[Cites 12, Cited by 0]
Gujarat High Court
Pitambardas Ramchand Vatvani vs State Of Gujarat on 13 April, 2026
NEUTRAL CITATION
R/CR.RA/1742/2019 JUDGMENT DATED: 13/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION -
NEGOTIABLE INSTRUMENT ACT) NO. 1742 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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PITAMBARDAS RAMCHAND VATVANI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MR PV PATADIYA(5924) for the Applicant(s) No. 1
MS. KRUTI M SHAH(2428) for the Respondent(s) No. 2
MR ROHAN H. RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 13/04/2026
JUDGMENT
1) Today, when the matter is called out, the learned Advocate for
the applicant remained absent. Even on the earlier dates fixed in
the matter, none had remained present on behalf of the
applicant. Therefore, it clearly appears that the applicant is not
interested in prosecuting the present matter. Hence, in view of
the judgment of the Hon'ble Supreme Court in the case of Taj
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R/CR.RA/1742/2019 JUDGMENT DATED: 13/04/2026
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Mohammad Vs. State of Uttar Pradesh, in Criminal Appeal
No.2421 of 2023, decided on 11.08.2023, this Court has
considered the averments made in the present revision
application as well as the material placed on record and has
proceeded to decide the matter in absence of the applicant
based on available material on record.
2) By way of present revision application under Sections 397 read
with 401 of the Code of Criminal Procedure, 1973, the applicant
has prayed for quashing and setting aside the judgment and
order of conviction and sentence dated 07.12.2015 passed by
the learned Additional Chief Metropolitan Magistrate, NI Act
Court No.28, Ahmedabad, in Criminal Case No.87 of 2012,
whereby, the trial Court has been pleased to hold the applicant
guilty for the offence punishable under Section 138 of the
Negotiable Instruments Act (which shall hereinafter be referred
to as "NI Act" for short) and sentenced to undergo simple
imprisonment for one year along with fine of Rs.5,000/- failing
which to undergo further two months simple imprisonment. The
said order was assailed by way of filing Criminal Appeal No.508
of 2015, wherein, vide order dated 06.12.2019 passed by the
learned Additional Sessions Judge, City Civil & Sessions Court,
Ahmedabad, the appeal came to be dismissed and the order of
conviction and sentence has been confirmed. Hence, the present
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Revision Application is filed by the applicant-accused.
3) Brief facts of the case is that, the applicant is a partner of the
Partnership Firm namely New Bharat Sugar Candy and
respondent no.2 is a sole proprietor of K. K. Corporation, they
both are carrying their business from the same commercial
building and thereby both are known to each other. The
applicant was in need of some money for his business so he
initially demanded Rs.1 lakh from the complainant on
02.04.2011 and thereafter further demanded Rs.3 lakhs and
therefore the complainant gave Rs.1 lakh on 02.04.2011 and
Rs.3 lakhs on 07.04.2011 to the applicant - accused who
assured to return the said amount. Thereafter, as the said
amount was not repaid by the applicant and upon demanding
money back by the complainant, the applicant had given a
cheque of Rs.3,00,000/- bearing No.0789512 of Kalupur Co-
operative Society Bank, dated 28.12.2011 to the complainant
with an assurance that it would be honored. Thereafter, the
complainant deposited the said cheque in his bank and on
29.12.2011, the said cheque was dishonoured with an
endorsement of "stop payment". The complainant therefore,
served the applicant - accused with notice through his advocate
dated 02.01.2012. The notice was served upon the applicant,
however, the applicant did not repay the amount. Therefore, a
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complaint came to be registered under section 138 of the NI Act
before learned JMFC Court, in which the applicant was convicted.
The said conviction was challenged before the learned Additional
Sessions Court, City Civil & Sessions Court, Ahmedabad, by filing
Criminal Appeal No.508 of 2015, which came to be dismissed
vide order dated 06.12.2019.
4) Learned Advocate for the applicant has submitted that both the
courts below have erred in not considering the fact that the
impugned cheque has been given as security towards the
amount which has been taken on loan by the applicant and
thereafter the said cheque is misused by the respondent no.2.
He has further submitted that the Courts below erred in not
considering that the complainant had not proved the legal debt
beyond the reasonable doubt as the cheque was not given
against the discharge of any legal debt. He has further submitted
that the Courts below ought to have considered the fact that on
29.12.2011 the applicant was having sufficient balance in his
bank account but since there is a dispute qua the amount
between the applicant and complainant, the applicant by giving
the specific instruction to the bank had asked to stop the
clearance of any cheque on being representation by the
respondent no.2. Therefore, he has prayed to allow present
revision application.
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5) Learned Advocate for the complainant as well as learned APP for
the respondent State have jointly opposed the present
application and submitted that, the learned Courts below have
not committed any error in recording the conviction of the
applicant. After appreciating the material produced on record,
learned Courts below have passed the impugned orders, which
are just, legal and proper. Hence, they prayed to dismiss the
present revision application.
6) Having heard learned Advocates for the respective parties and
perusing the material placed on record, it appears that the
applicant in order to prove the complaint, the complainant has
examined himself at Exhibit 5, wherein, as per account entry at
Exhibit 12, amount of Rs.3,72,250/- is outstanding against the
accused. The promissory notes at Exhibits 9 and 10 issued by KK
Corporation mentioning amount of Rs.1,00,000/- and
Rs.3,00,000/-. The documentary evidence reveals that the
accused has admitted his signature on the cheque at Exhibit 13,
being a partner of New Bharat Sugar Candy. It is also not in
dispute that the cheque was returned due to payment stopped
by drawer. Hence, statutory presumption under Section 139 of
the NI Act is required to be drawn. It further reveals that no
reply to the statutory notice has been given by the accused. The
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accused failed to rebut the said evidence based on
preponderance of probabilities. Hence, in view of the law laid
down by the Hon'ble Apex Court in the case of Tedhi Singh v.
Narayan Dass Mahant reported in (2022) 6 SCC 735 and
Kalamani Tex v. P. Balasubramanian, reported in (2021) 5
SCC 283, the effect of admission regarding the signature on the
cheque is explained. Once the signature is admitted, it is
required to be presumed that the cheque was issued towards
consideration for a legally enforceable debt. Further once,
signature is accepted then cheque was issued towards the
security and it was signed. As per explanation of legal position
on how to rebut the presumption under Section 139 of the NI
Act and to raise the presumption under Section 139 of the NI
Act, the Hon'ble Apex court has clearly explained in the case of
Rajesh Jain v. Ajay Singh reported in (2023) 10 SCC 148.
Considering the aforesaid fact, presumption under Section 118 of
the NI Act. It appears that both the Courts have properly
exercised the jurisdiction as the cheque was presented before
the Bank and same came to be dishonored with endorsement
"payment stopped by drawer". Within the prescribed time limit,
the notice of demand was issued which was not replied to by the
accused pursuant to which the complaint was filed within
limitation period.
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7) Furthermore, the Appellate Court has also reappreciated the
evidence and came to the conclusion that the learned trial Court
has not committed any error and considered the admission of
the signature and issuance of cheque are proved on the part of
the accused and the accused failed to rebut the presumption
under Section 118 and 139 of the NI Act.
8) Moreover, the revisional jurisdiction can be exercised where
there is a palpable error or non-compliance with the provision of
law and where decision is completely erroneous and where the
judicial discretion is exercised arbitrarily. Herein, if we examine
the reasons assigned by the learned trial Court, it appears that
learned trial Court has already appreciated the facts and finding
of fact not to be upset unless it is found perverse and finding of
fact not to be substituted keeping in mind the ratio of Hon'ble
Supreme Court in the case of Amit Kapoor vs. Ramesh
Chander & Anr. reported in (2012)9 SCC 460 as no perversity
is found in the reasons assigned by the learned trial Court.
Learned trial Court has properly assigned reasons and given the
finding based on evidence led before him and hence also, no
interference at the hands of this Court in exercise of revisional
jurisdiction is required.
9) It would be appropriate to refer to the decision of the Hon'ble
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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 or himself 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 of law.
There has to be well-founded error which is to be determined on
the merits of 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 to reverse those
findings. It is a settled legal proposition that if the Courts below
have recorded the finding of fact, the question of re-appreciation
of evidence by the Court does not arise unless it is found to be
totally perverse.
10) It is needless to say that the offence under Section 138 of the NI
Act is quasi criminal in character and is also compoundable one
and the punishment under the NI Act is not a means of seeking
retribution but is a more means to ensure payment of money
and to promote credibility of cheques as a trustworthy substitute
for cash payment. In view of above, considering the
longstanding dispute since the year 2011 and since the present
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application is filed in the year 2019, this Court in order to
provide one opportunity, put it to the learned advocate for the
applicant - accused to inquire from the applicant if he wants to
settle the dispute by making payment of outstanding amount to
the respondent No.2 - complainant, but till date he has not
replied or shown any willingness of the applicant - accused.
11) 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.
12) If the applicant fails to surrender then the learned trial Court
shall issue a warrant against the applicant.
13) The Registry is directed to release the amount, if any, lying with
it, in favour of the complainant / legal heirs of the complainant
after proper verification.
(HASMUKH D. SUTHAR,J)
ANKIT JANSARI
