[Cites 15, Cited by 0]
Gujarat High Court
Shobhnaben Jayendrakumar Panchal vs Janta Sahkari Bank Ltd on 18 March, 2026
NEUTRAL CITATION
R/CR.RA/511/2007 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. 511 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
√
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SHOBHNABEN JAYENDRAKUMAR PANCHAL
Versus
JANTA SAHKARI BANK LTD. & ANR.
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Appearance:
MR ARPIT A KAPADIA(3974) for the Applicant(s) No. 1
MR NV SOLANKI(860) 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 24.08.2007 rendered by learned Sessions
Judge, Panchmahal at Godhra in Criminal Appeal No.14/2006 and also
the judgment and order dated 13.07.2006 recorded by the learned
JMFC, Halol in Criminal Case No.1097/2002.
[2.0] Heard learned advocate Mr. Arpit Kapadia for the applicant,
learned advocate Mr. N.V. Solanki for the respondent No.1 and
learned APP for respondent No.2 - State of Gujarat.
[3.0] It is the case of the applicant that the applicant was arraigned as
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an accused in Criminal Case No.1097/2002 filed by respondent No.1
herein for the offence under Section 138 of the Negotiable
Instruments Act, 1881 (for short "NI Act") alleging that the respondent
No.1 - Bank wherein the present applicant was the member and
availed loan of Rs.1,95,000/- on 19.06.2001 and as the applicant
defaulted in making the repayment of EMI, there was outstanding due
of Rs.1,96,668/- towards which the applicant herein issued Cheque
bearing No.3901 dated 05.08.2002 for an amount of Rs.86,168/- and
which duly signed by the applicant in presence of the Authorized
Officer of the complainant - Bank however, when the cheque was
presented before the bank it got dishonored with an endorsement of
"funds insufficient". In this regard, the complaint being Criminal Case
No.1097/2002 was filed before the learned JMFC, Halol.
[3.1] The learned Magistrate convicted the present applicant for the
offence under Section 138 of the NI Act and imposed punishment of
one year's simple imprisonment upon the applicant with fine of
Rs.5000/- and in default of payment of fine, further simple
imprisonment for one month was imposed. Being aggrieved and
dissatisfied, the applicant preferred an appeal being Criminal Appeal
No.14/2006 under Section 374 of the CrPC which was dismissed by the
learned Sessions Judge, Panchmahal vide judgment and order dated
dated 24.08.2007 upholding the judgment and order passed by the
learned Magistrate. Hence, present applicant has filed the present
revision application.
[4.0] Learned advocate Mr. Arpit Kapadia appearing for the applicant
has submitted that the applicant - accused had taken loan from the
complainant Bank to purchase vehicle and due to default in
repayment of loan amount, the vehicle of the applicant was seized
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which is in possession of the respondent No.1 - Bank. He has further
submitted that the applicant received the statutory notice on
02.09.2002 and complaint is filed on 04.09.2002 and therefore, before
the cause of action had arisen, the complaint was filed before expiry
of statutory period of 15 days. He has further submitted that the
complainant in his deposition has admitted that he had not sent the
notice to the accused through his advocate and that the RPAD of
statutory notice was served to the applicant and complainant is having
the acknowledgement receipt dated 02.09.2002. He has also argued
that there was no legally enforceable debt and therefore, both the
Courts below have committed an error in not considering the defence
raised by the applicant - accused. He has therefore requested to allow
the present revision application.
[5.0] Learned advocate Mr. N.V. Solanki appearing for the respondent
No.1 - complainant and learned APP appearing for the respondent
No.2 - State have opposed the present 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 loan and issued cheque
towards repayment of 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 though the complaint was filed in the year
2002, till date, no amount has been paid and considering the aforesaid
fact, it is requested that revision application be dismissed.
[6.0] Having heard learned advocates appearing for respective
parties and perusing the record, it appears that the applicant availed
loan of Rs.1,95,000/- on 19.06.2001 from the respondent No.1 - Bank
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and as the applicant defaulted in making the repayment of EMI, there
was outstanding due of Rs.1,96,668/- towards which the applicant
herein issued Cheque bearing No.3901 dated 05.08.2002 for an
amount of Rs.86,168/- duly signed by the applicant in presence of the
Authorized Officer of the complainant - Bank 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 complainant has
examined two witnesses namely Gopalbhai Shantilal Patel (Exh.23)
and Ghanshyambhai Punjalal Rana (Exh.51) and the cheque in question
is produced at Exh.31, return memo at Exh.32, statutory notice at
Exh.33, acknowledgement slip at Exh.35, statement of account of
accused at Exh.36, resolution and authorization of the managing
committee at Exh.68, application seeking loan filed by the accused at
Exh.70, loan documents at Exhs.71 to 74. 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.
[6.1] It is undisputed and admitted fact that the accused has received
a loan of Rs.1,95,000/- on 19.06.2001 from the respondent - Bank and
as he failed to pay regularly the installments, there was an
outstanding of Rs.1,96,668/- and towards part payment of the same,
cheque for an amount of Rs.86,168/- came to be drawn and signed by
the accused in favor of respondent No.2 - Bank and signature of
accused is not disputed. 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. The defence
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on the part of accused that the Bank has seized the vehicle car and
upset price of the car came to be fixed at Rs.1,40,000/- which is now in
possession of the Bank and till date the Bank has not credited any
amount and about is not entitled to recover any amount from the
accused as blank cheques were taken towards security. If we consider
the aforesaid evidence, no such defence has been raised by the
accused or no reply to the statutory notice has been given by the
accused. 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, even if for the sake of argument it is
accepted that cheque was issued towards security, even then it is not
a piece of paper and is a valuable security and under Sections 87 and
20 of the NI Act gives the power to holder of the cheque to complete
inchoate instrument. 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 not replied to by the accused pursuant to which
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the complaint was filed within limitation.
[6.2] Even if for the sake of argument it is accepted that the bank has
taken the possession of the car as it was hypothecated with the bank,
it is needless to say that under hypothecation agreement, it is the
right of the lender to recover the amount from the hypothecated
vehicle and bank has exercised the power to recover the dues. This is
not the case wherein cheque of amount more than the outstanding
amount is drawn and same is misused for the purpose or intention to
recover the amount. There is no bar to fill up the cheque as the
signature is not denied. Once blank leaf of cheque is provided then it
is the authority of the holder of the cheque to fill up the contents or
details in the cheque which is also permissible under the law. As the
loan was taken in the year 2001 and cheque was issued after one year
and two months and outstanding amount alongwith interest and
penal interest was Rs.1,96,668/- and towards part-payment of the said
amount, cheque for an amount of Rs.86,168/- was drawn. Considering
the evidence produced on record, argument canvassed by learned
advocate for the accused that merely vehicle was seized and is in
possession of the respondent - Bank is not a valid ground to say that
there does not exist any legally enforceable debt and accused is not
liable to pay any amount. Hence, the said argument made on behalf of
the applicant - accused is not sustainable in view of section 139 of the
NI Act.
[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
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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.
[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 Court does not arise unless it is found to be totally
perverse.
[7.0] 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
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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
2002 and since the present application is filed in the year 2007, 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 - Bank, in response to which the
learned advocate for the applicant - accused upon instructions has
shown unwillingness of the applicant - accused and stated that
applicant - accused is not ready and willing to settle the dispute.
[8.0] 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
