[Cites 12, Cited by 0]
Gujarat High Court
Purviben P.Khajuria vs Natwarlal Harilal Chapaneri Thro' Ajay ... on 15 April, 2026
NEUTRAL CITATION
R/CR.RA/303/2009 JUDGMENT DATED: 15/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 303 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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PURVIBEN P.KHAJURIA
Versus
NATWARLAL HARILAL CHAPANERI THRO' AJAY NATWARLAL
CHAPANERI & ANR.
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Appearance:
BAILABLE WARRANT UNSERVED for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Applicant(s) No. 1
MR VASHISTHA M JOSHI(8972) for the Applicant(s) No. 1
MR DHAIRYAWAN D BHATT(11817) for the Respondent(s) No. 1
MR ROHAN H. RAVAL, APP for the Respondent(s) No. 2
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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 31.12.2003 passed by
the learned Judicial Magistrate First Class, Rajkot, in Criminal
Case No.271 of 2002, whereby, the trial Court has been pleased
to hold the applicant guilty for the offence punishable under
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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 six months along with fine
of Rs.5,000/- failing which to undergo further 15 days simple
imprisonment. The said order was assailed by way of filing
Criminal Appeal No.1 of 2004, wherein, vide order dated
12.09.2006 passed by the learned Additional Sessions Judge, 8 th
Fast Track Court, Rajkot, 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 respondent no.1- complainant
had given loan of Rs.4,50,000/- to the applicant - accused.
When the complainant demanded his amount from the accused,
the accused had issued three post dated cheques of State Bank
of India, Rajkot, to the complainant on 16.05.2021, viz., cheque
no.632147 of Rs.1,00,000/-, cheque no.632146 of Rs.1,50,000/-
and cheque no.632145 of Rs.2,00,000/-. Further, the accused
had given promise and assurance that till 31.08.2021 all these
cheques will be cleared. However, on presentation the cheques
were dishonoured with endorsement of "insufficient funds and
exceed arrangement". Thereafter, the complainant issued a
statutory notice dated 27.11.2001 to the accused, but the
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accused did not pay the amount. Therefore, 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 Additional Sessions
Judge, Rajkot, by filing Criminal Appeal No.01 of 2004, which
came to be dismissed vide order dated 12.09.2006.
3) The earlier learned Advocate for the applicant was retired and
Advocate notice was issued, however, the same remained
unserved to the applicant. Thereafter, learned Advocate from the
HCLS Committee has been appointed and the matter is taken up
for hearing.
4) Learned Advocate Mr. Vashistha M. Joshi, for the applicant has
submitted that the applicant is a lady and a senior citizen and
the applicant is falsely convicted and both the courts below have
erred in not considering the fact that the before issuance of the
notice the amount of Rs.2,80,000/- had been paid and the same
is admitted on the record and no legally enforceable debt is
proved on the record. Hence, he has requested to allow the
present revision application.
5) Learned Advocate Mr. Dhairyawan D. Bhatt, for the complainant
as well as learned APP Mr. Rohan H. Raval, for the respondent
State have jointly opposed the present application and submitted
that, the learned Courts below have not committed any error in
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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. Learned
Advocate for the complainant has further submitted that prior to
issuance of notice the amount of Rs.2,80,000/- was paid towards
another transactions and that cheque numbers and amounts
were given in the communication at Exhibit 22, in connection of
the dishonour of the said cheque notice came to be issued and
complaint was filed. He has further submitted that signature of
the accused on the cheque and issuance of the cheques are not
disputed as the accused failed to rebut the presumption. Hence,
they have requested 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 - accused availed loan of Rs.4,50,000/- from the
respondent no.1 - complainant and assured to return the same.
However, when the complainant demanded the said amount
from the accused, the accused issued three post dated cheques
of State Bank of India, Rajkot, to the complainant on
16.05.2021, viz., cheque no.632147 of Rs.1,00,000/-, cheque
no.632146 of Rs.1,50,000/- and cheque no.632145 of
Rs.2,00,000/- duly signed by the applicant, however, when the
cheques were presented before the bank it got dishonored with
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an endorsement of "insufficient funds and exceed arrangement".
In this regard, the complaint was filed. In order to prove the said
complaint, the complainant has examined four witnesses i.e.
complainant himself at Exhibit 18, Girirajsinh Chandrasinh Jadeja
at Exhibit 65, Girish Gangdas at Exhibit 68 and Ramesh
Gokuldas at Exhibit 72 and the cheques in question are produced
at Exhibit 19 to 21, return memo at Exhibit 27 to 29, statutory
notice at Exhibit 30, acknowledgement slip at Mark 32/1. After
recording the evidence, further statement of accused came to be
recorded under Section 313 of the CrPC. Though opportunity to
rebut the presumption and to examine the witness or produce
evidence was given to the accused before the learned trial Court,
the accused did not do so.
7) Further perusal of record reveals that the complaint came to be
filed pursuant to the cheques issued by the accused and if we
peruse one communication at Exhibit 22 produced by the
complainant, wherein, the applicant has made a request to
replace the cheques with new cheques bearing Nos.632144 for
Rs.2,80,000/-, 632145 for Rs.2,00,000/-, 632146 for
Rs.1,50,000/- and 632147 for Rs.1,00,000/-, and for the cheque
nos.63215, 632146 and 632147 the complaint is filed. So far the
defence of payment of Rs.2,80,000/- prior to issuance of notice
is irrelevant as no such amount is once again claimed and said
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communication is not disputed by the applicant. It is also not in
dispute that the cheques were returned due to insufficiency of
funds. Hence, statutory presumption under Section 139 of the NI
Act is required to be drawn. In reply of the notice also only
denfence is taken that without intimating and keeping the
promise cheques have been tendered before the bank and got
dishonoured except this no defence is taken. Even in the further
statement of the accused no such defence is taken. Hence,
statutory presumption under Section 139 of the NI Act is
required to be drawn. The 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. 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
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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
"insufficient funds and exceed arrangement". Within the
prescribed time limit, the notice of demand was issued pursuant
to which the complaint was filed within limitation period.
8) 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.
9) 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
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is found in the reasons assigned by the Courts below. Both the
Courts below have properly assigned reasons and given the
finding based on evidence led before him, therefore, no case is
made out to upset the concurrent findings of the learned trial
Court and Appellate Court.
10) 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
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.
11) It is needless to say that the offence under Section 138 of the NI
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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.
12) 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.
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
