Gujarat High Court
Indravadan Muljibhai Patel vs State Of Gujarat on 19 June, 2025
NEUTRAL CITATION
R/CR.MA/5687/2025 ORDER DATED: 19/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 5687 of 2025
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 10827 of 2025
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INDRAVADAN MULJIBHAI PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. MAULIK M SONI(7249) for the Applicant(s) No. 1
MR PRANAV DHAGAT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 19/06/2025
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 03.03.2025 passed by
the learned Chief Judicial Magistrate, Bharuch (hereinafter
referred to as the "learned Trial Court") in Criminal Case No. 4351
of 2019, 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 loan of
Rs.7,50,000/- from the applicant and the accused had issued
cheque No.095166 for the amount of Rs.7,50,000/- dated 01.05.2019
from his account with The Bharuch District Central Co-operative
Bank Ltd, Muktinagar, Bharuch Branch. The applicant deposited
the cheque on 24.05.2019 in his account with The Bharuch District
Central Co-operative Bank Ltd, Muktinagar, Bharuch 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 which was duly served but
no payment was made within the stipulated period and hence the
applicant filed the criminal complaint before the Court of the Chief
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Judicial Magistrate, Bharuch under Section 138 of the N I Act, 1881
which was registered as Criminal Case No. 4351 of 2019.
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 07 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 stated that he has not issued any
cheque in favor of the applicant and a false complaint has been
filed. The accused refused to step into the witness box but
examined one witness on oath at exhibit 41 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
applicant has preferred the present application seeking leave to
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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 Ms. Honey Raval for learned
advocate Mr. Maulik M. Soni appearing for the applicant and
learned APP Mr. Pranav Dhagat for the respondent - State.
5. Learned Advocate Ms. Honey Raval 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 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 to the
accused is not negated, but the learned Trial Court has disbelieved
the same. The accused had failed to rebut the presumption and
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hence the judgement and order of acquittal is bad in law and the
leave to appeal must be granted.
6. Learned Mr. Pranav Dhagat 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 must be rejected.
7. With regard to the facts in the present case, it would be
fit to refer to the observations made the Apex Court in Rangappa
vs Sri Mohan reported in 2010 11 SCC 441 in para 14 which
reproduced 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 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
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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."
7.1 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:
(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.
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(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
exhibit 04 wherein the complainant has narrated the facts of the
complaint on oath. From the record of the case, it transpires that
after the cheque returned unpaid the demand statutory notice was
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served to the accused. As per the say of the applicant, the accused
had taken an amount of Rs.7,50,000/- in parts from the applicant
and had given cheque No. 095166 from his account with The
Bharuch District Central Co-operative Bank Ltd, Muktinagar,
Bharuch Branch but the cheque had returned unpaid with the
endorsement "Funds insufficient". After the demand statutory
notice was given as the amount was not paid the applicant filed
Criminal Case No. 4351 of 2019 in the Court of the Chief Judicial
Magistrate, Bharuch.
9. In the entire evidence on record the applicant has not been
able to prove that the amount of Rs.7,50,000/- was given to the
accused and during the cross-examination of the applicant by the
learned advocate for the accused, the applicant has admitted that
the document produced Exhibit 12, which is the statement of
account of his bank account, there is no mention of the name of
the accused and the amount of Rs.50,000/- on 13.08.2018 and on
20.08.2017 have been withdrawn by him and not by the accused.
That he has not mentioned in whose presence the amount has been
withdrawn from the bank, the time of withdrawal and the place at
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which the amount was withdrawn in his complaint, affidavit of
examination in chief, and in the notice. The applicant has
categorically stated that the amount was not withdrawn by the
accused from his account. That no document was executed
between the parties when the amount was advanced in the year
2015 or 2018 and the cheque was not written in his presence.
9.1 The main defence of the accused was that there was
partnership between the accused and Neelkumar Indravadanbhai
Patel, the son of the applicant and the cheque in question was
given by the accused to Neelkumar Indravadanbhai Patel and the
same has been misused by the applicant. During the cross-
examination by the learned advocate for the accused, when
questioned about the business dealings and agreement executed
between the accused and his son Neelkumar Indravadanbhai
Patel, the applicant has denied having any knowledge of the same.
The applicant has produced the copy of the Partnership Deed
executed on 16.10. 2015, at exhibit 43 and it is the defence of the
accused that the cheque was given as a security to Neelkumar
Indravadanbhai Patel during the course of the partnership
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business. The applicant has denied having any knowledge about
the partnership business of the accused with his son Neelkumar
Indravadanbhai Patel, but he has not examined his son Neelkumar
Indravadanbhai Patel as a witness to prove that the cheque was
not given to Neelkumar Indravadanbhai Patel, but was given to
him. The applicant had also contended that on 10.09.2018 the
amount was withdrawn by his son Neelkumar Indravadanbhai
Patel from the bank and the amount in cash was given to the
accused, but Neelkumar Indravadanbhai Patel has not stepped
into the witness box to prove that the amount was withdrawn and
given to the accused.
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
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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
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
