Gujarat High Court
Nitesh Rameshchandra Dave vs State Of Gujarat on 28 April, 2025
NEUTRAL CITATION
R/CR.MA/4522/2025 ORDER DATED: 28/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 4522 of
2025
In F/CRIMINAL APPEAL NO. 4783 of 2025
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NITESH RAMESHCHANDRA DAVE
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. MAULIK M SONI(7249) for the Applicant(s) No. 1
MS. JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 28/04/2025
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
06.11.2024 passed by the learned Chief Judicial Magistrate,
Godhra (hereinafter referred to as the "learned Trial Court")
in Criminal Case No. 3465 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").
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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 father of the accused
and the applicant had executed an agreement to sale for the
house of the father of the accused for an amount of
Rs.6,50,000/- and the father of the accused had taken an
amount of Rs.6,50,000/- in two parts against the agreement
to sale. The house was sold to another person and the
accused had issued cheque No.020388 to return the
advanced amount including damage for an amount of
₹8,50,000/- dated 02.08.2021 from his account with ICICI
Bank, Godhra Branch. The applicant deposited the cheque
on 05.08.2021 in his account and the cheque was
dishonored and the reason mentioned in the return memo
dated 06.08.2021 was "Dormant Account". The applicant
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sent the statutory demand notice to the accused on
25.08.2021 which was duly served on 27.08.2021 and no
payment was made and hence the applicant filed the
criminal complaint before the Court of the Chief Judicial
Magistrate, Godhra under Section 138 of the N I Act, 1881
which was registered as Criminal Case no. 3465 of 2021.
2.2 The accused was served with the summons and the
accused appeared before the learned Trial Court and after
his plea was recorded at Exh. 07 the evidence of the
applicant was taken on record. The applicant and one
witness were examined on oath and 13 documentary
evidences were produced in support of his case and after
the closing pursis was filed, the further statement of the
accused under Section 313 of the Code of Criminal
Procedure was recorded wherein the accused stated that
there was no transaction with the applicant and the cheque
has been misused and a false complaint has been filed. The
accused refused to step into the witness box and after the
arguments of the learned advocates for both the parties
were heard, by the impugned judgment and order, the
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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 Mr. Maulik M. Soni appearing
for the applicant and learned APP Ms. Jirga Jhaveri for the
respondent - State.
5. Learned Advocate Mr. Maulik M. Soni 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
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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. Jirga Jhaveri 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
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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
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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:
"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.
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(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
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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
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 Exh. 09 wherein the complainant has
narrated the facts of the complaint on oath. It is the say of
the complainant that he had executed an agreement to
purchase property situated in Kalol bearing City Survey No.
806 admeasuring 18.06 square meters and City Survey No.
807 admeasuring 16.72.26 square meters and City Survey
No.520 admeasuring 35.11.74 square meters with the
father of the accused. The property was to be purchased for
an amount of ₹6,50,000/- towards which an amount of
₹3,00,000/- was paid to the father of the accused. During
the cross examination of the complainant by the learned
advocate for the accused, the applicant has admitted that
the document of agreement to sale was executed on
31.08.2015 and an amount of ₹3,00,000/- was paid, but
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there is no mention as to how and at what place was the
amount of ₹3,00,000/- paid. The applicant has also
admitted that the complaint has been filed for the cheque
amount of ₹8,50,000/- and he has stated that he does not
remember whether he had paid the amount of ₹6,50,000/-
in parts in 2015. The complaint has been filed in 2021 and
in the cross examination the applicant has categorically
admitted that the financial transactions were with the father
of the accused and there was no financial dealings with the
accused. The applicant has produced the copy of the
agreement to sale at Exh. 17 and on perusal of the same it
is the deed executed between the applicant and the father of
the accused.
8.1 The main defence of the accused is that there was no
legally enforceable due of ₹8,50,000/- from him to the
applicant and the same is proved in the cross-examination
of the applicant with regard to the categorical admission of
the applicant that the transaction for the sale of the
property was with the father of the applicant and there was
no financial transaction with the accused. The learned Trial
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Court has appreciated this aspect in the proper manner and
as there was no legally enforceable due from the accused
has concluded that the applicant has not proved the case
beyond reasonable doubts.
9. On appreciation of the entire evidence of the applicant
on record the version of the applicant is not believable and
the accused has successfully rebutted the presumption in
light of the judgments of the Apex Court in Rangappa
(supra) and Basalingappa (supra) 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 on record and has concluded that the
applicant has not proved the legally enforceable debt and
has concluded that from the evidence on record that the
applicant 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 being the legally recoverable debt from the accused
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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 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 419(4) of the Bharatiya
Nagrik Suraksha Sanhita, 2023 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)
VASIM S. SAIYED
