[Cites 12, Cited by 0]
Gujarat High Court
Pravin Amarsinh Lodha vs State Of Gujarat on 8 April, 2026
NEUTRAL CITATION
R/CR.RA/405/2009 JUDGMENT DATED: 08/04/2026
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 405 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
==========================================================
Approved for Reporting Yes No
==========================================================
PRAVIN AMARSINH LODHA
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR PRAVIN GONDALIYA(1974) for the Applicant(s) No. 1
MR HARNISH M PATEL(9978) for the Respondent(s) No. 2
MR HEMIL S DAVE(9960) for the Respondent(s) No. 2
MD MONALI BHATT, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 08/04/2026
JUDGMENT
1. At the outset, it is worth mentioning that, considering the
concurrent findings and as this Court is not inclined to interfere
with the same, an opportunity was given to the applicant as to
whether he was willing to settle the dispute. However, the
learned advocate for the applicant, having no instructions or
contact with the applicant in this regard, produced a
communication on record stating "no instructions from his
client." Since the parties were not ready and willing to settle the
dispute, the Court has decided the matter on merits.
2. By way of present revision application under Section 397
read with Section 401 of the Code of Criminal Procedure, 1973
(for short "CrPC"), the applicant has prayed for quashing and
setting aside of the judgment and order dated 23.06.2009
rendered by learned Additional Sessions Judge, Ahmedabad in
Criminal Appeal No.88/2009 and also the judgment and order
dated 30.03.2009 recorded by the learned Metropolitan
NEUTRAL CITATION
R/CR.RA/405/2009 JUDGMENT DATED: 08/04/2026
undefined
Magistrate, Ahmedabad, in Criminal Case No.1078 of 2008.
3. Heard learned advocates for the respective parties.
4. It is the case of the applicant that The respondent No.2-
original complainant, namely Sanjiv Shah, being the Managing
Director and authorized representative of Shah Investors Home
Ltd., filed a complaint under Section 138 of the Negotiable
Instruments Act before the learned Metropolitan Magistrate,
Ahmedabad, on 29.06.2007, alleging that accused No.1,
Amarsinh Lodha, and accused No.2, Pravin Amarsinh Lodha,
had commercial transactions with the complainant company in
connection with investment in shares and share broking,
pursuant to which an amount of Rs.5,25,000/- remained
outstanding. It was alleged that accused No.2, being the son of
accused No.1, issued three cheques in favour of the
complainant, one drawn on Indian Overseas Bank, Gita Mandir
Road Branch, Ahmedabad, and two drawn on State Bank of
Patiala, Bhavna Society Branch, Ahmedabad, aggregating to
Rs.5,25,000/-, towards discharge of the liability of accused No.1.
The complainant deposited the said cheques with HDFC Bank,
Paldi Branch, Ahmedabad, on 30.07.2007 for clearance,
however, all the cheques came to be dishonoured due to
insufficiency of funds in the account of accused No.2.
Consequently, Criminal Case No.2078 of 2008 came to be filed
against the accused before the learned Metropolitan Magistrate,
Ahmedabad. The learned Metropolitan Magistrate, Ahmedabad,
by judgment and order dated 30.03.2009, convicted the accused
under Section 138 of the Negotiable Instruments Act and
NEUTRAL CITATION
R/CR.RA/405/2009 JUDGMENT DATED: 08/04/2026
undefined
sentenced him to undergo simple imprisonment for one year and
to pay a fine of Rs.5,000/-, and in default of payment of fine, to
undergo further simple imprisonment for four months. Hence,
the present application.
5. Learned advocate for the applicant submitted that the
learned Courts below committed an error in convicting the
present applicant, as the complainant failed to prove the
existence of any legally enforceable debt. It was submitted that
the cheques were given as security for running the office and
obtaining a franchise from the complainant, and that no
transaction had taken place between the accused and the
complainant. The cheques were issued as security and not
towards discharge of any liability or debt. It was, therefore,
submitted that the learned trial Court committed an error in
convicting the accused and hence, the present revision
application deserves to be allowed.
6. Learned advocate for respondent No. 2 - complainant and
learned APP appearing for respondent No. 1 - State have
opposed the present application mainly on the ground that there
are concurrent findings of fact recorded by the Courts below
and, in any case, the applicant - accused has failed to rebut the
statutory presumption available under Sections 118 and 139 of
the Negotiable Instruments Act, 1881. It is submitted that
reappreciation of evidence and facts is not permissible in the
present proceedings. It is further submitted that the applicant
has failed to rebut the statutory presumption regarding
consideration and legally enforceable debt. It is further
NEUTRAL CITATION
R/CR.RA/405/2009 JUDGMENT DATED: 08/04/2026
undefined
submitted that the learned Sessions Judge has properly dealt
with all these submissions and, therefore, no case is made out
for interference. Therefore, the present application deserves to be
dismissed.
7. Having heard the learned advocates appearing for the
respective parties and having perused the record as well as the
reasons assigned by the Courts below, it appears that the
dispute pertains to the dishonour of a cheque issued by the
present applicant. The issuance of the cheques as well as the
signature thereon are not in dispute. The impugned cheques
were drawn in favour of the complainant, Shah Investors Home
Ltd., pertaining to Account No.3705, which belonged to the
father of the present applicant.
8. Though the learned advocate for the applicant argued that
there was no transaction and no dues were payable and that the
cheques were issued only by way of security, the applicant has
failed to rebut the statutory presumption. Section 138 of the
Negotiable Instruments Act uses the expression "legally
enforceable debt or other liability", which includes liabilities that
are otherwise legally recoverable. In the present case, the
issuance and drawing of the cheques are not in dispute and the
accused failed to rebut the presumption under Section 139 of
the Negotiable Instruments Act. The accused also failed to
establish that the cheques were issued merely as security for
obtaining a franchise of Shah Investors Home Ltd.
9. It appears that the evidence on record, including the
NEUTRAL CITATION
R/CR.RA/405/2009 JUDGMENT DATED: 08/04/2026
undefined
statement of account produced by the complainant, clearly
reveals that the father of the accused owed an amount of
Rs.7,77,000/-. In order to discharge part of the said liability, the
applicant-accused, being the son, issued the cheques in
question. Therefore, the cheque amounts represented a legally
enforceable debt or other liability. Prior to issuance of the
cheques, notice was duly served upon the accused, however, no
reply was given and no probable defence was raised. In view of
Section 118 of the Negotiable Instruments Act, a presumption
can be drawn that the cheques were issued for consideration
and towards discharge of a liability, either in whole or in part.
10. In view of the above, it clearly appears that the cheques
were dishonoured due to insufficiency of funds. It has also been
proved on record that accused No.2, namely the present
applicant, issued one cheque for an amount of Rs.1,50,000/-
dated 03.05.2007, another cheque for an amount of
Rs.1,75,000/- dated 27.06.2007 and a third cheque for an
amount of Rs.2,00,000/- dated 27.06.2007, in order to
discharge the liability. The complainant has duly proved its case
and the learned trial Judge has properly appreciated the
evidence on record. The learned Appellate Court has also
properly examined the evidence. Therefore, no interference is
called for.
11. So far as the defence of the accused is concerned, merely
contending that the cheques were issued by way of security is
not sufficient to rebut the presumption under Section 139 of the
NEUTRAL CITATION
R/CR.RA/405/2009 JUDGMENT DATED: 08/04/2026
undefined
Negotiable Instruments Act. Once the signature on the cheques
is admitted, a presumption arises that the cheques were issued
towards discharge of a legally enforceable debt or liability. The
holder of the cheques is also authorized to fill in the contents of
the cheques. In this regard, reference may be made to the
decisions of the Hon'ble Supreme Court in Tedhi Singh v.
Narayan Dass Mahant and Kalamani Tex v. P.
Balasubramanian, reported in (2021) 5 SCC 283 wherein the
effect of admission of signature on the cheques has been
explained. It has been held that once the signature is admitted,
it is to be presumed that the cheques were issued towards
consideration for a legally enforceable debt. Further, the legal
position regarding raising and rebutting the presumption under
Section 139 of the Negotiable Instruments Act has been clearly
explained by the Hon'ble Supreme Court in Rajesh Jain v. Ajay
Singh reported in (2023) 10 SCC 148.
12. Considering the aforesaid facts and the presumption under
Section 118 of the Negotiable Instruments Act, even if it is
accepted for the sake of argument that the cheque was issued by
way of security, the same cannot be treated as a mere piece of
paper. A cheque is a valuable security and Sections 20 and 87 of
the Negotiable Instruments Act empower the holder to complete
an inchoate instrument. Further, once the signature is accepted,
it cannot be said that merely because the cheque was issued
towards security, no liability arises. Once a blank signed cheque
is voluntarily handed over, the holder of the cheque is authorized
to fill up the contents and details thereof.
NEUTRAL CITATION
R/CR.RA/405/2009 JUDGMENT DATED: 08/04/2026
undefined
13. Even if the cheque was issued by way of security for future
payment, the same would still be governed by proceedings under
Section 138 of the Negotiable Instruments Act. In this regard,
reference is required to be made to Balbadrasinh Indrajitsinh v.
Sambhu Concrete Pvt. Ltd., 2005 JLH 685. As the accused
has failed to rebut the statutory presumption, the learned trial
Judge as well as the learned Sessions Judge have properly
appreciated the evidence on record.
14. It appears that both the Courts below have properly
exercised their jurisdiction. The cheque was presented before the
bank and the same came to be dishonoured with the
endorsement "funds insufficient". Within the prescribed period, a
notice of demand was issued, which was not replied to by the
accused, and thereafter the complaint came to be filed within the
period of limitation.
15. The revisional jurisdiction can be exercised where there is
a palpable error or non-compliance with the provision of law and
where the decision is completely erroneous or where judicial
discretion is exercised arbitrarily. Herein, if the reasons assigned
by the learned trial Court are examined, it appears that the
learned trial Court has already appreciated the facts and
findings of fact are not to be upset unless they are found to be
perverse. Findings of fact are not to be substituted keeping in
mind the ratio of the Hon'ble Supreme Court in the case of Amit
Kapoor vs. Ramesh Chander & Anr. reported in (2012) 9 SCC
NEUTRAL CITATION
R/CR.RA/405/2009 JUDGMENT DATED: 08/04/2026
undefined
460. As no perversity is found in the reasons assigned by the
learned trial Court and as the learned trial Court has properly
assigned reasons and recorded findings based on the evidence
led before it, no interference at the hands of this Court in
exercise of revisional jurisdiction is required.
16. It would be appropriate to refer to the decision of the
Hon'ble Supreme Court in the case of Malkeet Singh Gill vs.
State of Chhatisgarh reported in (2022) 8 SCC 204 wherein
the Hon'ble Supreme Court held that Section 397/401 CrPC
vests jurisdiction for the purpose of satisfying itself as to the
correctness, legality or propriety of any finding, sentence or order
recorded or passed, and as to the regularity of any proceedings
of such inferior Court. The object of the provision is to set right a
patent defect or an error of jurisdiction or law. There has to be a
well-founded error which is to be determined on the merits of the
individual case. It is also well settled that while considering the
same, the Revisional Court does not dwell at length upon the
facts and evidence of the case so as to reverse those findings. It
is a settled legal proposition that if the Courts below have
recorded findings of fact, the question of reappreciation of
evidence by the Revisional Court does not arise unless such
findings are found to be totally perverse.
17. It is needless to say that the offence under Section 138 of
the Negotiable Instruments Act is quasi-criminal in character
and is also compoundable. The punishment under the
Negotiable Instruments Act is not a means of seeking retribution
NEUTRAL CITATION
R/CR.RA/405/2009 JUDGMENT DATED: 08/04/2026
undefined
but is rather intended to ensure payment of money and to
promote the credibility of cheques as a trustworthy substitute for
cash payment.
18. In wake of aforesaid conspectus, present revision
application fails and stands dismissed. Rule is hereby
discharged. Interim relief granted earlier stands vacated
forthwith. The applicant - accused to forthwith surrender before
the learned trial Court to serve the remaining sentence, if any.
(HASMUKH D. SUTHAR,J)
ALI
