Gujarat High Court
Ashokbhai Narshibhai Trivedi vs Kapilbhai Ashokbhai Makwana ... on 20 February, 2025
NEUTRAL CITATION
R/CR.MA/267/2025 ORDER DATED: 20/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 267 of
2025
In F/CRIMINAL APPEAL NO. 40 of 2025
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ASHOKBHAI NARSHIBHAI TRIVEDI
Versus
KAPILBHAI ASHOKBHAI MAKWANA PROPRIETOR OF GURUKRUPA
FOOD PRODUCTS & ANR.
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Appearance:
MR DHRUV D DESAI(9909) for the Applicant(s) No. 1
MS. JIRGA JHAVERI, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 20/02/2025
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
28.11.2024 passed by the learned 2 nd Additional Chief
Judicial Magistrate, Bhavnagar in Criminal Case No. 2956
of 2020, whereby the original accused - respondent no. 1
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").
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1.1 The respondent no. 1 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 filed a complaint against the accused
under Section 138 of the Act, as the accused had taken a
friendly loan of ₹4,00,000/- in August 2019 and
₹4,00,000/- on 20.12.2019 for business purpose and
accused issued cheque No.188030 of amount for the
₹8,00,000/- dated 07.07.2020 from his account with
Allahabad Bank, Nana Varacchha Branch, Surat. The
applicant deposited the cheque in his account and the same
was dishonored and as per instruction of the accused once
again the cheque was deposited on 13.07.2021 in the
account of the applicant with State Bank of India, Kadiyabid
Branch, Bhavnagar. The cheque was dishonored once again
and the reason mentioned in the return memo dated
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14.07.2020 was "Funds Insufficient". The applicant sent the
statutory demand notice to the accused on 21.07.2020 and
no payment was made though it was served. The applicant
filed the criminal complaint before the learned Chief
Judicial Magistrate, Bhavnagar under Section 138 of the NI
Act, 1881 which was registered in Criminal Case No. 2956
of 2020.
2.2 The accused was served with the summons and
appeared before the learned Trial Court and his plea was
recorded at Exh. 7 and the evidence of the applicant was
taken on record. The applicant was examined on oath and 5
documentary evidences were produced in support of his
case and after the closing pursis at Exh. 24 was filed, the
further statement of the accused under Section 313 of the
Code of Criminal Procedure, 1973 was recorded wherein the
accused denied all the allegations against him and claimed
that he is innocent. 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
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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. Dhruv D. Desai appearing
for the applicant and learned APP Ms. Jirga Jhaveri for the
respondent - State.
5. Learned Advocate Mr. Dhruv D. Desai 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 NI Act is to be drawn in favour of
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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 Ms. Jirga Jhaveri for the State 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 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
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Rangappa vs Sri Mohan reported in 2010 11 SCC 441 in
para 14 which is 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
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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:
"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
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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
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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:
(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
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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
considering the arguments advanced by the learned
advocates for the parties and on perusal of the record of the
case, the applicant has submitted his affidavit of
examination in chief at Exh. 4 and has been cross-examined
at length by the learned advocate for the accused, wherein,
he has stated that he has produced all the evidence that
was in his possession regarding the amount lent to the
accused. That his salary is ₹71,000/- per month and his
salary is spent in his household expenses as also social
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expenses. That he has not produced any document about
the amount given to the accused and he has not stated the
year and the month in which the accused demanded for the
amount in his complaint or in his affidavit of examination in
chief. That he has not stated the place where the amount
was demanded and he has not produced his PAN Card or
Income Tax Returns on record. That he has not produced
any evidence as to how the amount was given to the
accused and has not shown the amount in his Income Tax
Returns and he has not stated the place at which the
cheque was given by the accused and in the cheque only the
signature is of the accused and the other details are written
by a different pen.
8.1 It is the case of the applicant that he had given the
amount of ₹8,00,000/- to the accused, but there is no
evidence to when, where and how the financial transaction
has taken place. The applicant has not stated any details
about the transaction with the accused and has merely
stated that he had given the amount in cash. The evidence
has been challenged and the financial capacity of the
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applicant has also been challenged by the accused and it
was incumbent on the applicant to explain his financial
capacity as the amount is not shown in the income tax
returns of the applicant. On perusal of the evidence of the
applicant in the paper book submitted on record by the
learned advocate for the accused has successfully
challenged the financial capacity and even thereafter no
evidence has been produced on record by the applicant to
prove his financial capacity and the time, date and day that
he had given the amount to the accused.
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 accused has successfully
rebutted the presumption in the cross-examination and
even though the financial capacity has been challenged
there is nothing on record to show that the amount was in
fact paid.
10. The learned Trial Court has concluded from evidence
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on record that the accused had created a reasonable doubt
and the applicant has failed to produce reliable and cogent
evidence on record about his financial capacity to lend such
huge amount and about the legally recoverable debt from
the accused and the 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.
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. Notice stands discharged. Record and proceedings if
any, be sent back to the learned Trial Court forthwith.
13. Since the leave to prefer appeal is rejected, no order is
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required to be passed in the Criminal Appeal, which is at
filing stage and the same stands disposed off accordingly.
(S. V. PINTO,J)
VASIM S. SAIYED
