Gujarat High Court
Rameshchandra Arjunbhai Vegada vs The State Of Gujarat on 27 February, 2025
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R/CR.A/1730/2006 ORDER DATED: 27/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1730 of 2006
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RAMESHCHANDRA ARJUNBHAI VEGADA
Versus
THE STATE OF GUJARAT & ANR.
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Appearance:
TORAL M RATHOD(7935) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR HARSH N PAREKH(6951) for the Opponent(s)/Respondent(s) No. 2
PRIYAL M PARIKH(7593) for the Opponent(s)/Respondent(s) No. 2
MR. BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 27/02/2025
ORAL ORDER
1. The present appeal is filed by the appellant - original complainant
under Section 378(4) of the Code of Criminal Procedure, 1973 (for short
"Cr.P.C.") against the judgment and order dated 29.10.2005 passed by
the learned 6th Additional Judicial Magistrate First Class, Gandhinagar
(hereinafter referred to as the "learned Trial Court") in Criminal Case No.
161 of 2005, 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").
1.1 The appellant is hereinafter referred to as "the complainant" and the
respondent No 2 is referred to as "the accused" as they 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 appeal as
well as the impugned judgment and order and paper book filed by the
appellant are as under:
2.1 The complainant filed a complaint against the accused under
Section 138 of the Act, as the accused had taken a friendly loan of ₹
40,00,000/- from the complainant and the accused issued cheque
No.338134 for ₹ 40,00,000/- dated 23.11.2004 of his account with Vijaya
Bank, Sector 11 Branch, Gandhinagar. The complainant deposited the
cheque on 23.11.2004 in his Bank and the cheque was dishonoured and
the reason mentioned in the return memo dated 24.11.2004 was "Today's
Opening Balance Insufficient". The complainant sent the statutory
demand notice to the accused on 03.12.2004 by U.P.C. and R.P.A.D. and
an evasive reply was given and no payment was made and hence the
complainant filed the criminal complaint under Section 138 of the NI Act,
1881, before the Court of the Additional Judicial Magistrate First Class,
Gandhinagar which was registered as Criminal Case No. 161 of 2005.
2.2 The accused was served with the summons and appeared before the
learned Trial Court and his plea was recorded at Exhibit 08 and the
evidence of the complainant was taken on record. The complainant was
examined on oath and 08 documentary evidences were produced in
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support of his case and after the closing pursis at Exhibit 20 was filed, the
further statement of the accused under Section 313 of the Code of
Criminal Procedure was recorded. The accused refused to stepped into
the witness box or examine witnesses on his behalf and after the
arguments of the learned advocates for both the parties were heard, by the
impugned judgment and order, the learned Trial Court was pleased to
acquit the accused from the offence under Section 138 of the N I Act.
3. Being aggrieved and dissatisfied with the same, the appellant has
preferred the present 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. Toral M. Rathod appearing for the
appellant, learned APP Mr. Bhargav Pandya for the respondent No. 1 -
State and learned advocate Mr Harsh N Parekh for the respondent No. 2.
Perused the impugned judgment and order of acquittal and have re-
appreciated the entire evidence of the prosecution on record of the case.
5. Learned Advocate Ms. Toral M. Rathod for the appellant submits
that the learned Trial Court has not appreciated that the appellant has
successfully established that the cheque in question was issued by the
accused from the bank account maintained by him. The appellant has
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proved that the cheque was written by the respondent No. 2 and it was
dishonoured and as the appellant 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 appellant. The learned Trial Court has not
appreciated the provisions of Section 118 and 138 of the N I Act in
proper perspective. The oral contract is not negated by the respondent
No. 2 and the fact of the amount paid by the appellant to the respondent
No. 2 is also not negated, but the learned Trial Court has disbelieved the
same. The respondent No. 2 had failed to rebut the presumption and
hence the judgement and order of acquittal is bad in law and the appeal
must be allowed.
6. Learned APP Mr. Bhargav Pandya for the respondent No. 1 - State
and learned advocate Mr Harsh N Parekh 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 impugned judgement and order of acquittal which is
proper and no interference is required and hence the appeal must be
rejected.
7. Since this is an acquittal appeal if would be fit to reproduce the
observations made by the Apex Court regarding the scope of interference
of appellate Courts in acquittal appeals in the case of Constable 907
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Surendra Singh & Anr Vs State of Uttarakhand reported in 2025 0 INSC
114 which is as under:
"11. Recently, in the case of Babu Sahebagouda Rudragoudar and others v.
State of Karnataka, (2024) 8 SCC 149 a Bench of this Court to which one of
us was a Member (B.R. Gavai, J.) had an occasion to consider the legal
position with regard to the scope of interference in an appeal against acquittal.
It was observed thus:
"38. First of all, we would like to reiterate the principles laid down by
this Court governing the scope of interference by the High Court in an
appeal filed by the State for challenging acquittal of the accused
recorded by the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v.
State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31]
encapsulated the legal position covering the field after considering
various earlier judgments and held as below : (SCC pp. 482-83, para
29)
"29. After referring to a catena of judgments, this Court culled out the
following general principles regarding the powers of the appellate
court while dealing with an appeal against an order of acquittal in the
following words : (Chandrappa case [Chandrappa v. State of
Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , SCC p. 432,
para 42)
'42. From the above decisions, in our considered view, the following
general principles regarding powers of the appellate court while
dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and
reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction
or condition on exercise of such power and an appellate court on the
evidence before it may reach its own conclusion, both on questions of
fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons",
"good and sufficient grounds", "very strong circumstances", "distorted
conclusions", "glaring mistakes", etc. are not intended to curtail
extensive powers of an appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of "flourishes of language"
to emphasise the reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to review the evidence
and to come to its own conclusion.
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(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused. Firstly,
the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person shall
be presumed to be innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the finding
of acquittal recorded by the trial court.' "
40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v.
State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this
Court summarised the principles governing the exercise of appellate
jurisdiction while dealing with an appeal against acquittal under
Section 378 CrPC as follows : (SCC p. 584, para 8)
"8. ... 8.1. The acquittal of the accused further strengthens the
presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is
entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal,
after reappreciating the evidence, is required to consider whether the
view taken by the trial court is a possible view which could have been
taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot
overturn the order of acquittal on the ground that another view was
also possible; and 8.5. The appellate court can interfere with the order
of acquittal only if it comes to a finding that the only conclusion which
can be recorded on the basis of the evidence on record was that the
guilt of the accused was proved beyond a reasonable doubt and no
other conclusion was possible."
41. Thus, it is beyond the pale of doubt that the scope of interference
by an appellate court for reversing the judgment of acquittal recorded
by the trial court in favour of the accused has to be exercised within
the four corners of the following principles:
41.1. That the judgment of acquittal suffers from patent perversity;
41.2. That the same is based on a misreading/omission to consider
material evidence on record; and
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41.3. That no two reasonable views are possible and only the view
consistent with the guilt of the accused is possible from the evidence
available on record."
12. It could thus be seen that it is a settled legal position that the
interference with the finding of acquittal recorded by the learned trial judge
would be warranted by the High Court only if the judgment of acquittal
suffers from patent perversity; that the same is based on a
misreading/omission to consider material evidence on record; and that no two
reasonable views are possible and only the view consistent with the guilt of
the accused is possible from the evidence available on record."
8. In light of the above it is well settled law that in an appeal against
acquittal, the appellate Court is circumscribed by the limitation that no
interference has to be made with the order unless the approach made by
the trial Court to the consideration of evidence is vitiated by some
manifest illegality or the conclusion recorded by it is such, which could
not have been possibly arrived at by any Court acting reasonably and
judiciously and is therefore, to be characterised as perverse. There is no
embargo on the appellate Court reviewing the evidence upon which an
order of acquittal is based. Generally, the order of acquittal shall not be
interfered with because the presumption of innocence of the accused is
further strengthened by acquittal. The golden thread which runs through
the web of administration of justice in criminal cases is that if two views
are possible on the evidence adduced in the case, one pointing to the guilt
of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted.
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9. In light of the above settled principles of law in acquittal appeals
and on re appreciating the evidence on record of the case the complainant
has been examined on oath at Exhibit 11 and he has reiterated the
contents of the complaint. During the cross-examination by the learned
advocate for the accused, the complainant has stated that he was a clerk
earning ₹14,600/- per month as salary. That his wife is doing the
business of construction in the name of Gail Construction. The accused
had placed a scheme in the name of Shiv Darshan Housing Society and
the complainant has admitted to his signature in the document produced
at exhibit 19. That he has no other source of income, except his salary
and no accounts were maintained regarding the financial transaction with
the accused. That he has no evidence to show that he had given an
amount of ₹40,00,000/- to the accused in the year 2002 and no receipt or
promissory note was executed for the huge amount of ₹40,00,000/- and
he has no documentary evidence to show that he had given the amount of
₹40,00,000/-. The amount was given without interest and he had not
borrowed the amount from any other person and no such fact is
mentioned in the complaint. The handwriting in the cheque are not of the
accused and the complainant has voluntary stated that they are his
handwriting and in the document produced that Exhibit 19 there is no
mention about any amount of ₹40,00,000/-. The accused had filed a
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reply to the notice which is produced at exhibit 17 and the accused that
clarified the entire matter in the reply to the notice.
9.1 As per the complaint, the accused had given cheque No.
338134 dated 23.11.2004 and it is the say of the complainant that the
amount was taken in the year 2002. The document produced at Exhibit
19 is executed on a stamp paper of ₹50/- is dated 13.02.2004 and the
complainant has admitted that below, the typed matter is his signature
and the writing states that all the accounts have been settled. That if the
amount was taken in the year 2002, this document which is executed on
this stamp paper of ₹50/- dated 13.02.2004 would mention that the huge
amount of ₹40,00,000/- is unpaid. In the cross examination of the
appellant, there is nothing on record to show how the huge amount of
₹40,00,000/- in cash was given by the applicant to the accused in the year
2002. There is no clarification regarding the date and time when the
amount was given and in the cross-examination, the applicant has
admitted that he is earning a salary of ₹14,600/- per month and he has no
other source of income, besides the salary. Except for the bald
allegations of the appellant that he had given the amount of ₹40,00,000/-
to the accused there is nothing on record to show that the amount was
ever paid and there is a legally enforceable debt due to the applicant. The
accused has successfully challenged the financial capacity of the
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appellant and has also proved that there was no legally enforceable debt
due to the complainant by the document produced that exhibit 19. As per
the settled principles of law when the accused had brought on record that
the complainant was earning an amount of ₹14,600/- per month as salary
and had no other source of income, besides salary, it was the onus of the
complainant to prove as to how he had the huge amount of ₹40,00,000/-
in cash in the year 2002 to lend to the accused, but no such evidence has
been brought and recorded by the complainant and the accused has
successfully rebutted the presumption.
10. 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
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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."
10.1 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.
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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."
11. In light of the above settled principles of law the learned Trial
Court has appreciated all the evidence produced by both the parties and
has concluded that the appellant has not proved how the huge amount of
₹ 40,00,000/- was paid in cash to the accused in the year 2002. Moreover
the document produced at exhibit 19 on the stamp paper dated 13.02.2004
clearly states that all the accounts were settled between the parties and if
the amount of ₹40,00,000/- was due as a legally enforceable debt it
would have been mentioned in the stamp paper.
12. The learned Trial Court has concluded that from evidence on
record the complainant has failed to prove his financial capacity to lend
and how he had arranged such a huge amount of Rs.40,00,000/- to lend
and it seems that the cheque has been misused and the accused has
successfully rebutted the presumption under Section 139 of the NI Act.
The accused has created a reasonable doubt and the complainant has
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failed to produce reliable and cogent evidence on record about the legally
recoverable debt from the accused and the complainant has not proved his
case beyond reasonable doubts and, in light of the above settled principles
of law, the learned Trial Court has passed the impugned judgment and
order of acquittal. It is settled law that unless the evidence is clear,
cogent and reliable, no conviction can be recorded and on re- appreciating
the entire evidence, the evidence is far from convincing. As settled by the
Apex Court the scope of interference of the appellate Courts in acquittal
appeals is limited and unless there is some perversity and illegality found
in the judgement and order of the learned Trial Court, the appellate Court
will interfere only to ensure that no miscarriage of justice has occurred.
This court has perused the findings of the learned Trial Court and the
learned Trial Court has appreciated the evidence and has acquitted the
accused and there is no perversity or legality in the findings recorded by
the learned Trial Court. This Court is in complete agreement with the
findings, reasons and ultimate conclusion and resultant order of acquittal
and finds no reason to interfere with the impugned judgement and order
of acquittal.
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13. Consequently, the present appeal is devoid of merits and resultantly
the appeal fails and is hereby dismissed.
14 . Notice stands discharged. Record and proceedings if any, be sent
back to the learned Trial Court forthwith.
(S. V. PINTO,J)
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