Gujarat High Court
Manhar Sukhlalbhai Patel vs Vijay Mohanbhai Shah (Chopra) on 5 May, 2026
NEUTRAL CITATION
R/CR.RA/632/2010 JUDGMENT DATED: 05/05/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION -
NEGOTIABLE INSTRUMENT ACT) NO. 632 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
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MANHAR SUKHLALBHAI PATEL
Versus
VIJAY MOHANBHAI SHAH (CHOPRA) & ANR.
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Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1
MR.MANHAR S PATEL(6275) for the Applicant(s) No. 1
MR.MRUDUL M BAROT(3750) for the Respondent(s) No. 1
MR ROHAN RAVAL, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 05/05/2026
JUDGMENT
1) By way of present revision application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C"), the applicant has prayed for quashing and setting aside of the judgment and order dated 22.11.2010 passed by learned City Sessions Judge, Ahmedabad, in Criminal Appeal No. 227/2009 and confirm the order of conviction and sentence passed by learned Metropolitan Magistrate, NI Act, Court No.2, Ahmedabad, in Criminal Case No.50/2008, whereby learned JMFC has been pleased to hold the applicant guilty for the offence punishable Page 1 of 16 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri May 08 2026 Downloaded on : Sat May 09 01:59:56 IST 2026 NEUTRAL CITATION R/CR.RA/632/2010 JUDGMENT DATED: 05/05/2026 undefined under Section 138 of the Negotiable Instruments Act, and sentenced to undergo simple imprisonment of one year and fine of Rs.5,000/-.
2) Heard Mr. N.K.Majmudar, learned counsel for the applicant - complainant, Mr. Mrudul Barot, learned counsel for respondent No.1 and Mr. Rohan Raval, learned APP for the respondent State.
3) Brief facts of the case are that, the accused having financial need for business, demanded a loan of Rs. 4,70,000/- from the complainant in the month of September-2003 and the accused gave a promise to return the said amount within six months. So, the complainant gave Rs.4,70,000/- to the accused and in order to build trust in return, the accused wrote a promissory note to the complainant. Thereafter, as the accused did not return the said amount to the complainant within time limit and upon demand by the complainant, the accused stated that he did not have sufficient fund in his personal account and therefore, he issued a cheque dated 4/9/04 being cheque No. 409149 of Rs. 4,70,000/- from the account of his proprietor firm Shri Bhavani Jewellers, Manekchowk Co.O. Bank Ltd., Manek Chowk Branch and gave assurance that this cheque would be honored. When the complainant deposited the said cheque in the bank, due to insufficient balance in the accused's account, the said cheque was returned with a return memo of "Today's Opening Balance Insufficient" on 6/9/04 and the complainant's bank, Bank of Baroda, informed the complainant about the same on 6/9/04. So the complainant through his lawyer issued a notice to the accused on 20/9/04 by registered A.D. and U.P.C., which notice was served on the accused. Pursuant to the same, the accused gave a reply and did not return the money to the complainant within the time limit. Therefore, the complainant Page 2 of 16 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri May 08 2026 Downloaded on : Sat May 09 01:59:56 IST 2026 NEUTRAL CITATION R/CR.RA/632/2010 JUDGMENT DATED: 05/05/2026 undefined filed a complaint against the accused under Section 138 of the Ni Act, before learned Trial Court, in which learned Metropolitan Magistrate has been pleased to hold the applicant guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, and sentenced to undergo simple imprisonment of one year and fine of Rs.5,000/-. The said order was assailed by the accused before the learned Addl. Sessions Court, Ahmedabad City by filing Criminal Appeal No. 2274/2009, in which learned Addl. Sessions Judge has been pleased to set aside the order of conviction and sentence and acquit the accused from the offence under Section 138 of the NI Act vide order dated 22.11.2010.
4) Learned counsel for the applicant-complainant has submitted that the impugned judgment and order passed by the learned lower Appellate Court are illegal, perverse, and contrary to law. It is contended that the findings recorded by the lower Appellate Court are contrary to the oral as well as documentary evidence produced on record before the learned Trial Court. It is further submitted that the lower Appellate Court has exceeded its jurisdiction by taking into consideration facts which were not germane to the issues involved in the proceedings and by relying upon extraneous considerations, which are impermissible while adjudicating proceedings under the provisions of the Negotiable Instruments Act, 1881. Learned counsel has further argued that the statutory notice was duly served at the correct address of the accused and, therefore, the presumption of service under Section 27 of the General Clauses Act, 1897 squarely applies. However, the learned Sessions Judge failed to appreciate the said legal position and erroneously concluded that there was no legally enforceable debt. It is submitted that the learned Appellate Court committed a grave error in disregarding the promissory note produced on Page 3 of 16 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri May 08 2026 Downloaded on : Sat May 09 01:59:56 IST 2026 NEUTRAL CITATION R/CR.RA/632/2010 JUDGMENT DATED: 05/05/2026 undefined record and in holding that, in the absence of corroborative evidence, the legally enforceable debt was not proved. It is also contended that the learned Appellate Court accepted the submissions advanced on behalf of the accused regarding the financial capacity of the complainant without properly appreciating the evidence available on record. Once the execution of the cheque and the signature thereon are admitted or not specifically denied, the statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act are required to be drawn in favour of the complainant. In the present case, the accused not only failed to deny the signature on the cheque but also examined witnesses in defence. Furthermore, the Talati examined before the Trial Court supported the case of the complainant by deposing that the complainant possessed agricultural land situated at village Nanasara, thereby substantiating the financial capacity of the complainant to advance the amount in question. It is submitted that merely because the said amount was not reflected in the income-tax returns of the complainant, the same could not have been made the sole ground for reversing the well-reasoned findings recorded by the learned Trial Court. According to the applicant, the reasons assigned by the learned Addl. Sessions Judge are contrary to the settled principles governing proceedings under the Negotiable Instruments Act and, therefore, the impugned judgment and order deserve to be quashed and set aside.
5) Learned counsel for respondent No.1 - accused has opposed the present revision application and submitted that the learned Addl. Sessions Judge has not committed any error in acquitting the accused, as the complainant failed to establish the existence of a legally enforceable debt or liability. It is contended that the Page 4 of 16 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri May 08 2026 Downloaded on : Sat May 09 01:59:56 IST 2026 NEUTRAL CITATION R/CR.RA/632/2010 JUDGMENT DATED: 05/05/2026 undefined burden initially lies upon the complainant to prove the foundational facts of the transaction. It is further submitted that the statutory notice was not duly served upon the accused and, despite the same, the learned Trial Court erroneously convicted the accused without proper appreciation of the oral and documentary evidence available on record. According to the respondent, the learned Addl. Sessions Court has rightly re- appreciated the evidence and validly reversed the order of conviction passed by the Trial Court. Learned counsel has also pointed out that no corresponding entry regarding the alleged loan transaction was reflected in the income-tax returns of the complainant. It is submitted that the complainant himself admitted that his annual income for the financial year 2003-2004 was approximately Rs.1,42,500/- and for the financial year 2004- 2005 was approximately Rs.1,35,500/-. In support of the said contention, an officer from the Income Tax Department, namely Mukesh, was examined before the Court. It is further argued that the cheque in question was not issued towards discharge of any legally enforceable debt, but was handed over to the complainant for a limited purpose when the wife of the accused intended to travel to London and required proof of financial balance. According to the respondent, the said cheque was subsequently misused by the complainant. It is also contended that the handwriting appearing on the promissory note is not that of the accused. Learned counsel has therefore submitted that the learned Sessions Court has properly appreciated the evidence on record and has rightly accepted the probable defence raised by the accused on the touchstone of preponderance of probabilities. In view of the aforesaid submissions, it is prayed that the present revision application being devoid of merits deserves to be dismissed.
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6) Mr. Barot, learned counsel for the accused has relied on the decision of the Hon'ble Supreme Court in the case of Mahabir & Ors. Vs. The State of Haryana, reported in 2025 INSC 120 and argued that this Court has not power to convert acquittal into conviction and requested to remit back the matter to decide afresh.
7) Having heard learned counsel for the respective parties and perusing the material placed on record, it is worth to mention that here in the case on hand, learned Trial Court has convicted the accused and the same was assailed before the learned Addl. Sessions Court, wherein, learned Addl. Sessions Court has overturned the findings of learned trial Court and set aside the conviction. It is duty of the lower appellate Court while deciding the appeal, reasons assigned by the learned trial Court is required to be considered based on the evidence before the Court and credibility of the witnesses has to be adjudicated by the appellate Court in drawing inference from the proved and admitted facts. Reference is required to be made on the decision of the Hon'ble Supreme Court in the case of Padam Singh Vs. State of U.P, reported in AIR 2000 SC 361. Herein in the case on hand, learned Sessions Court has not examined the reasons assigned by the learned Trial Court as to whether the same are consonance with the evidence produced on record or not and simply accepted the arguments canvassed by learned counsel for the accused.
8) This Court has carefully perused and scrutinized the evidence produced on record and has also examined the reasons assigned by the learned Sessions Court while overturning the findings recorded by the learned Trial Court. This Court has further re- appreciated the evidence and the findings arrived at by the learned Trial Court while convicting the accused. In the present Page 6 of 16 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri May 08 2026 Downloaded on : Sat May 09 01:59:56 IST 2026 NEUTRAL CITATION R/CR.RA/632/2010 JUDGMENT DATED: 05/05/2026 undefined case, proceedings came to be initiated under Section 138 of the Negotiable Instruments Act, 1881. According to the complainant, the accused was in need of financial assistance and, therefore, in September 2003, the complainant advanced an amount of Rs.4,70,000/- in cash to the accused. It is the case of the complainant that the accused assured repayment of the said amount and, towards discharge of the said liability, issued cheque No.409149 dated 04.09.2004 for an amount of Rs.4,70,000/- drawn on Bhagyoday Co-operative Bank in his capacity as proprietor of "Bhavani Jewellers." The said cheque, when presented for encashment on 06.09.2004, came to be dishonoured with the endorsement "Insufficient Funds." Thereafter, the complainant issued a statutory notice dated 20.09.2004 through Registered Post A.D. demanding payment of the cheque amount. Despite service of notice, the accused failed to make payment within the stipulated period and, therefore, the complainant instituted a complaint under Section 138 of the Negotiable Instruments Act on 04.11.2004. Upon verification of the complaint, process came to be issued against the accused.
9) The accused appeared before the Court and pleaded not guilty, and therefore, the trial proceeded. In support of the complaint, the complainant produced documentary as well as oral evidence, including the complaint at Exhibit-3, the promissory note at Exhibit-7, the cheque at Exhibit-8, the bank return memo at Exhibit-9, copy of the statutory notice at Exhibit-10, postal receipt at Exhibit-11, and correspondence with the postal authorities at Exhibit-12. Thereafter, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein the accused, by way of defence, stated that he had not executed the promissory note and that the cheque in question had been handed Page 7 of 16 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri May 08 2026 Downloaded on : Sat May 09 01:59:56 IST 2026 NEUTRAL CITATION R/CR.RA/632/2010 JUDGMENT DATED: 05/05/2026 undefined over only for the purpose of showing bank balance, as the wife of the complainant intended to travel to London, and that the said cheque had subsequently been misused by the complainant. In defence, the accused examined Income Tax Officer Mr. Mukesh Solanki at Exhibit-16 and produced copies of income-tax returns at Exhibit-17. The defence also examined the Talati of Nanasara village at Exhibit-18 and produced revenue record Forms at Exhibits 19 to 21. After appreciation of the aforesaid oral and documentary evidence, the learned Trial Court held the accused guilty for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5,000/-. It appears that no separate order awarding compensation under Section 357 of the Code of Criminal Procedure came to be passed by the learned Trial Court.
10) Further, as per the law laid down by the Hon'ble Supreme Court in the case of Prem Chand Vijay Kumar Vs. Yashpal Singh, reportred in 2005 (4) SCC 417, the following facts are required to be proved to successfully prosecute the drawer for an offence under Section 138 of the Act:
(a) that the cheque was drawn for payment of an amount of money for discharge of a debt/liability and the cheque was dishonoured;
(b) that the cheque was presented within the prescribed period;
(c) that the payee made a demand for payment of the money by giving a notice in writing to the drawer within the stipulated period; and
(d) that the drawer failed to make the payment within 15 days of the receipt of the notice.
11) At the outset, it is a settled position of law that once the execution of a cheque is proved or admitted, a statutory presumption arises under Sections 118 and 139 of the Negotiable Instruments Act, Page 8 of 16 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri May 08 2026 Downloaded on : Sat May 09 01:59:56 IST 2026 NEUTRAL CITATION R/CR.RA/632/2010 JUDGMENT DATED: 05/05/2026 undefined 1881, that the cheque was issued towards discharge of a legally enforceable debt or liability, unless the contrary is proved by the accused. Therefore, the burden shifts upon the accused to rebut the said presumption by raising a probable defence. In the present case, the learned Trial Court, upon appreciation and analysis of the oral as well as documentary evidence on record, arrived at the conclusion that the accused had issued a cheque for an amount of Rs.4,70,000/- in favour of the complainant and that the said cheque was presented before the bank within the statutory period of limitation. The cheque came to be dishonoured and thereafter the statutory notice was duly issued and produced on record. As discussed hereinabove, upon careful examination of the evidence led before the learned Trial Court, it clearly emerges that the accused has admitted his signature on the cheque in question, though he has disputed the handwriting appearing in the body of the cheque as well as the handwriting on the promissory note.
Once the signature on the cheque is admitted, the execution of the cheque stands proved and the statutory presumption under the Negotiable Instruments Act comes into operation. Merely because the contents or body of the cheque were filled in by the complainant would not, by itself, invalidate the cheque or lead to an inference that there was no legally enforceable debt or liability. In the absence of cogent evidence rebutting the statutory presumption, such contention alone cannot be accepted as sufficient to disbelieve the case of the complainant.
12) In the case on hand, once the signature is admitted by the accused, as per the law laid down in the case of Kalamani Tex and Anr. Vs. P. Balasubramanian, reported in (2021) 5 SCC 283, the Court shall have to presume about legally enforceable debt under Section 139 of the Act. The Hon'ble Apex Court in case of Rajesh Page 9 of 16 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri May 08 2026 Downloaded on : Sat May 09 01:59:56 IST 2026 NEUTRAL CITATION R/CR.RA/632/2010 JUDGMENT DATED: 05/05/2026 undefined Jain Vs. Ajay Singh reported in (2023) 10 SCC 148, held that as per Section 139 of the Act, the word "until the contrary is proved", do not mean that the accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability, rather the accused has the option to ask the court to consider the non-existence of debt so probable that a prudent man ought under the circumstances of the case, to act upon the supposition that debt did not exist. Accused has voluntary signed the cheque. Once voluntarily signed blank cheque leaf is handed over to the complainant, there is presumption that the same was handed over towards legally enforceable debt.
13) So far as dispute qua promissory note is concerned, learned trial Court has compared handwriting also based on the admitted signature on VP filed by the accused and other proceedings and come to the conclusion that defense is not acceptable, handwriting are same under Section 73 of the Indian Evidence Act and the same is compared by learned trial Court as assigned proper and valid reasons.
14) Further, in view of the Hitenbhai Parekh Vs. State of Gujarat, Junagadh Power Project, reported in 2012 (2) GLR 1394, the accused failed to rebut the statutory presumption and ld. Trial Court has rightly come to the conclusion that the complainant is succeeding in proving that the accused failed to prove that the cheque is not issued towards legally enforceable debt. Hence, merely denial the fact that he has not filled up the body of the cheque is not a ground once admission of signature which proves the execution. In this regard, reference is required to be made in the case of Bir Singh Vs. Mukesh Kumar, reported in 2019 (4) SCC 197, more particular paras 37 to 41.
15) If we consider the record, no such defence has been raised by the Page 10 of 16 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri May 08 2026 Downloaded on : Sat May 09 01:59:56 IST 2026 NEUTRAL CITATION R/CR.RA/632/2010 JUDGMENT DATED: 05/05/2026 undefined accused or no statutory reply to the notice has been given by the accused. Hence, in view of the law laid down by the Hon'ble Apex Court in the case of Tedhi Singh v. Narayan Dass Mahant reported in (2022) 6 SCC 735 and Kalamani Tex v. P. Balasubramanian, reported in (2021) 5 SCC 283, the effect of admission regarding the signature on the cheque is explained. Once the signature is admitted, it is required to be presumed that the cheque was issued towards consideration for a legally enforceable debt. Further once, signature is accepted then cheque was issued towards the security and it was signed. As per explanation of legal position on how to rebut the presumption under Section 139 of the NI Act and to raise the presumption under Section 139 of the NI Act, the Hon'ble Apex court has clearly explained in the case of Rajesh Jain v. Ajay Singh reported in (2023) 10 SCC 148. Considering the aforesaid fact, presumption under Section 118 of the NI Act, even if for the sake of argument it is accepted that cheque was issued towards security, even then it is not a piece of paper and is a valuable security and under Sections 87 and 20 of the NI Act gives the power to holder of the cheque to complete inchoate instrument. Moreover, Sections 20 and 87 of the Negotiable Instruments Act authorize the giver of the check to fill the check. Therefore, the learned trial Court has not committed any error. However, the ld. Sessions Judge has reached the conclusion that the complainant could not prove his financial capacity, which is contrary to the record. There is testimony from the Income Tax Officer and the Income Tax return on record. Additionally, the accused also has 10 acres of agricultural land. It is not mandatory to show agricultural income in Income Tax, and even if it is not shown, it cannot be said that there is no legally debt.
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16) It appears that learned trial Court has properly appreciated the evidence and exercised the jurisdiction as the cheque was presented before the Bank and same came to be dishonored with endorsement "funds insufficient". Within the prescribed time limit, the notice of demand was issued which was not properly replied to by the accused pursuant to which the complaint was filed within limitation.
17) If we peruse the record, it appears that the accused has produced income tax returns and having 10 acres of agricultural land, which is evident from Exhs:19 to 21. The learned trial Court has considered the said fact and came to the conclusion that approximately 10 acres of land owned by the accused which is in joint ownership of family and there is no such mandatory law to show the income of agricultural land is required to be shown in income tax returns. For the sake of argument, it is accepted that such income is not mentioned in the income tax, it does mean that there does not exist any legally enforceable debt and there is breach of provisions of Income Tax Act.
18) The accused has failed to rebut the presumption and to show that the complainant does not have financial capacity. After giving the check, a promissory note was also written. The defense of the accused that the check was given for the wife to go to London is not acceptable. If the check was given for that purpose, it would not happen that the check is deposited in the complainant's account. Therefore, the defense of the accused is not acceptable. If there is a violation of any Income Tax law, there is a separate law for that in view of the judgment of Sanjabij Tari v. Kishore S. Boarcar & Anr. and therefore, arguments canvassed by learned counsel for the accused is not acceptable.
19) The learned Sessions Judge has recorded a finding that the Page 12 of 16 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri May 08 2026 Downloaded on : Sat May 09 01:59:56 IST 2026 NEUTRAL CITATION R/CR.RA/632/2010 JUDGMENT DATED: 05/05/2026 undefined statutory notice was not served upon the accused and, therefore, no opportunity was afforded to him to make payment of the cheque amount. However, this Court finds that the learned Trial Court had properly appreciated the evidence on record and rightly concluded that the address mentioned in the statutory notice was the correct address of the accused. Significantly, the very same address was furnished by the accused before the Court during the proceedings. In such circumstances, the presumption of due service under Section 27 of the General Clauses Act, 1897 would clearly come into picture. It is well settled that when a notice is dispatched to the correct address by registered post, service thereof is presumed unless rebutted by cogent evidence. In this regard, reliance may be placed upon the decision of the Hon'ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed, wherein it has been held that once a notice is sent to the correct address, the presumption of service would arise and it would be deemed to have been served upon the addressee. Despite the aforesaid settled legal position, the learned Sessions Court proceeded on the premise that the notice was not served and that no opportunity had been given to the accused. This Court is of the considered opinion that once the statutory notice was sent to the correct address and the accused failed to respond to the same, the presumption regarding service remained unrebutted. Further, the accused also failed to probabilise his defence that the complainant lacked the financial capacity to advance the amount in question. Mere suggestions or bald assertions in that regard, without cogent rebuttal evidence, would not be sufficient to dislodge the statutory presumptions available in favour of the complainant under the provisions of the Negotiable Instruments Act.
20) In this regard, reference is required to be made on the decision of Page 13 of 16 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri May 08 2026 Downloaded on : Sat May 09 01:59:56 IST 2026 NEUTRAL CITATION R/CR.RA/632/2010 JUDGMENT DATED: 05/05/2026 undefined the Hon'ble Supreme Court in the case of Tedhi Singh (supra), wherein in paras 9 and 10, it has been held as under:-
"9. The Trial Court and the First Appellate Court have noted that in the case under Section 138 of the N. I. Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the N. I. Act is not a civil suit. At the time, 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 capacity. To that extent the Courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence."
10. We have gone through the nature of the evidence in this case. We also bear in mind the fact that three Courts have held in favour of the respondent. In this regard we bear in mind that though it is true that reply notice was sent by the appellant, therein he admits the case of the respondent that the parties were having a cordial relationship. In the reply notice the appellant has not set up any case that the respondent did not have the financial capacity to advance the loan. In fact even we notice that there is no reference to the loss of the cheque book or signed cheque leaf. No complaint was given of the loss of the cheque book or the signed cheque leaf either to the police or to the bank. In the evidence of DW5, the son of the appellant, the version given is that on 5.10.2011, PW5 had left home with the cheque book of the appellant which had a cheque signed by the appellant for withdrawing money, if needed in the absence of the appellant. He set up the version that he drove away an unowned cow. in the field. Thereafter, while sitting in the bus he saw the cheque book was not with him. He further deposed that since his father was not at home he could not tell him about the incident and got engrossed in his study and forgot the incident. In his statement under Section 313 Cr.PC given on 10.01.2013, appellant has taken the stand that he informed the Bank. It is relevant to notice that DW5 has further deposed that when the appellant received the notice he asked him about the cheque book and then he told him about the incident of the loss of cheque book. Still, at the time when the reply notice was sent, the case is not set up about the loss of cheque book and about the cheque relied upon by the respondent being one which is brought into existence using the lost signed cheque leaf. We have already noticed that there is no evidence to establish that the appellant had informed the Bank about the loss of the cheque book containing blank cheque. In fact, In the statement under Section 313 Cr.PC. appellant had Page 14 of 16 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri May 08 2026 Downloaded on : Sat May 09 01:59:56 IST 2026 NEUTRAL CITATION R/CR.RA/632/2010 JUDGMENT DATED: 05/05/2026 undefined stated that this cheque book containing a blank cheque was lost. Appellant has no case that the signature on the cheque in question was not put by him."
In view of the above, notice is served, and no reply has been given, then it required to be presumed that the cheque was issued towards legally enforceable debt.
21) Perusing the reasons assigned by learned Session Court, ignoring statutory presumption under Section 118 and 139 of the Act, in absence of probable defense merely based on the arguments canvassed by learned counsel that without verifying or re- appreciating the evidence straightway accepted oral submissions of the accused is not permissible under the Act and merely amount was not mentioned in the Income Tax return as discussed in earlier part does not mean that no legally enforceable debt does exist.
22) One more aspect which deserves consideration is that the offence under Section 138 of the Negotiable Instruments Act is compoundable in nature. During the course of hearing, this Court granted sufficient opportunity to the parties to explore the possibility of amicable settlement, particularly at the request of the accused. However, despite ample opportunity having been granted, the dispute could not be resolved as the parties were not willing to arrive at any settlement. Therefore, in light of the object under the provisions of the Negotiable Instruments Act, and having regard to the principles laid down in Sanjabij Tari v. Kishore S. Boarcar & Anr., this Court is constrained to examine the matter on merits.
23) Learned counsel appearing for the accused has contended that this Court, while exercising revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure, ought not to interfere with an order of acquittal by re-appreciating the Page 15 of 16 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri May 08 2026 Downloaded on : Sat May 09 01:59:56 IST 2026 NEUTRAL CITATION R/CR.RA/632/2010 JUDGMENT DATED: 05/05/2026 undefined evidence. However, this Court is of the considered view that the revisional jurisdiction can be exercised the findings recorded by the lower appellate Court are found to be perverse, contrary to the evidence on record, or based on an erroneous application of settled principles of law. Here in the case on hand, the applicant is able to demonstrate the manifest error in the perversity in the findings and reasoning assigned by the learned Sessions Court. In view of the same, there is no bar to allow revision application and inference in revisional jurisdiction is required in the present case.
24) Since in the present case, the learned Sessions Court has not properly appreciated the evidence and applied the settled legal principles governing by presumption under Sections 118 and 139 of the Negotiable Instruments Act.
25) This Court is of the opinion that the impugned judgment and order passed by the learned Sessions Court is perverse and warrants interference.
26) For the foregoing reasons and observations, the present revision application is partly allowed. The impugned judgment and order dated 22.11.2010 passed by the learned City Sessions Judge, Ahmedabad, in Criminal Appeal No.227 of 2009 is hereby quashed and set aside. The matter is remanded to the concerned learned Addl. Sessions Judge, who shall pass appropriate order in the pending Criminal Appeal, in accordance with law, within a period of two weeks from the date of receipt of this order.
(HASMUKH D. SUTHAR,J) SUCHIT Page 16 of 16 Uploaded by SUCHITKUMAR PATEL(HC01083) on Fri May 08 2026 Downloaded on : Sat May 09 01:59:56 IST 2026