Gujarat High Court
Bhavubha Bechar Sinh Chavda vs State Of Gujarat on 19 June, 2025
NEUTRAL CITATION
R/CR.MA/10851/2025 ORDER DATED: 19/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 10851 of 2025
(FOR LEAVE TO APPEAL)
In
F/CRIMINAL APPEAL NO. 19094 of 2025
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BHAVUBHA BECHAR SINH CHAVDA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
DR. HIREN S SOMAIYA(8031) 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 : 19/06/2025
ORAL ORDER
1. The present application is filed by the applicant -
original complainant seeking leave to file an appeal against the
judgment and order dated 12.03.2025 passed by the learned 2 nd
Additional Judicial Magistrate First Class, Dholka (hereinafter
referred to as the "learned Trial Court") in Criminal Case No. 1181
of 2009, 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").
1.1 The respondent No. 2 is hereinafter referred to as "the
accused" as he stood in the original case for the sake of
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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.15,00,000/- from the applicant and the accused had issued
cheque No.011511 and cheque No.11512 for the amount of
Rs.2,55,000/- each dated 01.12.2008, cheque No.008978 for the
amount of Rs.2,40,000/- dated 15.04.2009 and cheque No.142995
for the amount of Rs.7,50,000/- dated 04.05.2009 from his account
with The District Co-operative Bank Ltd, Kalikund, Dholka
Branch. The applicant deposited cheque No. 142995 for the
amount of Rs.7,50,000/- dated 04.05.2009 in his account with The
Ahmedabad District Co-operative Bank Ltd, Kalikund, Dholka
Branch and the cheque was dishonored and the reason mentioned
in the return memo was "Funds Todays Opening Balance
Insufficient". The applicant sent the statutory demand notice to the
accused on 23.05.2009 which was duly served but no payment was
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made. The applicant filed the criminal complaint before the Court
of the Judicial Magistrate First Class, Dholka under Section 138 of
the N I Act, 1881 which was registered as Criminal Case No. 1181
of 2009.
2.2 The accused was served with the summons and the
accused appeared before the learned Trial Court and his plea was
recorded at Exh.12 and the entire evidence of the applicant was
taken on record. The applicant was examined on oath and 07
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 Exh.28 and produced 02
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.
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3. Being aggrieved and dissatisfied with the same, the
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. Hiren S. Somaiya
appearing for the applicant, learned APP Ms.C.M.Shah for the
respondent - State.
5. Learned Advocate Mr. Hiren S. Somaiya 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 cheques 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 judgment 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
judgment and has passed the judgment 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
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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."
7.1 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
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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
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the parties and on perusal of the record of the case the affidavit of
examination in chief of the complainant has been produced at
Exh.17 wherein the complainant has narrated the facts of the
complaint on oath. During the cross examination of the applicant
by the learned advocate for the accused the applicant has stated
that he files his Income Tax Returns, but does not have any books
of accounts with him, and he has not shown in his Income Tax
Returns that he has financial transactions with the accused. That
he does not know whether the accused is engaged in the business
of finance, but in the complaint, he has stated that the accused is
engaged in the business of finance. That prior to this transaction,
he did not enter into any transaction with the accused and has not
submitted any evidence about his salary during the year 2008 -
2009. That he did not withdraw the amount of Rs.15,00,000/- from
the bank, and when he had advanced the amount of Rs.15,00,000/-
to the accused, he did not find it necessary to execute any deed,
voucher, promissory note etc. That he did not find it necessary to
have any witness for the financial transaction with the accused,
and he has not produced any evidence that he had the amount of
Rs.15,00,000/- in cash lying in his house. That he had given the
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amount of Rs.15,00,000/- without interest to the accused and he
had taken a power of attorney for the land of the accused, but he
has not produced the power of attorney before the learned Trial
Court. The applicant has admitted that he has filed the present
case for the cheque was dated 04.05.2009 and he had kept the
cheque with him for fourteen days and had not deposited the
cheque in the bank till then. The signature in the cheque is made in
both, the English and Gujarati languages. That he is an accused
along with others in Criminal Case No.1389 of 2009 filed by the
Dharmendrasinh Kesrisinh Dodiya - the accused in this case. That
he does not know whether the case was filed as he and the other
accused of Criminal Case No.1389 of 2009 were threatening to kill
the wife and children of the accused and because of their threats,
the accused had written a suicide note and had tried to commit
suicide. From the record of the case, it transpires that after the
cheque returned unpaid the demand statutory notice was served
to the accused. As per the say of the applicant, the accused had
taken an amount of Rs.15,00,000/- from the applicant on
01.12.2008 and had executed a deed regarding his agricultural land
and that he had taken the amount on loan from the applicant. The
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accused had given cheque No.142995 for the amount of
Rs.7,50,000/- dated 04.05.2009 from his account with The District
Co-operative Bank Ltd, Kalikund, Dholka Branch but the cheque
had returned unpaid with the endorsement "Funds Todays
Opening Balance Insufficient". After the demand statutory notice
was given as the amount was not paid the applicant filed Criminal
Case No. 1181 of 2009 in the Court of the Judicial Magistrate First
Class, Dholka.
8.1. In the further statement of the accused recorded under
the section 313 of the Code of Criminal Procedure, the accused has
mainly denied all the evidence of the applicant and has stated that
there was no legally enforceable due amount from him to the
applicant and he had not taken any money from the applicant, but
the applicant had threatened to kill him and kidnap his wife and
children and had taken the cheque from him and had thereafter
misused the same. The accused refused to step into the witness
box but examined one witness Rakesh Malharao Sarvodaya, the
Investigating Officer of Dholka Police Station II C R No. 18 of 2009
filed by the accused under Sections 504, 506(2) and 114 of the IPC
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against the applicant and 15 others wherein the applicant is
accused No. 7 in the case. The FIR filed by the accused is
produced at Exh.31 and the suicide note written by the accused is
produced at Exh.30. After the complaint was filed by the accused,
the Investigating Officer investigated offence and filed the
chargesheet before the Court of the Judicial Magistrate First Class,
Dholka which came to be registered as Criminal Case No.1389 of
2009 and the matter was pending for trial before the learned Trial
Court.
9. In the entire evidence on record the applicant has not
been able to prove that the amount of Rs.15,00,000/- was given 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.15,00,000/- as hand loan from him, but there is no of evidence
that the applicant had the financial capacity to give the amount of
Rs.15,00,000/-, the accused in cash on 01.12.2008. The applicant
has categorically stated that he has not shown the amount in his
Income Tax Returns and there is no evidence on record to suggest
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that the applicant had the financial capacity and he could advance
the huge amount of Rs.15,00,000/- in cash to the accused.
Moreover, the applicant has stated that the power of attorney for
the immovable property of the accused was executed on the date
when the amount was advanced, but no such document has been
produced on record. 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.
9.1 The accused has raised a defence that the cheque in
question was forcibly taken from him by the applicant and the
applicant was charging huge amount as interest and the accused
had filed a criminal complaint against the applicant and others for
threatening to kill and kidnap his wife and children and he had
consumed some medicine and attempted to commit suicide. The
accused has produced the suicide note at Exh.30 and the copy of
the FIR at Exh.31 and has examined witness Rakesh Malharao
Sarvodaya, the Investigating Officer of Dholka Police Station II C R
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No. 18 of 2009 filed by the accused under Sections 504, 506(2) and
114 of the IPC. The criminal trial against the applicant is pending
before the learned trial court and even though the applicant is
accused No. 7 in the matter and is facing trial, during the cross
examination, he has denied that he has knowledge that such a case
has been filed against him. From the evidence produced on
record, the accused has succeeded in raising a probable defence
and rebutting the presumption raised in favour of the applicant.
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 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
