Gujarat High Court
Abu Suleman Halaipautra vs State Of Gujarat on 25 April, 2025
NEUTRAL CITATION
R/CR.MA/4562/2025 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. 4562 of
2025
In F/CRIMINAL APPEAL NO. 7467 of 2025
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ABU SULEMAN HALAIPAUTRA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS KOMAL K TRIVEDI(12176) 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 : 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. 8126 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,
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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 applicant had transferred a Sand Stone
lease to the accused by executing a mutual understanding consent
agreement and an amount of Rs.3,65,000/- was due from the accused
and the accused issued cheque No.181076 for the amount of
3,65,000/- dated 07.05.2020 from his account with Axis Bank. The
applicant deposited the cheque on 11.05.2020 in his account with
United Bank of India and the cheque was dishonored and the reason
mentioned in the return memo dated 12.05.2020 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. 8126 of 2021.
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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 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.
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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 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
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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 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."
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 40 and
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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 3,65,000/- was to be paid to the applicant towards which cheque
No. 181076 of 3,65,000/- were issued. The agreement is signed and
bears the thumb impressions of both the parties and is executed on a
stamp paper of 300/- 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 document regarding the Sand Stone Lease of
Anandpur Village, Wankaner Taluka bearing Revenue Survey No.
133/1.
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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 to Ramesh Channa and he did not have any
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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
