Gujarat High Court
Harishbhai Navnitbhai Shukal vs State Of Gujarat on 14 August, 2025
NEUTRAL CITATION
R/CR.MA/16467/2025 ORDER DATED: 14/08/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 16467 of 2025
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 29613 of 2025
================================================================
HARISHBHAI NAVNITBHAI SHUKAL
Versus
STATE OF GUJARAT & ANR.
================================================================
Appearance:
MR SANDIP M PATEL(5649) for the Applicant(s) No. 1
MR VAIBHAV A VYAS(2896) for the Applicant(s) No. 1
MR ROHAN N. SHAH, APP for the Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 14/08/2025
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 passed by the learned 2 nd
Additional Chief Judicial Magistrate, Gandhinagar (hereinafter
referred to as "the learned Trial Court") in Criminal Case No. 3402
of 2023 on 23.04.2025, 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 Act").
1.1 The respondent No 2 is hereinafter referred to as "the
NEUTRAL CITATION
R/CR.MA/16467/2025 ORDER DATED: 14/08/2025
undefined
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 co-owner had sold 3476 Sq.Mt
area land situated at Pethapur, Dist. Gandhinagar to the accused
Registered Sale Deed was executed between the parties on
14.02.2022 for the property. Agreement No.194/I was executed
on 29.02.2022 between the parties for payment of remaining
amount and the accused had issued cheque No. 000496 dated
14.10.2022 for the amount of Rs.1,47,98,000/- from his account
with Saraspur Nagarik Cooperative Bank Ltd., Memnagar,
Ahmedabad Branch in favour of the applicant. The applicant
deposited the cheque in his account with ICICI Bank,
Gandhinagar Branch and the cheque was dishonored and the
reason mentioned in the return memo was "Funds Insufficient".
The applicant sent the statutory demand notice to the accused on
04.02.2023 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, Gandhinagar under Section 138 of the N I Act, 1881
which was registered as Criminal Case No. 3402 of 2023.
NEUTRAL CITATION
R/CR.MA/16467/2025 ORDER DATED: 14/08/2025
undefined
2.2 The accused was duly served with the summons and
the accused appeared before the learned Trial Court and his plea
was recorded at exhibit 16. The entire evidence of the applicant
was taken on record. The applicant was examined on oath and 06
documentary evidences were produced in support of his case and
after the closing pursis was filed, the further statement of the
accused 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
and lead evidence 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 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. Vaibhav A. Vyas for the
applicant and learned APP Mr. Rohan N. Shah for the respondent
- State.
NEUTRAL CITATION
R/CR.MA/16467/2025 ORDER DATED: 14/08/2025
undefined
5. Learned Advocate Mr. Vaibhav A. Vyas 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 139 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 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, 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:
NEUTRAL CITATION
R/CR.MA/16467/2025 ORDER DATED: 14/08/2025
undefined
"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:
NEUTRAL CITATION
R/CR.MA/16467/2025 ORDER DATED: 14/08/2025
undefined
"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 as per the case of the applicant
that the applicant was the co-owner of immovable property
situated in village Pethapur bearing Survey No.100 and the
NEUTRAL CITATION
R/CR.MA/16467/2025 ORDER DATED: 14/08/2025
undefined
property was sold by the applicant and the co-owner to the
accused. An agreement for the remaining amount of
Rs.1,47,98,000/- was drawn and as per the agreement, the accused
issued two cheques and cheque No.000497 for Rs.1,47,98,000/-
from his account with Saraspur Nagrik Cooperative Bank,
Memnagar Branch was given to the applicant. During the cross-
examination by the learned the advocate for the accused, the
applicant has admitted that the memorandum of understanding
was entered into between the parties as per the understanding with
Ashishbhai Dilipbhai Patel and the applicant had filed objections
with regard to the entry in the revenue record, and the objections
were dismissed. No civil suit was filed for cancellation of the sale
deed and the amount shown in the sale deed and the amount
shown in the understanding agreement were different. The
property that was to be sold was a house which was in the
possession of his brother Upendrabhai, and his brother was
residing in the property and the possession of the property was
not handed over to the applicant. At the time of execution of the
sale deed, an audio video recording was done by the Registrar and
the applicant had stated that he had received the amount of sale
and the sale deed was true and correct.
8.1 After the evidence of the applicant was taken on
record in the further statement of the accused, the accused denied
all the evidence and stated that the transaction regarding the
NEUTRAL CITATION
R/CR.MA/16467/2025 ORDER DATED: 14/08/2025
undefined
immovable property bearing Survey No.100 situated in Pethapur
Taluka, Dist. Gandhinagar was concluded, but the possession of
the property was not handed over to the respondent No.02. There
was a bank loan on the property, which was to be released, and the
cheques were merely given as a security, but the same have been
misused by the applicant.
9. On appreciation of the entire evidence of the applicant
on record the accused has successfully rebutted the presumption
and has taken a defence that there was no legally enforceable due
from the accused and the cheque in question was given as a
security which has been misused by the applicant. During the
cross-examination, it has emerged on record that the property for
which the memorandum of understanding was executed was not
handed over to the accused and the property was in possession of
Upendrabhai, the brother of the applicant and as the property was
not handed over to the accused, the applicant was not entitled to
the amount of cheque, and it was not the legally enforceable due
amount to 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 from evidence on
record the accused has successfully rebutted the presumption
under Section 139 of the N I Act in light of the judgment of the
NEUTRAL CITATION
R/CR.MA/16467/2025 ORDER DATED: 14/08/2025
undefined
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 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. 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
