Gujarat High Court
Ramesh Jesang Koli vs State Of Gujarat on 27 February, 2025
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R/CR.MA/22786/2024 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. 22786
of 2024
In F/CRIMINAL APPEAL NO. 44073 of 2024
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RAMESH JESANG KOLI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS. NAYNAVATI S JETHVA(10030) for the Applicant(s) No. 1
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 419(4) of the Bharatiya
Nagrik Suraksha Sanhita, 2023 (for short "BNSS") seeking
leave to file an appeal against the judgment and order dated
28.10.2024 passed by the learned Additional Chief Judicial
Magistrate, Anjar, Kachchh (hereinafter referred to as the
"learned Trial Court") in Criminal Case no. 440 of 2017,
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
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'the NI Act").
1.1 The parties 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 complainant filed a complaint against the accused
under Section 138 of the NI Act mainly contending that the
accused had purchased a vehicle registration no. GJ-12-AV-
7362 by executing the agreement in the name of the son in
law of accused on 27.02.2017 for an amount of Rs.
4,85,000/- and Rs. 1,00,000/- was paid in cash at time of
purchase. The accused had issued the signed cheque no.
007828 in the name of complainant for the remaining
amount of ₹3,85,000/- dated 27.02.2017 from his account
with Bank of Maharashtra, Bhuj Branch. The complainant
deposited the cheque on 09.03.2017 in his bank with Axis
Bank, Anjar and the cheque was dishonored and the reason
mentioned in the return memo dated 10.03.2017 was
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"Insufficient Balance". The complainant sent the statutory
demand notice to the accused on 20.03.2017 and the
accused refused to accept notice and the same returned on
27.03.2017 and no payment was made and hence, the
complainant filed a criminal complaint before the Court of
the Additional Chief Judicial Magistrate, Anjar, Kachchh
under Section 138 of the NI Act which was registered as
Criminal Case No. 440 of 2017.
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 complainant was
taken on record. The complainant and other three witnesses
were examined on oath and 10 documentary evidences were
produced in support of his case and after the closing pursis
at Exh. 52 was filed, the further statement of the accused
under Section 313 of the Code of Criminal Procedure was
recorded, wherein the accused stated that no vehicle has
been purchased from applicant and he has not issued any
cheque for any remaining amount. The facts mentioned in
examination in chief and in the complaint are false and the
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complainant has filed a Civil Suit No. 73 of 2007 in which
the sale agreement was produced in which the accused is
neither the purchaser nor attesting witness and there is no
evidence to show that the accused has purchased the
vehicle from the complainant and the present case is of the
year 2018 and the agreement is of the year 2017. The
complainant has affirmed in his examination in chief that
the vehicle has been recovered by him and applicant has
withdrawn the suit and a false complaint has been filed. The
accused refused to step into the witness box but produced
five documentary evidence in his defence and 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
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the evidence and the impugned judgment is perverse,
erroneous and contrary to law.
4. Heard learned advocate Mr. A. N. Pathan for learned
advocate Ms. Nayanavati S. Jethva appearing for the
applicant, learned APP Mr. Bhargav Pandya for the
respondent - State.
5. Learned Advocate Mr. A. N. Pathan for learned
advocate Ms. Nayanavati S. Jethva 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 original complainant
has proved that the cheque was written by the accused and
it was dishonoured and as the original complainant 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 original complainant. The learned
Trial Court has not appreciated the provisions of Section
118 and 138 of the NI Act in proper perspective. The oral
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contract is not negated by the accused and the fact of the
amount paid by the original complainant 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 Mr. Bhargav Pandya for the respondent -
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 impugned
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 of the present case it would be
fit to reproduce the observation in Para 30 by the Apex
Court in the case of Dashrathbhai Trikambhai Patel V.
Hitesh Mahendrabhai Patel & Anr. reported in 2023 1 SCC
"30. In view of the discussion above, we summarise our
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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
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
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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 affidavit of examination in chief of the complainant
has been produced at Exh. 9 wherein the complainant has
narrated the facts of the complaint on oath. During the
cross examination, the complainant has stated that in the
agreement of sale, it is not mentioned that the vehicle was
sold to the accused and the name of the accused as the
purchaser of the vehicle or a witness to the transaction is
not mentioned. The agreement does not state that the
cheque was given by the accused for the sale transaction
and the sale was executed on 26.02.2017 and the remaining
amount of ₹3,85,000/- was to be paid within a period of one
month and the time period was concluded on 25.03.2017.
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The complainant had filed a civil suit for the agreement and
the vehicle registration no. GJ-12-AV-7262 was returned by
Ramjibhai Ahir and the custody of the vehicle was with him
till today. That he has not returned the amount of
₹1,00,000/- that was given in cash to the purchaser of the
vehicle. That he had filed a written complaint on 06.03.2017
with the Anjar Police Station, S. P. Gandhidham and Dy.S.P.
Anjar, but the complaint was not against the accused.
8.1 As per the case of the complainant, the cheque in
question was given for purchase price of the vehicle
registration no. GJ-12-AV-7362 and as per the agreement
an amount of ₹1,00,000/- was paid in cash and the
remaining amount of ₹3,85,000/- was to be paid within a
period of one month towards which the cheque in question
was given. The complainant has admitted that he has
received the custody of the vehicle registration no. GJ-12-
AV-7362 and the custody of the vehicle was with him and a
civil suit was also filed for the same. Moreover, the
complainant has also admitted that he has not sold the
vehicle to the accused and in the entire evidence there is no
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iota of evidence that the amount of cheque was due from the
accused and there was any legally recoverable due from the
accused.
9. The learned Trial Court has appreciated all the
evidence produced by the parties and has concluded that in
light of the judgment of Dashrathbhai Trikambhai Patel
(supra) it has emerged on record that there was no legally
recoverable debt from the accused and in light of the same,
has concluded that from evidence on record the legally
enforceable debt was not proved and the presumption under
Section 139 of the NI Act was successfully rebutted by the
accused. The complainant had 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 and, in light of the observation of the Apex
Court, 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.
10. Consequently, the present application seeking leave to
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present an appeal under Section 419(4) of the Bharatiya
Nagrik Suraksha Sanhita, 2023 fails and is hereby
dismissed.
11. Record and proceedings if any, be sent back to the
learned Trial Court forthwith.
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)
VASIM S. SAIYED
