[Cites 15, Cited by 0]
Gujarat High Court
Atulkumar B. Joshi vs State Of Gujarat on 15 April, 2026
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R/CR.RA/205/2008 JUDGMENT DATED: 15/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 205 of 2008
With
CRIMINAL MISC.APPLICATION NO. 1 of 2008
In R/CRIMINAL REVISION APPLICATION NO. 205 of 2008
With
CRIMINAL MISC.APPLICATION (FOR DIRECTION) NO. 1 of
2017
In R/CRIMINAL REVISION APPLICATION NO. 205 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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ATULKUMAR B. JOSHI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
BAILABLE WARRANT SERVED for the Applicant(s) No. 1
MR VASANTS SHAH(810) for the Applicant(s) No. 1
MR AMIT C NANAVATI(1384) 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 : 15/04/2026
JUDGMENT
1) 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 05.11.2007 passed by
the learned Judicial Magistrate First Class, Unjha, in Criminal
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Case No.968 of 2004, 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 of one year along with fine of
Rs.5,000/- failing which to undergo further three months simple
imprisonment and also directed to pay Rs.5,67,500/- as
compensation to the complainant. The said order was assailed by
way of filing Criminal Appeal No.96 of 2007, wherein, vide order
dated 07.03.2008 passed by the learned Sessions Judge,
Mehsana at Visnagar, the appeal came to be dismissed and the
order of conviction and sentence has been confirmed. Hence, the
present Revision Application is filed by the applicant-accused.
2) Brief facts of the case is that, the complainant is residing at
village Kahoda, Taluka Unjha and is an agriculturist and also
doing business, whereas the applicant is serving in Nova
Company. The applicant used to come often to the shop of the
complainant and in July, 2004, the applicant informed the
complainant that he is required to pay Rs.6 lacs to one person
within two days, but he does not have money. Therefore, the
complainant gave Rs.5,67,500/- to the applicant, who assured to
return the said amount within a month. Thereafter, as the said
amount was not repaid by the applicant and upon demanding
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money back by the complainant, the applicant had given a
cheque of Rs.5,67,500/- to the complainant with an assurance
that it would be honored. Thereafter, the complainant deposited
the said cheque in his bank on 20.10.2004. and on 29.10.2004,
the said cheque was dishonoured for want of sufficient funds.
The complainant therefore, served the petitioner - accused with
notice through his advocate dated 03.11.2004 by Registered
A.D. post and by U.P.C. The notice was served upon the
petitioner, however, the applicant did not repay the amount. A
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 Sessions
Court, Mahesana, by filing Criminal Appeal No.96/2007, which
came to be dismissed vide order dated 07.03.2008.
3) Learned Advocate for the applicant has submitted that both the
courts below have erred in not considering the fact that the
complainant has come with a case as per the complaint that he
gave Rs.5,67,500/- from the house whereas, in the deposition
he has stated on oath that he withdrew the said amount from
the Bank. This major contradiction in the oral as well as in the
written complaint goes to the root of the case and raises serious
doubt about the veracity of the complaint. Further, learned
courts below have also erred in not considering the fact that
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there is not an iota of evidence on the record to show, suggest
or establish that the complainant was having with him such a
large amount of Rs.5,67,500/- at his residence at the relevant
time nor there is any evidence to show that he withdrew the said
amount from the Bank. In such circumstances, both the courts
below ought to have believed the defence of the accused that
the cheque signed by the applicant has been misused by the
complainant; that learned courts below have also erred in not
considering the fact that looking to the financial position of the
complainant, it was not possible that he would keep such large
amount of Rs.5,67,500/- at his residence without any convincing
reason; that the lower appellate Court has also grossly erred in
not considering the fact that the impugned order passed by the
learned Judicial Magistrate, First Class, Unjha is basically
erroneous and ab initio illegal because, it is ordered by the
learned Magistrate that the accused shall undergo a sentence of
one year Simple imprisonment and fine of Rs.5,000/- in default
Simple Imprisonment for 3 months more but furthermore he has
directed that the petitioner shall pay a compensation of
Rs.5,67,500/- to the complainant u/s 357 of Cr.P.C. This part of
the order is illegal because, the learned Magistrate has not
properly construed Section 357 at all. Compensation u/s 357 can
be passed only out of the amount of fine and order of separate
compensation independent of the amount of the fine can be
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passed and to that extent the order passed by the learned
Magistrate is ab initio void and illegal and it cannot be sustained
at all. Therefore, he has prayed to allow present revision
application.
4) Learned counsel 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.
5) Having heard learned counsel for the respective parties and
perusing the material placed on record, it appears that the
applicant borrowed Rs.5,67,500/- from the respondent no.2 -
complainant and assured to return the same before the end of
August. Thereafter, the complainant demanded the money but
the accused failed to return and issued Cheque bearing
No.387617 dated 15.09.2004 for an amount of Rs.5,67,500/-
duly signed by the applicant however, when the cheque was
presented before the bank it got dishonored with an
endorsement of "funds insufficient". In this regard, the
complaint was filed. In order to prove the said complaint, the
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complainant has examined himself at Exhibit 11, wherein, he has
identified the cheque at Exhibit 16 which was issued by the
accused. The documentary evidence reveals that the accused
has admitted his signature on the cheque at Exhibit 16 and even
the accused has not disputed the issuance of cheque on
15.09.2004. It is also not in dispute that the cheque was
returned due to insufficiency of funds. Hence, statutory
presumption under Section 139 of the NI Act is required to be
drawn. It further reveals from the examination in chief of the
complainant at Exhibit 11 that the accused gave evasive reply to
the statutory notice issued by the complainant but record reveals
that the accused failed to rebut the said evidence based on
preponderance of probabilities and the said aspect is also
considered by the learned trial Court and in para 10 of the said
judgment it clearly dealt with whatever defence taken by the
accused. The cheque was issued only to recover amount of
Rs.17,000/- is not believed and cheque was misused and
defence raised in the reply of notice is not proved and the same
is not found to be believable. 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
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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
"funds insufficient". Within the prescribed time limit, the notice
of demand was issued which was replied to by the accused but
failed to prove his defence based on preponderance of
probabilities.
6) Nothing is coming out from the length cross-examination of the
complainant which can be helpful to the accused. 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
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and 139 of the NI Act.
7) Furthermore, 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.
8) 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 or himself as to
the correctness, legality or propriety of any finding, sentence or
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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.
9) 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 2004 and since the present
application is filed in the year 2008, 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, to which today the learned
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Advocate Mr. Vasants Shah, for the applicant has submitted that
the applicant has settled the disputed with the complainant and
handed over Banker's Cheque bearing No.891090, dated
13.04.2026, for amount of Rs.4,00,000/- of Bank of India,
Manek Chowk Branch, Ahmedabad, in favour of the complainant,
which is handed over to learned Advocate Mr. Amit C. Nanavati,
for the respondent no.2 - original complainant and he has also
accepted the factum of settlement before this Court. The copy of
the said Banker's Cheque is taken on record.
10) At the same time this Court has taken into consideration the
object of the Act as accused made payment and complainant has
received the same, hence, in view of judgment of the Hon'ble
Supreme Court Sanjabij Tari Vs Kishore S. Borcar, Neutral
Citation 2025 INSC 1158, maintaining the conviction this Court
is inclined to extend the benefit under the Probation of Offenders
Act, 1958, to the applicant-accused.
11) Accordingly, the applicant - accused is directed to be released
on probation of good conduct under Section 4 of the Probation of
Offenders Act, upon execution of probation bond in sum of
Rs.20,000/-, with one surety of like amount for a period of one
(1) year.
12) It is hereby further directed that the applicant - accused shall
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receive the sentence as and when called upon till the said period
and the applicant shall maintain peace during above mentioned
period of one (1) year.
13) The above mentioned bond under Section 4 of the Probation of
Offenders Act, be submitted before the learned trial Court within
15 days of passing of this judgment.
14) Accordingly, present revision application is disposed of. Record
and proceedings, if any, be sent back to the concerned Court
forthwith. The Criminal Misc. Application No.1 of 2008 and
Criminal Misc. Application No.1 of 2017, also stand disposed of.
(HASMUKH D. SUTHAR,J)
ANKIT JANSARI
