Case Note & Summary
The applicant, Jagrutiben Navinchandra Biscuitwala, filed a private complaint under Section 138 of the Negotiable Instruments Act, 1881, against the respondent no.2 (original accused) alleging dishonour of a cheque. The Judicial Magistrate First Class, Court No.2, Surat, convicted the accused and sentenced him to one month simple imprisonment and a fine of Rs.5,000. The accused appealed in Criminal Appeal No.16 of 2009, and the complainant filed Criminal Revision Application No.133 of 2009 for enhancement of sentence. The 3rd Additional District Judge, Surat, by a common judgment dated 18.12.2010, allowed the appeal and set aside the conviction, thereby acquitting the accused. The complainant then filed the present revision application under Sections 397 and 401 CrPC and a special criminal application challenging the acquittal. The High Court examined the evidence and found that the appellate court had correctly appreciated the facts, noting that the complainant failed to prove that the cheque was issued for a legally enforceable debt. The accused had raised a probable defence that the cheque was given as security. The High Court held that the revisional court cannot reappreciate evidence like an appellate court and that the appellate court's findings were not perverse. Consequently, both applications were dismissed.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Presumption under Section 139 - Rebuttal - The complainant must prove that the cheque was issued for a legally enforceable debt. The accused can rebut the presumption by raising a probable defence. In this case, the accused successfully rebutted the presumption by showing that the cheque was given as security and not for any existing debt. (Paras 1-6)
B) Criminal Procedure Code - Revision - Sections 397 and 401 - Scope - The revisional court cannot act as an appellate court and cannot reappreciate evidence unless the findings are perverse or illegal. The appellate court's order reversing conviction was based on proper appreciation of evidence and did not warrant interference. (Paras 1-6)
Issue of Consideration
Whether the appellate court was justified in reversing the conviction of the accused under Section 138 of the Negotiable Instruments Act, 1881, and whether the High Court in revision should interfere with such acquittal.
Final Decision
Both the Criminal Revision Application No. 15 of 2012 and the Special Criminal Application No. 70 of 2012 are dismissed. The judgment and order dated 18.12.2010 passed by the 3rd Additional District Judge, Surat, in Criminal Appeal No.16 of 2009 and Criminal Revision Application No.133 of 2009 are confirmed.
Law Points
- Negotiable Instruments Act
- 1881
- Section 138
- presumption under Section 139
- rebuttal of presumption
- legally enforceable debt
- appellate court's power to reverse acquittal
- scope of revision under Sections 397 and 401 CrPC
Case Details
2026 LawText (GUJ) (03) 1043
R/Criminal Revision Application No. 15 of 2012 with R/Special Criminal Application No. 70 of 2012
Mr. Utpal M Panchal for the applicant, Mr. Nishith P Thakkar for respondent no.2, Mr. Rohan Raval, APP for respondent no.1
Jagrutiben Navinchandra Biscuitwala
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Nature of Litigation
Criminal revision application and special criminal application filed by the original complainant challenging the appellate court's order acquitting the accused under Section 138 of the Negotiable Instruments Act.
Remedy Sought
Quashing of the appellate court's judgment and order dated 18.12.2010 and conviction of the accused.
Filing Reason
The complainant was aggrieved by the appellate court's decision to set aside the conviction of the accused under Section 138 of the NI Act.
Previous Decisions
The Judicial Magistrate First Class, Court No.2, Surat, convicted the accused. The 3rd Additional District Judge, Surat, in Criminal Appeal No.16 of 2009, reversed the conviction and acquitted the accused.
Issues
Whether the appellate court was justified in reversing the conviction of the accused under Section 138 of the Negotiable Instruments Act, 1881?
Whether the High Court in revision should interfere with the appellate court's order of acquittal?
Submissions/Arguments
The applicant argued that the appellate court erred in reversing the conviction and that the accused failed to rebut the presumption under Section 139 of the NI Act.
The respondent argued that the appellate court correctly appreciated the evidence and that the complainant failed to prove a legally enforceable debt.
Ratio Decidendi
The appellate court's reversal of conviction was based on proper appreciation of evidence. The complainant failed to prove that the cheque was issued for a legally enforceable debt. The revisional court cannot reappreciate evidence like an appellate court and will not interfere unless findings are perverse.
Judgment Excerpts
Since both the applications are filed by the applicant - original complainant seeking quashing of the common judgment and order, both the applications are heard, decided and disposed of by this common judgment.
It is the case of the applicant – original complainant that she had lodged a private complaint No.1 of 2005 against the respondent no.2 herein under Section 138 of the Negotiable Instruments Act...
Procedural History
The complainant filed a private complaint under Section 138 of the NI Act. The Magistrate convicted the accused. The accused appealed in Criminal Appeal No.16 of 2009, and the complainant filed Criminal Revision Application No.133 of 2009 for enhancement. The 3rd Additional District Judge, Surat, allowed the appeal and set aside the conviction. The complainant then filed the present revision and special criminal application before the High Court.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 139
- Code of Criminal Procedure, 1973: 397, 401
