[Cites 12, Cited by 0]
Gujarat High Court
Jagdishbhai Chaturbhai Patel vs State Of Gujarat on 4 May, 2026
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Reserved On : 01/04/2026
Pronounced On : 04/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2409 of 2008
With
R/CRIMINAL APPEAL NO. 2419 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
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JAGDISHBHAI CHATURBHAI PATEL & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR PRADEEP PATEL(642) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4
MR YUVRAJ BRAHMBHATT, APP for the Opponent(s)/Respondent(s) No. 1
MR SHAILESH C SHARMA(3450) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
1.1 As the common questions of fact and law
arise in both these matters, both these matters are heard
and decided together by this common judgment.
1.2 Feeling aggrieved by and dissatisfied with the
judgments and orders of acquittal dated 27.02.2007, passed by
rd
the learned 3 Additional Senior Civil Judge and Judicial
Magistrate, First Class, Anand in Criminal Case Nos.5422 of
2006 and 5331 of 2006, for the offence punishable under
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Section 138 of the Negotiable Instruments Act, the appellant
- original complainant has preferred these appeals under
Section 378 of the Code of Criminal Procedure, 1973 (for
short, "the Code").
2. The brief facts leading to filing of these appeals
are such that the appellant (original complainant) was an
agriculturist and carrying out agricultural operations; that
respondent No.2 was in need of money and the appellant, as
a friend of respondent No.2, lent a sum of Rs.3,26,000/- in
cash; respondent No.2 promised to repay the said amount
within a period of three months; but as he did not repay the
same, the appellant demanded the same. Therefore,
respondent No.2, issued the following cheques towards
payment of Rs.3,26,000/-.
Cheque No. and Date Drawn On Amount
No.428085 - United Bank of India 3,00,000/-
07.07.2006
No.428082 - United Bank of India 10,000/-
08.06.2006
No.428083 - United Bank of India 10,000/-
25.07.2006
No.428084 - United Bank of India 6,000/-
05.08.2006
Total... 3,26,000/-
On presentation of the cheque No.428085 dated
07.07.2006 for Rs.3,00,000/-, the same was returned unpaid on
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account of 'insufficient funds' and on presentation of the
cheque No.428082 dated 08.06.2006 for Rs.10,000/-, the said
cheque was also returned unpaid on account of 'insufficient
funds'. The complainant issued a statutory notice as per the
requirements of the Negotiable Instruments Act, (for short,
'the NI Act'), but as the amount was not paid, the
complainant filed complaints against the accused, being
Criminal Case Nos.5422 of 2006 and 5331 of 2006,
respectively.
3. Considering the verification of the complainant and
the documents, the complaints were registered, the accused
was called for by serving the summons, the accused remained
present before the Court, and he was provided with the
complaint and the documents. On recording the statement of
the accused, he pleaded not guilty and claimed to be tried.
4. To prove the case, various oral and documentary
evidence were produced before the trial Court, which are
described in the impugned judgments :
: ORAL EVIDENCE :
Sr. Particulars Exh. Nos. of Exh. Nos. of
No. C.C. No.5422 of C.C. No.5331 of
2006 2006
complainant
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: Documentary Evidence :
Sr. Particulars Exh. Nos. of Exh. Nos. of
No. C.C. No.5422 of C.C. No.5331 of
2006 2006
The following evidence is produced by the defence :
Sr. Particulars Exh. Nos. of Exh. Nos. of
No. C.C. No.5422 of C.C. No.5331 of
2006 2006
notice
Account No.900
Account No.887
5. After hearing both the parties and after analysis
of evidence adduced by the complainant, the learned trial
Judge acquitted the accused for the offence, by holding that
the complainant has failed to prove the case beyond
reasonable doubt.
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6.1 Learned advocate for the appellant-original
complainant has pointed out the facts of the case and having
taken this Court through both, oral and documentary
evidence, recorded before the learned trial Court, would
submit that the learned trial Court has failed to appreciate
the evidence in true sense and perspective; and that the trial
Court has committed error in acquitting the accused. It is
submitted that the learned trial Court ought not to have
given much emphasis to the contradictions and/or omissions
appearing in the evidence and ought to have given weightage
to the dots that connect the accused with the offence in
question. It is submitted that the learned trial Court has
erroneously come to the conclusion that the prosecution has
failed to prove its case. It is also submitted that the learned
Judge ought to have seen that the evidence produced on
record is reliable and believable and it was proved beyond
reasonable doubt that the accused had committed an offence
in question. It is, therefore, submitted that this Court may
allow this appeal by appreciating the evidence led before the
learned trial Court.
6.2 It is submitted by learned advocate for the
appellant-complainant that the learned trial Court has erred
in coming to the conclusion that the notice was not duly
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served on the respondent No.2; that Section 139 of the NI
Act creates a statutory presumption that a cheque is issued
in the nature referred to under Section 138 of the NI Act
and it is always issued in discharge of debt or other liability
and that it is for the accused to show that the cheque in
question was not issued in discharge of any debt or liability.
He, therefore, submitted that the learned trial Court has
erred in acquitting the accused and therefore, this appeal
may be allowed.
7. As against that, learned advocate for the
contesting respondent/s would support the impugned judgment
passed by the learned trial Court and has submitted that the
learned trial Court has not committed any error in acquitting
the accused. The trial Court has taken a possible view, as
the complainant has failed to prove its case beyond
reasonable doubt. Therefore, it is prayed to dismiss the
present appeal by confirming the impugned judgment and
order passed by the learned trial Court.
It is noted that the State is the formal respondent
in these matters. However, learned APP would support the
impugned judgment passed by the learned trial Court.
8. In the aforesaid background, considering the oral
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as well as documentary evidence on record, independently and
dispassionately and considering the impugned judgment and
order of the trial Court, the following aspects weighed with
the Court :
8.1 On perusal of the complaint, it transpires that the
complainant gave a friendly loan to the accused, for which,
the accused had given four cheques, out of which, two
cheques amounting to Rs.3,00,000/- and Rs.10,000/- were
dishonoured, for which, the criminal complaints are filed by
the complainant. It transpires that the complainant issued
the notice to the accused, which was duly received by the
accused, and the accused has filed a reply to the said notice.
8.2 In the reply to the notice, the original accused has
taken a defence that the said cheque was, though signed by
him, was given as security and the account holder of the
said cheque was his brother. The defence, to prove the said
fact, has also produced documentary evidence. Even in the
statement given under Section 313 of the Cr.P.C., the accused
had categorically stated that the said cheque was given from
the account of his brother.
8.3 The fact remains that the original accused himself
has stated that he has signed the said cheque and the
amount stated in the cheque is also written by him. The
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acknowledgement, which has been received from the bank,
states that the said cheque has been dishonoured because of
'insufficient funds' and that the signature on the cheque does
not tally, but the fact remains that the said cheque was
issued from the account of the brother of the accused viz.,
Kiritbhai Darji.
8.4 If the documents produced by respondent No.2
before the learned trial Court are taken into consideration,
document No.2 is the passbook of Account No.900, from
which, the said cheque was issued. The account holder of the
said cheque is Kiritbhai Darji, who is the brother of the
accused. Therefore, the cheque bears the signature of the
accused and the account holder is Kiritbhai Darji; which
means that the cheque was drawn from the account
maintained by Kiritbhai Darji and not by the accused.
8.5 In the present case, after considering the defence
and cross-examination of the witnesses, the complainant had
filed an application to add the offences under Sections 420,
465, 467, 468 and 471 of the Indian Penal Code, but the
learned trial Court rejected the said application.
8.6 A reference is made to Section 138 of the NI Act,
which reads as under :
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"138. Dishonour of cheque for insufficiency, etc., of
funds in the account.
Where any cheque drawn by a person on an
account maintained by him with a banker for
payment of any amount of money to another
person from out of that account for the discharge,
in whole or in part, of any debt or other liability,
is returned by the bank unpaid, either because of
the amount of money standing to the credit of
that account is insufficient to honour the cheque
or that it exceeds the amount arranged to be paid
from that account by an agreement made with
that bank, such person shall be deemed to have
committed an offence and shall without prejudice
to any other provisions of this Act, be punished
with imprisonment for "a term which may extend
to two year", or with fine which may extend to
twice the amount of the cheque, or with both:
Provided that nothing contained in this section
shall apply unless
(a) The cheque has been presented to the bank
within a period of six months from the date on
which it is drawn or within the period of its
validity, whichever is earlier.
(b) The payee or the holder indue course of the
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cheque, as the case may be, makes a demand for
the payment of the said amount of money by
giving a notice, in writing, to the drawer, of the
cheque, "within thirty days" of the receipt of
information by him from the bank regarding the
return of the cheques as unpaid, and
(c) The drawer of such cheque fails to make the
payment of the said amount of money to the
payee or, as the case may be, to the holder in
due course of the cheque, within fifteen days of
the receipt of the said notice.
Explanation: For the purpose of this section, "debt
or other liability"
means a legally enforceable debt or other
liability."
8.7 A similar situation arose before the Hon'ble
Supreme Court in the case of Jugesh Sehgal V/s Shamsher
Singh Gogi reported in 2009(14) SCC 683. In the facts of the
said case, the cheque was drawn by the accused not of his
account but from an account managed by another person. The
Hon'ble Supreme Court held that the first ingredient of
Section 138 of the NI Act, that the cheque should have been
drawn on an account managed by him, was not satisfied. It
was observed in paragraph Nos.13, 14 and 15 as under :
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"13. It is manifest that to constitute an
offence under Section 138 of the Act, the
following ingredients are required to be
fulfilled:
(i) a person must have drawn a cheque on an
account maintained by him in a bank for
payment of a certain amount of money to
another person from out of that account;
(ii) The cheque should have been issued for
the discharge, in whole or in part, of any
debt or other liability;
(iii) that cheque has been presented to the
bank within a period of six months from the
date on which it is drawn or within the
period of its validity whichever is earlier;
(iv) that cheque is returned by the bank
unpaid, either because of the amount of
money standing to the credit of the account is
insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from
that account by an agreement made with the
bank;
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(v) the payee or the holder in due course of
the cheque makes a demand for the payment
of the said amount of money by giving a
notice in writing, to the drawer of the cheque,
within 15 days of the receipt of information
by him from the bank regarding the return of
the cheque as unpaid;
(vi) the drawer of such cheque fails to make
payment of the said amount of money to the
payee or the holder in due course of the
cheque within 15 days of the receipt of the
said notice;
Being cumulative, it is only when all the
afore-mentioned ingredients are satisfied that
the person who had drawn the cheque can be
deemed to have committed an offence under
Section 138 of the Act.
14. In the case before us, it is clear from the
facts, briefly noted above, and in para 3 of
the complaint as extracted, that on receipt of
the return memo from the bank, the
complainant is stated to have realized that
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the dishonoured cheque was issued from an
account which was not maintained by accused
No.1--the appellant herein, but by one Shilpa
Chaudhary.
15. As a matter of fact and perhaps having
gained the said knowledge, on 20th January,
2001, the complainant filed an FIR against all
the accused for offences under Sections 420,
467, 468, 471, 406 of the Indian Penal Code
(IPC). Thus, there is hardly any dispute that
the cheque, subject matter of the complaint
under Section 138 of the Act, had not been
drawn by the appellant on an account
maintained by him in the Indian Bank,
Sonepat branch. That being so, there is little
doubt that the very first ingredient of Section
138 of the Act, enumerated above, is not
satisfied and consequently the case against the
appellant for having committed an offence
under Section 138 of the Act cannot be
proved."
8.8 In yet another recent case, in the case of Bijoy
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Kumar Moni V/s Paresh Manna & Anr. reported in 2024
INSC 1024, it is observed and held by the Hon'ble Apex
Court in paragraph 73 as under:
"73. Section 138 of the NI Act clearly postulates
that the cheque returned for insufficiency of funds
should have been drawn by a person on an
account maintained by him. It will amount to
doing violence to the language of the statute if
Section 138 of the Act is interpreted to mean that
even if a person draws a cheque on an account
not maintained by him; he shall be liable if the
cheque is returned for insufficiency of funds. Such
an interpretation will lead to absurd and holly
unintended results."
8.9 Therefore, in view of the binding precedent of the
Hon'ble Supreme Court and on bare reading of Section 138 of
the NI Act, all the ingredients of Section 138 of the NI Act
should be fulfilled to constitute an offence under the said
Act. In the present case, though it is proved that the
cheques are issued for repayment of the loan, the said
cheques are signed by the accused and the amount is also
written thereon by the accused, the fact remains that the
cheque should have been drawn on account managed by the
accused and if the said cheque is not drawn on the account
which was managed by the accused and has been managed
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by some other person, which is the first ingredient of Section
138 of the NI Act, the same would not attract the provisions
of Section 138 of the NI Act.
8.10 There is hardly any dispute that the cheque in
question have not been drawn by the accused on account
managed by him in the United Bank of India. On being so,
there is little doubt that the very first ingredient of Section
138 of the Act is not satisfied and consequently, the case
against the accused for having committed the offence under
Section 138 of the NI Act cannot be proved. The account
from which the cheque was issued was not held in the name
of the accused and therefore, one of the requisite ingredients
of Section 138 of the NI Act was not satisfied.
9. Further, learned advocate for the appellant is not
in a position to show any evidence to take a contrary view
in the matter or that the approach of the Court below is
vitiated by some manifest illegality or that the decision is
perverse or that the Court below has ignored the material
evidence on record. In above view of the matter, this Court
is of the considered opinion that the Court below was
completely justified in passing impugned judgment and order.
10. Considering the aforesaid facts and circumstances
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of the case and law laid down by the Hon'ble Supreme Court
while considering the scope of appeal under Section 378 of
the Code of Criminal Procedure, 1973, no case is made out
to interfere with the impugned judgment and order of
acquittal.
11. In view of above facts and circumstances of the
case, on my careful re-appreciation of the entire evidence, I
found that there is no infirmity or irregularity in the
findings of fact recorded by learned trial Court and under
the circumstances, the learned trial Court has rightly
acquitted the respondent/s - accused for the elaborate reasons
stated in the impugned judgment and I also endorse the
view/finding of the learned trial Court leading to the
acquittal.
12. In view of the above and for the reasons stated
above, the present Criminal Appeals fail and the same
deserve to be dismissed and is dismissed, accordingly. Record
& Proceedings be remitted to the concerned trial Court
forthwith.
(SANJEEV J.THAKER,J)
SRILATHA
