Gujarat High Court
Atul Champaklal Gandhi vs Sanjay Pitamber Agarwal Director Of M/S ... on 26 August, 2025
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Reserved On : 22/07/2025
Pronounced On : 26/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION -
NEGOTIABLE INSTRUMENT ACT) NO. 53 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
✔
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ATUL CHAMPAKLAL GANDHI
Versus
SANJAY PITAMBER AGARWAL DIRECTOR OF M/S RAGHAV SILK MILLS
PVT LTD AND SOLE ADMINISTRATOR & ANR.
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Appearance:
MR ARPIT A KAPADIA(3974) for the Applicant(s) No. 1
MR PREMAL S RACHH(3297) for the Respondent(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
CAV JUDGMENT
1) Rule. Learned APP waives service of Rule on behalf of
the respondent - State.
2) By consent of the learned advocates for both respective
parties, the matter has been taken for the final hearing.
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3) The present Criminal Revision Application has been
preferred by the present applicant - original accused
under Section 438 read with Section 442 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (In short
"BNSS") directed against the judgment passed by
learned 11th Additional Sessions Judge, Surat in Criminal
Appeal no.63 of 2024 by judgment dated 01.01.2025
dismissed the appeal of the present applicant - original
accused and confirmed the judgment and order passed
by the learned 15th Additional Chief Judicial Magistrate,
Surat in Criminal Case No.46980 of 2013.
4) The factual matrix of the present case is as under:
5) The present respondent no.1 - original complainant has
filed one complaint under Section 138 of the Negotiable
Instruments Act, 1881 against the present applicant -
original accused and it is the case of the original
complainant that the complainant is the private limited
company registered under the provisions of the
Companies Act and the complainant is the Director and
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authorized person of the company and the accused has
come to the complainant's shop and told the
complainant that he deals in saree business and told the
complainant that he used to buy goods on credit from
many traders and also made payments to them in time
and so, he asked the complainant to give the goods on
credit and the complainant has accepted the proposal of
the accused and entered into the business relationship
with the accused and thereafter, the accused sold sarees
on credit to different two parties through their agencies
and also sold sarees on credit to the accused and
subsequently, as the complainant on trust and reliance,
sold the goods to the accused and by sending the goods
by 25 different invoices and total amount of these
invoices of Rs.37,20,113/- and the accused has received
all goods and no complainant has been made regarding
the quality and quantity of the goods and in turn, the
accused has a cheque for the part payment for
Rs.34,36,838/- and the said cheque was presented by the
complainant to their banker which was dishonoured by
the complainants banker on 28.03.2013 with
endorsement "insufficient fund" and thereafter, the
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complainant issued the legal notice to the accused on
16.04.2013 which was served to the accused on
17.04.2013 and accused has not paid heed to the notice
and hence, the complaint came to be filed before the
learned Trial Court and thereafter, the original
complainant has given his oral evidence and total 12
documentary evidence has been produced and
subsequently, advocate for the accused side has cross-
examined the complainant and after the evidence of the
complainant side is over, the statement under Section
313 of the Cr.P.C of the accused was recorded and
thereafter, after hearing rival submissions, learned Trial
Judge has, by delivering the judgment on 27.12.2023
convicting the present applicant under Section 138 of
the N.I. Act and sentencing him to 1 year simple
imprisonment and also imposed fine of Rs.68,73,676/-
and in default of payment of fine also awarded further
six months simple imprisonment.
6) The said judgment of conviction has been challenged by
the present applicant - accused before the learned
Additional Sessions Judge, Surat by preferring the
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Criminal Appeal No.63 of 2024 and the said appeal came
to be dismissed by the learned 11 th Additional Sessions
Judge, Surat by judgment dated 01.01.2025 and
confirmed the judgment of conviction. Being aggrieved
and dissatisfied by the said judgment, the revision
application has been preferred.
7) Heard learned advocate Mr. Arpit A. Kapadia for the
present applicant - original accused and it is submitted
that the learned Trial Court and Appellate Court have
not appreciated the facts and aspects of the matter.
Further, it is submitted that the service of statutory
notice is a mandatory for the offence punishable under
Section 138 of the N.I. Act and the service of the
statutory notice is not proved in the present case.
Further, it is submitted that there is no legally
enforceable debt and the cheque in question is not by
holder in due course. Further, it is submitted that in the
cross-examination of the complainant, it has been clearly
established that the invoices which have been produced
by the complainant, he admitted that when the goods
have been received by other party then, he has put his
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signature regarding the goods have been received but in
the present case, there is no signature of accused that
the goods had been received by the accused and even no
documentary evidence has been produced that the
address of the accused shown in the invoices, in fact, the
accused is residing at that address or not and hence, in
the cross-examination, by putting these questions, the
accused has rebutted the presumption under Section
139 of the N.I. Act but this fact has not been considered.
Further, it is submitted that further statement of the
original accused states that he wanted to give evidence
on oath and wanted to examine the witness. However,
no sufficient opportunity has been given to the accused
to defend his case. Further, it is submitted that in the
invoices produced by the complainant, has no lorry
number has been mentioned, so, the complainant has
not proved the legally enforceable debt, hence, it is
submitted that the present revision application is
required to be allowed and the order passed by the
learned Appellate Court is required to be quashed and
set aside. Further, it is submitted that the present
applicant is in judicial custody.
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8) Further, in support of his arguments, learned advocate
for the applicant has relied upon the judgment of the
Hon'ble Apex Court in the case of M/s. Kumar Exports
Vs. M/s. Sharma Carpets reported in Criminal Appeal
No.2045 of 2008 as well as in the case of K. Subramani
Vs. K. Damodara Naidu reported in Criminal Appeal
No.2402 of 2014 and the judgment of the Hon'ble Apex
Court in the case of Muskan Enterprises & Anr. Vs. The
State of Punjab & Anr. reported in Criminal Appeal
No.5491 of 2024 and it is submitted that the present
revision application is required to be allowed.
9) On the other hand, learned advocate Mr. Premal Rachh
has vehemently opposed the said revision application
and submitted that there are concurrent findings of
conviction by the two Courts and now, the jurisdiction of
the revisional Court is concerned, is a very narrow. The
applicant has to establish that both Courts below have
committed an error of jurisdiction or error of law then
and then only, it can be interfered. Further, it is
submitted that the signature on the cheque has not been
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disputed by the accused and not rebutted the
presumption under Section 139 of the N.I. Act and both
Courts have rightly decided matters. Further, in support
of his argument, learned advocate Mr. Premal Raj has
relied upon the following judgments:
(i) Dashrathbhai Trikambhai Patel vs. Hitesh
Mahendrabhai Patel reported in 2022(18) SC 614;
(ii) Rajesh Jain vs Ajay Singh reported in 2023
(10) SC 148;
10) Heard the arguments advanced by the learned advocates
for respective parties. Perused the Record &
Proceedings from the learned Trial Court and the
learned Appellate Court and perused the judgment
passed by the learned Trial Court and the learned
Appellate Court.
11) The Section 438 read with Section 442 of the BNSS is
concerned, The Court is vested with the power to call for
and examine the record of any inferior Court for the
purpose of satisfying itself as to legality and regularity of
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any proceedings or order made in the case. The object of
this provision is to correct the patent defect or an error
of jurisdiction or the perversity which has crept in the
proceedings.
12) Further, the High Court, in revision, exercises
supervisory jurisdiction of a restricted nature. It cannot
re-appreciate the evidence as second Appellate Court for
the purpose of determining whether the concurrent
findings of fact reached by the learned Magistrate and
the learned Sessions judge was correct.
13) In the case of State of Kerala Vs. Puttumana Illath
Jathavedan Namboodiri reported in (1999) 2 SC 452 in
paragraph no.5 observed as under:
"(5) Having examined the impugned
Judgment of the High Court and bearing in
mind the contentions raised by the learned
counsel for the parties, we have no hesitation
to come to the conclusion that in the case in
hand, the High Court has exceeded its
revisional jurisdiction. In Its revisional
jurisdiction, the High Court can call for and
examine the record of any proceedings for
the purpose of satisfying itself as to the
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correctness, legality or propriety of any
finding, sentence or order. In other words,
the jurisdiction is one of Supervisory
Jurisdiction exercised by the High Court for
correcting miscarriage of justice. But the said
revisional power cannot be equated with the
power of an Appellate Court nor can it be
treated even as a second Appellate
Jurisdiction. Ordinarily, therefore, it would
not be appropriate for the High Court to re-
appreciate the evidence and come to its own
conclusion on the same when the evidence
has already been appreciated by the
Magistrate as well as the Sessions Judge in
appeal, unless any glaring feature is brought
to the notice of the High Court which would
otherwise tentamount to gross miscarriage of
justice. On scrutinizing the impugned
Judgment of the High Court from the
aforesaid stand point, we have no hesitation
to come to the conclusion that the High Court
exceeded its jurisdiction in interfering with
the conviction of the respondent by re-
appreciating the oral evidence. The High
Court also committed further error in not
examining several items of evidence relied
upon by the Additional Sessions Judge, while
confirming the conviction of the respondent.
In this view of the matter the impugned
Judgment of the High Court is wholly
unsustainable in law and we, accordingly set
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aside the same."
Further, in the case of Malkeet Singh Gill Vs. The
State of Chhattisgarh reported in (2022) 8 SC 204 in
paragraph no.10, the Hon'ble Apex Court observed as
under:
14) "(10) Before adverting to the merits of
the contentions, at the outset, it is apt to
mention that there are concurrent findings of
conviction arrived at by two Courts after
detailed appreciation of the material and
evidence brought on record. The High Court
in criminal revision against conviction is not
supposed to exercise the jurisdiction alike to
the appellate Court and the scope of
interference in revision is extremely narrow.
Section 397 of Criminal Procedure Code (in
short 'CrPC') vests jurisdiction for the
purpose of satisfying itself or himself as to
the correctness, legality or propriety of any
finding, sentence or order, recorded or
passed, and as to the regularity of any
proceedings of such inferior court. The object
of the provision is to set right a patent defect
or an error of jurisdiction or law. There has to
be wellfounded error which is to be
determined on the merits of individual case.
It is also well settled that while considering
the same, the revisional Court does not dwell
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at length upon the facts and evidence of the
case to reverse those findings.
15) In the light of the aforesaid proposition of law, it is
required to examine the present case before the learned
Trial Court. The complaint came to be filed by the
original complainant for the offence punishable under
Section 138 of the N.I. Act. The case of the complainant
in the nutshell is that the complainant who is a director
as well as the authorized person of Raghav Silk Mills
Pvt. Ltd. - Mr. Sanjay Agarwal has filed this private
complaint before the Magistrate and stated that their
company is engaged in the business of selling the sarees
in wholesale and they came into contact with the
accused as he was frequently coming to their shop and
accused told the complainant that he is doing some
business of sarees and stated that he is purchasing
sarees on credit from various businessmen and he is
regularly paying them subsequently and pursuant to
that, the accused has supplied the sarees to different
parties on credit and subsequently, from April, 2012 to
October 2012, total goods of Rs.37,20,113/- was given by
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the complainant to the accused and the said goods were
received by the accused and the complainant has
demanded the money from the accused and accused has
given on cheque bearing no.580803 dated 22.02.2013
drawn on Oriental Bank of Commerce, Surat for
Rs.34,36,838/- for the part payment of the total dues of
Rs.37,20,113/- and the said cheque was presented by the
complainant to his banker - HDFC Bank, Surat but the
said cheque was returned by the complainant's bankers
on 28.03.2013 with endorsement "Today's balance
insufficient" and the cheque was dishonored. Thereafter,
the complainant had issued legal notice through his
advocate on 16.04.2013 demanding the money and the
said notice was sent through RPAD, and it was received
by the accused on 17.04.2013 and in spite of the receipt
of the notice, accused has not pay heed to the notice and
not paid the amount within 15 days or not even took
care to give reply to the notice. Hence, the complaint
came to be filed before the court on 03.05.2013.
Subsequently, the complainant has given his
examination-in-chief vide Exhibit-21, and along with his
examination-in-chief, the complainant has produced 12
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documents from Exhibit-43 to Exhibit-78 and mainly
produced the original search report of the company, vide
Exhibit-43, company's resolution vide Exhibit-44,
original bills vide Exhibits-45 to 69, bank statement of
the accused vide Exhibit-70, Audit Report of the
complainant company vide Exhibit-71, original check
vide Exhibit-72, Return memo of the cheque vide
Exhibit-73, Return Memo of the another cheque vide
Exhibit-74, Demand Notice vide Exhibit-75, Postal
Receipt vide Exhibit-76, Original Letter written to Post
Office vide Exhibit-77, Reply by Post office vide Exhibit-
78. The said complainant was cross-examined by the
advocate of the accused and mainly in the nutshell, it is
stated that the question has been put regarding fact that
the normally, they prepared the chalan in two copies and
if the goods have been received by the other party, they
will obtain signature on one copy of the chalan and
signed chalan has not been produced and in the invoices
or the bills produced, there is no signature of the
accused regarding the accused has received the bill and
the defence taken that the cheque was given as a
security and he has only signed the cheque and the
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signed blank cheque was given to the complainant and
also took a defence that the notice has not been received
by the accused. Thereafter, the complainant has closed
his evidence and the statement under Section 313 of the
accused was recorded and in the further statement of
the accused, he denied everything and subsequently, the
learned Trial Court was pleased to convict the present
accused and sentenced him to 1 year simple
imprisonment and also imposed a fine of Rs.68,73,676/-
on accused in case of default and also be ordered to
undergo further 6 months simple imprisonment. The
said judgment was delivered on 27.12.2023 and the
same was challenged by preferring an appeal before the
learned Sessions Court by Criminal Appeal No.63 of
2024 and the said appeal of the present applicant -
original accused has been dismissed by the learned
Sessions Court after re-appreciating and appreciating all
the evidence produced before the Court. Learned Trial
Court in its judgment, more particularly, in Paragraph
nos.15, 16 and 17, considered all the defences taken by
the accused and also regarding to veracity of the
prosecution evidence and ultimately, in paragraph no.18
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found that the present applicant - original accused has
committed an offence under Section 138 of the N.I. Act
and in this regard, it is required to consider the
authorities on which the learned advocate for the
original complainant relied upon the judgment of the
Hon'ble Apex Court in the case of Rajesh Jain Vs.
Ajaysinh reported in (2023) 10 SC 148:
33. The Evidence Act provides for
presumptions, which fit within one of three
forms: 'may presume' (rebuttable
presumptions of fact), 'shall presume'
(rebuttable presumption of law) and
conclusive presumptions (irrebuttable
presumption of law). The distinction between
'may presume' and 'shall presume' clauses is
that, as regards the former, the Court has an
option to raise the presumption or not, but in
the latter case, the Court must necessarily
raise the presumption. If in a case the Court
has an option to raise the presumption and
raises the presumption, the distinction
between the two categories of presumptions
ceases and the fact is presumed, unless and
until it is disproved, [G.Vasu V. Syed Yaseen
(Supra)] Section 139 NI Act-Effect of
Presumption and Shifting of Onus of Proof;
34. The NI Act provides for two presumptions:
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Section 118 and Section 139. Section 118 of
the Act inter alia directs that it shall be
presumed, until the contrary is proved, that
every negotiable instrument was made or
drawn for consideration. Section 139 of the
Act stipulates that 'unless the contrary is
proved, it shall be presumed, that the holder
of the cheque received the cheque, for the
discharge of, whole or part of any debt or
liability'. It will be seen that the 'presumed
fact' directly relates to one of the crucial
ingredients necessary to sustain a conviction
under Section 138.10"
35. Section 139 of the NI Act, which takes the
form of a 'shall presume' clause is illustrative
of a presumption of law. Because Section 139
requires that the Court 'shall presume' the
fact stated therein, it is obligatory on the
Court to raise this presumption in every case
where the factual basis for the raising of the
presumption had been established. The rules
discussed hereinbelow is common to both the
presumptions under Section 139 and Section
118 and is hence, not repeated-Reference to
one can be taken as reference to another But
this does not preclude the person against
whom the presumption is drawn from
rebutting it and proving the contrary as is
clear from the use of the phrase 'unless the
contrary is proved'.
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36. The Court will necessarily presume that
the cheque had been issued towards
discharge of a legally enforceable
debt/liability in two circumstances. Firstly,
when the drawer of the cheque admits
issuance/execution of the cheque and
secondly, in the event where the complainant
proves that cheque was issued/executed in his
favour by the drawer. The circumstances set
out above form the fact(s) which bring about
the activation of the presumptive clause.
[Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC
35]
37. Recently, this Court has gone to the extent
of holding that presumption takes effect even
in a situation where the accused contends
that 'a blank cheque leaf was voluntarily
signed and handed over by him to the
complainant. [Bir Singh v. Mukesh Kumar11].
Therefore, mere admission of the drawer's
signature, without admitting the execution of
(2019) 4 SCC 197 the entire contents in the
cheque, is now sufficient to trigger the
presumption.
41. In order to rebut the presumption and
prove to the contrary, it is open to the
accused to raise a probable defence wherein
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the existence of a legally enforceable debt or
liability can be contested. The words 'until the
contrary is proved' occurring in Section 139
do not mean that accused must necessarily
prove the negative that the instrument is not
issued in discharge of any debt/liability but
the accused has the option to ask the Court to
consider the non-existence of debt/liability so
probable that a prudent man ought, under the
circumstances of the case, to act upon the
supposition that debt/liability did not exist.
[Basalingappa Vs. Mudibasappa (AIR 2019 SC
1983) See also Kumar Exports Vs. Sharma
Carpets (2009) 2 SCC 513]
42. In other words, the accused is left with
two options. The first option-of proving that
the debt/liability does not exist-is to lead
defence evidence and conclusively establish
with certainty that the cheque was not issued
in discharge of a debt/liability. The second
option is to prove the non-existence of
debt/liability by a preponderance of
probabilities by referring to the particular
circumstances of the case. The preponderance
of probability in favour of the accused's case
may be even fifty one to forty nine and arising
out of the entire circumstances of the case,
which includes: the complainant's version in
the original complaint, the case in the
legal/demand notice, complainant's case at
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the trial, as also the plea of the accused in the
reply notice, his 313 statement or at the trial
as to the circumstances under which the
promissory note/cheque was executed. All of
them can raise a preponderance of
probabilities justifying a finding that there
was 'no debt/liability'. [Kumar Exports and
Sharma Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift
the evidential burden need not necessarily be
direct evidence i.e., oral or documentary
evidence or admissions made by the opposite
party; it may comprise circumstantial
evidence or presumption of law or fact.
44. The accused may adduce direct evidence
to prove that the instrument was not issued in
discharge of a debt/liability and, if he adduces
acceptable evidence, the burden again shifts
to the complainant. At the same time, the
accused may also rely upon circumstantial
evidence and, if the circumstances so relied
upon are compelling the burden may likewise
shift to the complainant. It is open for him to
also rely upon presumptions of fact, for
instance those mentioned in Section 114 and
other sections of the Evidence Act. The
burden of proof may shift by presumptions of
law or fact. In Kundanlal's case- (supra) when
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the creditor had failed to produce his account
books, this Court raised a presumption of fact
under Section 114, that the evidence, if
produced would have shown the non-
existence of consideration. Though, in that
case, this Court was dealing with the
presumptive clause in Section 118 NI Act,
since the nature of the presumptive clauses in
Section 118 and 139 is the same, the analogy
can be extended and applied in the context of
Section 139 as well.
16) So, considering the dictum of the Hon'ble Apex Court
and as discussed above, no probable defence has been
made out by the accused before the learned Trial Court.
He has not adduced any documentary evidence or oral
evidence in support of his defence, merely by putting a
suggestion in the cross-examination that in the bill
produced, the signature of the accused has not been
obtained merely by this suggestion only, accused cannot
rebut the presumption under Section 118 of the N.I. Act
and Section 139 of the N.I. Act. Further, the signature
on the cheque is not in dispute.
17) Considering this aspect, this Court is of the view that the
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present revision application is devoid of any merits. I do
not find any illegality or the findings or any error or
jurisdiction or an error of law recorded by the learned
Trial Court and the learned Sessions Court and the
findings recorded by the learned Trial Court and the
learned Sessions Court is just and proper and does not
require any interference.
18) So far as the judgment of the learned Trial Court is
concerned, the learned Trial Court has imposed a fine of
Rs.68,73,676/- which is double the amount of the cheque
and sentencing the present applicant - original accused
to undergo 1 year simple imprisonment, further, in
default of the payment of fine, the learned Trial Court
has directed the accused to undergo simple
imprisonment for 6 months so far as Section 24 of the
BNSS (Old Section 30 of the Cr.P.C) is concerned,
pertained to sentence of imprisonment in default of fine
and as per the Section, imprisonment awarded under
Section may be in addition to a substantive sentence of
imprisonment, more particularly, Section 24(i)(v) is
concerned, sentence in default of fine is concerned,
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issue not the exceed 1/4th of the substantive sentence.
Hence, considering this, as the substantive sentence is
of one year awarded by the learned Court and in default
of 6 month has been awarded so that the sentence is of
six months in default of fine is to be reduced to three
months only.
19) Considering this, the present revision application is
hereby rejected. Rule is discharged. The judgment
passed by learned 11th Additional Sessions Judge, Surat
in Criminal Appeal no.63 of 2024 by judgment dated
01.01.2025 is hereby confirmed. The present revision
application is disposed of accordingly.
(L. S. PIRZADA, J)
JCP
