Narshi Devjibhai Parmar vs State Of Gujarat
2025 Latest Caselaw 4745 Guj

Gujarat High Court

Narshi Devjibhai Parmar vs State Of Gujarat on 16 June, 2025

Author: Umesh A. Trivedi

Bench: Umesh A. Trivedi

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                             R/CR.A/522/2010                                    JUDGMENT DATED: 16/06/2025

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                              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                        R/CRIMINAL APPEAL NO. 522 of 2010


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

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                                   Approved for Reporting             No       Yes
                                                                      No
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                                        NARSHI DEVJIBHAI PARMAR
                                                 Versus
                                        STATE OF GUJARAT & ANR.
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                       Appearance:
                       ADVOCATE NOTICE SERVED for the Appellant(s) No. 1
                       MS MEGHA CHITALIYA, ADDITIONAL PUBLIC PROSECUTOR for
                       the Opponent(s)/Respondent(s) No. 1
                       RULE SERVED for the Opponent(s)/Respondent(s) No. 2
                       ======================================

                         CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                                                         Date : 16/06/2025

                                                          ORAL JUDGMENT

1. This is an appeal under Section 378(4) of the Code of Criminal Procedure, 1973 challenging the judgment and order passed by the learned 4 th Additional Senior Civil Judge and Judicial Magistrate First Class, Rajkot dated 25.11.2008 in Criminal Case No.5268 of 2006 whereby the learned Magistrate acquitted the accused of the charge for an offence under Section 138 of the Negotiable Instruments Act, 1881

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(hereinafter referred to as 'the Act').

2. Endorsement on the cause list shows that advocate notice is served to the appellant - original complainant. The respondent - accused is though served neither present in person nor through an advocate.

3. As per the case of the parties, hereinafter referred to as the complainant and the accused as they were referred to in the judgment of the trial Court, the appellant herein is the original complainant and respondent no.2 is the original accused in the trial Court.

4. As per the case of the complainant he agreed to purchase one house from the accused for a consideration of Rs.2 lakhs by way of Satakhat executed on 22.03.2000. However, according to him, since the accused did not execute the deed, he filed the complaint, being Criminal Case No.9353 of 2004 in the Court of learned Judicial Magistrate First Class, Rajkot as also filed a suit in the Court of Civil Judge (Senior Division), Rajkot, bearing No.441 of 2004 for specific performance of an agreement to sale. As per the case of the complainant, accused settled both the cases with the complainant and executed promissory note dated 29.12.2004 and he gave on 17.04.2006 a cheque drawn on Dharti Co- operative Bank Ltd, Rajkot bearing No.218158 of Rs.2 lakhs and assured that it will be honoured and it will be paid. On cheque having being received by the complainant, he deposited the same in his Bank, being Rajkot Nagarik Sahakari Bank, Rajkot Branch on 18.04.2006, which returned unpaid

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with an endorsement "today opening balance is insufficient", and therefore, complainant gave notice through Registered A.D. as also UPC on 03.05.2006 to the accused, which was received by him on 04.05.2006. Despite that, accused did not pay the amount within the stipulated time, and therefore, the said complaint has come to be filed against the accused. On summons being served, copies of the complaint and annexures were given to him and his plea came to be recorded vide Exh.8 where he denied the charge and claimed to be tried.

5. The complainant examined himself in support of his case and produced certain documents. At the same time, as recorded in the judgment, accused examined two witnesses vide Exhs.28 and 29. On conclusion of the evidence and hearing the parties, learned Magistrate acquitted the accused, as aforesaid. As coming out from the appeal memo, accused issued a cheque towards legally enforceable debt and he failed to disprove the same, and therefore, it has to be presumed that cheque is issued against a legally enforceable debt and it has been returned unpaid for want of balance. It is further contented that since notice as required under 'the Act' has also come to be issued and during the time permissible under the law, accused failed to repay the said amount, he can be said to have committed an offence under Section 138 of 'the Act', and therefore, he is to be convicted.

6. As against that, as contended by the accused before the trial Court in respect of Satakhat, there is no mention about the same in the withdrawal purshis filed by the complainant before the Court vide Exh.14. It is further

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contended by the accused that promissory note is also not valid for deficient stamp over the same. According to him, even as what is reflected in a promissory note, amount was to be paid, if not believed to be five years from the date of promissory note but even it is to be believed from 3 ½ years, it was to be paid on 29.06.2007 but accused has filed a complaint prior thereto. It is further contended that in the promissory note Exh.14 (actually it is Exh.15) it contains different ink and handwriting so far as amount in words and figures are concerned. It is further contended that even in disputed cheque also hand writings are different. As per his own case, complainant was given blank cheque, which has been misused, though, it is asserted it has not been issued towards any legally enforceable debt but for ensuring payment as a security. The decisions relied on by the accused before the trial Court, sum and substance narrated by the learned Judge at paragraph 11 of it, which in short holds that if any amount is advanced by a person against signed blank cheques, the said cheque cannot be said to be voluntarily issued, that too, towards legally enforceable debt. It is further contended that since it has not been issued towards a legally enforceable debt and it has been issued as security, provisions of Section 138 of 'the Act' cannot be invoked. It is further held in those decisions that if in blank cheque complainant has entered his name and date, on proof thereof, provisions of Section 138 of 'the Act' cannot be invoked. It is further held in one of the decision, as mentioned in paragraph 11, if cheque is issued towards future uncertain amount, the provisions of Section 138 of 'the Act' cannot be invoked. All these submissions on behalf of the complainant as also accused are referred as neither of

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them are present in person nor through an advocate.

7. As analyzed by the learned Magistrate, promissory note, Exh.15 reflects that complainant has to withdraw civil and criminal cases and as mentioned in the promissory note, accused assured to pay Rs.2 lakhs as mentioned in it by 29.12.2004 to brother of the complainant - Prabhubhai Devjibhai within 3 ½ years of execution thereof and within two years thereafter Rs.2 lakhs would be paid to the complainant in equal yearly installments. Thus, as mentioned in the promissory note, amount of Rs.2 lakhs would become due and payable to the complainant after 5 ½ years from 29.12.2004, the date of execution of promissory note and if accused fails to do so, the complainant is empowered to file legal proceedings against him.

8. While referring to the cross examination of the complainant, learned Judge in paragraph 12 mentioned that complainant is not remembering well about document, Exh.

15. Complainant has also claimed that he has not read the entire document, Exh.15, though he admits his signature but he does not know the contents of it. He has further admitted in his cross examination that there is only a single transaction with the accused. In view of the fact that the complainant has referred about the promissory note in his complaint and produced it but he is not giving deposition in respect thereof in view of the aforesaid cross examination but stating something different before the Court.

9. As coming out from the promissory note, Exh.15,

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accused was to pay Rs.2 lakhs to the complainant after 5 ½ years on the date of execution of the promissory note, which would be by 29.06.2010, whereas cheque bears the date of 17.04.2006, which is much prior to the time mentioned in the promissory note, Exh.15. As such, if accused has agreed by way of promissory note that he shall pay the said amount by a particular date and issue the cheque on the date of execution of promissory note, till that time mentioned in the promissory note is over, the amount mentioned therein cannot be stated to be a legally enforceable debt prior thereto. Surprisingly, though the promissory note refers about the cheque in question, which is mentioned in handwriting in a typed promissory note, only the cheque number and the amount in words and figure, debt is conspicuously missing. If at all the cheque is issued on 17.04.2006, as claimed by the complainant, it should have been reflected in the promissory note. Therefore, the date of cheque in the promissory note is missing. If it is issued on the date of execution of the promissory note, that date would be 29.12.2004 and it would be valid for a period of six months from the date of issue, which is left blank in the cheque. When cheque number is mentioned in the promissory note on 29.12.2004, it is clear that it has been issued on that date and not the date cheque bears over it, as claimed by the complainant to be 17.04.2006.

10. At any rate, as concluded by the learned Judge, complainant has failed to lead any evidence so as to establish legally enforceable debt exists so as to be paid by the respondent - accused. Though presumption is provided for, unless and until it is established primarily by the complainant

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that there exists legally enforceable date, there arise no question of raising presumption under Section 139 of 'the Act' that it has been issued towards legally enforceable debt unless and until any legally enforceable debt exists, there is no question of presumption that cheque has been issued towards legally enforceable debt. The complainant is never absolved from leading any evidence at least prima facie showing legally enforceable debt.

11. As concluded in paragraph 14 by the learned Judge, the complainant has failed to even prove the facts mentioned in his complaint and keeping in mind the contents of the promissory note, it is not established that the accused has issued a cheque towards legally enforceable debt. If at all something is to be presumed, as recorded by the learned Judge, blank cheque being issued by the accused towards future debt, which has not become ripe as on 17.04.2006. In absence of any material evidence against accused and well reasoned order of acquittal recorded by the learned Judge considering in detail not only the facts and appreciating the evidence produced and proved before it, I see no reason to interfere in the order of acquittal recorded by the learned Magistrate. Hence, this Appeal is without any merit, and therefore, it is hereby dismissed.

(UMESH A. TRIVEDI, J.)

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