Gujarat High Court
Suryadeep Finance Thro Dilipbhai ... vs State Of Gujarat on 13 February, 2025
NEUTRAL CITATION
R/CR.MA/17391/2024 ORDER DATED: 13/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO.17391 of 2024
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 20817 of 2024
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SURYADEEP FINANCE THRO DILIPBHAI BABBHAI KHACHAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR SANDEEP R LIMBANI(5977) for the Applicant(s) No. 1
M S PADALIYA(7406) for the Respondent(s) No. 2
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 13/02/2025
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 dated 08.02.2024
passed by the learned 7th Additional Chief Judicial Magistrate,
Rajkot in Criminal Case No. 16396 of 2022, 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
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"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
are as under:
2.1. The applicant has the business of finance in the name
of Suryadeep Finance in Rajkot and the accused had taken a
loan of Rs.3,00,000/- on 03.01.2022 and had executed the
necessary documents. The accused had issued cheque No.
003512 dated 24.03.2022 for Rs.3,00,000/- from his account with
Jeevan Commercial Cooperative Bank Limited, Dhebar Road,
Rajkot. The cheque was presented by the applicant in his bank
and the same returned with the endorsement "Funds
Insufficient" on 28.03.2022. The applicant gave the statutory
demand notice through his advocate on 16.04.2022 which was
duly served to the accused, but the accused did not repay the
amount and hence the complainant filed the complaint before
the court of the Chief Judicial Magistrate, Rajkot.
2.2. The accused was served with the summons and
appeared before the learned Trial Court and his plea was
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recorded at Exh.05 and the 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 under Section 313 of the Code of Criminal
Procedure was recorded, wherein the accused stated that
applicant had filed a false complaint as the accused had lodged a
FIR against applicant before Gandhigram-1 (Uni.) Police Station
and pleaded that he is innocent. The arguments of the advocates
for both the parties were heard and by impugned judgment and
order, the learned Trial Court acquitted the accused from the
offence under Section 138 of the 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.Sandeep Limbani for the
applicant and learned APP Ms.Jirga Jhaveri for the respondent -
State and Mr.M.S.Padaliya for the respondent - accused.
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5. Learned Advocate Ms Vanshika Pritmani for learned
Advocate Mr Sandeep Limbani submits that the accused was
liable to pay the amount which was the legitimate dues of the
applicant who had every right to recover the same. The accused
has also signed Form No. 11 and submitted to the applicant and
has not paid up the outstanding amount but the learned Trial
Court has not considered the same. The accused has not
responded to the notice and has impliedly accepted his liability,
and the defence put up by the accused is an after thought and
the applicant has a good case on merits and hence the leave to
appeal be granted.
6. Learned APP Ms.Jirga Jhaveri for the respondent
State has submitted that the learned Trial Court has considered
all the documents produced by the applicant and has also
considered the evidence and has passed the impugned order of
acquittal considering the settled principles of law and hence the
leave to appeal may not be granted.
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:
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"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."
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:
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(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."
8. In light of the above settled principles of law and on
perusal of the evidence produced by the applicant before the
learned Trial Court the applicant has filed his examination in
chief at Exh.4 and has narrated all the facts of the complaint on
oath. The applicant has been cross examined at length and
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during the cross-examination the applicant has stated that he
has to maintain the books and has to file the statement of
amounts loaned to various persons. That he has not stated the
duration of the loan taken by the accused, the rate of interest
and the number of instalments to be paid in the complaint. That
the accused had through Google Pay deposited various amounts
in his account and in the statement produced at Exh.20, the
duration of the loan is not mentioned. The accused had
deposited an amount of Rs.50,000/- on 10.12.2022 and an
amount of Rs.40,000/- on 01.12.2022 through Google Pay and
the amount of loan was given in cash, even though as per the
rules of the Money Lenders Act, any amount of loan has to be
given by cheque. The accused had filed a criminal complaint
against him and he had not shown any amount as interest in the
present case.
8.1. It is the case of the applicant that he had loaned the
amount of Rs.3,00,000/-, but during the cross-examination, the
applicant has admitted that the accused had deposited
Rs.50,000/- and Rs.40,000/- in his account by Google Pay and it
is clear that the amount of Rs.3,00,000/- is not the actual amount
that is due from the accused, and the said fact is not mentioned
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by the applicant in the notice, the complaint or his examination
in chief. The applicant has not come with clean hands and has
suppressed material facts from the learned Trial Court and the
amount of cheque is not the legally enforceable debt from the
accused on the date of its maturity or presentation and hence in
light of the judgment of the Apex Court in Dashrathbhai
Trikambhai Patel (Supra) the accused has not committed any
offence under Section 138 of the N.I.Act.
9. The Learned Trial Court has considered all the
documents produced by the applicant and has also considered
that the applicant has failed to prove beyond reasonable doubt
that the cheque in question was given as repayment of a legal
debt for a legally enforceable debt and the accused has
successful rebutted the presumption to the extent of
preponderance of probabilities.
10. The learned Trial Court has relied upon the law laid
down by the Apex Court in the case of Bir Singh Vs Mukesh
Kumar reported in 2019 1 GLH 338, D. K. Chandal Vs M/s
Wockhardt Ltd. & Anr in Criminal Appeal No. 132 of 2020,
Srimati Ragini Gupta Vs Piyush Dutt Sharma reported in 2019 3
DCR 358 and Kumar Export vs Sharma Carpets reported in 2008
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0 AIJEL SC 42685 and has concluded that from evidence on
record the applicant has not proved his case beyond reasonable
doubt. The accused has successfully rebutted the presumption
based on preponderance of probability under Section 139 of the
NI Act and the applicant has failed to prove the essential
requirements to constitute the offence under Section 138 of the
N.I.Act that the applicant has failed to prove that the cheque was
given to repay a legally recoverable debt 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 378(4) of the Code of
Criminal Procedure 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
