[Cites 18, Cited by 0]
Gujarat High Court
Rajubhai Kalidas Chunara vs Kantibhai Kalyanjibhai Shah on 18 March, 2026
NEUTRAL CITATION
R/CR.RA/984/2016 JUDGMENT DATED: 18/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION -
NEGOTIABLE INSTRUMENT ACT) NO. 984 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
√
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RAJUBHAI KALIDAS CHUNARA
Versus
KANTIBHAI KALYANJIBHAI SHAH & ANR.
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Appearance:
MR RJ GOSWAMI(1102) for the Applicant(s) No. 1
NOTICE SERVED for the Applicant(s) No. 1
MR ANILKUMAR B LALCHETA(12088) for the Respondent(s) No. 1
MR JAINISH A LALCHETA(12079) for the Respondent(s) No. 1
MR ROHAN RAVAL, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 18/03/2026
JUDGMENT
[1.0] 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 05.10.2016 rendered by learned Additional
Sessions Judge, Vadodara in Criminal Appeal No.118/2016 and also
the judgment and order dated 02.06.2016 recorded by the learned
11th Additional Senior Civil Judge and Additional Chief Judicial
Magistrate, Vadodara in Criminal Case No.50812/2012.
[2.0] Heard learned advocate Mr. R.J. Goswami for the applicant,
learned advocate Mr. Jainish Lalcheta for the respondent No.1 and
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learned APP for respondent No.2 - State of Gujarat.
[3.0] It is the case of the applicant that the applicant was serving as
Peon whereas complainant was serving as Professor in M.S. University,
Technology Faculty and were known to each other since 1995 and to
help the applicant - accused, the complainant had given him
Rs.3,50,000/- to the applicant - accused during 2006 to 2010 as hand
loan against which the applicant had issued cheques to the
complainant. It is the case of the complainant that, on 04.04.2012,
accused contacted the complainant and stated that he has arranged
money and taking back cheques and accused has issued 2 cheques of
UCO Bank, Dandia Bazar Branch, Vadodara of dated 24.07.2012,
wherein cheque of Rs.1,50,000/- having No.736452 and of
Rs.2,00,000/- having No.736453 of dated 27.04.2012 had been given
to the complainant. That the accused has stated to deposit the
cheques after Mango season, as accused was doing business of
Mango. Afterwards complainant reminding the accused of the money
and in that reference the accused in April, 2012 had paid Rs.5,000/-
and in May, 2012 had paid Rs.7,000/- in cash. Afterwards complainant
has reminding the accused in June, 2012 at that time accused has gave
threat to suicide, therefore complainant shocked and in apprehension
has filed an application before Police Commissioner, Vadodara. After
the said application the accused has in Police statement stated that
Rs.2,20,000/- is remained to be paid and that he has paid Rs.12,000/-,
said statement is false and got up because the accused has admitted
of Rs.3,50,000/- in April, 2012 and has issued cheques to the
complainant. That afterwards the complainant has no option but to
wait for date of cheques and on the date of cheques before
27.04.2012, the accused sent message to give 10 to 15 days and gave
assurance that cheques will be honoured. That on relying upon the
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assurance and promise of the accused the said cheques have been
deposited by the complainant in his bank Dena Bank, R. V. Desai Road
Branch, Vadodara on 11.08.2012, which were dishonoured on
13.08.2012 with endorsement "Funds Insufficient". Thereafter the
complainant has issued Notice through RPAD on 22.08.2012 under
N.I.Act, which has been duly served to the accused on 23.08.2012. But
accused did not give any reply and there is legal debt and accused has
committed offence under Section 138 of NI Act. Therefore, the
complainant was constrained to file the complaint against the
accused.
[3.1] The learned Magistrate convicted the present applicant for the
offence under Section 138 of the NI Act and imposed punishment of
three months' simple imprisonment upon the applicant and ordered
the applicant to pay compensation of Rs.3,38,000/- and in default of
payment of compensation, further simple imprisonment for one
month was imposed. Being aggrieved and dissatisfied, the applicant
preferred an appeal being Criminal Appeal No.118/2016 under Section
374 of the CrPC which was dismissed by the learned Additional
Sessions Judge, Vadodara vide judgment and order dated dated
05.10.2016 upholding the judgment and order passed by the learned
Magistrate. Hence, present applicant has filed the present revision
application.
[4.0] Learned advocate Mr. R.J. Goswami appearing for the applicant
has submitted that the respondent is a public servant who failed to
inform to his superior to show any nature of transaction qua loan or
expenditure and no income tax return or any document is produced on
the record. The question does not arise to lend Rs.3.5 lakh. The notice
(Exh.19) was issued by the complainant however, is not served to the
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applicant - accused and RPAD (Exh.21) does not contain the signature
of applicant. He has further submitted that though the defence was
raised before the learned appellate Court, same has not been
considered. He has also argued that the legal liability is also not
proved. He has further submitted that blank cheques were issued
towards security which were misused by the complainant. He has
further argued that though the complainant himself in the complaint
has admitted that though in April and May, 2012, Rs.5000/- and
Rs.7000/- respectively were paid by the applicant to the complainant
and is an admitted fact, both the Courts below have committed an
error in convicting the applicant - accused since no any endorsement
has been put qua the said part-payment. He has submitted that if the
said amount of Rs.12,000/- (Rs.5000 + Rs.7000) is deducted, then the
legally enforceable debt is not proved and the applicant is entitled to
take statutory defence and benefit under Section 56 of the NI Act. He
has also submitted that offence under Section 138 of the NI Act is not
made out when the part payment is made. He has therefore,
submitted that the present revision application be allowed.
[5.0] Learned advocate Mr. Jainish Lalcheta appearing for the
respondent No.1 - original complainant and learned APP appearing
for respondent No.2 - State have opposed the present revision
application mainly on the ground that there are concurrent findings of
fact and even otherwise the applicant - accused failed to rebut the
statutory presumption. It is submitted that the applicant - accused
availed hand loan and issued cheques towards repayment of hand loan
amount which came to be dishonored due to insufficiency of funds
pursuant to which statutory notice was issued and served upon the
applicant however, no reply to the notice was given by the accused
and considering the aforesaid fact, it is requested that revision
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application be dismissed.
[6.0] Having heard learned advocates appearing for respective
parties and perusing the record, it appears that the cheques in
question are produced at Exh.16, return memo is produced at Exh.18,
demand notice is produced at Exh.19, post acknowledgement slip is
produced at Exh.20, closis purshis is produced at Exh.43 and further
statement of accused under Section 313 of the CrPC was recorded
wherein the applicant - accused pleaded not guilty. The applicant
accused in his further statement has stated that the transaction took
place in the year 1998 and in the cross-examination (Exh.9), the
suggestion was put to the complainant that before filing the
complaint, the accused had repaid the amount. Further, the statement
of the accused shows that he had no knowledge as to in which year
the cheques were issued and how many cheques were issued to the
complainant and cheques of which bank were returned by the
complainant to the applicant - accused. Further, he has also denied
the receiving of notice and handover of the cheques. He has also
submitted that he was doing the job with the complainant and he
came in contact of the complainant and there was a relation of taking
hand loan and he used to take hand loan since 1998 and at that time,
complainant did not demand any interest but when accused has paid
more amount then the complainant demanded 20% interest. Further,
he has stated that complainant has misused the cheque and filed false
complaint and he does not know as to how many cheques and of
which bank cheques the complainant has returned to him. Perusing
the said defence, prima facie, it appears that there was transaction of
money between the complainant and accused. So far as issuance of
statutory notice is concerned, if the notice is issued on the proper
address, as mentioned in the notice, then the same is governed by
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presumption under Section 27 of the General Clauses Act. In criminal
case, criminal appeal and criminal revision application also, same
address of the applicant - accused is mentioned and hence, is
governed by presumption under Section 27 of the General Clauses
Act. Learned trial Court has also dealt with the said contention in light
of decision of Hon'ble Supreme Court in the case of C.C. Alavi Haji vs.
Palapetty Muhammed & Anr. reported in 2007(2) GLH 512. Herein,
mere denial is on record but failed to prove the fact that the notice
was not served. Even if for the sake of argument it is accepted that
notice was not received, but he has not disputed about the service of
summons and after service of summons before the learned trial Court,
failed to make good or deposit the amount of cheque or raised such
defence and in light of section 138(b)(c) of the NI Act, failed to show
the benefit. In view of above, argument canvassed by the learned
advocate for the applicant - accused for non-service of notice is not
accepted.
[6.1] Herein, admission of signature on the cheque is proved and is
not in dispute and hence, is governed by presumption under Section
118 and 139 of the NI Act and is required to be rebutted by the
accused by leading evidence for which it is always not necessary to
prove by leading the evidence but is based on preponderance of
probabilities also. 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, wherein 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 cheques were issued
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towards the security and it were 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.
[6.2] Herein, the cheques are returned due to insufficiency of funds
for which legal notice was issued and thereafter the complaint is filed
and cause of action and filing of complaint is not in dispute. The only
dispute raised in light of section 56 of the NI Act is that no any
endorsement being made though part-payment of Rs.12,000/- was
made. Perusing the evidence, it appears that the complainant has
denied the said fact and it appears that more than one transaction was
found and the complainant and accused both were in contact with
each other since 1995 to 1996 and it is an admitted position that
money transactions between accused and complainant were there
since 1998. The cheques for amount of Rs.1,50,000/- and Rs.2 lakh are
produced at Exh.16 both of which came to be dishonored on
13.08.2012. If we peruse the averments made in para 2 of the
complaint, amount of Rs.12,000/- (Rs.5000 in April, 2012 + Rs.7000 in
May, 2012) is paid and the cheques are issued in the month of August,
2012 i.e. after four months. If we consider the provision of section 118
of the NI Act, instruments bear the signature and date on which it was
drawn. Hence, same is governed by presumption and considering
more than one transaction, when the cheques are issued subsequently
on 13.08.2012, same is governed by presumption under Sections 118
and 139 of the NI Act, once signature is admitted. The fact that there
were more than one transactions and though some amount was paid
in April and May, 2012, the applicant - accused failed to prove that
said amount was towards which instrument. Hence, no any evidence is
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brought on record by the accused which reflects that the part-
payment of the debt prior to presentation of cheques for encashment
of cheques or liability being done. What the instruments in question
reflect is that same were issued towards payment of Rs.3,50,000/- i.e.
Rs.1,50,000/- and Rs.2,00,000/- however, nothing is on record to show
that there was part-payment being made after issuance of notice or
prior to the presentation of cheques. Hence, applicant - accused is not
entitled to get the benefit of section 56 of the NI Act also and there is
no need to make any endorsement under Section 15 of the NI Act or
no requirement to record any part-payment as cheques are
subsequently issued after the transactions of April and May, 2012.
Hence, as on the date of issuance of cheques, there was a legally
enforceable debt and sum of money was promised to be paid by the
applicant - accused to the complainant. Hence, argument canvassed
by the learned advocate for the applicant - accused is not accepted in
light of the decision of Hon'ble Supreme Court in the case of
Dashrathbhai Trikambhai Patel vs Hitesh Mahendrabhai Patel
reported in (2023)1 SCC 578.
[6.3] 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.
Both the Courts below have properly assigned reasons and given the
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finding based on evidence led before it and hence also, no
interference at the hands of this Court in exercise of revisional
jurisdiction is required.
[6.4] 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 revisional Court does not arise unless it is found to be
totally perverse.
[7.0] 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.
Sd/-
(HASMUKH D. SUTHAR, J.)
Ajay
