Gujarat High Court
Rajeshbhai Momaiyabhai Savseta vs State Of Gujarat on 21 July, 2025
NEUTRAL CITATION
R/CR.MA/12041/2025 ORDER DATED: 21/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION (NO. 12041 of 2025
FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 23713 of 2025
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RAJESHBHAI MOMAIYABHAI SAVSETA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR RATHIN P RAVAL(5013) for the Applicant(s) No. 1
MS CM SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 21/07/2025
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 22.04.2025 passed by
the learned Judicial Magistrate First Class, Tankara (hereinafter
referred to as the "learned Trial Court") in Criminal Case No. 74 of
2024, 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 N.I.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 hand loan
of Rs.8,85,000/- in parts from the applicant and the accused had
issued cheque No.003272 for the amount of Rs.8,85,000/- dated
13.12.2023 from his account with Saurashtra Gramin Bank,
Tankara Branch. The applicant deposited the cheque in his account
with The HDFC Bank, Tankara Branch and the cheque was
dishonored and the reason mentioned in the return memo was
"Funds Insufficient". The applicant sent the statutory demand
notice to the accused on 20.12.2023 which was duly served but no
payment was made. The applicant filed the criminal complaint
before the Court of the Judicial Magistrate First Class, Tankara
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under Section 138 of the N.I.Act, 1881 which was registered as
Criminal Case No. 74 of 2024.
2.2 The accused was served with the summons and the
accused appeared before the learned Trial Court and his plea was
recorded at exhibit 09 and the entire evidence of the applicant was
taken on record. The applicant was examined on oath and 10
documentary evidences were produced in support of his case and
after the closing pursis was filed, the further statement of the
accused under Section 313 of the Code of Criminal Procedure was
recorded wherein the accused denied all the contentions and
stated that a false complaint has been filed against him. The
accused refused to step into the witness box or examined
witnesses but produced 04 documentary evidences in his defence
and after the arguments of the learned advocates for both the
parties were heard, by the impugned judgment and order, the
learned Trial Court acquitted the accused from the offence under
Section 138 of the N.I.Act.
3. Being aggrieved and dissatisfied with the same, the
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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.
4. Heard learned advocate Mr. Rathin P. Raval appearing
for the applicant, learned APP Ms. C. M. Shah for the respondent -
State.
5. Learned Advocate Mr. Rathin P. Raval for the
applicant submits that the learned Trial Court has not appreciated
that the applicant has successfully established that the cheque in
question were 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 N.I.Act in
proper perspective. The fact of the amount paid by the applicant
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to the accused is 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 Ms.C.M.Shah 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 judgement and order of acquittal
which is proper and no interference is required and hence the
application for leave to appeal may be rejected.
7.1 With regard to the facts in the present case, we can also
refer to the following observations made Apex Court in Rangappa
vs Sri Mohan reported in (2010) 11 SCC 441 in Para 14 wherein it is
observed 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
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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 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."
7.3 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:
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(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
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 affidavit of
examination in chief of the complainant has been produced at
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exhibit 05 wherein the complainant has narrated the facts of the
complaint on oath. As per the case of the applicant, he had given a
hand loan of Rs.8,85,000/- to the accused and the financial
capacity of the applicant has been challenged in the cross-
examination where he has stated that the transaction was 4 to 5
years prior to filing of the case and while the transaction had taken
place, he did not give any receipt to the accused. Besides this
transaction, they did not have any other transaction between them.
The applicant has also admitted that on 27.11.2019, a Notarized
deed was executed between the parties at Tankara in the presence
of R. J. Bhagya, Notary, and at that time he had taken two cheques
of Bank of Baroda and two cheques of Rajkot District Bank,
Chachapar Branch and in all four cheques were taken from the
accused. The applicant has also admitted that the cheque in
question in the present case was one of the four cheques taken
from the accused at the time of execution of the notarized deed.
The applicant has also admitted that he had two more blank
cheques with the signature of the accused with him and has not
shown the amount advanced to the accused in his income tax
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returns. The applicant has produced his Income Tax Returns for
the assessment year 2021-2022 at exhibit 22, assessment year 2022-
2023 at exhibit 23 and assessment year 2023-2024 at exhibit 24 and
in all these Income Tax Returns, the annual income of the
applicant is Rs.2,26,125/-, Rs.2,90,914/- and Rs.3,81,535/-
respectively. Hence, there is no evidence on record that the
applicant could advance an amount of Rs.8,85,000/- to the accused
4 to 5 years prior to filing of the complaint. As far as the liability of
the applicant is concerned, he has stated that he has four members
in his family and his children go to a private college and he bears
all their expenditure.
9. In the entire evidence on record the applicant has not
been able to prove that the amount of Rs.8,85,000/- was given as a
hand loan to the accused and during the cross-examination, the
accused has successfully challenged the financial capacity of the
applicant. It is the case of the applicant that the accused had taken
the amount of Rs.8,85,000/- as hand loan from him, but there is no
of evidence that the applicant had the financial capacity to give the
amount of Rs.8,85,000/-. The applicant has categorically stated
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that he has not shown the amount in his Income Tax Returns and
there is no evidence on record to suggest that the applicant had the
financial capacity and he could advance the huge amount of
Rs.8,85,000/- to the accused. During the cross-examination of the
applicant by the learned advocate for the accused, the
presumption has been successfully rebutted and thereafter no
evidence has emerged on record from the applicant to prove his
case beyond reasonable doubts.
10. The learned Trial Court has appreciated all the
evidence produced on record and has concluded that the applicant
has not proved the legally enforceable debt and has concluded that
from evidence on record the applicant has successfully rebutted
the presumption under Section 139 of the N.I.Act in light of the
judgment of the Apex Court in Rangappa(supra) and
Basalingappa(supra). The accused had created a reasonable doubt
and the applicant has failed to produce reliable and cogent
evidence on record about the amount of cheque being the legally
recoverable debt from the accused and the applicant has not
proved his case beyond reasonable doubt and, in light of the
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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 419(4) of the Bharatiya Nagrik
Suraksha Sanhita, 2023 fails and is hereby dismissed.
12. 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)
F.S. KAZI
