Gujarat High Court
Chauhan Tribhovanbhai Gandabhai vs State Of Gujarat on 20 February, 2025
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R/CR.MA/6404/2022 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. 6404 of
2022
In R/CRIMINAL APPEAL NO. 672 of 2022
With
R/CRIMINAL APPEAL NO. 672 of 2022
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CHAUHAN TRIBHOVANBHAI GANDABHAI & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR AFTABHUSEN ANSARI(5320) for the Applicant(s) No. 1,1.1,1.2,1.3,1.4
NAMAN H KINKHABWALA(8831) for the Respondent(s) No. 2
NIDHI K TRIVEDI(9003) 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 : 20/02/2025
ORAL ORDER
1. The present application is filed by the applicants -
legal heirs of the 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 03.02.2021 passed by the learned 2 nd Additional
Chief Judicial Magistrate, Dholka in Criminal Case No. 680
of 2012, 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
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to as 'the NI Act").
1.1 The original complainant - Tribhovanbhai Gandabhai
and the respondent no. 2 are hereinafter referred to as, "the
complainant" and "the accused" as they 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 original complainant - Tribhovanbhai Gandabhai
Chauhan filed a complaint against the accused under
Section 138 of the Act, as the accused had taken a loan of ₹
7,50,000/- from him in parts for his personal need and the
accused issued cheque no. 383558 for amount of
₹7,50,000/- dated 15.12.2011 from his account no.
30423273408 with State Bank of India. The complainant
deposited the cheque on 04.01.2012 in his account with
Bank of India, Mafalipur Branch and the cheque was
dishonored. The complainant informed the accused
telephonically and the cheque was deposited four times as
per the instructions of the accused and on depositing the
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cheque for the fifth time on 15.03.2012, the same was
dishonored and the reason mentioned in the return memo
was "Funds Insufficient". The complainant sent the
statutory demand notice to the accused on 16.03.2012 and
though it was served on 20.03.2012, no reply was given and
no payment was made by the accused. The complainant
filed the criminal complaint before the learned 2 nd Additional
Chief Judicial Magistrate, Dholka under Section 138 of the
NI Act, 1881 which was registered as Criminal Case No. 680
of 2012.
2.2 The accused was served with the summons and
appeared before the learned Trial Court and his plea was
recorded at Exh. 19 and the evidence of the complainant
was taken on record. The complainant was examined on
oath and 9 documentary evidences were produced in
support of his case and after the closing pursis at Exh. 79
was filed, the further statement of the accused under
Section 313 of the Code of Criminal Procedure,1973 was
recorded, wherein, the accused stated that the facts in
examination-in-chief and in the complaint are false and no
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such loan has been taken and no cheque has been issued
and a false complaint has been filed to harass the accused.
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
legal heirs of the original complainant have 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 Ms. Hely Makwana for learned
advocate Mr. Aftabhusen Ansari appearing for the
applicants, learned APP Ms. Jirga Jhaveri for the
respondent no. 1 - State and Mr. Naman H. Kinkhabwala
and for the respondent no. 2.
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5. Learned Advocate for the applicants submits that the
learned Trial Court has not appreciated that the
complainant has successfully established that the cheque in
question was issued by the accused from the bank account
maintained by him. The complainant 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 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
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 and Mr.
Naman H. Kinkhabwala for respondent no. 2 have
submitted that the learned Trial Court has appreciated all
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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
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
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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."
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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
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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:
(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
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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
considering the arguments advanced by the learned
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advocates for the parties and on perusal of the record of the
case the applicant has filed his examination in chief at Exh.
24 and during the cross-examination has categorically
admitted that he has no legal due pending from the
accused. The complainant has also admitted that after the
cheque was returned for the first time, the notice was sent
to the accused by U.P.C. and R.P.A.D. and the reply was
given by the accused and thereafter, once again the cheque
was deposited on 15.03.2012. That after the first notice was
given, no case was filed against the accused and after the
cheque returned for the second time, a second notice was
given and thereafter, the criminal case has been filed. That
when he had deposited the cheque for the last time, he
knew that there was no amount in the account of the
accused. Moreover, the complainant has also admitted that
the notice given on 25.02.2012 was given to Ayubmiya
Jamalmiya Kadri and the reply was given on the same day
by Ayubmiya Jamalmiya Kadri but he has not produced the
reply to the notice on record. From this it transpires that
even though the accused had given the cheque in question,
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the notice was not given to the accused but it was given to
one Ayubmiya Jamalmiya and there is no explanation about
the notice given to a Ayubmiya Jamalmiya or the reply that
was given by him. Moreover, there is no evidence as to how
the huge amount of ₹7,50,000/- was given by the
complainant and the complainant was not sure when and
where was the amount given which has created a huge
doubt on the financial transaction stated by the
complainant.
9. The learned Trial Court has appreciated all the
evidence produced by both the parties and has concluded
that the complainant has not proved how the amount was
paid to the accused. Moreover the complainant has
categorically stated that no amount of money is due from
the accused and hence there is no legally enforceable debt
due to the complainant.
10. The learned Trial Court has relied upon the law laid
down by the Apex Court in the case of Hiren P. Dalal
reported in AIR 2001 SC 3897, Krishna Janardan Bhat Vs
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Dattatrey Hegde reported in (2008)4 SCC 54 and Kumar
Exports Vs Sharma Carpets reported in AIR 2009 SC 1518
and in light of the same, has concluded that from evidence
on record that the accused had created reasonable doubt
and the complainant has failed to produce reliable and
cogent evidence on record about the legally recoverable debt
from the accused and has not proved the month and year
and what amount was given to the accused and the
complainant 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 378(4) of the Code of
Criminal Procedure, 1973 fails and is hereby dismissed.
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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
required to be passed in the Criminal Appeal, which is at
filing stage and the same stands disposed accordingly.
(S. V. PINTO,J)
VASIM S. SAIYED
