R/CR.MA/5687/2025 ORDER DATED: 19/06/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC. APPLICATION NO. 5687 of 2025 (FOR LEAVE TO APPEAL) In F/CRIMINAL APPEAL NO. 10827 of 2025 ============================================= INDRAVADAN MULJIBHAI PATEL Versus STATE OF GUJARAT & ANR. ============================================= Appearance: MR. MAULIK M SONI(7249) for the Applicant(s) No. 1 MR PRANAV DHAGAT, APP for the Respondent(s) No. 1 ============================================= CORAM:HONOURABLE MS. JUSTICE S.V. PINTO Date : 19/06/2025 ORAL ORDER 1. The present application is filed by the applicant – original complainant under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short “BNSS”) seeking leave to file an appeal against the judgment and order dated 03.03.2025 passed by the learned Chief Judicial Magistrate, Bharuch (hereinafter referred to as the “learned Trial Court”) in Criminal Case No. 4351 of 2019, whereby the respondent No. 2 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N I Act”). Page 1 of 11 R/CR.MA/5687/2025 ORDER DATED: 19/06/2025 1.1. The respondent No. 2 is hereinafter referred to as “the accused” as he stood in the original case for the sake of convenience, clarity and brevity. 2. The brief facts culled out from the memo of the present application as well as the impugned judgment and order and paper book filed by the applicant are as under: 2.1. The applicant filed a complaint against the accused under Section 138 of the Act, as the accused had taken a loan of Rs.7,50,000/- from the applicant and the accused had issued cheque No.095166 for the amount of Rs.7,50,000/- dated 01.05.2019 from his account with The Bharuch District Central Co-operative Bank Ltd, Muktinagar, Bharuch Branch. The applicant deposited the cheque on 24.05.2019 in his account with The Bharuch District Central Co-operative Bank Ltd, Muktinagar, Bharuch Branch and the cheque was dishonored and the reason mentioned in the return memo was “Funds Insufficient”. The applicant sent the statutory demand notice to the accused which was duly served but no payment was made within the stipulated period and hence the applicant filed the criminal complaint before the Court of the Chief R/CR.MA/5687/2025 ORDER DATED: 19/06/2025 Judicial Magistrate, Bharuch under Section 138 of the N I Act, 1881 which was registered as Criminal Case No. 4351 of 2019. 2.2. The accused was served with the summons and the accused appeared before the learned Trial Court and his plea was recorded at exhibit 07 and the entire evidence of the applicant was taken on record. The applicant was examined on oath and 10 documentary evidences were produced in support of his case and after the closing pursis was filed, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded wherein the accused stated that he has not issued any cheque in favor of the applicant and a false complaint has been filed. The accused refused to step into the witness box but examined one witness on oath at exhibit 41 and after the arguments of the learned advocates for both the parties were heard, by the impugned judgment and order, the learned Trial Court acquitted the accused from the offence under Section 138 of the N I Act. 3. Being aggrieved and dissatisfied with the same, the applicant has preferred the present application seeking leave to R/CR.MA/5687/2025 ORDER DATED: 19/06/2025 appeal mainly stating that the learned Trial Court has not properly interpreted the evidence and has misread the evidence and the impugned judgment is perverse, erroneous and contrary to law. 4. Heard learned advocate Ms. Honey Raval for learned advocate Mr. Maulik M. Soni appearing for the applicant and learned APP Mr. Pranav Dhagat for the respondent – State. 5. Learned Advocate Ms. Honey Raval for the applicant submits that the learned Trial Court has not appreciated that the applicant has successfully established that the cheque in question was issued by the accused from the bank account maintained by him. The applicant has proved that the cheque was written by the accused and it was dishonoured and as the applicant is the holder in due course of the cheque in question the statutory presumption under Section 139 of the N I Act is to be drawn in favour of the applicant. The learned Trial Court has not appreciated the provisions of Section 118 and 138 of the N I Act in proper perspective. The fact of the amount paid by the applicant to the accused is not negated, but the learned Trial Court has disbelieved the same. The accused had failed to rebut the presumption and R/CR.MA/5687/2025 ORDER DATED: 19/06/2025 hence the judgement and order of acquittal is bad in law and the leave to appeal must be granted. 6. Learned Mr. Pranav Dhagat for the respondent – State has submitted that the learned Trial Court has appreciated all the evidence in detail in light of the citations referred to in the judgement and has passed the judgement and order of acquittal which is proper and no interference is required and hence the application for leave to appeal must be rejected. 7. With regard to the facts in the present case, it would be fit to refer to the observations made the Apex Court in Rangappa vs Sri Mohan reported in 2010 11 SCC 441 in para 14 which reproduced as under: “14. In light of these extracts, we are in agreement with the respondent- claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section R/CR.MA/5687/2025 ORDER DATED: 19/06/2025 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of ‘preponderance of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.” 7.1 The Apex Court in the case of Basalingappa vs. Mudibasappa reported in 2019 0 AIR(SC) 1983 has observed in Para 23 and 28 as under: “23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: (i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. (ii) The presumption Under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. Page 6 of 11 R/CR.MA/5687/2025 ORDER DATED: 19/06/2025 (iii) To rebut the presumption, it is open for the Accused to rely on evidence led by him or Accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the Accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the Accused to come in the witness box to support his defence. 24. xxxx 25. xxxx 26. xxxx 27. xxxx 28. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs. 6 lakhs given to the Accused, within 02 years, amount of Rs. 18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence.” 8. In light of the above settled principles of law and considering the arguments advanced by the learned advocates for the parties and on perusal of the record of the case the affidavit of examination in chief of the complainant has been produced at exhibit 04 wherein the complainant has narrated the facts of the complaint on oath. From the record of the case, it transpires that after the cheque returned unpaid the demand statutory notice was R/CR.MA/5687/2025 ORDER DATED: 19/06/2025 served to the accused. As per the say of the applicant, the accused had taken an amount of Rs.7,50,000/- in parts from the applicant and had given cheque No. 095166 from his account with The Bharuch District Central Co-operative Bank Ltd, Muktinagar, Bharuch Branch but the cheque had returned unpaid with the endorsement “Funds insufficient”. After the demand statutory notice was given as the amount was not paid the applicant filed Criminal Case No. 4351 of 2019 in the Court of the Chief Judicial Magistrate, Bharuch. 9. In the entire evidence on record the applicant has not been able to prove that the amount of Rs.7,50,000/- was given to the accused and during the cross-examination of the applicant by the learned advocate for the accused, the applicant has admitted that the document produced Exhibit 12, which is the statement of account of his bank account, there is no mention of the name of the accused and the amount of Rs.50,000/- on 13.08.2018 and on 20.08.2017 have been withdrawn by him and not by the accused. That he has not mentioned in whose presence the amount has been withdrawn from the bank, the time of withdrawal and the place at R/CR.MA/5687/2025 ORDER DATED: 19/06/2025 which the amount was withdrawn in his complaint, affidavit of examination in chief, and in the notice. The applicant has categorically stated that the amount was not withdrawn by the accused from his account. That no document was executed between the parties when the amount was advanced in the year 2015 or 2018 and the cheque was not written in his presence. 9.1 The main defence of the accused was that there was partnership between the accused and Neelkumar Indravadanbhai Patel, the son of the applicant and the cheque in question was given by the accused to Neelkumar Indravadanbhai Patel and the same has been misused by the applicant. During the cross- examination by the learned advocate for the accused, when questioned about the business dealings and agreement executed between the accused and his son Neelkumar Indravadanbhai Patel, the applicant has denied having any knowledge of the same. The applicant has produced the copy of the Partnership Deed executed on 16.10. 2015, at exhibit 43 and it is the defence of the accused that the cheque was given as a security to Neelkumar Indravadanbhai Patel during the course of the partnership R/CR.MA/5687/2025 ORDER DATED: 19/06/2025 business. The applicant has denied having any knowledge about the partnership business of the accused with his son Neelkumar Indravadanbhai Patel, but he has not examined his son Neelkumar Indravadanbhai Patel as a witness to prove that the cheque was not given to Neelkumar Indravadanbhai Patel, but was given to him. The applicant had also contended that on 10.09.2018 the amount was withdrawn by his son Neelkumar Indravadanbhai Patel from the bank and the amount in cash was given to the accused, but Neelkumar Indravadanbhai Patel has not stepped into the witness box to prove that the amount was withdrawn and given to the accused. 10. The learned Trial Court has appreciated all the evidence produced on record and has concluded that the applicant has not proved the legally enforceable debt and has concluded that from evidence on record the applicant has successfully rebutted the presumption under Section 139 of the N I Act in light of the judgment of the Apex Court in Rangappa(supra) and Basalingappa(supra). The accused had created a reasonable doubt and the applicant has failed to produce reliable and cogent R/CR.MA/5687/2025 ORDER DATED: 19/06/2025 evidence on record about the amount of cheque being the legally recoverable debt from the accused and the applicant has not proved his case beyond reasonable doubt and, in light of the above observation, the learned Trial Court has passed the impugned judgment and order of acquittal, which is just and proper and does not require any interference of this Court. 11. Consequently, the present application seeking leave to present an appeal under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 fails and is hereby dismissed. 12. Record and proceedings if any, be sent back to the learned Trial Court forthwith. 13. Since the leave to prefer appeal is rejected, no order is required to be passed in the Criminal Appeal, which is at filing stage and the same stands disposed accordingly. (S. V. PINTO,J) F.S. KAZI Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: KAZI FARUKHUSEN(HC01075), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 19/06/2025 15:16:10