Gujarat High Court
Govindbhai Maganbhai Desai vs Harshvardhan Navinchandra Trivedi on 15 July, 2025
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 166 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
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Approved for Reporting No Yes
No
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GOVINDBHAI MAGANBHAI DESAI
Versus
HARSHVARDHAN NAVINCHANDRA TRIVEDI & ANR.
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Appearance:
MR JAYPRAKASH UMOT(3581) for the Appellant(s) No. 1
MR VATSAL M. PATEL for MR RJ GOSWAMI(1102)for the
Opponent(s)/Respondent(s)No. 1
MS MEGHA CHITALIA, ADDITIONAL PUBLIC PROSECUTOR for
the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 15/07/2025
ORAL JUDGMENT
[1.0] This Appeal is filed by the appellant - original complainant under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') challenging the judgment and order of acquittal passed by the learned Metropolitan Magistrate, Negotiable Instruments Act, Court No.1, Ahmedabad dated 27.08.2009 for the alleged Page 1 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'), whereby respondent no.1 - accused came to be acquitted.
[2.0] It is the case of the complainant that he is doing business of chemical whereas respondent no.1 - accused was having Manali Medical Store at Maheshwari Nagar, Odhav six to seven years prior to the date of filing of complaint. Since complainant used to come to the said medical store, he developed friendship with the accused. Thereafter, Manali Medical Store was established at Amraiwadi, Ahmedabad at the address mentioned in the cause title of the complaint as also the judgment of the trial Court. At that time, since accused was in financial need, complainant lent him Rs.50,000/- on friendly terms, before a year to the date of the complaint as a hand loan. The accused assured to return it back within six months, however after six months also, accused did not return the same. When it was demanded, the accused gave a cheque drawn on Vijay Cooperative Bank, bearing Cheque No.185657 dated 30.03.2006 signed by him. The accused also assured the cheque to be honoured on presentation of the same. However, on presentation, the cheque deposited by the complainant returned back with an endorsement "insufficient fund". The complainant therefore, contacted the accused and in turn he asked the complainant to deposit the same again after three months. Thus, complainant deposited the said cheque on 23.07.2006 in Punjab National Bank, Odhav Branch, which returned back with an endorsement "today's opening balance is insufficient". Therefore, complainant issued notice through his advocate Page 2 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined dated 27.07.2006 through RPAD as also UPC. The RPAD envelope returned back on 09.08.2006 by the Postal Department with an endorsement "not claimed, returned to the sender" whereas notice sent through UPC is served to the accused. Despite service of notice, accused did not repay the amount nor satisfactorily replied to the same, and therefore, the aforesaid complaint came to be filed against the accused.
[2.1] On issuance of summons, accused appeared through his advocate before the Court. On recording his plea, he did not plead guilty and claimed to be tried. To prove the case against the accused, the complainant examined himself before the Court and produced and proved certain documents. Though accused did not enter the witness box but he examined the defence witness - Hemantbhai Manubhai Patel vide Exh.30 in his defence after recording of his further statement under Section 313 of 'the Code'. As per his defence, complainant lent money to his friend Hemantbhai Manubhai Patel at 10% interest per month in the year 2002. Since said Hemantbhai Manubhai Patel is also known to the accused, signed cheque from the accused was taken by the complainant as a purpose of securing the amount lent to Hemantbhai Manubhai Patel. During the course of deposition as also by way of separate application, accused has also produced and proved certain documents. On conclusion of evidence on both the sides, learned advocates for the complainant as also the accused filed their written arguments vide Exhs.41 and 43 respectively. On hearing both the learned advocates, appreciating the evidence led before the Court and considering even the written submissions, the learned trial Page 3 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined Judge, as aforesaid, acquitted the accused of the charge levelled against him. Hence, the present Appeal.
[3.0] Heard Mr. Jayprakash Umot, learned advocate for the complainant. According to his submission, since legally enforceable debt is proved by the complainant and there is no denial by the accused having signed the cheque in dispute, may be as a security on behalf of Hemantbahi Manubhai Patel, though not admitted, it is for the accused to rebut the presumption under Section 118 as also Section 139 of 'the Act'.
[3.1] He has further submitted that the accused has never disputed carrying on business at the address mentioned in the cause title of the complaint as also service of summons at the address shown in the cause title pursuant to which he appeared before the Court, service of the notice upon the accused is complete. As soon as accused fails to raise any defence in reply to the notice or on service of summons, object to the prosecution having been launched based on no service of notice thereof, notice under 'the Act' can be said to have been served. Though RPAD, which has returned back with an endorsement "not claimed", but notice at the address under UPC is deemed to have been served at his business address. Therefore, he has submitted that the defence raised by the accused appears to be incorrect once the existence of legally enforceable debt is proved by the complainant, since issuance of cheque with signature is not disputed, presumption has to be raised as provided under Section 139 of 'the Act', which is not rebutted at all and a case against him is proved beyond Page 4 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined reasonable doubt by the complainant, and therefore, he could not have been acquitted. He has further submitted that even the version of the defence witness - Hemantbahi Manubhai Patel, who has given deposition before the Court, which is not consistent and having a tint of falsehood, it can be safely concluded that the accused has failed to rebut the presumption even based on preponderance of probability. Drawing attention of the Court to the deposition of Hemantbahi Manubhai Patel - defence witness, it is submitted that in his examination-in-chief on oath, which is prepared by advocate of the accused, he states that he borrowed Rs.10,000/- in the year 2002 at the rate of 10% interest per month as a loan and for security thereof, complainant asked the accused to become surety for him and obtained the signed cheque from the accused as a security for ensuring repayment of the loan obtained by the defence witness. Whereas a specific question was put to the witness about the amount lent to him where the witness has deposed to before the Court that the complainant lent him Rs.20,000/- in cash on interest, though defence witness claims that he has repaid the said amount. He has admitted in his cross examination, as submitted by the learned advocate for the complainant, that he signed the examination- in-chief affidavit on oath after reading the same. Despite that, there is a contradiction in his examination-in-chief as also cross examination where he himself stated some different amount having been lent creates doubt about the defence raised by the accused in this case. Though he has not stated, as submitted by the learned advocate for the complainant, in his examination-in-chief, the cheque drawn on which bank in a cross examination, he has stated that the accused has given Page 5 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined the blank cheque drawn on Vijay Cooperative Bank, Odhav Branch duly signed. Though he asked for return of the same, because he has already repaid his loan amount, the complainant did not return the same. He assured the defence witness that it would be returned back to the accused as he is his friend. Therefore, learned advocate for the complainant submitted that what defence witness stated before the Court appears to be not correct. Drawing attention of the Court to the last line of the cross examination, it is submitted by the learned advocate for the complainant that defence witness admitted that he does not know that the accused gave the cheque of Rs.50,000/- on 30.03.2006 to the complainant. By the same, it is attempted to be argued that for the transaction of an amount of signed cheque, in fact, what the defence witness deposed before the Court appears to be incorrect.
[3.2] Mr. Jayprakash Umot, learned advocate for the complainant relied on the decision of the Supreme Court in the case of Rajaram S/o Sriramulu Naidu Vs. Maruthachalam reported in 2023 LiveLaw (SC) 46, more particularly, paragraph nos.10,12,22,26 and 31 for a proposition that if the amount lent by the complainant to the accused is not accounted for and not reflected in the Income-tax return, it will be a matter concerning between the defaulter and the revenue authority. It has nothing to do with the amount lent so long as he has financial capacity to lent the said amount at the relevant time. According to the submission of the learned advocate for the complainant it is not that handsome amount which a businessman dealing in chemical could not lent in the year 2006, that too, Rs.50,000/-, and therefore, he has Page 6 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined submitted that an attempt made on behalf of the accused to show that the complainant has no capacity to lend Rs.50,000/- and the same has not been reflected in his Income-tax return would be of no help to the accused.
[3.3] Relying on another decision of the Supreme Court in the case of APS FOREX Services Private Ltd. Vs. Shakti International Fashion Linkers and Others reported in (2020) 12 SCC 724, more particularly, relying on paragraph nos.7 to 13, it is submitted that even the accused has failed to rebut the presumption available under Sections 118 and 139 of 'the Act' by preponderance of probability also when there is no dispute about the signature on the cheque, which is returned unpaid issued to the complainant, there is no other alternative but to convict the accused reversing the judgment and order of acquittal.
[3.4] He has further relied on the decision of the Supreme Court in the case of Sripati Singh Vs. State of Jharkhand and Another reported in 2021 SCC OnLine SC 1002, more particularly, paragraph nos.7,16,17,18,21 and 22 for a proposition that the cheque issued towards discharge of the hand loan and presented for recovery of the same cannot be construed as issued for security as claimed by the accused.
[3.5] He has further relied on a decision of the Supreme Court in the case of Kalamani Tex and Another Vs. P. Balasubramanian reported in (2021) 5 SCC 283 referring paragraph nos.13,14 and 17, it is submitted that since signature on the cheque is not disputed by the accused on the Page 7 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined contrary it is admitted, learned trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt.
Therefore, he has further submitted that despite service of notice under Section 138 of 'the Act' through UPC, when accused has not replied the same, to raise any genuine dispute about the cheque having been issued by the accused, it should be held that the accused has failed to rebut the presumption by preponderance of probability.
[3.6] Relying on another decision of the Supreme Court in the case of Tedhi Singh Vs. Narayan Dass Mahant reported in (2022) 6 SCC 735 for a proposition that under the prosecution for an offence under Section 138 of 'the Act' complainant need not show in the first instance that he had the capacity to lend the money as claimed. The proceedings under 'the Act' is not a civil suit, and therefore, as submitted by the learned advocate for the complainant, when the complainant gives the evidence, unless a case is set up in the reply to the statutory notice sent that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. Relying on the same, it is submitted that since notice is not replied by the accused and no such defence is set up, and therefore, it was not incumbent upon the complainant to show evidence so far as financial capacity to lend the amount, that too, a meager amount of Rs.50,000/-.
[3.7] He has relied on another decision in the case of Rohitbhai Jivanlal Patel Vs. State of Gujarat and Page 8 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined Another reported in (2019) 18 SCC 106 for a proposition that if the transaction i.e. lending of amount is not reflected in accounts and Income-tax returns, that would at the best hold the assessee or lender liable for action under the income tax laws but, if the complainant succeeds in showing the lending of amount, the existence of legally enforceable debt cannot be denied.
Thus, he has vehemently submitted that the complainant having proved his case beyond reasonable doubt and the accused has failed to rebut the presumption, there is no option but to quash and set aside the judgment and order of acquittal and suitably convict the accused.
[3.8] On the aforesaid grounds and precedents, Mr. Jayprakash Umot, learned advocate for the appellant - original complainant prays that this Appeal be allowed and respondent no.1 - accused be convicted for an offence under Section 138 of 'the Act' and suitable punishment be imposed upon him.
[4.0] As against that, Mr. Vatsal M. Patel, learned advocate for Mr. R.J. Goswami, learned advocate for respondent no.1 - accused vehemently submitted that first and foremost the complainant has to prove that there exists legally enforceable debt from the accused and then only he can request for raising statutory presumptions as provided under 'the Act'. Drawing attention of the Court to the evidence adduced before the Court and the documents produced, he has submitted that even if it is presumed that the complainant is able to show existence of legally enforceable debt, since it has been rebutted by not only leading evidence but also Page 9 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined producing documents and from the cross examination of the complainant conducted, burden shifts on the complainant to show that there exists legally enforceable debt.
[4.1] He has further submitted that an attempt is made by the complainant to show that he is dealing in business of sales and purchase of chemical. However, according to his submission, complainant has miserably failed to show any material that he deals in chemical business. Drawing attention of the Court to the documents, though not proved, produced by him vide list Exh. 16 in respect of PAN Card issued in his name Govindbhai Maganbhai Desai and Sales Tax Registration Number, it is submitted that the said registration certificate is of one "Ankur Chem" as provided under the Gujarat Sales Tax Act, 1969 issued in the year 2005 recording change of Registration Number. From document at page 127, which is given Exh.19 and page 129, it is again Registration Certificate issued in Form B under the Central Sales Tax (Registration and Turnover) Rules, 1957. Nowhere, it reflects who is the owner, partner, proprietor and /or Director in that "Ankur Chem", and therefore, according to his submission those documents falls short of proving that he deals in business of sales and purchase of chemical, as claimed.
[4.2] He has further submitted that as evidence brought on record even by examining defence witness and cross examining the complainant, by preponderance of probability, it is proved that the complainant is not dealing in business of any chemical, as claimed, but may be dealing in advancing money without licence to needy persons at a huge rate of Page 10 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined interest i.e. 10% per month, which would come to 120% per annum.
[4.3] Even if it is not considered by the Court, as submitted by the learned advocate for the respondent no.1 - accused, he used to obtain some security for the amount lent either from the borrower or from any of the relatives or friends of the borrower. He has further submitted that from the probable defence raised by the accused, by leading evidence, cheque in dispute was given to the complainant as a security for an amount lent to friend of the accused, Hemantbhai Manubahi Patel, who is examined by defence witness at Exh.30 and proved the same. Not only that, from the statement of the bank provided, which is also produced and proved on record that the impugned cheque bearing number 185657 drawn on Vijay Cooperative Bank, is from a cheque book issued on 22.05.2002. Since entry reflects in statement of account at Exh.25 of an account maintained by Manali Medical and Provision Stores and all other cheques of that cheque book, which appears to be starting from 185651 to the last cheque, which is exhausted by 26.08.2002, bearing cheque no.185698, therefore, he has submitted that it supports the defence raised by the accused that this so called cheque was issued to the complainant as a security ensuring repayment for the money lent to Hemantbhai Manubhai Patel friend of the accused in the year 2002. The defence raised is also corroborated by the documentary evidence.
[4.4] He has further submitted that since no notice is received by him, there is no question of replying the same Page 11 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined raising any defence, as claimed by the complainant.
[4.5] He has further submitted that the original documents vide Exhs.24, 25 and 26 produced before the Court, which has been exhibited, contains LIC Policy reflecting his residential address. He has further submitted that since he was appointed as Pharmacist-cum-Clerk from 20.03.2006, in Bagefirdosh Ward Urban Health Center run by Ahmedabad Municipal Corporation, even if it is presumed that he had that Medical Store at the address shown in the notice, complaint etc. would not be able to run that Medical Store as he himself is Pharmacist and without any Pharmacist, Medical Store cannot be continued. Be that as it may, he has submitted that even the accused has produced the documents vide list Exh.33, which contains licence issued under the Drugs and Cosmetic Acts and Rules permitting change of address vide order dated 11.09.2005. The said document is exhibited on record with the consent of the learned advocate for the complainant.
[4.6] He has further submitted that the finding recorded by the learned Judge in respect of service of summons at the address mentioned in the cause title of the complaint, which is filed on 25.08.2006, and registered on 14.09.2006, it was for the complainant to prove that it was his address of business, which continued on the date of issuance of notice or summons in the case, which is held to have been served on the wife of the accused and it is presumed by the learned Magistrate that she might be doing business at that place without even ascertaining whether she has any licence in her own name or Page 12 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined in the name of any other family member and whether the very said shop is continued or not.
[4.7] Over and above the aforesaid submissions, Mr. Vatsal M. Patel, learned advocate for the respondent relied on the decision of the Supreme Court in the case of K. Prakashan Vs. P.K. Surenderan reported in (2008) 1 SCC 258 for a proposition that the statutory presumptions under Sections 118 and 139 of 'the Act' are rebuttable in nature and since accused has rebutted that presumption by even proving those facts supported by contemporaneous record, the burden shifts on the complainant to prove that he had capacity to lend Rs.50,000/- to Hemantbhai Manubahi Patel or even the accused in the year 2006 where apparently he is not doing any business, as claimed by him. The very same decision is further relied on by the learned advocate for respondent no.1 - accused that the judgment and order of acquittal passed by the learned Judge is not shown to be perverse or even suffers from any legal infirmity. This Court would be slow in interfering with the judgment and order of acquittal recorded by the learned Magistrate.
[4.8] Relying on a decision in the case of K. Subramani Vs. K. Damodaranaidu reported in (2015) 1 SCC 99, it is submitted that the claim made by the complainant is again not believable as he advances hand loan to everyone in cash where no apparent business to earn his livelihood is shown, creates doubt about his capacity to even lend money to anyone. At any rate, since he has failed to even support the assertion about his doing business by the documents even Page 13 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined produced by him, it must be held that he had no capacity to even lend Rs.50,000/-, that too, in the year 2005 or 2006, as claimed by him. Not only that, as per his submission, the complainant has therefore not clearly stated the date and time of lending money either in the notice or even in the complaint, including his evidence on oath. He has further submitted that his claim of cheque having been issued when and where is also not supported by his assertion in the complaint as also in the evidence. He claims that the cheque dated 30.03.2006 was signed by him in presence of the complainant on a demand made towards money advanced to him before a date appearing in the cheque, which is proved to be wrong as the cheque bearing No.185657 was from the cheque book issued in the year 2002 to the accused is proved by evidence of the bank statement, which is exhausted even in the year 2002 could not have issued the said cheque in the year 2005 or even 2006, as claimed by complainant. On the contrary, as per his submission, defence raised by the accused is supported by contemporaneous record when the signed cheque was issued to the complainant as security for the money lent to defence witness - Hemantbhai Manubahi Patel. He has further submitted that discrepancy here or there in the evidence of defence statement about the amount of money advanced to defence witness - Hemantbhai Manubahi Patel, where he states in examination-in-chief the amount to be Rs.10,000/- and in cross examination to be Rs.20,000/- will not disprove the case put up by the defence and proved by not only preponderance of probability but supported by contemporaneous record beyond reasonable doubt, and therefore, he has submitted that no interference is required in Page 14 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined this acquittal Appeal.
[4.9] He has further relied on the decision of the Supreme Court in the case of N. Vijay Kumar Vs. Vishwanath Rao N. rendered in Criminal Appeal No.5305 of 2024 dated 22.04.2025 to consider certain aspects as probable defence narrated in paragraph 10 thereof. According to his submission, he has proved his defence not by preponderance of probability but by evidence led beyond reasonable doubt, and therefore, it is for the complainant to prove the case against the accused beyond reasonable doubt, punishable under Section 138 of 'the Act'.
[4.10] He has further submitted that though any amount lent, in the books of account or in the Income tax return is not reflected, it may be an issue between the assessee and the department, nonetheless, as per the submission of the learned advocate for respondent no.1 - accused, when it is proved that there appears no apparent business being carried on and despite cash money of Rs.50,000/- is lent to the accused, that too, before 20 years as from today creates doubt about his capacity to pay that amount coupled with the evidence led on record by the defence, and therefore, he has submitted that this Appeal is without any merit, and therefore, it is to be dismissed.
[5.0] Having heard the learned advocates for the appellant - original complainant, for respondent no.1 - accused as also learned Additional Public Prosecutor, perusing the impugned judgment and order and going through the entire Page 15 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined evidence led before the trial Court from the Record and Proceedings, let me examine whether this Court is able to interfere in the order of acquittal recorded by the learned Magistrate.
[5.1] From the original Record and Proceedings, it is noticed that no documents till recording of plea as also recording of evidence is finding place in the paper-book prepared. Most crucial documents would be summons issued upon accused, which is claimed by the complainant having been served on the wife of the accused. As such, address in the complaint, the notice prior to filing of the complaint issued under 'the Act' and possibly the summons issued must bear the address shown in the cause title of the accused to be of a Medical Store situated at Amraiwadi. As per the submission of the learned advocate for the complainant before the Court, it is claimed that notice under 'the Act' came to be issued under RPAD as also under the UPC. Though RPAD has returned unclaimed and that document is also exhibited at Exh.8, it was returned to sender i.e. the learned advocate for the complainant whose address was mentioned on the envelope. However, it is claimed that service of notice at that very address sent by UPC has not returned back, and therefore, it is deemed to have been served.
[5.2] The accused claimed that, which is reflecting from the written arguments on his behalf vide Exh.43, the address shown in the notice as also the complaint is not the true and correct address at which it is claimed deemed to have been served at the address mentioned in the said notice. As per Page 16 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined the evidence led by the accused with contemporaneous record, it reflected that he being entitled to have license being Pharmacist was appointed with Ahmedabad Municipal Corporation since 20.03.2006, and therefore, no license can be continued in his case to run that Medical Shop, address of which is mentioned in the notice as also the complaint. The return of RPAD envelope with an endorsement "unclaimed and return to sender" is the proof of the fact that the accused is neither staying nor carrying on any business at the place and it may not be correct address as on the date of attempted service of notice. Thus, it is clear that post sent under UPC, though not mentioned in that certificate but seal of Post Office reflects to be 27.07.2006, which is at Exh.10 of the compilation, and therefore, before presuming service of either notice or even summons at the very address mentioned in the notice and the complaint has to be proved that at that place on the date of service thereof of either issuing notice or the summons, accused was staying or carrying on business at the place mentioned in the envelope given in the complaint or summons. The argument canvassed by the learned advocate for the complainant is that summons of the case received by the wife of the accused is the place where RPAD as also UPC was sent. It is in an attempt to show that at the place of Manali Medical and Provision Store, wife of the accused was found present, and therefore, summons was served upon her. It is further the submission of the learned advocate for the complainant that at that very place, despite the accused is dealing in business, he has sent back RPAD notice. Furthermore it is the submission of learned advocate for the complainant that defence witness examined on behalf of the Page 17 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined accused as also admitted in the cross examination that accused had Manali Medical and Provision Store and the said Store was at the address shown and mentioned in the notice as also the complaint. Based on such submission, learned Magistrate has concluded that, the address shown in the RPAD post, wife of the accused was sitting at the place of business is established, pursuant to which, accused appeared before the Court. Over and above the learned Magistrate has held that the accused has failed to show that at the place of business mentioned in the complaint, how his wife found to receive summons. He has further held that it is not the case of the accused that there is some dispute between the husband and wife, coupled with the fact that admission of defence witness that accused had Manali Medical and Provision Store at Amraiwadi, the said address is shown in the complaint as also in the notice, which is the place of business.
[5.3] However, learned Magistrate has failed to consider the submission made on behalf of the complainant that summons was served to the wife of the accused at the place of business where the accused was carrying on business without there being any contemporaneous record. I have also examined in detail Record and Proceedings sent in only one file i.e. called paper-book and no file maintained under the criminal manual as also Rules, which contains paper-book reflecting service of summons, copy of summons and the report of the summons serving agency. Despite intimation to the Court concerned, while noticing that other files are not received by the High Court, it is again informed to this Court by a report of the concerned Magistrate that this is only the file Page 18 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined available on record. It appears to be a very serious thing when it is claimed on one hand by the complainant that summons was served upon the wife at the address of place of business of the accused whereas learned Judge has relied on that submission and on the other presumed that wife of the accused is doing business at the place mentioned in the summons as also the complaint. It is also not coming out in the judgment whether on the basis of the report submitted by the process server agency or endorsement on the summons by any agency about service of notice as also place of notice, it can never be presumed that wife of the accused must be carrying business at that place, who is served. Apart from the fact that whether summons to a criminal case can be served upon any one other than the accused except the accused, though mode of service under Section 144 of 'the Act' is introduced with effect from 06.06.2003, summons is to be served at the place where the accused or witness ordinarily resides for carrying on business or personally works for gain, by speed post or by such courier service as are approved by the Court of Sessions, no other mode by which i.e. hand delivery by which complainant or any report that it was served at that place mentioned in the complaint, to the wife but not the accused. Since neither the summons and report of process server is finding place in the original Record and Proceedings is available, it cannot be presumed that it has been served upon the wife of the accused at the place of business where deliberately accused avoided service of notice or the summons. Though Section 144 of 'the Act' permits service of summons where accused ordinarily resides or carries on business or personally works for gain by speed post or by such Page 19 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined courier service as approved by the Court of Sessions, it is not shown in this case that summons was attempted to be served either by Speed Post or by such courier service as approved by the Court of Sessions. On the contrary, it is argued that summons is received by the wife of the accused at the place of business. It nowhere provides service of summons of a criminal case to a person other than the accused, more particularly, when prior to issuance of notice as also filing of the complaint and serving of the summons even ordinary place of business of the accused shown is already discontinued with the job being accepted by him in the Municipal Corporation as Pharmacist- cum-Clerk since 20.02.2006.
[5.4] Therefore, process server might have served summons to the wife of the accused at ordinary place of his residence and in absence of any proof that at the address mentioned in the notice or the complaint wife is carrying on the business as provided under 'the Code' summons shall be served personally on the person summoned by delivering or tendering to him of the duplicate of the summons. It nowhere provided service of summons upon the accused to any other work place. On the date of serving of summons, as law existed, when person summoned cannot by exercise of due diligence be found, the summons is permitted to be served by leaving one of the duplicates for him with one adult male member of the family residing with him and the person with whom the summons so left, if so required by serving officer signed and received thereof on the back of the other duplicate. Therefore record of miscellaneous file for service of summons and the report of the process server assumes importance and in Page 20 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined absence thereof, without looking at it, learned Magistrate could not have presumed that wife of the accused is carrying on the business at the address mentioned in the notice as also complaint only on the ground that summons was served upon wife of the accused pursuant to which accused appeared before the Court. Though service of summons in a criminal case as per the existing law could not be served upon the female member, it could not have been presumed to be a valid service, though at residence also wife of the accused might have been served a copy of summons, pursuant to which he appeared before the Court, and therefore, the finding of the learned Judge for service of a summons and receipt of notice at the address shown in the summons, notice as also complaint would be treated as a place of business being carried on by the accused.
[5.5] However, claim made by the accused that no notice is received by him when it is proved by contemporaneous record that he joined the service as Pharmacist-cum-clerk since February, 2006, there is no question of notice being served in the month of July at the address even under UPC, more particularly, when RPAD returned back with an endorsement "not claimed returned to sender". All these facts are necessary to be recorded, as learned advocate for the complainant relied on the decision in the case of Tedhi Singh (Supra) for a proposition that when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial Page 21 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined capacity to lend the money.
[5.6] In absence of any proof that summons was served upon the wife of the accused at the address mentioned in the notice, complaint and reflected in the summons based on report of process server, it cannot be expected of the accused that notice is served upon him so as to set up his defence from the reply of notice about the capacity of the complainant to lend the said money. Moreover, the accused is successful in proving by cross examining the complainant that he is not doing the business, as claimed by him, and the documents, which are produced by him even if it is read in evidence though not proved, it is in the name of "Ankur Chem" where no names of any proprietor, partner or director reflects that it owned by either the complainant or anyone else. Those two documents of Registration Certificate one under the Central Sales Tax Rules and under the Gujarat Sales Tax Act reflects two different places of business. There also, it does not reflect the name of the owner, occupier, proprietor, partner or director. Therefore, claim made by the accused that he deals in sales and purchase of chemical in that name proves to be wrong. When upon a reliable evidence, apart from preponderance of probability, accused is successful in proving that he deals in lending money at exorbitant rate of interest, there is no question of claiming to be dealing in business of chemical so as to show the capacity to lend money, raising defence from the reply to the notice about the capacity to lend money by the complainant is out of question, and therefore, on the facts in the present case, the judgment relied on in the case of Tedhi Singh (Supra) is not applicable.
Page 22 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined [5.7] At the same time, after service of summons, the complainant is sufficiently cross examined to show that he has received the cheque dated 30.03.2006 on demand of money lent. However, nowhere he has stated about the date and time of lending money to the accused. As such, as averred in the complaint, from the date of it before a year Rs.50,000/- was lent and even mode thereof, is not stated in it.
[5.8] As against that, he has admitted in his cross examination that on what date amount was lent to the accused is neither stated in his complaint nor his examination-in-chief. Again, it is admitted that there is no documentary evidence or any promissory note or any other writing in support of lending money to the accused is produced before the Court. He has further admitted that since he is dealing in the business of chemical, he knows about the necessity of PAN Card number as also Sales Tax number and having transactions of Income- tax and Sale Tax. However, he pleaded ignorance that if any amount is to be paid to anyone beyond Rs.5,000/- receipt is required. At the same time, he pleaded ignorance that for any transaction beyond Rs.20,000/- it has to be by cheque. Though he claimed that an amount mentioned in the cheque was given to the accused from his savings. However, he has admitted in his cross examination that it is nowhere reflected in the complaint or in the examination-in-chief in whose presence the said amount mentioned in the cheque is given to the accused.
[5.9] The accused has already set up his defence that the Page 23 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined amount was in fact lent to Hemantbahi Manubhai Patel and accused gave signed blank cheque to him for security of that amount lent to Hemantbhai Manubhai Patel on interest at the rate of 10%. Though that suggestion is denied, however, he has stated that in between the date of delivery of cheque and date mentioned in the cheque, how much time elapsed there he did not know. As such, the entire defence pleaded by the accused is denied by him in his cross examination. However, accused has, not only based on preponderance of probability, but his defence is also supported by documentary evidence, which is produced on record.
[5.10] Vide Exh.25, statement of his account issued by his bank, which reveals that cheque book containing the cheque in dispute came to be issued on 22.05.2002 and till 26.08.2002 up to Cheque number 185698 leaving few cheques have already been transacted from his account, and therefore, prima facie accused is able to prove his defence that the said cheque was given as security in the year 2002 where amount was lent to his friend Hemantbhai Manubhai Patel and was not issued in the year 2006, as claimed by the complainant. At the same time, he has examined very Hemantbhai Manubhai Patel as his defence witness. Hemantbhai Manubhai Patel has also supported that case. Only because the defence witness has faultered on amount received as loan from the complainant as stated in examination-in-chief to be Rs.10,000/- an in a cross examination stated to be Rs.20,000/- makes no difference so far as lending of money to him is concerned. As such, learned Magistrate has assigned good reasons for accepting the defence and believing it to be proved that the Page 24 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined cheque is not issued towards any legally enforceable debt, and therefore, burden would shift on the complainant to prove that there exists legally enforceable debt. Apart from the fact that the finding recorded by the learned Magistrate in respect of existence of legally enforceable debt is in favour of the accused that the complainant has failed to prove the same and at the same time the finding recorded by the learned Magistrate for the accused that he was carrying on his business at the address mentioned in the complaint stated that the defence witness has also accepted that the accused had Manali Medical and Provision Store at Amraiwadi. If cross examination of defence witness - Hemantbhai Manubhai Patel is seen, he had referred that in past accused had medical store in that name. The defence witness has nowhere stated or admitted in his cross examination that the accused was ever carrying on business after 20.03.2006, the day on which the accused joined the services as Pharmacist-cum-Clerk with Amraiwadi with Bagefirdosh Ward Urban Health Center run by Ahmedabad Municipal Corporation, and therefore, the date appearing on the cheque as also issuance of notice and filing of the complaint, accused was not carrying on business at that place is for sure. Therefore, it was incumbent upon the complainant to prove that statutory notice under Section 138 of 'the Act' came to be issued upon the accused at the address of his residence or at the place of his business where he ordinarily resides or carries on business. It may happen that complainant may not be knowing that business is continued or not but when the accused has already led the evidence then on joining of service, he cannot continue the business for which licence is issued in the name of this medical store.
Page 25 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined Even it cannot be presumed in absence of any material on record that such licence in the name of that store is continued thereafter in the name of the accused as Pharmacist. If any presumption is to be raised by the learned Judge that his wife must be carrying on business in that very name or at that very place, there has to be some evidence that wife is also qualified Pharmacist and she can also run that medical store. At any rate, acceptance of summons by the wife of accused, as claimed by the complainant, cannot be said to be a place of business being carried on by the accused in absence of report of process server whether the summons was served by hand delivery or not and at what place. More conspicuously, those documents are not forming part of the case record, which is sent to this Court as Record and Proceedings. Still, however, learned Magistrate has also presumed such service of summons upon his wife at the place of business even without referring the report of process server where she was served. She might have been served at the residence as well. At any rate, it cannot be presumed that on that day, when statutory notice came to be issued and summons is served, accused is carrying on business at that place, and therefore, it cannot be concluded by the learned Judge. Conclusion is again incorrect that statutory notice is served under UPC, and therefore, it can safely be concluded that no statutory notice is served upon the accused, which is sine qua non for initiating proceedings against the accused under 'the Act'.
[5.11] Reliance placed on the decision of the Supreme Court in the case of M.D. Thomas Vs. P.S. Jaleel and Another reported in (2009) 14 SCC 398 on the very issue Page 26 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined may be service to family member, held not service to the drawer is sine qua non in terms of Clause (b) of Section 138 of 'the Act' is justified.
[5.12] Though in the present case, notice is not served upon the wife of the accused but it was sent under UPC at the place of business where prior to the date of issuance of cheque and on the date of complaint being filed, as claimed by the complainant, the accused is carrying on business, which is proved to be not correct as per the defence raised by the accused, and therefore, also service of statutory notice cannot be said to be served upon the accused so as to entitle the complainant to prosecute him [5.13] Reliance placed on the decision in the case of Tedhi Singh (Supra) as discussed hereinabove with special reference to that decision, requirement of setting up defence from the reply to the notice in the present case would not be applicable at all as notice was not served upon the accused, and therefore, it cannot be expected from him to set up that defence from the reply to the notice. At the same time, as brought on record, through contemporaneous record even address mentioned in the complaint and statutory notice, though accused was carrying on business at that address prior to issuance of cheque, it cannot be presumed, he continued to carry on business at that address so as to believe deemed service of statutory notice upon the accused at the place of business.
[5.14] As such, it is for complainant to show that as on the Page 27 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined date of notice as also complaint, accused was carrying on business at the address mentioned in both the documents. For that, there is no reverse burden on the accused to prove the same. However, from the stage of cross examination of the complainant himself, he has set up his defence cheque having not been issued against legally enforceable debt, as claimed by the complainant but it has been issued, only blank signed cheque, in ensuring repayment of loan by Hematbhai Manubhai Patel on interest at the rate of 10% per month, as security. As such, that cheque is proved to be given to the complainant in the year 2002, which supports the defence of the accused. It has been proved on record by the accused, through contemporaneous record, that such cheque has come to be issued and almost exhausted carrying those cheque number in the cheque book up to end of August, 2002. Therefore, claim made by the complainant that the cheque having been issued to him on the date mentioned in it being 30.03.2006, prove to be false case pleaded by the complainant. If on the basis of preponderance of probability, accused establishes that it has not been given towards any legally enforceable debt, as claimed by the complainant, and therefore, it was incumbent upon the complainant to show the existence of legally enforceable debt. At the same time, the claim of the complainant that he deals in chemical business also appears to be incorrect by production of his own documents. Apart from those documents are not proved on record, it reveals that it does not refer even the name of the complainant or complaint does not reflect that he is doing business in that name, and therefore, it is nothing but an afterthought and when a question was asked to him about Page 28 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined showing any material to show that he is doing business or having any contemporaneous record to prove the same for the sake of production, complainant has just produced those documents, which does not support his own case. The decision relied on in the case of Rohitbhai Jivanlal Patel (Supra) will also not help him for an issue that an amount lent to the accused was not reflected in the accounts or income tax return as that would at the best hold the assessee or lender liable under the income-tax law but if the complainant succeeds in showing lending of amount, the existence of legally enforceable debt cannot be denied. The said decision would not be applicable in the present case for the simple reason that the cheque is not issued towards any legally enforceable debt, as claimed by the complainant as on the date appearing in the cheque in dispute but it is proved by probable defence of the accused that it came to be issued as ensuring repayment as security of an amount lent to his friend Hemantbhai Manubhai Patel, as admitted by the complainant in his cross examination to show that such amount is not lent to the accused in presence of anyone and there exists no documentary evidence in support of the same, and therefore, mere oral words, which prima facie cannot be believed in view of the defence raised and proved, legally enforceable debt cannot be presumed to exist despite issuance of blank signed cheque in view of evidence led before the Court.
[5.15] The decision in the case of Rajaram S/O Sriramulu Naidu (Supra) is also again in line with the decision of Rohitbhai Jivanlal Patel (Supra), which is also referred therein, and therefore, no special reference is Page 29 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025 NEUTRAL CITATION R/CR.A/166/2010 JUDGMENT DATED: 15/07/2025 undefined required to the said decision relied on by the learned advocate for the complainant.
The reference of the decision cited by the learned advocate for the accused needs no special reference as based on the evidence led before the Court and the reasons assigned by the learned Magistrate recording an order of acquittal of the accused cannot be termed as patently perverse. On the contrary, as stated hereinabove, for the failure of the complainant to show legally enforceable debt as also accepting probable defence of the accused based on documentary evidence and reasons assigned in support thereof requires no interference even on reappreciation of evidence by this Court in this acquittal appeal.
[6.0] I fully agree with the reasons assigned by the learned Judge accepting the defence of the accused, and therefore, he having rebutted the presumption, burden shifts to the complainant to show legally enforceable debt and failure of the complainant to show that in view of defence raised by the accused, it requires no interference on very well known propositions to interfere with the acquittal appeal. Hence, this Appeal stands dismissed. Record and Proceedings be sent back to the trial Court immediately.
(UMESH A. TRIVEDI, J.) siji Page 30 of 30 Uploaded by SIJI THOMAS(HC00174) on Thu Jul 24 2025 Downloaded on : Fri Jul 25 23:41:01 IST 2025