Gujarat High Court
Ramjibhai Tejabhai Mistri vs Arjunbhai Abhabhai Talpada on 27 June, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2228 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
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Approved for Reporting Yes No
✔
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RAMJIBHAI TEJABHAI MISTRI
Versus
ARJUNBHAI ABHABHAI TALPADA & ANR.
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Appearance:
MR HM PARIKH(574) for the Appellant(s) No. 1
MR. SOAHAM JOSHI, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 2
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 27/06/2025
ORAL JUDGMENT
[1] This Appeal is filed by the original complainant
challenging the judgment and order of acquittal recorded by the
learned 4th Joint Civil Judge (Senior Division) and Judicial
Magistrate First Class, Nadiad dated 23.10.2003 rendered in
Criminal Case No.906 of 1999, whereby respondent - accused
came to be acquitted of the charge punishable under Section 138
of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act').
[2] The brief facts of the case, as emanated from the
judgment, are that respondent - accused in his own land floated
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a scheme of plotting and 16 plots were carved out from his land
and since complainant has relation with him, he agreed to sell
two plots to him for consideration of Rs.67,500/- per plot and
towards the same, complainant claims to have paid Rs.40,000/-
for one plot and Rs.35,000/- for another plot, totaling to
Rs.75,000/- on 14.02.1996. As coming out from complaint,
remaining amount was to be paid to the accused at the time of
execution of sale deed. It is further averred that despite
complainant insisted to accept the remaining consideration and
execute sale deed, accused was not executing the sale deed.
Since prices of the plot were rising, he refused to execute the
sale deed and complainant determined to return back the
earnest money deposit towards the agreement to sell with bank
interest and issued a cheque dated 15.02.1999 of Rs.1,64,986/-
drawn on Charotar Nagarik Sahakari Bank Limited. It is further
averred that at the time of giving cheque, accused assured that
said cheque would be honored on 16.02.1999. Therefore,
complainant deposited the same on 16.02.1999 in his bank -
United Mercantile Cooperative Bank, Nadiad and it has returned
unpaid for insufficient balance. Therefore, Bank of the
complainant informed the complainant with cheque return
memo. Therefore, as claimed by the complainant, on 23.02.1999,
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he issued notice as provided under 'the N.I.Act' through
registered post A.D., which was received by the accused on
24.02.1999, which was evasively replied by the accused.
Therefore, he filed the complaint before the competent Court for
the offence punishable under Section 138 of 'the N.I.Act'.
[2.1] On summons being issued and served, respondent -
accused appeared and when his plea was recorded he denied the
charge, and claimed to be tried.
[2.3] Complainant examined himself at Exhibit-29 and
produced certain documents. He also examined Nitinbhai
Shantilal Talati, employee of United Mercantile Cooperative Bank
Limited which is the Bank of the complainant where he
maintains his account. To prove return of cheque informed to
the complainant from an entry made in the peon book where
even signature is also obtained, perhaps of son of the
complainant. Be that as it may, cheque return memo Exhibit-31
produced by the complainant does not bear the seal of the bank,
though on a printed paper and signed by Accountant as claimed,
it is return memo of Charotar Nagarik Sahakari Bank Limited
informing the United Mercantile Cooperative Bank Limited.
However, it appears that no any other witnesses examined either
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by the complainant or by the accused. Complainant in his
deposition deposed to before the Court as per the averments
made in the complaint.
[2.4] On conclusion of the trial, considering the documents
produced and proved, further statement recorded of the accused
and written submissions made by both the parties, considered
by the learned Judge and aforesaid judgment and order of
acquittal came to be passed. Therefore, the present Appeal is
filed by the original complainant.
[3] Mr. Hemang Parikh, learned advocate of the
appellant submitted that complainant has proved his case and
accused has not disputed issuance of cheque and produced
rebuttal evidence, it shall be presumed to have been issued
towards the consideration and legally enforceable debt.
Therefore, in absence of any valid defence, case be treated to be
proved raising presumption under Sections 118 and 139 of 'the
N.I.Act'.
[3.1] In support of his submission, Mr. Hemang Parikh,
learned advocate for the appellant - complainant, relied on a
decision in the case of Sumeti Vij versus Paramount Tech Fab
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Industries reported in (2022) 15 SCC 689, to submit that once
cheque issued is not denied by the accused, it shall be presumed
that it has been issued towards legally enforceable debt.
Therefore, he has submitted that there being no defence with the
respondent - accused, order of acquittal based on irrelevant
consideration be quashed and set aside.
[4] Endorsement on the cause-list shows that though
served, respondent - accused is neither present in person nor
through an advocate. Therefore, this Appeal being of the year
2009, it is taken up for final hearing.
[5] Heard Mr. Hemang Parikh, learned advocate for the
appellant, perused the judgment as also the deposition and the
documents produced and proved by the complainant.
[6] Considering the deposition of the complainant, he
claimed that accused floated the scheme of 16 plots in his land
and since he was constructing a house besides the house of the
accused, he knew him. Therefore, since he intended to purchase
the plot, he contacted the complainant and Rs.67,500/- was
determined towards the consideration for a plot. Therefore, for
two plots, he paid Rs.40,000/- for one plot and Rs.35,000/- for
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another plot, totaling to Rs.75,000/- to the accused. Though
date, mode and whether at a stretch or on different dates that
amount is paid is not mentioned in the deposition, it is claimed
that remaining amount was to be paid at the time of execution of
the documents. He claimed in his deposition that accused
contacted him and stated that since his entire land is being sold,
he requested that amount to be paid back given towards earnest
money / part consideration, with interest at bank rate. Accused
issued a cheque of Rs.1,64,986/- drawn on Charotar Nagarik
Sahakari Bank Limited dated 15.02.1999. It appears that it
exactly after three years of the so called payment was made, as
claimed by the complainant. Though, not in his deposition the
date of his payment to the accused is mentioned, he thereafter
produced the cheque duly signed by accused and he claimed
that body writing of the cheque is of a person who accompanied
the accused. He deposited the said cheque in his bank for
realization. Since there was insufficient fund in the account of
the accused, cheque deposited by him returned unpaid. He
produced cheque return memo issued by the bank of the
accused as also his own bank but since they were not proved,
they were given mark 28/2 and 23/2 respectively. On return of
the cheque unpaid, he issued notice dated 23.02.1999. Office
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copy of the notice is also produced by him and since it was not
objected to by the learned advocate for the accused, copy of
notice, acknowledgment etc. were exhibited at Exhibits 32 to 33.
He claimed in his deposition that despite notice is received by
the accused, he did not pay back the amount mentioned in it
and did not even reply to the notice. Though he claimed that
after filing of the complaint, accused has given him Rs.28,000/-
on different dates.
[7] However, complainant is duly cross examined on
behalf of the accused. It was brought on record that he is doing
masonry work and earns Rs.3,000/- p.m. He has admitted that
at the site, he had not gone to see any plot to ascertain whether
there is a plotting scheme or not. However, he stated that he was
shown planning of the plots. Since there were relations with the
accused, he did not think it fit to ascertain at the site whether
plot exists or not. During the course of cross-examination,
witness had admitted that part consideration paid towards plot
was in installments, paid in cash on different dates. Though he
claimed that how he paid the amount towards the part
consideration of plot, he has a writing with him and shown
willingness to produce before the Court, even later on also it is
not produced and proved by him before the Court. Though he
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claimed that for two plots which he agreed to purchase, there is
writing executed on stamp paper of Rs.10/-, the total
consideration of plot determined was to be paid at the time of
execution of a sale deed. When sale deed was to be executed is
also not sure. However, he stated that time and again he insisted
for execution of the sale deed. He has admitted in his cross
examination that he has not mentioned cheque number in notice
issued by him under Section 138 of 'the N.I.Act' to the accused
Exhibit-32. It would be worthwhile to note that even in the
deposition also, cheque number is not mentioned by the
complainant. So also, even complaint does not reflect cheque
number which is claimed to have been issued by the accused
dated 15.02.1999. Though in an examination-in-chief,
complainant very boldly claimed that notice was not replied by
the accused, even he pleaded ignorance whether reply to the
notice and further notice by the accused, was issued by the
accused, however, he had to admit that Jalpaben is his
daughter-in-law. On showing copy of notice mark 29/1 and 29/2
and R.P.A.D slip which contained signature of Jalpaben, he
evasively deposed to before the Court that said signature may be
of his daughter-in-law. He has denied the suggestion that in the
reply to the notice, accused claimed that he has not issued the
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cheque in dispute. He has further denied a suggestion that
cheque and transaction for plot was with one Mukeshbhai
Mehta. He has also stated in cross-examination that he knows
Mukeshbhai. He has further denied the suggestion that with the
accused there was no transaction at all. He had to admit that in
a complaint Exhibit -1, though he has claimed that on receipt of
the notice, accused gave an evasive reply, however he is in habit
of not stating the truth before the Court when he claimed in his
examination-in-chief that even notice issued by him was not
replied by the accused. He had to further admit that towards
what consideration accused gave this cheque is neither stated in
the complaint nor in the notice so also in the deposition before
the Court. A suggestion is denied by the accused that present
complaint has come to be filed at the instance of the
Mukeshbhai. He has further denied the suggestion that with the
accused there is no transaction till date.
[8] If such deposition is considered, according to the
case of the complainant, towards the agreement to sell, he
claimed to have paid Rs.75,000/- to the accused. Though he
agreed and volunteered to produce documents to that effect,
executed on a stamp of Rs.10/-, accused has miserably failed to
produce and prove those documents.
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[9] Mr. Hemang Parikh, learned advocate for the
appellant vehemently submitted that said documents have been
produced with a list Exhibit - 63. However, vide Exhibit - 62,
learned advocate on behalf of the complainant gave written
arguments and at list Exhibit-63 he produced execution of some
documents on stamp paper dated 14.02.1996 along with certain
other documents but did not care to produce and prove at the
time of recording evidence. Since those documents are not
proved and exhibited before the Court, it should be ignored.
Therefore, fact remains that despite he had shown willingness to
produce writing executed on stamp paper of Rs.10/- which can
be stated to be an agreement to sell, complainant did not
produce and proved the same.
[10] Not only from his own deposition, certain
shortcomings in the complaint noticed as also in deposition, it is
clear that he has no respect for the truth. He is even flatly
refusing, though admitting in the complaint that notice was
replied evasively by the accused, during the course of
examination before the Court, on oath he claimed that even
accused did not care to reply the notice. It is only when he was
shown reply to the notice and further notice to him with
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acknowledgment slip which bears the signature of his daughter-
in-law, he is again not accepting the same despite he admits that
name of his daughter-in-law is Jalpaben.
[11] If at all, the part consideration / earnest money is
paid towards any agreement to sell, as claimed by the
complainant in writing, if anyone fails to execute the document
despite repeated request, proper remedy would be available to
him to file a suit for specific performance of agreement to sell.
Even according to his own case, remaining amount of
consideration was to be paid at the time of execution of the sale
deed. Though no time limit was fixed to execute the sale deed, as
per his own case, on presentation of remaining consideration, he
can insist, but it must be supported with some
contemporaneous record to execute the sale deed by accepting
the remaining consideration, there appears no attempt made by
the complainant to do the same. Since he has not produced and
proved on record so-called written agreement to sell, his entire
assertion without any contemporaneous record cannot be
believed.
[12] Not only that, if there is no time limit prescribed, as
claimed by the complainant in his deposition, for execution of
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sale deed, there is no question of anyone volunteering to return
back the amount received towards the earnest money or part
consideration, that too, with interest. Even if that unilateral
claim of the complainant in his deposition that accused
volunteered to pay back that amount with bank interest, if his
deposition is to be seen, even in the year 1996 up to 1999, there
cannot be any rate of bank interest reaching nearly 35% per
annum. Exactly after three years of the part consideration paid,
cheque is claimed to have been issued of an amount which is not
even stating at what rate of interest accused has repaid that
amount. It is unbelievable that anyone who agrees to pay bank
interest, will pay far beyond bank interest the amount of earnest
money which was received by him.
[13] As such, even accepting the case of the complainant
that the accused volunteered to pay back the said amount, it can
never be said to be towards any legally enforceable debt or other
liabilities. As such, there was no liability because accused is not
supposed to pay back that amount because there is no such
writing executed and if executed, not produced and proved by
the complainant, which obliges him to repay that amount.
Therefore, even if accused has volunteered to return back the
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said amount with bank interest, which is otherwise not probable
as discussed hereinabove, it cannot be said to be towards any
legally enforceable debt or other liability. If that is so, even if the
cheque claimed to have been issued by the accused has returned
unpaid, it will not give any right to the complainant to file any
proceedings under Section 138 of 'the N.I.Act'.
[14] The vehemence of the learned advocate for the
appellant to claim that once issuance of cheque is not disputed,
which is his own perception, there is presumption under Section
139 of 'the N.I.Act' that cheque is issued towards legally
enforceable debt and other liability, nothing further remains to
be proved by the complainant, and therefore, there is no other
alternative but to convict the accused. The misconception in the
mind of the learned advocate for the appellant in such
submission is apparent from reading the provisions of 'the
N.I.Act'. Nowhere 'the N.I.Act' exonerates or exempts any
complainant to prove and show in a prosecution under Section
138 of 'the N.I.Act', the existence of legally enforceable debt or
other liability, towards which there is provided presumption
under certain circumstances of the same under Section 139 of
'the N.I.Act'. It will never absolve any of the complainant to show
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any existence of debt towards which cheque can be presumed to
have been issued without there being any legally enforceable
debt or any other liability. If the submission of the learned
advocate for the complainant is to be believed, in a prosecution
under 'the N.I.Act' for an offence under Section 138 of 'the
N.I.Act', on mere filing of the complaint and accused not even
rebutting the presumption made under Section 139 of 'the
N.I.Act', he is to be straightaway convicted without even leading
any evidence before the Court.
[15] The reliance placed on a decision in the case of
Sumeti Vij (supra) is also not a precedent for a proposition which
learned advocate for the complainant argues. Nowhere in that
decision it is said that once Section 139 of 'the N.I.Act' provides
for a presumption and issuance of cheque is not disputed, even
existence of legally enforceable debt or other liabilities is to be
presumed. It is further not holding that complainant is absolved
from leading even primary evidence to show existence of legally
enforceable debt or other liability. On the contrary, another
decision of the Supreme Court in the case of Indus Airways (P)
Ltd. V. Magnum Aviation (P) Ltd. reported in (2014) 12 SCC 539,
wherein the Supreme Court observed that the complainant had
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failed in that case, even prima facie, that there was a legally
enforceable debt or other liabilities subsisting on the date of
drawl of the cheque, as contemplated under Section 138 of 'the
N.I.Act'. That judgment of the Supreme Court is not even
doubted, on the contrary it is approved by the Supreme Court in
the case of Sumeti Vij (supra).
[16] Therefore, judgment in the case of Sumeti Vij (supra),
relied on by the learned advocate for the appellant, is of no help
or assistance to him for a proposition which he argues. He
cannot read stray sentences from here or there unless it is
towards a precedent determined therein. It is wrong reading of a
decision in a manner convenient to the complainant but as such,
there is no such precedent determined by the Supreme Court in
that case on the point which is being argued before this Court.
[17] At any rate, when there is a clear-cut admission by
the complainant in his cross-examination that cheque issued by
the accused is towards what consideration, is neither stated in
the complaint, nor even in the notice and at the same time, it
appears to be not even in the deposition. Therefore, raising of
any presumption, as claimed, is out of question. Furthermore,
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from the deposition of the complainant himself, it is clear that he
has no regard for the truth, and therefore also, his deposition
with regard to oral agreement to sell, oral payment of amount, on
different dates different amount, cannot be believed for a
moment. Furthermore, his unilateral claim that accused
volunteered to return back the amount with bank rate interest,
which is again not an amount as claimed by the complainant
with bank interest, but much much much beyond that, surely it
would not be repaid by the accused as claimed by the
complainant. However, though suggestion is denied, accused has
already put a probable case that cheque is not issued by him
towards any legally enforceable debt or other liabilities. On the
contrary, his defence that at the instance of one Mukeshbhai to
whom complainant is known, this false complaint came to be
filed against the accused at the instance of Mukeshbhai. Not
only that, that suggestion, though denied, is although
strengthen by the fact that nowhere in the notice, nor in the
complaint and nor even in the deposition, serial number of
cheque is mentioned by him. When he claims that he deposited
the cheque, he must know the cheque number before depositing
in the bank. If he is not knowing, at least his advocate is also
supposed to know while issuing notice to mention the cheque
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number, which is claimed to have been issued for such amount.
[18] On overall re-appreciation of evidence and
considering written submissions made on behalf of the
complainant as also the accused, reasons assigned by the
learned Judge are in accordance with evidence led before the
Court. Furthermore, the fact that misuse of signed blank cheque
cannot be ruled out when complainant himself admits in his
cross-examination that body writing of the cheque is different
than the writing of the signature. Though he has attempted to
cover the same while giving the deposition before the Court that
a person who came along with the accused has written the same,
is totally false for the reason that it is not his case even at the
time of issuance of notice or filing of the complaint. It is only
with a view to save himself from an allegation that blank signed
cheque is being misused either by him or at the instance of
someone else, he has come out for the first time with such plea,
that too, at the time of examination-in-chief.
[19] On overall re-appreciation of the evidence when
reasons assigned by the learned Judge are considered for
recording an order of acquittal and for the reasons assigned
hereinabove, I see no reason to interfere with the order of
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acquittal. Hence, this appeal is dismissed. Record and
proceedings be sent back to the concerned Court forthwith.
(UMESH A. TRIVEDI, J.)
Lalji Desai
