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2024 Supreme(Guj) 307
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
M.K. THAKKER, J.
Jagrajsinh Gurumukhsinh Dhillon – Appellant
Versus
Hemant Jarivala & Anr. – Respondents
R/Criminal Appeal (Against Acquittal) No. 741 of 2024
Decided on : 01-04-2024
Advocate Appeared:
For the Appellant : A S TIMBALIA
For the Respondent: MR YH MOTIRAMANI, MR.DIVYESH G NIMAVAT, MS VRUNDA SHAH
IMPORTANT POINT
The statutory presumption under Section 139 of the Negotiable Instruments Act is rebuttable, and the burden of proof shifts to the accused to raise a probable defense.
Headnote:
Negotiable Instruments Act - Acquittal from Charges under Section 138 - 118, 138, 139
Fact of the Case:
The appellant, a complainant, challenged the acquittal of the respondent from charges under Section 138 of the Negotiable Instruments Act. The appellant alleged that the respondent issued a cheque that was dishonored, leading to a private complaint.
Finding of the Court:
The court analyzed the evidence and found that the complainant failed to prove the existence of the debt or liability after the presumption in their favor was rebutted by the accused. The court upheld the judgment and order of acquittal.
Issues: The issues revolved around the presumption under Sections 118, 138, and 139 of the Negotiable Instruments Act, the sufficiency of evidence to prove the debt, and the validity of the notice issued by the complainant.
Ratio Decidendi: The court emphasized that the statutory presumption under Section 139 is rebuttable, and the burden lies on the accused to raise a probable defense. It also highlighted the importance of fulfilling the conditions for notice under Section 138.
Final Decision: The appeal failed, and the judgment of acquittal was upheld, leading to the case being sent back to the trial court.
JUDGMENT :
1. This appeal is filed by the appellant – original complainant challenging the judgment and order passed by the learned Additional Chief Metropolitan Magistrate, N.I. Act Court No.31, Ahmedabad dated 06.05.2023 in Criminal Case No.85308 of 2019 whereby, the respondent – accused came to be acquitted from the charges punishable under Section 138 of the Negotiable Instruments Act.
2. The case of the complainant is that the complainant is doing the business in the name and style of “G.Aveda Enterprise” and the complainant is the partner of the said enterprise. It is the case of the complainant that the respondent – accused is doing the business in the name and style of “Jahnvi Agro Industries” and having the business relations with the complainant partnership firm. The respondent – accused has purchased the goods from the complainant firm by invoice no.033 dated 20.09.2018 of Rs.25,86,323/-, invoice no.034 dated 21.09.2018 of Rs.23,90,966/- and invoice no.35 of Rs.27,54,344/-. The transactions were carried out upto September, 2018, totaling the amount of Rs.77,31,633/-. On making the demand for payment of the goods, cheque bearing no.071043 dated 27.09.2018 was issued for the amount of Rs.65 lacs. On depositing the said cheque, it was dishonoured with an endorsement “payment stopped by the drawer”. Therefore, the notice came to be issued on 11.12.2018 which was returned with an endorsement “accused could not found though he was informed on telephone”. On following the due procedure prescribed under the Act, a private complaint came to be filed.
3. After recording the verification of the complainant, the learned trial Court has issued the summons and on appearing by the accused, plea came to be recorded wherein, the accused had pleaded not guilty and claimed to be tried. To prove the case, the complainant himself was examined below exh.3 and produced the GST certificate below exh.8, partnership deed below exh.9, bill nos.33, 34 and 35 below exh.10, cheque below exh.11, returned memo below exh.12, demand notice and postal receipt below exh.13, returned cover below exh.14, tracking report below exh.15, ledger account details of Jahnvi Agro Industries for the period from 01.04.2000 to 31.03.2018 below exh.16, ledger account details of Jahnvi Agro Industries from 01.04.2017 to 01.06.2018 below exh.17, ledger account details of Hemant Pravinchandra Zariwala from 01.04.2017 to 11.06.2018 below exh.18, ledger account details of Hemant Pravinchandra Zariwala for the period from 01.04.2000 to 31.03.2017 below exh.19, ledger account details of M.D. Enterprise from 01.04.2000 to 31.03.2018, ledger account details of Dhruvi Hemant Zariwala from 01.04.2000 to 31.03.2017 below exh.21 and ledger account details of Jahnvi Agro Industries from 01.04.2015 to 31.03.2019 below exh.23.
4. On filing the closing pursis below exh.24, the further statement of the accused came to be recorded wherein, the accused has stated that he lent the amount many times to Hemant Pravinchandra Zariwala and G.Aveda Enterprise and they were keeping the advance cheque with them. It is stated that the huge amount is due from G.Aveda Enterprise and they were denying to pay the said due amount and demanded more amount and on oral request to return the cheque, it was denied and by depositing the same with the different firms, the cheque was misused. There was no transaction with the complainant firm, namely, G.Aveda Enterprise and there was no any due remained to be paid to the said G.Aveda Enterprise. The learned trial Court, after considering the submissions and the evidence, acquitted the respondent – accused from the charges which is impugned before this Court.
5. Heard learned advocate Mr.A.S. Timbalia for the appellant – original complainant and as this matter was decided at the admission stage, the learned advocate for the respondent - accused, though appeared, was not heard.
6. Learned advocate Mr.Timbalia submits that the respondent – accused neither disputed th
