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2026 Supreme(Online)(Guj) 8448
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Hasmukh D. Suthar, J
Rajubhai Kalidas Chunara – Appellant
Versus
Kantibhai Kalyanjibhai Shah – Respondent
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION - NEGOTIABLE INSTRUMENT ACT) NO. 984 of 2016
For the Appellants/Petitioners: RJ Goswami
For the Respondents: Anilkumar B Lalcheta, Jaynish A Lalcheta, Rohan Raval
Admitted signatures on a cheque trigger a statutory presumption of a legally enforceable debt under Sections 118 and 139 of the NI Act, which cannot be rebutted by mere denial or unproven claims of part-payment not linked to the specific instrument.
Headnote:(A) Negotiable Instruments Act, 1881 - Sections 118, 138 and 139 - Presumption of consideration - Once the signature on the cheque is admitted, it is required to be presumed that the cheque was issued towards consideration for a legally enforceable debt. The burden of proof then shifts to the accused to rebut this presumption through preponderance of probabilities. (Paras 6.1, 6.2)
(B) Negotiable Instruments Act, 1881 - Section 56 - Part-payment - Claim of part-payment does not entitle the accused to benefit under Section 56 if there is no evidence that such payment was linked to the specific instrument in question, especially when cheques were issued subsequently to the alleged part-payment. (Para 6.2)
(C) Code of Criminal Procedure, 1973 - Sections 397 and 401 - Revisional Jurisdiction - The revisional court's jurisdiction is limited to satisfying itself as to the correctness, legality, or propriety of a finding. It cannot re-appreciate evidence or reverse concurrent findings of fact unless they are found to be totally perverse or suffer from a patent legal defect. (Paras 6.3, 6.4)
(D) General Clauses Act, 1897 - Section 27 - Presumption of service - If a notice is issued to the correct address, the service of the same is governed by the presumption under Section 27 of the General Clauses Act. (Para 6.0)
Facts of the case:
The applicant, working as a peon, had allegedly borrowed Rs. 3,50,000 as a hand loan from the complainant, a professor. The applicant issued two cheques (Rs. 1,50,000 and Rs. 2,00,000) which were dishonoured due to insufficiency of funds. The applicant challenged the conviction on grounds of non-service of statutory notice, claim of part-payment of Rs. 12,000, and the assertion that cheques were issued as security.
Findings of Court:
The court found that the signature on the cheques was admitted, thus attracting the statutory presumptions under Sections 118 and 139 of the NI Act. The court rejected the argument of non-service of notice based on the General Clauses Act and found the claim of part-payment insufficient to rebut the presumption as it was not linked to the instruments issued later.
Issues: Whether the admitted signature on cheques shifts the burden of proof to the accused; whether claims of prior part-payment without specific linkage to the cheques rebut the presumption of a legally enforceable debt; and whether the revisional court should interfere with concurrent findings of fact.
Ratio Decidendi: Admitted signatures on cheques create a legal presumption of enforceable debt that cannot be rebutted by mere denial. Revisional courts should not substitute their own view of facts for that of the lower courts unless there is perversity in the decision.
Result: Revision application dismissed.
Legal Category Hierarchy
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crime and sentencing
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offences involving property
- cheque dishonour
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offences involving property
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practice and procedure
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revision
- scope of revisional jurisdiction
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evidence
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presumptions
- presumption under negotiable instruments act
- presumption of service of notice
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presumptions
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criminal procedure
- surrender
-
revision
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 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 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 publ
