Gujarat High Court
Kalpesh Jamandas Dhamwani vs State Of Gujarat on 11 August, 2025
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R/CR.MA/16386/2024 ORDER DATED: 11/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 16386
of 2024
In F/CRIMINAL APPEAL NO. 20364 of 2024
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KALPESH JAMANDAS DHAMWANI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR HR PRAJAPATI(674) for the Applicant(s) No. 1
MR ROHAN N. SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 11/08/2025
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 passed by the learned 2 nd
Additional Chief Judicial Magistrate, Godhra (hereinafter referred
to as "the learned Trial Court") in Criminal Case No. 1682 of 2019
on 01.04.2024, 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 NI
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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 and the accused were dealing in the
same business of cellphones and the accused had taken an amount
of Rs.16,10,000/- in parts for business purpose and to enter the
applicant as a partner in the business of the accused, and a
partnership deed was to be executed for the same. After accepting
the amount of Rs.6,10,000/- the accused refused to execute the
partnership deed and towards the outstanding amount issued
cheque No. 076287 dated 09.05.2019 for the amount of
Rs.8,10,000/- from his account with Axis Bank, Godhra Branch.
The applicant deposited the cheque in his account with Bank of
Baroda and the cheque was dishonored and the reason mentioned
in the return memo was "Funds Insufficient". The applicant sent
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the statutory demand notice to the accused on 02.07.2019 which
was duly served but no payment was made within the stipulated
period and hence the applicant filed a 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.
1682 of 2019.
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 07 and the entire evidence of the applicant was
taken on record. The applicant and one witness were examined on
oath and 10 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 denied all the
contentions alleged against him and stated that a false complaint
has been filed. The accused refused to step into the witness box but
examined one witness on oath at exhibit 31 and did not produce
any documentary evidence in his defence. After the arguments of
the learned advocates for both the parties were heard, by the
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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 Mr. H. R. Prajapati appearing
for the applicant and learned APP Mr. Rohan N. Shah for the
respondent - State.
5. Learned Advocate Mr. H. R. Prajapati 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
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provisions of Section 118 and 138 of the NI Act in proper
perspective. The oral contract is not negated by the accused and
the fact of the amount paid by the applicant to the accused is also
not negated, but the learned Trial Court has disbelieved the same.
The accused had failed to rebut the presumption and the financial
capacity of the applicant was never put to challenge and hence the
judgement and order of acquittal is bad in law and the leave to
appeal may be granted.
6. Learned APP Mr.Rohan N. Shah 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 may be rejected.
7. With regard to the facts in the present case at the
outset, 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
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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
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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."
8. In light of the above settled provisions of law, on
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perusal of the evidence on record, the applicant has filed his
examination in chief at exhibit 4 and has stated that he had given
the amount in parts and had withdrawn an amount of Rs.80,000/-
from his account with Bank of Baroda, had taken an amount of
Rs.5,60,000/- from his sister Jagrutiben, who had withdrawn the
amount from her account with Godhra City Cooperative Bank, an
amount of Rs.1,20,000/- from Jaydev Rameshbhai and an amount
of Rs.50,000/- from Nimishaben and had given the same to the
accused. During the cross-examination by the learned advocate
for the accused the applicant has stated that he does not know
when his father had given the amount and he does not have an
independent source of income. The applicant has admitted that he
does not have any document to show that he had any partnership
relationship with JD Communications and the talks of partnership
with JD Communications and his father were initiated in April
2017. The witness has admitted that in April 2017, when the talks
of partnership were going on, he and his father did not have the
amount of Rs.16,00,000/- with them in hand and until April 2018,
they could not arrange for the amount. The applicant has
examined witness Vira Gandhi at exhibit 25 and the witness is the
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Branch Operation Head in Axis Bank and the witness has
produced the account statement of JD Communications in Axis
Bank at exhibit 26.
8.1 During the cross examination of the applicant by the
learned advocate for the accused the financial capacity of the
applicant has been challenged. The applicant has come up with a
case that he had borrowed the amount from his sister Jagrutiben,
one Jaydev Rameshbhai and Nimishaben but he has not examined
any of them as witnesses before the learned Trial Court. The
applicant has admitted that he has no independent source of
income, and there is no iota of evidence as to how this huge
amount of Rs.8,10,000/- or Rs.16,10,000/- was advanced by the
applicant to the accused. The applicant has produced the copy of
his account statement with bank of Baroda at exhibit 14, account
statement of Jagruti Rameshkumar Dhamwani with The Godhra
City Cooperative Bank Limited, Sarkar Chowk Branch, Godhra, at
exhibit 15 and exhibit 16 and the account statement of Jaydev
Rameshbhai Dhamwani with The Godhra City Cooperative Bank
Limited, Prabha Road, Branch, Bhagwat Nagar Society Godhra at
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exhibit 17. There are entries of withdrawal shown in these
accounts, but there is no evidence on record that these amounts
were withdrawn by the account holders and given to the applicant
or to any other person. As discussed above, the applicant has not
examined any of these persons as witnesses before the learned
Trial Court and not proved that the amounts were taken from the
witnesses as stated and given to the accused.
8.2 Thus, considering the facts produced on record, the
accused has created a reasonable doubt about the financial
transaction of the loan and timing of payment and there are
contradictory statements on whether the money was paid in 2017
or 2018. The accused has challenged the financial capacity of the
applicant to lend money and the applicant has not produced any
cogent evidence about his financial capacity, and no clear proof
has been provided to remove the doubt created, and the accused
has successfully rebutted the presumption and has raised a
probable defence and the learned Trial Court has considered that it
was incumbent on the applicant to prove the transaction beyond
reasonable doubt.
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9. The learned Trial Court has appreciated all the
evidence produced by both the parties and has concluded that the
applicant has not proved how the amount was paid to the accused.
In the entire evidence on record the applicant has not been able to
prove that the amount of Rs.16,10,000/-was given to the accused.
From the evidence produced on record, the accused has succeeded
in raising a probable defence and rebutting the presumption raised
in favour of the applicant.
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 evidence on record the applicant has successfully rebutted
the presumption under Section 139 of the N I Act in light of the
judgment of the Apex Court in Rangappa(supra) and
Basalingappa(supra). 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 and the applicant has not
proved his case beyond reasonable doubt and, in light of the above
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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 378(4) of the Code of Criminal
Procedure, 1973 fails and is hereby dismissed.
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)
F.S. KAZI
