Gujarat High Court
Solanki Gogan Sukabhai vs State Of Gujarat on 25 April, 2025
NEUTRAL CITATION
R/CR.MA/4581/2025 ORDER DATED: 25/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 4581 of
2025
In F/CRIMINAL APPEAL NO. 7474 of 2025
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SOLANKI GOGAN SUKABHAI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS KOMAL K TRIVEDI(12176) for the Applicant(s) No. 1
MR RAHIM A CHAUHAN(10864) for the Respondent(s) No. 2
MS.DHWANI TRIPATHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 25/04/2025
ORAL ORDER
1. The present application is filed by the applicant - original
complainant under Section 419(4) of the Bharatiya Nagrik Suraksha
Sanhita, 2023 (for short "BNSS") seeking leave to file an appeal against
the judgment and order dated 24.12.2024 passed by the learned
Additional Chief Judicial Magistrate, Porbandar (hereinafter referred to
as the "learned Trial Court") in Criminal Case No. 8124 of 2021,
whereby the respondent No. 2 - original accused came to be acquitted
from the offence under 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.
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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 applicant had transferred a Sand Stone lease to the
accused by executing a mutual understanding consent agreement and an
amount of Rs.7,60,000/- was due from the accused and the accused issued
two cheques bearing cheque No.181077 and cheque No.181078 for the
amount of ₹3,80,000/- each from his account with Axis Bank. The3,80,000/- each from his account with Axis Bank. The
applicant deposited cheque No.181078 dated 07.05.2020 in his account
with United Bank of India and the cheque was dishonored and the reason
mentioned in the return memo dated 08.05.2020 was "Funds
Insufficient". The applicant sent the statutory demand notice to the
accused on 14.05.2020 which was duly served on 27.05.2020 but no
payment was made and hence the applicant filed the criminal complaint
before the Court of the Chief Judicial Magistrate, Porbandar under
Section 138 of the N I Act, 1881 which was registered as Criminal Case
No. 8124 of 2021.
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 24 and the evidence of the applicant was taken on record. The
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applicant was examined on oath and 07 documentary evidences were
produced in support of his case and after the closing pursis was filed, the
further statement of the accused was dispensed with under the proviso of
Section 313(1)(b) of the Code of Criminal Procedure. After the
arguments of the learned advocate for the applicant was heard and the
right of arguments of the accused was closed, by the impugned judgment
and order, the learned Trial Court acquitted 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 Ms. Komal K. Trivedi appearing for the
applicant and learned APP Ms. Dhwani Tripathi for the respondent -
State.
5. Learned Advocate Ms. Komal K. Trivedi 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
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and as the applicant is the holder in due course of the cheque in question
the 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 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, it would be fit to refer
to the observations made the Apex Court in Rangappa vs Sri Mohan
reported in 2010 11 SCC 441 in para 14 which reproduced as under:
"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
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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."
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: -
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"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 on perusal of the
record of the case the applicant has filed his affidavit of examination in
chief at exhibit 4 and has been cross examined by the learned advocate
for the accused. The applicant has produced the Memorandum of
Understanding/Consent Agreement at exhibit 39 and as per the
Memorandum of Understanding/Consent Agreement the Sand Stone
Lease situated in Village Anandpur, Taluka Wankaner, District, Morbi
bearing Revenue Survey Number 133/1 in the Government Waste land
was transferred to the accused and an amount of ₹3,80,000/- each from his account with Axis Bank. The7,60,000/- was to be
paid to the applicant towards which cheque No. 181077 and cheque No.
181078 of ₹3,80,000/- each from his account with Axis Bank. The3,80,000/- each were issued. The agreement is signed and
bears the thumb impressions of both the parties and is executed on a
stamp paper of ₹3,80,000/- each from his account with Axis Bank. The300/- which is purchased by the applicant. During the
cross-examination by the learned advocate for the accused, the applicant
has stated that the lease was in the name of Ramesh Channa, but he had
not executed any contract with Ramesh Channa and there was no lease in
the name of the accused. In the complaint it is not stated as to how the
amount of cheque was due from the accused and he has not produced any
documentary evidence to show that the amount was due from the
accused. That he was residing at Adityana in a rented house belonging to
one Pravinbhai for the past four months. That he did not have any
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document regarding the Sand Stone Lease of Anandpur Village,
Wankaner Taluka bearing Revenue Survey No. 133/1.
8.1 As per the case of the applicant the amount that was due from the
accused was with regard to transfer of the Sand Stone lease to the accused
but in the cross-examination of the applicant it has emerged that the Sand
Stone Lease did not belong to the applicant and it belonged to one
Ramesh Channa but the said Ramesh Channa has not been examined
before the learned Trial Court by the applicant. Moreover, the applicant
has categorically stated that he did not have any document regarding the
Sand Stone Lease and he has not executed any document with Ramesh
Channa for the Sand Stone Lease.
9. The learned Trial Court to examine the question of the legally
enforceable debt has discussed the presumptions under the N I Act and
considering the cross-examination has concluded that in light of the
decision of the Apex Court in Basalingappa (Supra) the presumption has
successfully been rebutted by the accused and the Memorandum of
Understanding/ Consent Agreement produced at exhibit 39 has also been
discussed in light of the provisions of Gujarat Minor Minerals
Concession Rules, 2017 and the provisions of Section 23 of the Indian
Contract Act, 1872. Even otherwise there is admission of the applicant
on record that the Sand Stone Lease did not belong to him but belonged
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to Ramesh Channa and he did not have any contract with Ramesh Channa
regarding the Sand Stone Lease and could not transfer the same to the
accused. The learned Trial Court conclude that the legally enforceable
due was not proved and the presumption was successfully rebutted by the
accused during the cross examination of the applicant. The impugned
judgment and order is passed after discussing the entire evidence and
there is no illegality or perversity in the judgment and order and no
interference is required.
10. Consequently, the present application seeking leave to present an
appeal under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita,
2023 fails and is hereby dismissed.
11. Record and proceedings if any, be sent back to the learned Trial
Court forthwith.
12. 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)
VVM
