Gujarat High Court
Keyur Pravinchandra Shah vs State Of Gujarat on 4 July, 2025
NEUTRAL CITATION
R/CR.RA/1221/2017 JUDGMENT DATED: 04/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ACQUITTAL -
NEGOTIABLE INSTRUMENT ACT) NO. 1221 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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KEYUR PRAVINCHANDRA SHAH
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR BHAVIK J PANDYA(5002) for the Applicant(s) No. 1
MR MANISH J PATEL(2131) for the Applicant(s) No. 1
MR RIDDHESH TRIVEDI(6581) for the Respondent(s) No. 2,3
MR TRUPESH KATHERIA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 04/07/2025
ORAL JUDGMENT
Order dated 05/10/2017 rendered in Criminal Appeal No.168 of 2016 by the learned Additional Sessions Judge, City Civil Court No.12, Ahmedabad City, quashing and setting aside the judgment and order of conviction and sentence rendered in Criminal Case No.3192 of 2008 by the learned Metropolitan Magistrate Court, Ahmedabad, is sought to be assailed in the present Revision Application under the provisions of Section 397 read with Section 401 of the Code of Criminal Procedure.
2. The brief facts; as emerging from the record of the case are that the Page 1 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 22:53:36 IST 2025 NEUTRAL CITATION R/CR.RA/1221/2017 JUDGMENT DATED: 04/07/2025 undefined original complainant was doing the business of Cheque Discount and Commission Agent in the name and style of Shah Finance and the owner of the said Agency. It is alleged in the complaint that as the respondent No.2-original accused was in need of money, he contacted the complainant and asked to provide financial assistance for short term and therefore, the complainant considering their relationship provided financial assistance. It is alleged that after some time when the complainant asked for his money, the org. accused no.1 gave a cheque of Oriental Bank of Commerce, Drive-In Road Branch in the sum of Rs.10,50,000/- signed in the capacity of Director of the company - respondent no.3 and the said cheque having deposited in the account of the complainant, came to be dishonoured on 08/06/2007 with an endorsement of "account closed".
3. Thus, the complaint being Criminal Case No.3192 of 2008 was filed by the complainant before the Court of learned Metropolitan Magistrate, Ahmedabad under Section 138 of the Negotiable Instruments Act and the learned Metropolitan Magistrate, Ahmedabad considering the evidence produced the Court, oral as well as, documentary in nature passed the order of conviction and sentence and thereby awarded the sentence of fine of Rs.5,000/- in respect of original accused No.1 - company and original accused No.2 - Director of the Company was convicted for six months SI, in default, punishment of one month SI was imposed.
4. Aggrieved by the aforesaid judgment and order of conviction, both the original accused, as well as, the original complainant, have preferred an appeal before the learned Sessions Court, Ahmedabad. Criminal Appeal No.168 of 2016 was preferred by the original accused against the conviction and sentence. Whereas the Criminal Appeal No.1061 of 2016 Page 2 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 22:53:36 IST 2025 NEUTRAL CITATION R/CR.RA/1221/2017 JUDGMENT DATED: 04/07/2025 undefined was preferred by the original complainant seeking enhancement of the sentence and compensation for dishonour of the cheque under Section 357 of the Code of Criminal Procedure.
5. The learned Sessions Judge have heard both the appeals together and passed the common judgment and order dated 05/10/2017, whereby dismissed the appeal filed by the original complainant; while allowing the appeal filed by the original accused and thereby quashed and set aside the judgment and order of conviction and sentence rendered by the learned Magistrate Court.
6. Under the aforesaid background of facts, the present Revision Application is filed by the original complainant seeking to challenge the order of quashing and setting aside the judgment and order of conviction and sentence of the org. accused rendered by the learned Magistrate.
7. Heard learned Advocate Mr.Patel for the petitioner - original complainant and learned APP Mr.Kathiriya appearing for the respondent no.1 -State. Learned Advocate for the respondent Nos.2 and 3 Mr.Trivedi though served remained absent.
8. Learned advocate for the petitioner Mr.Patel, at the outset, has submitted that the impugned order passed by the learned Sessions Judge is not tenable in the eye of law. He has further submitted that learned first appellate Court ought to have considered the evidence produced before the Court, which indicates that since the accused was in need of money; complainant provided him financial assistance and in return thereof, the cheque was issued by the original accused which came to be dishonoured with an endorsement "account closed" and thus the complaint came to be filed.
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9. It is further submitted by learned advocate Mr.Patel that the learned Magisterial Court, after considering the entire material on record has rightly passed the order of conviction and sentence. However, the present petitioner only to the extent of imposition of lessor punishment have been constrained to challenge the aforesaid order for enhancement thereof before the learned first appellate Court; where the learned first appellate Court considering all materials has not interfered with the said conclusion; nor found any substance to interfere with the finding of the learned Magisterial Court.
10. It is further submitted by learned Advocate Mr.Patel for the petitioner that the conclusions arrived at by the learned Sessions Judge solely rest on the aspect of the applicant having engaged in the business of cheque discount and commission agent in the name and style of Shah Finance, who had extended the financial accommodation to the accused on his request and, in consideration thereof, the receipt of acknowledging the amount in question alleged to have been issued by the respondent no.2 and therefore, once the receipt in question while acknowledging the amount in question has been admitted, the burden to disclose the same cannot be shifted as the said fact seems to have been duly proved, the movement the execution of the receipts in questions has been conceded.
11. It is further submitted by learned Advocate Mr.Patel for the petitioner that the learned Sessions Judge discarded the aforesaid important aspect of the matter and quashed the order of conviction and sentence rendered by the Magisterial Court solely on the ground that the claim of the petitioner having engaged in the business of cheque discount and commission agent must be aware of the way of transaction and the way of financial transaction and maintaining the records, books of Page 4 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 22:53:36 IST 2025 NEUTRAL CITATION R/CR.RA/1221/2017 JUDGMENT DATED: 04/07/2025 undefined account, so also, the mode of transaction, etc.
12. By making the above submissions, learned advocate for the petitioner would submit to allow the present revision application and to quash and set aside the order passed by the learned first appellate Court.
13. Having heard the learned advocate for the petitioner and examining the impugned order, it appears that as admitted and conceded by the petitioner, so also reflects from the material on record that undisputedly, the applicant seems and claims to be Proprietor of Shah Finance who claims to have extended the temporary financial accommodation to the respondent no.1 to the extent of Rs.10,25,000/-. It is pertinent to note here that admittedly when the person claims to be engaged in the financial business is not expected to handover the money in cash without there being any substance and making such entry with regard to the mode of the transaction. Not only that, nothing sort of material as reflects from the documents produced and relied upon the by the complainant to show the mode and the way in which the alleged amount has been transferred and simply relying upon the receipt / chit alleged to have been signed by the respondent no.2 to prove the statement and allegations made by the complainant is not suffice. Not only that, the complainant as reflects from the deposition, though claims to be a Proprietor and engaged in the business in the financial business carrying on the same in his proprietorship is not in position to place any such material on record in support of his claim.
14. It further transpires that the claim of the complainant having extended the financial assistance to the extent of huge amount, under the guise of providing financial aid, without possessing any valid licence or authority seems to be lacking and missing. Not only that, even from the Page 5 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 22:53:36 IST 2025 NEUTRAL CITATION R/CR.RA/1221/2017 JUDGMENT DATED: 04/07/2025 undefined material, so also, the conclusion arrived at by the learned Sessions Judge, it appears that the complainant has candidly conceded the fact of not possessing any licence. Not only that, he also seems to have conceded the factum of having not entered into any such financial transaction with the respondent no.1; which prima facie establishes the fact of the question transaction seems to be missing as averred the complainant. It also appears from the record that even considering the claim of the complainant, who otherwise has been engaged in the business of finance expected to maintain the books of account and to file a Return; to the contrary claims to have submitted the Return; but conceded the factum of the alleged transactions and the amount thereof seems to have been missing in the Books of Account.
15. Apart from the aforesaid fact, as culminated from the reasoning, so arrived at by the learned Sessions Judge, nothing sort of any such material as to the way of mode of transfer of the question amount seems to have been substantiated by the petitioner. Not only that, on being cross-examined, with the specific questionnaires, the petitioner seems to have expressly admitted the fact of not possessing any such material in support of the claim of having transferred the question amount. Not only that, as is evident from the reasons recorded by the learned Sessions Judge, no such transactions in question having ever been entered into between the contesting parties seems to be reflected from the material and the said fact seems to have been getting a force on account of the petitioner having conceded the fact of having not submitted and produced the Books of Account and Return in cross-examination.
16. Apart from the aforesaid fact, though the fact which has no nexus so far as the claim of the petitioner is concerned, but as surfaced from the material, which also requires to have a glance is that the respondent in his Page 6 of 8 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Fri Jul 11 2025 Downloaded on : Fri Jul 11 22:53:36 IST 2025 NEUTRAL CITATION R/CR.RA/1221/2017 JUDGMENT DATED: 04/07/2025 undefined deposition claims to have submitted an application for striking of to the concerned authorities; copy whereof is produced on record at Exhibit-25 followed by the Resolution passed by the Board of the Directors of the Company, which implicit that way-back in the year 2005, the exercise with regard to the liquidation of the company in question seems to have been initiated. It further transpires that the question company seems to have been dissolved and gone into liquidation the resolution to that extent vide Exhibit-27 seems to have been brought on record.
17. The next contention which seems to have been raised and dealt with by the learned Sessions Judge is with regard to the issuance of the notice and effective service on the respondent no.1 and considering the way in which the notice having been issued; without there being any substance to show the acknowledgment for the notice in question by the complainant, the learned first appellate Court while relying upon the legal propositions concluded that the compulsory requirement so as to invoking the provisions of Section 138 of the NI Act preceding the lodgment of the complaint for issuance of the statutory notice seems to have not been duly served upon the respondent and therefore, the subsequent proceedings in absence thereof is not sustainable.
18. Thus, for initiation of the proceedings under the provisions of the NI Act, the initial burden lies on the complainant to establish and to prove the factum of legally enforceable debt against which the alleged cheque having been issued. Simply by putting forward the receipt sought to have been executed by the accused is not sufficient to discharge the burden; nor any such presumption and / or inference can be drawn under the provisions of Section 139 of the NI Act which otherwise is rebuttal.
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19. Apart from the aforesaid facts as discussed herein above, the sum and substance of the entire gamut of the case on hand is the mode of the transactions by the person, who claims to have been engaged in the business of cheque discount and commission agent, not a single document in the form of any such transaction seems to have been brought on record and simply by relying upon the receipts without there being any substances presumption as claimed to have been invoked under the provisions of Section 139 of the Act does not come to the rescue of the petitioner.
20. Even this Court, while going through the entire evidence at this stage, is not permitted to take a different view unless and until a grave error has been identified in the conclusion arrived at by the learned first appellate Court. The learned first appellate Court having threadbare examination of the evidence has reached to the conclsuion and this Court is in complete agreement with the said finding.
21. For the foregoing reasons, the petition fails and is dismissed. Rule is discharged. Records and Proceedings, if any, be transmitted to the Courts concerned forthwith.
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