Gujarat High Court
Dharmendra Amarsingh Hanjra vs State Of Gujarat on 7 February, 2025
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R/CR.MA/1071/2025 ORDER DATED: 07/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 1071 of 2025
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 1863 of 2025
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DHARMENDRA AMARSINGH HANJRA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.NANDISH H THACKAR(7008) for the Applicant(s) No. 1
MR BHARGAV PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/02/2025
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 18.12.2024 passed by
the learned Judicial Magistrate First Class Court No.3, Surat in
Criminal Case No. 18838 of 2020, whereby the original accused -
respondent No. 2 herein came to be acquitted from the charge
levelled against him under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as 'the NI Act"). 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.
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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 is the holder of a Money Lenders License,
and the accused had borrowed an amount of Rs.15,00,000/- from
the complainant and had executed two promissory notes on
18.03.2020 and 11.06.2020 and had given cheque No. 000018 of
his account with Bank of India for Rs.15,00,000/-. The cheque was
deposited by the applicant in his bank and the same was returned
on 29.06.2020 with the endorsement "Funds Insufficient". The
applicant sent the demand notice which was served to the accused
on 29.07.2020 but the accused did not send any reply and did not
return the amount and hence the applicant filed the complaint
before the Court of the Chief Judicial Magistrate, Surat under
Section 138 of the N I Act.
2.2 The accused was served with the summons and
appeared before the learned Trial Court and his plea was recorded
at Exhibit 07 and the evidence of the applicant was taken on
record. The applicant at Exhibit 04 and Ankitaben Milanbhai at
Exhibit 22 were examined on oath and 12 documentary evidences
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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 the facts in examination in chief and in the
complaint are false and a false complaint has been filed. The
accused stepped into the witness box and was examined on oath at
Exh.33 and produced three documentary evidences in support of
his defence. After the evidence of the accused was closed the
arguments of the learned advocates for both the parties were heard
and by the impugned judgment and order, the learned Trial Court
acquitted the accused from the offence under Section 138 of the NI
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. Nandish H. Thackar
appearing for the applicant and learned APP Mr. Bhargav Pandya
for the respondent - State.
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5. Learned Advocate Mr Nandish H Thakkar 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 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 must be granted.
6. Learned APP Mr.Bhargav Pandya 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
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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 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
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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.
(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
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explained his financial capacity. Court cannot insist on a person
to lead negative evidence."
7.2 The Apex Court in the case of Dashrathbhai Trikambhai
Patel vs Hitesh Mahendrabhai Patel & Anr. reported in (2023)
1 SCC 578 has observed as under:
"30. In view of the discussion above, we summarise our findings
below:
(i) For the commission of an offence under Section 138, the
cheque that is dishonoured must represent a legally
enforceable debt on the date of maturity or presentation;
(ii) If the drawer of the cheque pays a part or whole of the
sum between the period when the cheque is drawn and
when it is encashed upon maturity, then the legally
enforceable debt on the date of maturity would not be
the sum represented on the cheque;
(iii) When a part or whole of the sum represented on the
cheque is paid by the drawer of the cheque, it must be
endorsed on the cheque as prescribed in Section 56 of
the Act. The cheque endorsed with the payment made
may be used to negotiate the balance, if any. If the
cheque that is endorsed is dishonoured when it is sought
to be encashed upon maturity, then the offence under
Section 138 will stand attracted;
(iv) The first respondent has made part-payments after the
debt was incurred and before the cheque was encashed
upon maturity. The sum of rupees twenty lakhs
represented on the cheque was not the 'legally
enforceable debt' on the date of maturity. Thus, the first
respondent cannot be deemed to have committed an
offence under Section 138 of the Act when the cheque
was dishonoured for insufficient funds; and
(v) The notice demanding the payment of the 'said amount
of money' has been interpreted by judgments of this
Court to mean the cheque amount. The conditions
stipulated in the provisos to Section 138 need to be
fulfilled in addition to the ingredients in the substantive
part of Section 138. Since in this case, the first
respondent has not committed an offence under Section
138, the validity of the form of the notice need not be
decided."
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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 as per the case
of the applicant he had given an amount of Rs.15,00,000/- to the
accused and two promissory notes were executed on 18.03.2020
and 11.06.2020 which have been produced at Exh.11 and Exh.12.
On perusal of both the promissory notes, it is stated that the
amount of Rs.15,00,000/- was taken today i.e. the date on which the
promissory note is executed. During the cross-examination of the
applicant by the learned advocate for the accused, the applicant
has stated that when the accused had come to demand for money,
he was having a non-veg larri and he had brought the cheque of
Rs.15,00,000/- with him. The promissory notes produced at
Exh.11 and Exh.12 do not have his license number or name and
they are printed forms which are easily available in the market.
That he has not produced any evidence to show that he has showed
the amount of Rs.15,00,000/- in the Income Tax Returns.
8.1 The complaint of the applicant and the examination in
chief do not state whether the amount was paid in cash or by
cheque to the accused and the accused has stepped into the
witness box and has been examined at Exh.38, but the learned
advocate for the applicant has not cross examined the accused and
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hence his statement on oath has remained unchallenged. As per
the case of the accused, he had borrowed an amount of
Rs.2,00,000/- at the interest rate of 12% and had paid an amount of
Rs.24,000/- as interest for two months and thereafter he could not
pay the amount and hence the applicant had called him to his office
and demanded an amount of Rs.6,35,000/- towards which the
accused has paid an amount of Rs.5,15,000/- and nothing is due
from the accused. As per the settled principles of law, the initial
presumption is in favour of the applicant, but once the accused has
stepped into the witness box and has raised a probable defence
which has not been challenged by the applicant, the same ought to
be considered. Moreover, the applicant has produced two
promissory notes of the dates of 18.03.2020 and 11.06.2020 and
both the documents state that the amount was taken by the
accused on the date on which the promissory note was executed,
and hence the date on which the amount was taken is not proved.
There is no explanation as to why the two promissory notes have
been executed for the same amount on different dates and as to
why the second promissory note was executed without cancelling
or mentioning about the earlier promissory note. It is not the case
of the applicant that the amount of Rs.15,00,000/- was taken on two
different dates, but the promissory notes were executed for the
same amount. The applicant has not clearly stated on which date
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the amount was taken and has not produced his Income Tax
Returns or any other documents to show that the amount was in
fact taken by the accused. The applicant is doing the business of
finance and he would have to maintain all the accounts and if the
accused had in fact taken the amount of Rs.15,00,000/- it would be
reflected in his accounts, but the same have not been produced by
the applicant on record for reasons, best known to the applicant.
The accused has successfully rebutted the presumption and has
stepped into the witness box 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.
The accused has stated that he had repaid some amount to the
applicant but the same is not challenged by the applicant and
hence it is also proved that the amount mentioned on the cheque
was not the "legally enforceable debt" on the date of maturity.
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.
Moreover the Income Tax Returns of the applicant were not
produced on record and the say of the applicant that the amount of
Rs.15,00,000/- was given to the accused is not proved. The
accused had also produced the copies of the FIRs filed against the
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applicant under the Money Lending Act and it was proved that the
applicant was habitual of filing such type of cases.
10. The learned Trial Court has relied upon the law laid
down by the Apex Court in the case of Rohit Jivanlal Patel vs State
of Gujarat reported in 2019 3 SC 662, Rangappa (Supra), Kumar
Export vs Sharma Carpets reported in 2008 0 AIJEL_SC 42685,
Hiten P. Dalal vs Bratindranath Banerjee reported in 2001 6 SCC
16, K. N. Beena vs Muniyappan and others reported in AIR 2001 SC
2895, M/s. Kalamani Tex & Anr vs P. Balasubramanian reported in
2021 1 DCR 625, Asp Forex Service Pvt. Ltd. vs Shakti
International Fashion Linkers reported in 2020 0 AIJEL-SC 65765
and T.P.Murugan vs Boja reported in 2018 0 AIJEL-SC 62547 and
in light of the same, has concluded that from evidence on record
accused had created reasonable doubt and the applicant has failed
to produce reliable and cogent evidence on record about the legally
recoverable debt from the accused and applicant has not proved
his case beyond reasonable doubt. The learned Trial Court has
concluded that the accused has successfully rebutted the
presumption based on preponderance of probability 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.
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11. Consequently, the present application seeking leave to
present an appeal under Section 419(4) of the Bhartiya Nagrik
Suraksha Sanhita 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
