Gujarat High Court
Anil Ramchandra Sharma vs State Of Gujarat on 27 February, 2025
NEUTRAL CITATION
R/CR.MA/1098/2020 ORDER DATED: 27/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 1098 of
2020
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ANIL RAMCHANDRA SHARMA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1
DHRUV TOLIYA(9249) for the Respondent(s) No. 2
MR. BHARGAV PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 27/02/2025
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 25.06.2019 passed by the learned 11 th
Additional Chief Judicial Magistrate, Surat (hereinafter referred to as the
"learned Trial Court") in Criminal Case No. 37483 of 2014, 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 to as 'the NI Act").
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1.1 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.
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 loan of ₹ 6,00,000/- in parts
from the applicant during the period October 2013 to December 2013 and
the accused issued cheque No.256416 for ₹ 6,00,000/- dated 23.04.2014
from his account with IDBI Bank, Ring Road Branch, Surat. The
applicant deposited the cheque on 23.04.2014 in his account with Bank of
Baroda, Bhulkabhavan Branch, Surat and the same was dishonored and
the reason mentioned in the return memo dated 05.05.2014 was "Funds
Insufficient". The applicant sent the statutory demand notice to the
accused on 21.05.2014 and an evasive reply was given and no payment
was made though it was served on 22.05.2014. The applicant filed the
criminal complaint before the Court of the Additional Chief Judicial
Magistrate, Surat under Section 138 of the NI Act, 1881 which was
registered as Criminal Case no. 37483 of 2014.
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2.2 The accused was served with the summons and appeared before the
learned Trial Court and his plea was recorded and the evidence of the
applicant was taken on record. The applicant was examined on oath and
07 documentary evidences were produced in support of his case and after
the closing pursis at Exhibit 64 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 was examined on oath at exhibit 68 and 18 documentary
evidences were produced in 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.
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4. Heard learned advocate Mr. S. J. Nayak for learned advocate Mr.
N. K. Majmudar appearing for the applicant, learned APP Mr. Bhargav
Pandya for the respondent - State and learned advocate Mr. Dhruv Toliya
for Respondent No. 2.
5. Learned Advocate Mr. S. J. Nayak for learned advocate Mr. N. K.
Majmudar for the applicant has submitted 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.
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6. Learned APP Mr. Bhargav Pandya for the respondent - State and
learned advocate Mr. Dhruv Toliya for the Respondent No. 2 have
jointly 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 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
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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 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
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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."
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 filed his affidavit of
examination in chief at exhibit 17 and has reiterated the contents of the
complaint. During the cross-examination by the learned advocate for the
accused, the applicant has stated that he does not have any evidence to
show that the amount was paid to the accused and the applicant has
admitted that the handwriting on the cheque and the signature are in
different pens.
8.1 The accused has been examined on oath at exhibit 68 and the
accused has produced an application and order passed in Criminal
Miscellaneous Application No. 82 of 2014 by the Mahuva Court at
exhibit 61, FIR No. 36 of 2015 filed against the applicant for forgery of
the cheque at Mahuva Police Station at exhibit 62 and all other
documents seized by the police from the applicant, and the bank
statements including the chargesheet of Criminal Case No. 1049 of 2015
filed before the Mahuva Court. From the documentary evidence, the
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accused has proved that cheque No. 256416 and cheque No. 256417 were
given as security and a forgery case for the said cheques has been filed
before the Mahua Court against the applicant.
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 documents
produced by the accused on record including the reply to the notice have
been considered and the accused has successfully rebutted the
presumption by stepping in the witness box and producing documentary
evidence.
10. The learned Trial Court has concluded that from evidence on
record accused had created a reasonable doubt and rebutted the
presumption and the applicant has failed to produce reliable and cogent
evidence on record about the legally recoverable debt from the accused
and 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 as per the judgment
of the Apex Court in Rangappa (Supra) 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 378(4) of the Code of Criminal Procedure, 1973
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 required to
be passed in the Criminal Appeal, which is at filing stage and the same
stands disposed accordingly.
(S. V. PINTO,J)
VVM
