned Trial Court to prove the contents of the
document. There are many contradictions in the evidence of the
applicant and the applicant has not come with clean hands before
the learned Trial Court. The prosecution initially proved
ingredients of Section 138 of the N I Act, but the accused
successfully rebutted the presumption under Section 139 and no
offence is made out under Section 138 of the N I Act.
10. The learned Trial Court has appreciated all the
evidence produced by both the parties in a well-reasoned manner
and has concluded that the applicant has not proved the legally
enforceable debt and has concluded that from evidence on record
the accused has successfully rebutted the presumption under
Section 139 of the N I Act. The accused had created a reasonable
doubt and the applicant has failed to produce reliable and cogent
evidence on record about the amount of cheque was the legally
recoverable debt from the accused and the applicant has not
proved his case beyond reasonable doubt and, in light of the
above observation, the learned Trial Court has passed the
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impugned judgment and order of acquittal, which is just and
proper and does not require any interference of this Court.
11. Consequently, the present application seeking leave to
present an appeal under Section 378(4) of the Code of Criminal
Procedure, 1973 fails and is hereby dismissed.
12. Record and proceedings if any, be sent back to the
learned Trial Court forthwith.
13. Since the leave to prefer appeal is rejected, no order is
required to be passed in the Criminal Appeal, which is at filing
stage and the same stands disposed accordingly.
(S. V. PINTO,J)
F.S.KAZI
