Gujarat High Court

Vikrambhai Kanubhai Rabari vs State Of Gujarat on 9 September, 2025

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                              R/CR.A/2274/2025                               JUDGMENT DATED: 09/09/2025

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                              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/CRIMINAL APPEAL NO. 2274 of 2025
                                                    (AGAINST ACQUITTAL)


                        FOR APPROVAL AND SIGNATURE:

                        HONOURABLE MS. JUSTICE S.V. PINTO                       Sd/-

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                                          Approved for Reporting                 Yes                No

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                                                    VIKRAMBHAI KANUBHAI RABARI
                                                               Versus
                                                      STATE OF GUJARAT & ANR.
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                        Appearance:
                        VISHAL K ANANDJIWALA(7798) for the Appellant(s) No. 1
                        MR DILIPKUMAR H PATEL(12228) for the Opponent(s)/Respondent(s) No. 2
                        MS.C.M.SHAH, APP for the Opponent(s)/Respondent(s) No. 1
                        ROHANKUMAR M AMIN(8851) for the Opponent(s)/Respondent(s) No. 2
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                           CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                                         Date : 09/09/2025
                                                         ORAL JUDGMENT

1. The present appeal is filed by the appellant -

original complainant under Section 419 of the Bhartiya Nagrik

Suraksha Sanhita, 2023 (for short "BNSS") against the order

passed by the learned 4th Additional Chief Judicial Magistrate,

Anand (hereinafter referred to as the "learned Trial Court") in

Criminal Case No. 4520 of 2021 dated 05.05.2023, whereby, the

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learned Trial Court has acquitted the respondent No. - original

accused from the offence under Section 138 of the Negotiable

Instruments Act, 1881 (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 brief facts culled out from the memo of the

present appeal as well as the impugned judgment and order

and paper book filed by the complainant are as under:

2.1. The complainant and the accused were known to

each other and were friends and as the accused wanted to

purchase agricultural land had requested the complainant for an

amount of Rs.35,00,000/- as hand loan. The complainant paid an

amount of Rs.1,60,000/- through RTGS and the remaining

amount in cash and in all paid an amount of Rs.34,50,000/-.

Towards the outstanding amount, the accused gave cheque

no.057757 dated 03.04.2021 for an amount of Rs.6,00,000/- from

his account with Indian Overseas Bank, Anand Branch. The

cheque was deposited by the appellant in his account with

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Central Bank of India, Mogri Branch Anand but the cheque

returned unpaid with the endorsement "Drawer Signature

Differs". The demand statutory notice was given which was duly

served to the accused but the accused did not repay the amount

within the stipulated period and hence, the complainant filed a

complaint under Section 138 of the NI Act before the Court of the

Chief Judicial Magistrate, Anand which came to be registered as

Criminal Case No. 4520 of 2021.

2.2. The complainant was duly served with the summons

and he appeared before the learned Trial Court and after his

plea at Exh.7 was recorded, the complainant produced oral and

documentary evidence on record. After the closing pursis was

filed by the complainant, the further statement of the accused

under Section 313 of the Code of Criminal Procedure was

recorded, wherein the accused stated that the facts in

examination in chief and in the complaint are false and a false

complaint has been filed. The accused refused to step into the

witness box and did not lead any oral or documentary evidence

in his defence and after the arguments of the learned advocates

for both the parties were heard, by the impugned judgment and

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order, the learned Trial Court acquitted the accused from the

offence under Section 138 of the Act.

3. Being aggrieved and dissatisfied with the same, the

appellant - original complainant has preferred the present

appeal mainly stating that the learned Trial Court has not

properly interpreted the evidence and has misread the

evidence and the impugned judgment and order is perverse,

erroneous and contrary to law.

4. Heard learned Advocate Mr.Vishal Anandjiwala

appearing for the appellant, learned APP Ms.C.M.Shah for the

respondent - State and learned advocate Mr. Dilipkumar Patel

for the respondent no.2. Perused the impugned judgment and

order of acquittal and the entire evidence on record of the case.

5. Learned Advocate Mr.Vishal Anandjiwala for the

appellant has taken this Court through the entire evidence

produced by the prosecution and has vehemently argued that

the learned Trial Court has not appreciated the evidence

properly qua witness Rajkumar Rathod, Senior Manager, Indian

Overseas Bank, Anand, who is examined at Exh.22 and the

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documents at Exh.23 and 24, which are relevant and the same

has not been considered by the learned Trial Court. Learned

advocate further submits that though the complainant has

successfully proved his case by producing cogent evidence, the

learned Trial Court has not considered the same and has

acquitted the accused. The judgment and order of acquittal

passed by the learned Trial Court is contrary to law, evidence

on record is perverse and illegal. Learned advocate has urged

this Court to quash and set aside the impugned judgment and

order of acquittal and find the respondent no.2 guilty for the

offence.

6. Learned APP Ms.C.M.Shah for the respondent no. 1 -

State and learned advocate Mr.Dilipkumar H. Patel for the

respondent no. 2 have jointly 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 judgement and order of acquittal passed by the

learned Trial Court and have urged this Court to reject the

appeal.

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7. It is settled law that the learned Trial court has to

consider all the oral and documentary evidences produced by

both the parties, and after proper appreciation, has to come to a

conclusion whether the issues that are determined have been

proved or not. On perusal of the impugned judgment and order

passed by the learned Trial Court, in Para 3, the learned Trial

Court has framed the following issues and has answered the

same in Para-4, as under:

Sr. Issues framed by the Ld. Trial Court in Para-3 Answer of the No. issues in Para-3 1 Whether complainant prove that the accused has issued Affirmative the cheque no.057757 of Rs.6,00,000/- of "Indian Overseas Bank", Anand Branch, dated 03.04.2021, for a loan by complainant. ?

2 Whether the complainant proved that, the same cheque Affirmative is dishonoured by accused's banker for reason "Fund Insufficient" in accused's account.? 3 Whether complainant proved that, his complaint is Affirmative within time lime and tenable as prescribed by N.I.Act and tenable as per law?

4 Whether coimplainant proved that, accused has Affirmative committed the offense punishable u/s. 138 N.I.Act ? 5 Whether complainant proved that the accused is liable Partly to be punished as claimed by complainant ? Affirmative 6 What order ? As per the final order

8. In the impugned judgment and order, the learned

Trial Court has reproduced the provisions of Sections 118, 138

and 139 the N.I.Act and has described the provisions of law and

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has concluded that if the accused admits the signature on the

cheque, the Court has to draw a presumption under sections 118

and 139 of the N.I.Act in favour of the complainant and it is

obligatory on the Court to draw the presumption in favour of the

complainant and the accused is required to rebut the

presumption.

9. If the evidence on record is perused, the

complainant has stepped into the witness box and has deposed

an oath at Exh.5 and has examined witness Rajkumar Rathod,

Senior Manager of Indian Overseas Bank, Anand Branch at

Exh.22. The complainant has produced 6 documentary

evidences at Exh.10 to Exh.15 and witness no.2 Rajkumar

Rathod has produced 02 documentary evidences at Exh.23 and

Exh.24. The document at Exh.23 is the account opening from

and all the documents submitted by the accused for opening the

account and the document at Exh.24 is the extract of the Cheque

Book Issue Register from Indian Overseas Bank, Anand Branch.

Even though, the complainant has examined the Senior

Manager, Indian Overseas Bank, Anand Branch, the learned

Trial court in Para-6.3(3) has stated as under:

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"(3) Toward full and part payment of legaldebt and liability, and the complainant himself is admitting that the first and second condition is not fulfilled by cheque drawn to him by accused. So, as the complainant has not examine any banker in his favour showing that the accused maintained his account in "Indian Overseas Bank" and second the accused has signed the cheque this cheque does not attract Sec.138 of N.I.Act and he cannot be liable for its encashment. Of course, the complainant may recourse the remedy by way of filing complain under I.P.C. so, as the complailnant has failed to bring on record the issue no. 1 to 5 in his favour....."

10. It appears that the learned Trial Court has answered

the issues. Issue nos. 1 to 4 in the affirmative and issue no. 5

partly in the affirmative, and even though, the banker was

examined, has observed that the banker is not examiend and

the evidence of the Senior Manager of Indian Overseas Bank,

Anand Branch has not been considered. In view of the above, as

the evidence has not been properly appreciated, there appears

to be an infirmity and illegality in the impugned judgment and

order of acquittal and this Court is of the considered opinion that

the findings recorded by the learned Trial Court are not just and

proper and the matter must be remanded back to the learned

Trial Court for the limited purpose of hearing the arguments and