Gujarat High Court
Mehta Nileshkumar Vishnuprasad vs State Of Gujarat on 4 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 199 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
√
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MEHTA NILESHKUMAR VISHNUPRASAD
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR DILIP L TRIVEDI(3059) for the Appellant(s) No. 1
MR JIGAR G GADHAVI(5613) for the Appellant(s) No. 1
MS VISHWA SHAH, for MR DM DEVNANI, (5880) for the Respondent No. 2
MS.C.M.SHAH, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 04/11/2025
ORAL JUDGMENT
1. This appeal has been filed by the appellant - original
complainant under Section 378(1)(3) of the Code of Criminal
Procedure, 1973 (hereinafter referred to as 'the Code') against
the judgment and the order passed by the learned 3rd Judicial
Magistrate First Class, Mehsana (hereinafter referred to as 'the
learned Trial Court), in Criminal Case No. 3367 of 2005 on
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18.10.2010, whereby, the learned Trial Court acquitted the
respondent no.2 - accused for the offence punishable under
Section 138 of the Negotiable Instruments Act (hereinafter
referred to as 'the N.I.Act').
1.1. The parties are hereinafter referred to as the
complainant and the accused as they stood in the original case,
for the sake of convenience, clarity and brevity.
2. The relevant facts leading to filing of the present
appeal are as under:
2.1 The complainant filed a complaint under Section 138
of the N.I.Act against the accused on 30.08.2005 mainly stating
that the complainant and the accused both are residing at
Mehsana and the complainant was working in Urban School. The
accused was doing the business of taking contracts from the
Gujarat Electricity Board and had his place of business in GIDC
and about 8 months prior to filing of the complaint, the accused
came to the house of the complainant and asked for an amount
of Rs.2,00,000/- for expansion of his business. The complainant
borrowed the amount from his friend circle and advanced an
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amount of Rs.2,00,000/- to the accused and the accused stated
that the amount would be repaid within a period of 6 months.
After the period of 6 months was over, the complainant
demanded for the amount and 3 months prior to filing of the
complaint, the accused gave two cheques i.e. cheque no.
106240 and dated 12.05.2005 and cheque no. 106241 dated
10.06.2005 both of Rs.1,00,000/- each from his account with
Nagrik Sahakari Bank, Mehsana Branch. The cheques were
deposited by the complainant in his account with Mehsana
Urban Cooperative Bank Limited, Mehsana Branch on
15.07.2005, but both the cheques returned unpaid with the
endorsement funds insufficient. The demand statutory notice
was sent by R.P.A.D. and UPC which were duly served to the
accused. The accused gave an evasive reply and did not repay
the amount within the stipulated period, and hence, the
complainant filed a complaint under Section 138 of the N.I.Act
before the Court of the Chief Judicial Magistrate, Mehsana
which came to be registered as Criminal Case No. 3367 of 2005.
2.2 The accused was duly served with the summons and
appeared before the learned Trial Court and his plea was
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recorded at Exh.9 and the evidence of the complainant was
taken on record. The complainant was examined on oath at
Exh.11 and one witness Dashrathbhai Haridas Patel was
examined at Exh.32. The complainant produced 09
documentary evidences in support of his case.
2.3 After the closing pursis was filed by the complainant
at Exh.40, the further statement of the accused under Section
313 of the Code of Criminal Procedure was recorded, wherein
the accused stated that the facts stated in the examination-in-
chief and in the complaint are false and a false complaint has
been filed by the complainant. The accused stepped into the
witness box and deposed on oath and examined 01 witness and
produced 04 documentary evidences in support of his defence.
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 Act.
3. Being aggrieved and dissatisfied with the judgment
and order of acquittal passed by the learned Trial Court, the
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appellant has preferred the present appeal mainly stating that
the judgment and order of acquittal passed by the Learned Trial
Court is absolutely bad, illegal and erroneous and deserves to
be quashed and set aside. The judgment and order is against
the weight of evidence on record and against the cardinal
principles of law. The issues have not been properly dealt with
by the learned Trial Court and the learned Trial Court has
committed a serious error of law and has passed the impugned
judgment acquitting the respondent no.2 and has wrongly made
a presumption that the appellant may not have the financial
capacity of Rs.2,00,000/- that was advanced to the respondent
no.2. The learned Trial Court has not considered that the
respondent no.2 has changed his version and the respondent
no.2 had clearly stated that the cheques were given to the
complainant by one Vinodbhai who is the brother-in-law of the
respondent no.2 and earlier had given a different version and
the contradiction has not been considered by the learned Trial
Court. The respondent no.2 has failed to show that if the
cheques were stolen, he did not file any complaint against his
brother-in-law Vinodbhai or the complainant and did not cancel
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the cheques or intimate the bank about the missing cheques but
the learned Trial Court has not considered this aspect. The
learned Trial Court has also wrongly acquitted the respondent
no.2 on the ground that the appellant did not have any
familiarity or friendship with the respondent no.2 and did not
believe that the appellant would have advanced an amount of
Rs.2,00,000/- to the respondent no.2, and hence, the judgment
and order passed by the learned Trial Court is illegal and is
required to be quashed and set aside.
4. Heard learned advocate Mr. Jigar Gadhavi for the
appellant, learned APP Ms.C.M.Shah for the respondent no.1 -
State and learned advocate Ms. Vishwa M. Shah for learned
advocate Mr.D.M.Devnani for the respondent no.2. Perused the
impugned judgment and order of acquittal and have re-
appreciated the entire evidence of the prosecution on record of
the case.
5. Learned Advocate Mr. Jigar Gadhavi for the
appellant has submitted that the learned Trial Court has not
considered the contradictions in regard to the signature of the
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cheques in question and the defence that the cheques were lost
and misused by the appellant gets contradicted by the stand of
the respondent no.2 that he gave the cheques to Vinodbhai who
gave them to the appellant. This makes the defence put up by
the respondent no.2 improbable. Moreover, as per the defence
of the respondent no.2, the cheques were lost and given to
Vinodbhai in the year 2000 but for five long years no action was
taken by the respondent no.2 to get the cheques back by
issuing any notice or filing any complaint against the said
Vinodbhai, and hence, the story of the respondent no.2 loses
credibility. Moreover, no stop payment was intimated to the
bank and even though the respondent no.2 has stated that he
had closed his business in the year 2001, he did not close the
bank account till the year 2005 and this makes the defence
absolutely improbable. The respondent no.2 has not chosen to
examine Vinodbhai in support of his defence and this shows that
there is no truth in the defence story. Moreover, in the reply to
the statutory notice, the respondent no.2 did not question the
financial capacity of the appellant whereas the appellant has
clarified that he had managed the funds with help from his
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friend circle. The learned Trial Court has committed a serious
error in disbelieving the financial capacity of the appellant and
has believed the defence raised by the respondent no.2 without
any cogent material on record. In fact, the learned Trial Court
has committed a grave and material error and perversity can be
found from the impugned judgment and order as the learned
Trial Court has made a general observation that there is nothing
to show that the appellant has any savings and has failed to
indicate any date with regard to the transaction and how he had
managed the funds and the date when Rs.50,000/- was
borrowed from a friend and that the appellant has not named
those persons, from whom, he had borrowed the amount.
Moreover, as the cheque itself is a negotiable instrument
considering the provisions of Section 139 of the N.I.Act, no
separate agreement or promissory note is required. Learned
advocate further submits that the findings are erroneous, illegal
and perverse in nature and the appeal of the appellant must be
allowed and the impugned judgment and order of acquittal must
be quashed and set aside.
6. Learned APP Ms.C.M.Shah for the respondent No.1 -
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State has submitted that the learned Trial Court has appreciated
all the evidence in true perspective and has not committed any
error in acquitting the accused. Therefore, no interference of
this Court is required in the impugned judgment and order of
acquittal passed by the learned Trial Court and has urged this
Court to reject the appeal.
7. Learned advocate Ms.Vishwa M. Shah for the
respondent no.2 has submitted that the accused has raised a
defence in the reply to the notice and has denied the existence
of any loan transaction and has denied issuing the cheques in
discharge of any liability. Moreover, the respondent no.2 has
also challenged the financial capacity of the appellant to
advance such a significant loan amount and has proved that the
cheques were from an old cheque book that have been misused
by the appellant. Learned advocate submits that the appellant
has failed to prove the foundational facts of the existence of a
legally enforceable debt as no loan agreement, promissory note
or any other documentary proof regarding the transaction has
been produced by the appellant on record. Moreover, the
financial capacity of the appellant to lend Rs.2,00,000/- was
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highly doubtful given his low monthly income of Rs.3000/- per
month and considering the fact that he had two sons and one
daughter thereby making the loan transaction improbable.
Learned advocate further submits that the respondent no.2 has
successfully rebutted the statutory presumption under section
139 of the N.I.Act by establishing a probable defence and
shifting the onus back to the appellant to prove the debt which
the appellant has failed to do so, and hence, the findings of the
learned Trial Court that the respondent no.2 has successfully
raised a probable defence and has rebutted the statutory
presumption on the preponderance of probability is just and
proper and no interference is required in the impugned
judgment and order and has urged this Court to reject the
appeal of the appellant
8. On perusal of the evidence on record, the
complainant has deposed on oath at Exh.11 and has mainly
narrated the facts as stated in the complaint. In the cross-
examination, the complainant has stated that he is working in
Urban School for the last 10 years as a teacher and was drawing
a salary of Rs.3000/- per month for a period of 5 years, and
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thereafter, had received the grade and was drawing an amount
of Rs.4200/- as salary from the year 2006. He has 2 children one
aged 7 years and the other aged 1½ years and in the complaint,
notice and his deposition, he has not mentioned the date or the
month in which the accused had come to borrow the amount of
Rs.2,00,000/-. The complainant has stated that he had borrowed
an amount of Rs.50,000/- from his friend and the remaining
amount of Rs.1,50,000/- was given from his house but he has not
mentioned the name of the friend from whom he had borrowed
the Rs.50,000/-. In the complaint he has stated that he had
borrowed the entire amount of Rs.2,00,000/- from his friend
circle and had given the amount to the accused and as per his
say, the transaction had taken place in October, 2004. The
accused did not give the cheques at that time and at the time of
the financial transaction, he did not execute any document or a
promissory note from the accused. He had gone 2 to 3 times to
the accused for demanding the amount and the accused had
closed his business in GIDC in the year 2001. In the complaint,
notice and deposition, he has not mentioned the date or the
place when the accused had given him the cheques and he did
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not make a note about the financial transaction with the accused
in any diary. The complainant has denied knowing that the
accused and his family members had attempted to commit
suicide due to financial constraints and has also denied knowing
that the wife of the accused had filed a case under Section 498-A
of the IPC against the accused.
8.1. The complainant has produced the cheques at Exh.12
and Exh.13, the return memos at Exh.14 and Exh.15, the notice
sent to the accused at Exh.17 and reply to the notice received
from the accused at Exh.21. In the reply to the notice, the
accused has mainly stated that he does not know the
complainant, has denied borrowing any amount from the
complainant and has demanded an explanation from the
complainant as to how the cheques came to the possession of
the complainant. The accused has stated that he was doing
business in the name of "Nividha Metals Industries" in GIDC,
Mehsana in Plot No.137 after renting the plot from the owner
Rajesh Kantilal Patel and in the year 2001, the business was
closed and possession of the plot was handed back to the
owner. At that time, the accused had opened Current Account
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No. 05664 in the Mehsana Nagarik Bank, and as the business had
closed, he did not make any transactions in the current account.
The cheques in question were given to Vinodbhai Dashrathlal
Modi, his brother-in-law who was residing at Tulsi Bungalows,
Ratanpur Road, Mehsana in July, 2000 for business purpose and
the accused had demanded the cheques from his brother-in-
law, but his brother-in-law had told him that the cheques were
lost and after a long period of five years, the cheques came to
the possession of the complainant and the accused had
demanded an explanation from the complainant as to how he
came to the possession of the cheques.
8.2. The complainant has examined PW-2, Dashrathbhai
Haridas Patel at Exh.32 and the witness was working as an
officer in Mehsana Nagarik Bank and he has produced the
details of the Account No. 5664 of the accused. The witness has
also been examined as a defence witness by the accused and in
the evidence of the witness, it has emerged that Current
Account No. 5664 was opened in the name of "Nividha Metals"
in a Partnership Firm, and thereafter, as the partnership was
dissolved the accused was using the account as a proprietor.
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The necessary documents were given by the accused for the
account and also the undertaking was given and cheque books
were issued to the accused. The witness has also produced the
document regarding the closure of account at Exh.36, which
shows that the account was closed on 29.09.2005.
8.3. After the evidence of the complainant was closed, in
the further statement of the accused, the accused has raised the
same defence and has stated that he had closed the business in
the year 2001, and in the year 2002, because of financial
constraints he, his younger brother Bipinbhai and his parents
had tried to commit suicide and Criminal Case No. 3924 of 2003
was filed against them. As he had closed the business in the
year 2001, there was no question of borrowing any money from
the complainant for expansion of his business. The accused
denied all the evidence and stated that he did not know the
complainant and stepped into the witness box and deposed on
oath at Exh.45 and examined Dashrathbhai Haridas Patel at
Exh.51. In his deposition, the accused has reiterated the
contents and defence raised in the reply to the notice and
produced a complaint filed by Gajdinkhan Kasamkhan,
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Unarmed Head Constable, Buckle No.1926, Mehsana Taluka
Police Station at Exh.46, wherein, the witness has stated that on
16.02.2003 the accused, his brother and his parents had
consumed Pioban TC medicine to commit suicide and they were
brought to Mehsana Civil Hospital for treatment. The accused
has produced the judgment of Criminal Case No.3924 of 2003 at
Exh.47 and the bail application preferred by him before the
Sessions Court, Mehsana for the offence registered under
Sections 498 and 306 of the IPC at Mehsana City Police Station I-
C.R.No.305 of 2007 at Exh.48. The accused has also produced
the judgment of Criminal Case No. 3469 of 1993 at Exh.49. In the
cross-examination of the accused, it has emerged that he had
started the business in the year 1996 and had closed the
business in 2001 and had thereafter closed Current Account
No.5664 in the year 2005.
9. Learned advocate Mr. Jigar S. Gadhavi for the
appellant has relied upon a decision of the Apex Court in case of
Rajesh Jain Vs. Ajay Singh reported in 2023 (0) AIJEL - SC
72588, wherein in para Nos.38 to 45, the Apex Court has
observed as under:
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"38. As soon as the complainant discharges the burden to prove
that the instrument, say a cheque, was issued by the accused
for discharge of debt, the presumptive device under Section
139 of the Act helps shifting the burden on the accused. The
effect of the presumption, in that sense, is to transfer the
evidential burden on the accused of proving that the cheque
was not received by the Bank towards the discharge of any
liability. Until this evidential burden is discharged by the
accused, the presumed fact will have to be taken to be true,
without expecting the complainant to do anything further.
39. John Henry Wigmore [7] on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to
invoke a rule of law compelling the Jury to reach the
conclusion in the absence of evidence to the contrary from the
opponent but if the opponent does offer evidence to the
contrary (sufficient to satisfy the Judge's requirement of some
evidence), the presumption 'disappears as a rule of law and
the case is in the Jury's hands free from any rule."
[7] Rules of Evidence- The Hidden Origin of Modern Law
40. The standard of proof to discharge this evidential burden is
not as heavy as that usually seen in situations where the
prosecution is required to prove the guilt of an accused. The
accused is not expected to prove the non-existence of the
presumed fact beyond reasonable doubt. The accused must
meet the standard of 'preponderance of probabilities', similar
to a defendant in a civil proceeding. [Rangappa vs. Mohan
(AIR 2010 SC 1898)]
41. In order to rebut the presumption and prove to the contrary, it
is open to the accused to raise a probable defence wherein
the existence of a legally enforceable debt or liability can be
contested. The words 'until the contrary is proved' occurring
in Section 139 do not mean that accused must necessarily
prove the negative that the instrument is not issued in
discharge of any debt/liability but the accused has the option
to ask the Court to consider the non-existence of debt/liability
so probable that a prudent man ought, under the
circumstances of the case, to act upon the supposition that
debt/liability did not exist. [Basalingappa Vs. Mudibasappa
(AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma
Carpets (2009) 2 SCC 513]
42. In other words, the accused is left with two options. The first
option-of proving that the debt/liability does not exist-is to
lead defence evidence and conclusively establish with
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certainty that the cheque was not issued in discharge of a
debt/liability. The second option is to prove the non-
existence of debt/liability by a preponderance of
probabilities by referring to the particular circumstances of
the case. The preponderance of probability in favour of the
accused's case may be even fifty one to forty nine and arising
out of the entire circumstances of the case, which includes:
the complainant's version in the original complaint, the case in
the legal/demand notice, complainant's case at the trial, as
also the plea of the accused in the reply notice, his 313
statement or at the trial as to the circumstances under which
the promissory note/cheque was executed. All of them can
raise a preponderance of probabilities justifying a finding that
there was 'no debt/liability'. [Kumar Exports and Sharma
Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the evidential burden
need not necessarily be direct evidence i.e., oral or
documentary evidence or admissions made by the opposite
party; it may comprise circumstantial evidence or
presumption of law or fact.
44. The accused may adduce direct evidence to prove that the
instrument was not issued in discharge of a debt/liability and,
if he adduces acceptable evidence, the burden again shifts to
the complainant. At the same time, the accused may also rely
upon circumstantial evidence and, if the circumstances so
relied upon are compelling the burden may likewise shift to
the complainant. It is open for him to also rely upon
presumptions of fact, for instance those mentioned in Section
114 and other sections of the Evidence Act. The burden of
proof may shift by presumptions of law or fact. In Kundanlal's
case- (supra) when the creditor had failed to produce his
account books, this Court raised a presumption of fact under
Section 114, that the evidence, if produced would have shown
the non-existence of consideration. Though, in that case, this
Court was dealing with the presumptive clause in Section 118
NI Act, since the nature of the presumptive clauses in Section
118 and 139 is the same, the analogy can be extended and
applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the accused
adduces evidence to the satisfaction of the Court that on a
preponderance of probabilities there exists no debt/liability
in the manner pleaded in the complaint or the demand notice
or the affidavit-evidence, the burden shifts to the complainant
and the presumption 'disappears' and does not haunt the
accused any longer. The onus having now shifted to the
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complainant, he will be obliged to prove the existence of a
debt/liability as a matter of fact and his failure to prove would
result in dismissal of his complaint case. Thereafter, the
presumption under Section 139 does not again come to the
complainant's rescue. Once both parties have adduced
evidence, the Court has to consider the same and the burden
of proof loses all its importance. [Basalingappa vs.
Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs.
Sri Mohan (2010) 11 SCC 441]
46. It is against the backdrop of the afore-stated legal principles
that we proceed to consider if there is any interference that is
called for.
47. The accused has neither replied to the demand notice nor has
led any rebuttal evidence in support of his case. The case set
up by him needs to be drawn from the suggestions put during
the cross examination and from his reply given in the
statement recorded under Section 313 of Cr.P.C.
48. It has been suggested to the complainant that accused had not
borrowed any loan from him. It was suggested to him that no
legal notice had been issued on dishonor of cheque. It was
further suggested that the complainant has misused a blank
cheque - the said cheque having been obtained from his
employee, Gita Sunar, who also happens to be the sister-in
law of the accused. It was suggested that Gita Sunar had some
financial transactions with the complainant and towards that
end, he had received a blank cheque (signed by the accused)
from Gita Sunar and misused it. It is pertinent to note that the
suggestions mentioned above were denied by the
complainant."
9.1. The Apex Court, in the case of Ashok Singh V. State
of Uttar Pradesh reported in 2025 (0) AIJEL - SC 75004, has
observed in Para-22 as under:
"22. The High Court while allowing the criminal revision has
primarily proceeded on the presumption that it was
obligatory on the part of the complainant to establish his case
on the basis of evidence by giving the details of the bank
account as well as the date and time of the withdrawal of the
said amount which was given to the accused and also the date
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and time of the payment made to the accused, including the
date and time of receiving of the cheque, which has not been
done in the present case. Pausing here, such presumption on
the complainant, by the High Court, appears to be erroneous.
The onus is not on the complainant at the threshold to prove
his capacity/financial wherewithal to make the payment in
discharge of which the cheque is alleged to have been issued
in his favour. Only if an objection is raised that the
complainant was not in a financial position to pay the amount
so claimed by him to have been given as a loan to the
accused, only then the complainant would have to bring
before the Court cogent material to indicate that he had the
financial capacity and had actually advanced the amount in
question by way of loan... ... ... ... ..."
10. Learned advocate Ms. Vishwa Shah for the
respondent no.2 has relied upon a decision in the case of
Dattatraya Vs. Sharanappa reported in (2024) 8 SCC 573,
wherein in para No.32, the Apex Court has observed as under:
"32. Moreover, affirming the findings of the trial Court, the High
Court observed that while the signature of the respondent on
the cheque drawn by him as well as on the agreement
between the parties herein stands admitted, in case where the
concern of financial capacity of the creditor is raised on
behalf of an accused, the same is to be discharged by the
complainant through leading of cogent evidence."
10.1. The Apex Court, in the case of Basalingappa V.
Mudibasappa reported in 2019 (0) AIJEL - SC 63955, has
observed in Para-23 and 24 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:-
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(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.
(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 28 139
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. Applying the preposition of law as noted above, in facts of the
present case, it is clear that signature on cheque having been
admitted, a presumption shall be raised under Section 139
that cheque was issued in discharge of debt or liability. The
question to be looked into is as to whether any probable
defence was raised by the accused. In cross-examination of
the PW1, when the specific question was put that cheque was
issued in relation to loan of Rs.25,000/- taken by the accused,
the PW1 said that he does not remember. PW1 in his evidence
admitted that he retired in 1997 on which date he received
monetary benefit of Rs.8 lakhs, which was encashed by the
complainant. It was also brought in the evidence that in the
year 2010, the complainant entered into a sale agreement for
which he paid an amount of Rs.4,50,000/- to Balana Gouda
towards sale consideration. Payment of Rs.4,50,000/- being
admitted in the year 2010 and further payment of loan of
Rs.50,000/- with regard to which complaint No.119 of 2012
was filed by the complainant, copy of which complaint was
also filed as Ex.D2, there was burden on the complainant to
prove his financial capacity. In the year 2010-2011, as per own
case of the complainant, he made payment of Rs.18 lakhs.
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During his cross-examination, when financial capacity to pay
Rs.6 lakhs to the accused was questioned, there was no
satisfactory reply given by the complainant. The evidence on
record, thus, is a probable defence on behalf of the accused,
which shifted the burden on the complainant to prove his
financial capacity and other facts."
11. On perusal of the evidence on record, in light of the
judgments referred above, after the cheques in question were
deposited by the complainant and they had returned with the
endorsement "Funds Insufficient", the demand statutory notice
was given by the complainant to the accused and after the
notice was received by the accused, the accused had submitted
a reply to the notice wherein he had denied knowing the
complainant. The accused had in the reply to the notice itself
stated that the cheques in question were given to his brother-in-
law Vinodkumar Dashrathlal Modi in the year 2000 and he had
closed his business in the year 2001. The accused has
challenged the financial capacity of the complainant to advance
an amount of Rs.2,00,000/- and in the entire evidence, the
complainant has not mentioned the date when the amount of
Rs.2,00,000/- was given as an advance to the accused.
Moreover, the complainant has admitted that he was earning an
amount of Rs.3000/- per month and he had his family including
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two children to support and there is no explanation as to how the
amount of Rs.2,00,000/- was given to the accused. It is the case
of the complainant that the accused had come to the house of the
complainant and had demanded the amount and Rs.1,50,000/-
which was lying in the house and an amount of Rs.50,000/- which
was borrowed from friends was given to the accused but there is
no iota of evidence that any amount was borrowed from any
friend or that the complainant had withdrawn the amount from
any of his bank account or that he had the financial capacity to
give to advance the amount of Rs.2,00,000/- to the complainant.
In light of the decision of the Apex Court in the cases of Ashok
Singh (Supra) and Basalingappa (Supra), the accused has
raised a probable defense which shifted the burden on the
complainant to prove his financial capacity but evidence about
the financial capacity has been brought on record by the
complainant.
12. The learned Trial Court has appreciated the entire
evidence in proper perspective and there does not appear to be
any infirmity and illegality in the impugned judgment and order
of acquittal. The learned Trial Court has appreciated all the
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evidence and this Court is of the considered opinion that the
learned Trial Court was completely justified in acquitting the
accused of the offence leveled against him. The findings
recorded by the learned Trial Court are absolutely just and
proper and no illegality or infirmity has been committed by the
learned trial Court and this Court is in complete agreement with
the findings, ultimate conclusion and the resultant order of
acquittal recorded by the learned Trial Court. This Court finds
no reason to interfere with the impugned judgment and order
and the present appeal is devoid of merits and resultantly, the
same is dismissed.
13. The impugned judgment and the order dated
learned 3rd Judicial Magistrate First Class, Mehsana, in Criminal
Case No. 3367 of 2005 on 18.10.2010 is hereby confirmed.
14. Bail bond stands cancelled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S. KAZI
