Gujarat High Court
Abdullatif Yusufbhai Chaudhary vs State Of Gujarat on 7 January, 2025
NEUTRAL CITATION
R/CR.A/230/2012 JUDGMENT DATED: 07/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 230 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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ABDULLATIF YUSUFBHAI CHAUDHARY
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR N P CHAUDHARY(3980) for the Appellant(s) No. 1
MR TUSHAR CHAUDHARY(5316) for the Appellant(s) No. 1
MR MB RANA(2760) for the Opponent(s)/Respondent(s) No. 2
Mr. Bhargav Pandya, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 07/01/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - original
complainant under Section 378(1)(3) of the Code of
Criminal Procedure, 1973 against the judgement and order
of acquittal passed by the learned 3rd Additional Chief
Judicial Magistrate Palanpur (hereinafter referred to as "the
learned Trial Court") in Criminal Case No. 3696 of 2007 on
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19.11.2011, whereby, the learned Trial Court has acquitted
the respondent no. 2 - original accused for the offence
punishable under Section 138 of Negotiable Instrument
Act, 1881 (hereafter referred to as "NI Act" for short).
1.1 The appellant - original complainant and the
respondent no. 2 - original accused are hereinafter referred
to as the complainant and accused as they stood in the
original case for the sake of convenience, clarity and
brevity.
2. The brief facts that emerge from the record of the case
are as under:
2.1 That the complainant and the accused were known to
each other for seven to eight years and were good friends
and the accused used to frequently borrow money for his
business from the complainant and returned the same in
due course. In the year 2005 - 2006, the accused required
some finance and the complainant and his brothers gave an
amount of ₹28,00,000/- to the accused out of which an
amount of ₹5,00,000/- belonged to the complainant. The
complainant demanded for the amount and the accused
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gave cheque no. 012630 dated 25.08.2006 of ₹5,00,000/-,
drawn on Banaskantha Mercantile Cooperative Bank Ltd.
and gave other cheques on the names of the brothers and
nephew of the complainant. The cheque was deposited by
the complainant in his Saving Account No. 2652 with
Banaskantha District Central Cooperative Bank Ltd.,
Kanodar Branch on 08.02.2007 but the cheque returned
unpaid with the endorsement "Funds Insufficient" with the
return memo dated 13.02.2007 and the bank of the
complainant intimated the same on 19.02.2007. The
complainant gave the statutory demand notice dated
02.03.2007 by registered post AD which was duly served to
the accused on 05.03.2007. The accused did not repay the
amount and did not reply to the notice and hence, the
complainant filed the complaint before the Court of the
Judicial Magistrate First Class, Banaskantha at Palanpur
on 12.04.2007.
2.2 The accused was duly served with the summons and
the accused appeared before the learned Trial Court and
the plea of accused was recorded at Exh. 4. The
complainant filed his examination-in-chief at Exh. 6 and
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examined witness Mahendrakumar Lallubhai at Exh. 27
and produced nine documentary evidences in support of his
case. The complainant filed the closing pursis at Exh. 43
and the further statement of the accused under Section 313
of the Code of Criminal Procedure was recorded wherein the
accused denied all the evidence of the complainant and
refused to step into the witness box or examine witnesses
and stated that a false case has been filed against him.
After the arguments of the learned advocates for both the
parties were heard, the learned Trial Court was pleased to
acquit the accused from the offence under section 138 of
the NI Act by a judgement and order dated 19.11.2011.
3. Being aggrieved and dissatisfied with the said
judgement and order of acquittal the appellant has filed the
present appeal mainly stating that the judgement and order
of acquittal is illegal, erroneous, contrary to law and
evidence on record. The learned Trial Court has not
considered that the appellant had issued the notice which
was duly received by the respondent no. 2, but no reply was
given by the respondent no. 2 and this fact is proved by the
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oral and documentary evidence available on record. The
learned Trial Court has erred in considering that there is no
enough evidence led by the appellant to rebut the
presumption under the provisions of the NI Act and has not
considered the fact that the say of the respondent no. 2 that
six cheques have been misused, is not supported by any
evidence. The learned Trial Court has erred in considering
that the appellant had no financial capacity to give ₹5 lakhs
to the respondent no. 2 and even though the respondent
no. 2 has not rebutted the presumption raised in favour of
the appellant by leading evidence, the learned Trial Court
has believed his version. Hence, the impugned judgement
and order of acquittal deserves to be quashed and set aside.
4. Heard learned APP Mr. N.P. Chaudhary for the
appellant, learned advocate Mr. M.B. Rana for the
respondent no. 2 and learned APP for the respondent State.
Perused the impugned judgement and order of acquittal
and have reappreciated the entire evidence of the
prosecution on record of the case.
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5. Learned APP Mr. N.P. Chaudhary has taken this Court
through the entire evidence of the prosecution on record of
the case and submitted that the learned Trial Court has not
considered the evidence in proper perspective and has
misinterpreted the evidence and acquitted the respondent
no. 2 even though the evidence proves that the offence is
committed. The appellant has produced the cheque and
other documents but the same have not been considered by
the learned Trial Court. That the statutory notice has also
been duly served and all the ingredients have been proved
but the learned Trial Court has not consider the same.
Learned Advocate has urged this Court to allow the appeal.
6. Learned APP Mr. Bhargav Pandya for the respondent
no. 1 State and learned Advocate Mr. M. B. Rana for the
respondent no. 2 have submitted that the learned Trial
Court has discussed and considered all the evidence
produced by the complainant and has rightly appreciated
the entire evidence in light of the judgements of the Apex
Court and no interference is required in the impugned
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judgement and order and have urged this court to reject the
appeal.
7. In light of the settled principles of law in acquittal
appeals, on re-appreciation of the evidence of the
complainant on record, it is the case of the complainant
that he had given the amount of ₹5 lakhs to the accused as
a loan and the same was to be returned towards which the
cheque in question was given by the accused. The
complainant has been cross-examined by the learned
advocate for the accused. He has stated that he does not
keep the amount deposited in his bank account with BDCC
Bank, Kadar Branch and he does not have any written
evidence about his milk business. He has no evidence to
show to whom does he sell the milk and has no evidence
about his cattle and does not keep any accounts regarding
his cattle business. That he has given money to his brother-
in-law - Abdul Hamid and Mohammed Hanif but he does
not have any document regarding the same. He does not
have any document to show about the previous
transactions with the accused and has no correct date
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about the financial transaction. That he and his brothers
had given an amount of ₹28 lakhs in bits and pieces to the
accused and he does not know how much amount was
repaid by the accused to his brothers. That he has not
mentioned the date and month when he had given the
accused the amount and he had given the amount of ₹5
lakhs in cash but he has no document to show that he had
the amount in cash. The agricultural land is in the joint
name of his brothers and himself, and he has not produced
any documentary evidence regarding his land. That he does
not know in whose handwriting is the cheque written. That
he has not stated in the complaint that he alone had loaned
an amount of ₹5 lakhs to the accused.
8. In light of the above facts of the case of the
complainant it would be fit to refer to the judgement of the
Apex Court in Tedhi Singh V. Narayan Dass Mahant
reported in (2022) 6 SCC 735 wherein in para 7 and para 9
it is observed as under :
7. It is true that this is a case under Section 138 of the
Negotiable Instruments Act. Section 139 of the N.I. Act
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provides that Court shall presume that the holder of a
cheque received the cheque of the nature referred to in
Section 138 for the discharge, in whole or in part, of any
debt or other liability. This presumption, however, is
expressly made subject to the position being proved to the
contrary. In other words, it is open to the accused to
establish that there is no consideration received. It is in
the context of this provision that the theory of 'probable
defence' has grown. In an earlier judgment, in fact, which
has also been adverted to in Basalingappa (supra), this
Court notes that Section 139 of the N.I. Act is an example
of reverse onus [see (2010) 11 SCC 441). It is also true
that this Court has found that the accused is not expected
to discharge an unduly high standard of proof. It is
accordingly that the principle has developed that all which
the accused needs to establish is a probable defence. As to
whether a probable defence has been established is a
matter to be decided on the facts of each case on the
conspectus of evidence and circumstances that exist.
8........
9. The Trial Court and the First Appellate Court have
noted that in the case under Section 138 of the N. I. Act
the complainant need not show in the first instance that
he had the capacity. The proceedings under Section 138 of
the N. I. Act is not a civil suit. At the time, when the
complainant gives his evidence, unless a case is set up in
the reply notice to the statutory notice sent, that the
complainant did not have the wherewithal, it cannot be
expected of the complainant to initially lead evidence to
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show that he had the financial capacity. To that extent the
Courts in our view were right in holding on those lines.
However, the accused has the right to demonstrate that
the complainant in a particular case did not have the
capacity and therefore, the case of the accused is
acceptable which he can do by producing independent
materials, namely, by examining his witnesses and
producing documents. It is also open to him to establish
the very same aspect by pointing to the materials
produced by the complainant himself. He can further,
more importantly, achieve this result through the cross
examination of the witnesses of the complainant.
Ultimately, it becomes the duty of the Courts to consider
carefully and appreciate the totality of the evidence and
then come to a conclusion whether in the given case, the
accused has shown that the case of the complainant is in
peril for the reason that the accused has established a
probable defence.
9. In light of the above facts and settled law with regard
to cases filed under Section 138 of the NI Act, the evidence
of the complainant is on record that the accused has
rebutted the presumption by bringing on record that the
complainant did not have the financial capacity to loan an
amount of Rs 5,00,000/- in cash to the accused. The
complainant has not produced any documentary evidence
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to show that he, in fact, had the financial capacity to lend
the amount to the accused and has not proved that there
was a legal due and legal enforceable debt from the
accused. Moreover, the complainant has stated that he
does not keep any of his savings in the bank or in any
government institution and he has not clarified as to where
he got the huge amount of ₹5 lakhs in cash to give the
complainant. The learned Trial Court has observed that
there was no mention in the notice that ₹5 lakhs were of
the complainant and the cheque has been deposited after
five months and no explanation regarding the same was on
record. The learned Trial Court has relied upon the
judgement of this Court in the case of Manishbhai
Bharatbhai Shah V. State of Gujarat reported in 2008(1)
GLR 392 and has concluded that as the accused has
successfully proved his initial burden and the complainant
was not able to prove that the cheque was issued for a
legally enforceable debt has passed the impugned judgment
and order of acquittal.
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10. On minute re-appreciation of the entire evidence of the
prosecution and the impugned judgment and order, it
appears that the learned Trial Court has thoroughly
appreciated all the evidence on record and has given due
consideration to all the material pieces of evidence. The
learned Trial Court has discussed all the oral as well as
documentary evidences and if the evidence produced by the
prosecution is examined in light of the law laid down Tedhi
Singh (supra), it appears that the learned Trial Court has
arrived at findings which are legal and proper and there are
no errors of law or facts. Moreover, the view taken by the
learned Trial Court in acquitting the accused is fairly
possible and there is no illegality and perversity in the
impugned judgment and order of acquittal. This Court finds
no reason to interfere with the impugned judgment and
order and the present appeal is devoid of merits and
resultantly, the same is dismissed.
11. The impugned judgment and order passed by the
learned 3rd Additional Chief Judicial Magistrate Palanpur in
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Criminal Case No. 3696 of 2007 on 19.11.2011, is hereby
confirmed.
12. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J)
VASIM S. SAIYED
