Gujarat High Court
Hasmukhbhai Kantilal Patel vs Chandrikaben Pankajkumar Shah on 29 July, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/CR.A/200/2009 JUDGMENT DATED: 29/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 200 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
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Approved for Reporting No Yes
No
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HASMUKHBHAI KANTILAL PATEL
Versus
CHANDRIKABEN PANKAJKUMAR SHAH & ORS.
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Appearance:
MR.NANDISH THACKER for THAKKAR AND PAHWA
ADVOCATES(1357) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for Opponent(s)/Respondent(s) No. 1,2
MR GAURANG K PATEL(2613) for Opponent(s)/Respondent(s) No. 1,2
MR. SOAHAM M. JOSHI, APP for Opponent(s)/Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 29/07/2025
ORAL JUDGMENT
1. This appeal under Section 378 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the
Code") filed by the appellant - original complainant against the
respondent - accused Nos. 1 and 2 challenging the judgment
and order of acquittal passed by learned Metropolitan
Magistrate, Court No.2, Ahmedabad dated 05.05.2005 in
Criminal Case No. 877 of 1999, whereby respondent - accused
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have come to be acquitted of the charge punishable under
Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as "the Act").
1.1 For the sake of brevity, parties to the appeal would
be referred to as per their original status in the trial. Appellant
herein is the original complainant, whereas accused Nos. 1 and
2 are the original accused in the trial Court.
2. It is the case of the complainant in the complaint
that the complainant as also accused are in the business of
trading in Tea. Complainant supplied the goods, as ordered by
accused No. 2 - firm - M/s. Babulal Trikamji and Sons. On
demanding the amount for the goods supplied, Managing
Partner of respondent No. 2 - accused gave cheque issued
from Proprietor M/s. Jaimin Traders - Chandrikaben
Pankajkumar Shah, which is the sister concern of the
respondent No. 2 - firm for an amount of Rs. 1,22,238/-. The
said cheque, on presentation with the bank of the complainant,
returned unpaid for 'insufficient fund'. Therefore, a notice
came to be issued by the complainant, which was not replied
despite service of it by the accused. Therefore, aforesaid
complaint has come to be filed.
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2.1 To prove the case against the accused, complainant
examined in all 4 witnesses and produced and proved certain
documents.
2.2 On conclusion of the recording of evidence,
recording of further statement under Section 313 of "the
Code" of the accused as also after hearing arguments of both
the sides, learned Magistrate has passed the impugned
judgment and order acquitting the accused of the charges
leveled against them. Hence, present appeal came to be filed
by the original complainant against the impugned judgment
and order of acquittal.
3. Mr. Nandish Thacker, learned advocate, for Thakkar
and Pahwa Advocates, learned advocate for the appellant,
submitted that in a prosecution for an offence under Section
138 of "the Act", complainant has to prove that cheque given
by the accused is returned unpaid, within limitation notice has
to be issued and a complaint has come to be filed within
permitted time limits.
3.1 He has further submitted that once cheque is issued
by the accused, factum of issuance of notice is proved, burden
shifts on the accused to rebut that the cheque is against
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legally enforceable debt. Therefore, he has submitted that
complainant has already proved the aforesaid facts, and
therefore, judgment and order of acquittal passed by the
learned Magistrate is erroneous and requires to be interfered
with.
4. As against that, Mr. Gaurang K. Patel, learned
advocate for the respondents - accused, submitted that
accused have raised defence that dues, as claimed by the
complainant, is a time-barred debt, and therefore, it cannot be
said that, on the date of issuance of cheque, there exists
legally enforceable debt. Therefore, even if accused have not
rebutted the presumption, in absence of proof of legally
enforceable debt proved by the complainant, burden never
shifts on the accused.
4.1 He has further submitted that factum of total dues,
for which cheque is given, is not against any goods supplied to
the respondent - accused, it contains not only the principal
amount but the interest, which is admitted by the complainant
in his cross-examination that interest is a substantial part of
the total amount. However, he has failed to mention about
adding of interest on the principal amount, which is not
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mentioned in the complaint, notice issued as also in the
examination-in-chief on oath filed by him. Therefore, according
to the submission of Mr. Gaurang K. Patel, learned advocate for
the respondents - accused, there exists no legally enforceable
debt, as claimed by the complainant, and cheque can never be
said to have been issued against goods supplied by the
complainant and received by the accused.
4.2 Complainant has also, according to the submission
of learned advocate for the accused, admitted in his cross-
examination that amount of interest has not been debited in
his account maintained with him. It is further admitted that no
such debit-note debiting amount of interest is sent to the
accused. Thus, notice, which doesn't contain a reference to
even interest added to the outstanding amount, as per the
account, in all the aforesaid documents prior to giving
deposition, creates doubt about the outstanding amount stood
in the account of accused maintained by the complainant.
4.3 He has further submitted that accused No. 1 -
proprietary concern, whose proprietor is Chandrikaben
Pankajkumar Shah, has different dealing with the complainant
- firm.
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4.4 Accused No. 1 is not even alleged to have issued
that cheque in the complaint. In the entire complaint, it is
mentioned that cheque in question is issued by respondent
No.2 - Managing Partner of M/s. Babulal Trikamji and Sons.
Therefore, there exists no presumption against accused No. 1
as submitted by the learned advocate for the respondent -
accused.
4.5 He has further submitted that to bring about the
debt within the period of limitation for showing that as on the
date of issuance of cheque, legally enforceable debt exists,
complainant has attempted to credit Rs. 1,000/- in the account
of accused. However, the said fact is not stated in the
complaint, notice or in the examination-in-chief. He claimed
that amount of Rs. 1,000/- said to have been deposited on
27.03.1998, but complainant has failed to produce any
contemporaneous record that accused has deposited the
same. As such, as submitted by the learned advocate for the
accused, outstanding dues were of accused No. 2 - firm and
cheque is never issued by accused No. 2 - firm.
4.6 He has further submitted that despite complainant
assured in his cross-examination that he is ready to produce all
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the bills, delivery challans, etc. to show outstanding amount,
which is mentioned in the cheque, but he has miserably failed
to produce the same despite his assurance. Therefore, case
pleaded by the complainant is not beyond doubt, and
therefore, the judgment and order of acquittal recorded by the
learned Magistrate is required to be sustained.
4.7 He has further submitted that even if two views are
possible of the evidence, the view which is favorable to the
accused and accepted by the learned Magistrate should not
lightly be disturbed. Unless and until, no view other than the
view that the offence is committed by the accused beyond
reasonable doubt, normally this Court would be slow in
interfering with the judgment and order of acquittal. Therefore,
he has submitted that this appeal deserves to be dismissed.
5. Mr. Soaham M. Joshi, learned APP, submitted that it
being a private dispute between the parties, Court may pass
appropriate order.
6. Having heard the learned advocates for the
appearing parties as also considering the impugned judgment
and order of acquittal, re-appreciating the evidence adduced
and documents produced and proved by the complainant, let it
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be examined whether any interference is to be called for in this
acquittal appeal or not.
6.1 On re-appreciation of evidence, it is clear that dues
claimed by the complainant is from accused No. 2 - firm where
Managing Partner is one Pankaj Babulal Shah. However,
according to the complaint, it is the case of the complainant
that cheque in question was issued by proprietor of M/s. Jaimin
Traders - Chandrikaben Pankajkumar Shah, who happens to be
the wife of Pankaj Babulal Shah - Managing Partner of accused
No. 2 - firm, by the accused No. 2 only. Though proprietary
concern of accused No. 1 and partnership firm of accused
No. 2, both are having dealings with complainant, there exists
different accounts and different transactions between the
complainant and both the accused separately. If at all for any
firm, any other person gives the cheque, it has to be asserted
in the complaint and even in the deposition that it has been
issued towards the debt of accused No. 2. However, it is not
the case of complainant that accused No. 1 has given the
cheque acknowledging the debt of accused No. 2.
6.2 For showing an existing outstanding amount in the
account of accused No. 2 - firm, while complainant was cross-
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examined, he assured to produce the bills, delivery challans,
statement of accounts, etc. in proof of cheque being issued
towards transaction by accused No. 2 with the complainant.
However, complainant has failed to produce those documents
despite his assurance in the witness-box. Therefore, an
adverse interference is required to be raised against the
complainant that he is unable to prove cheque being given as
per the transaction between the parties, as claimed in the
complaint and his examination-in-chief.
6.3 Not only that, in the notice, complainant has stated
that goods worth Rs. 1,22,238/- were given to the accused as
against which cheque in question issued, whereas in the
examination-in-chief, he reiterated the same. In cross-
examination of the complainant, he has admitted that he is
unable to state without looking at the accounts whether
outstanding amount shown in the cheque to be Rs. 1,22,238/-
is of one bill or not.
6.4 In a cross-examination, complainant has admitted
that Rs. 68,883/- is the outstanding amount and Rs. 54,355/- is
added towards the interest, which comes to Rs. 1,22,238/-.
However, in the notice, complaint as also nowhere in the
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examination-in-chief, complainant has bifurcated the said
amount, which contains principal as also the interest. In his
cross-examination, complainant has further admitted that he
has never intimated the accused debiting amount of interest in
his account.
6.5 He has further submitted that no debit-note was
ever issued to the accused. Therefore, learned Magistrate has
rightly concluded that complaint of the complainant and notice
issued based on the cheque becomes suspicious as it doesn't
contain any assertion about amount containing interest as
well.
6.6 As referred to by the learned Magistrate in para 12
of its judgment that the complainant claimed that on
27.03.1998, accused had deposited Rs. 1,000/-. He has
admitted in his cross-examination that in an office copy, which
is kept with him, it bears no signature of anyone in it. Thus,
learned Magistrate has concluded that if on 27.03.1998, no
amount of Rs. 1,000/- as claimed is deposited, the said dues
has become time-barred.
Thus, it is clear that complainant has failed to prove
that accused has deposited Rs. 1,000/-, as claimed by the
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complainant on 27.03.1998, just to bring about dues within the
period of limitation.
6.7 Apart from the fact that can it be termed as 'legally
enforceable debt' or not, the day on which it is claimed that
accused has issued a cheque, the debt had become time-
barred, and therefore, it was at that time not legally
enforceable debt in the Court of law. Once that conclusion is
recorded by the learned Magistrate and it is not found to be
weighing with the learned Magistrate, coupled with material
and serious improvements in the deposition of the
complainant, said finding of fact requires no interference in
this acquittal appeal.
6.8 As discussed in para 13 of the impugned judgment
and order of acquittal, proprietary concern of accused No. 1 -
M/s. Jaimin Traders is also independently dealing with the
complainant. It is the defense of the accused No. 1 that
advance cheques were being given for the goods ordered by
the accused No. 1, which has been misused by the
complainant. Complainant at Exhibit- 12 produced bills issued
to M/s. Jaimin Traders - proprietary concern. However, it is not
the case of the complainant that cheque is issued by the
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accused No.1 towards any debt of accused No.1. If it is issued
by accused No. 1 towards its debt, as recorded by the learned
Magistrate, a presumption under Sections 118 and 139 of "the
Act" is required to be raised.
7. On reappreciation and overall examination of the
evidence, it reveals that the complainant has failed to prove
legally enforceable debt, for which cheque in question is
claimed to have been issued by the accused, and therefore,
there exists no presumption, as claimed by the complainant,
under Sections 118 and 139 of "the Act".
8. From the cross-examination of the complainant
himself, even if there is any presumption, it has been already
rebutted by the accused. Therefore, burden shifts on the
complainant to show that there exists legally enforceable debt.
Hence, I see no reason to interfere with the well-reasoned
judgment and order of acquittal recorded by the learned
Magistrate and it is hereby confirmed.
9. In view thereof, this appeal is dismissed. Record
and Proceedings be sent back to the trial Court forthwith.
Sd/-
(UMESH A. TRIVEDI, J.)
Raj
