RAMESHBHAI SHANTILAL SHAHversusSTATE OF GUJARAT

   R/CR.RA/77/2012                             JUDGMENT DATED: 20/04/2026




IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
         R/CRIMINAL REVISION APPLICATION NO. 77 of 2012


FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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        Approved for Reporting             Yes       No
                                                      √
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                  RAMESHBHAI SHANTILAL SHAH
                              Versus
                    STATE OF GUJARAT & ANR.
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Appearance:
BAILABLE WARRANT UNSERVED for the Applicant(s) No. 1
MR HEMANT B RAVAL(3491) for the Applicant(s) No. 1
MR UDAY R BHATT(192) for the Respondent(s) No. 2
MR ROHAN RAVAL, APP for the Respondent(s) No. 1
==========================================================
  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                          Date : 20/04/2026
                            JUDGMENT

[1.0] By way of present revision application under Section 397 read
with Section 401 of the Code of Criminal Procedure, 1973 (for short
“CrPC”), the applicant has prayed for quashing and setting aside of the
judgment and order dated 30.07.2011 passed by the learned
Metropolitan Magistrate NIA Court No.6, Ahmedabad in New Criminal
Case No.1436/2008 (Old Criminal Case No.494/2002) as well as the
judgment dated 31.01.2012 passed by the learned Additional Sessions
Judge, Court No.11, Ahmedabad in Criminal Appeal No.314/2011.

[2.0] Perusing the record, it appears that the complainant filed
complaint against the present applicant on 13.05.2002 alleging that
the applicant has not repaid the hand loan of Rs.95,000/- given in cash



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by the complainant to the applicant as complainant and applicant
were friends since long. It further appears that after some time, the
applicant had given a cheque drawn on Nutan Nagarik Sahkari Bank,
Kapdiwas       Branch,   Ahmedabad      which   was    dishonored        with
endorsement “Opening Balance Insufficient” and thereafter, the
complainant had issued demand notice dated 16.04.2002 but of no
avail and therefore, the complaint being Criminal Case No.1436/2008
under Section 138 of the Negotiable Instruments Act, 1881 (for short
“NI Act”) was filed.

[3.0] The learned Magistrate convicted the present applicant by
judgment and order dated 30.07.2011 for the offence under Section
138 of the NI Act and imposed punishment of six months’ simple
imprisonment upon the applicant with fine of Rs.5000/- and in default
of payment of fine, further simple imprisonment for three months was
imposed. Being aggrieved and dissatisfied, the applicant preferred an
appeal being Criminal Appeal No.314/2011 under Section 374 of the
CrPC which was dismissed by the learned Additional Sessions Judge,
Court No.11, Ahmedabad vide judgment and order dated dated
31.01.2012 upholding the judgment and order passed by the learned
Magistrate. Hence, present applicant has filed the present revision
application.

[4.0] Heard learned advocate Mr. Hemant Raval for the applicant. He
has submitted that the applicant – accused is not in his contact since
the date he has been granted bail by the coordinate Bench vide order
dated 02.03.2012 and even the Bailable Warrant issued by this Court
vide order dated 12.03.2026 has returned unserved. Hence, in
considered opinion of this Court, there does not appear any possibility
of settlement as the applicant is not traceable and not available. Even,


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   R/CR.RA/77/2012                                JUDGMENT DATED: 20/04/2026




the learned advocate for the applicant – accused has requested to
pass appropriate order.

[5.0] Having heard learned advocates appearing for respective
parties and perusing the record, it appears that the applicant availed
hand loan of Rs.95,000/- on 13.05.2002 from the respondent No.2 –
complainant and towards repayment of said amount, applicant issued
cheque in question which was dishonored with endorsement “Opening
Balance Insufficient” and even thereafter, the applicant did not make
the payment of the said amount. In this regard, the complaint was
filed. In order to prove the said complaint, the complainant has filed
his affidavit of examination in chief at Exh.3 and the cheque in
question is produced at Exh.5, return memo at Exhs.6 & 7, statutory
notice at Exh.11, registered AD money slip at Exh.8, UPC receipt at
Exh.9, RPAD acknowledgement slip at Exh.10, copy of complaint filed
by wife of applicant against the complainant and reply to notice given
by the applicant at Exh.21. After recording the evidence, further
statement of accused came to be recorded under Section 313 of the
CrPC. Though opportunity to rebut the presumption and to examine
the witness or produce evidence was given to the accused before the
learned trial Court, the accused did not do so.

[5.1] It is undisputed and admitted fact that the accused has received
a hand loan of Rs.95,000/- on 13.05.2002 from the respondent –
complainant and as he failed to repay the said amount and cheque for
an amount of Rs.95,000/- came to be drawn and signed by the accused
in favor of respondent No.2 – complainant and signature of accused is
not disputed. It is also not in dispute that the cheque was returned
due to “opening balance insufficient”. Hence, statutory presumption
under Section 139 of the NI Act is required to be drawn. Further, the


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   R/CR.RA/77/2012                             JUDGMENT DATED: 20/04/2026




applicant though was given an opportunity, has not deposed on oath
before the learned trial Court and has not even examined any witness
in support of his case. Further, the applicant has not even proved the
documentary evidence produced on his behalf and has only stated
that the cheque in question was issued towards security and not
towards legally enforceable debt. But, the applicant has accepted and
admitted his signature on the cheque in question. 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. It
appears that both the Courts have properly exercised the jurisdiction
as the cheque was presented before the Bank and same came to be
dishonored with endorsement “Opening Balance Insufficient” and
there are concurrent finding of facts assigned by both the Courts
below.



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   R/CR.RA/77/2012                                JUDGMENT DATED: 20/04/2026




[5.2] This is not the case wherein cheque of amount more than the
outstanding amount is drawn and same is misused for the purpose or
intention to recover the amount. There is no bar to fill up the cheque
as the signature is not denied. Once blank leaf of cheque is provided
then it is the authority of the holder of the cheque to fill up the
contents or details in the cheque which is also permissible under the
law. Hence, the learned trial Court as well as the learned appellate
Court have rightly convicted the applicant – accused. Even otherwise,
the conduct of the applicant – accused is required to be considered as
after being released on bail by the coordinate Bench way back in the
year 2012, the applicant has never bothered to pursue the present
application and even the Bailable Warrant issued by this Court has
returned unserved, which is sufficient to draw an inference that the
applicant has lost interest in the present application.

[5.3] Even otherwise, the revisional jurisdiction can be exercised
where there is a palpable error or non-compliance with the provision
of law and where decision is completely erroneous and where the
judicial discretion is exercised arbitrarily. Herein, if we examine the
reasons assigned by the learned trial Court, it appears that learned
trial Court has already appreciated the facts and finding of fact not to
be upset unless it is found perverse and finding of fact not to be
substituted keeping in mind the ratio of Hon’ble Supreme Court in the
case of Amit Kapoor vs. Ramesh Chander & Anr. reported in (2012)9
SCC 460 as no perversity is found in the reasons assigned by the
learned trial Court and upheld by the learned appellate Court. Both
the Courts have properly assigned reasons and given the finding
based on evidence led and hence also, no interference at the hands of
this Court in exercise of revisional jurisdiction is required.




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[5.4] It would be appropriate to refer to the decision of the Hon’ble
Supreme Court in the case of Malkeet Singh Gill vs. State of
Chhatisgarh reported in (2022)8 SCC 204 wherein the Hon’ble
Supreme Court held that section 397/401 CrPC vests jurisdiction for
the purpose of satisfying itself or himself as to the correctness,
legality or propriety of any finding, sentence or order, recorded or
passed, and as to the regularity of any proceedings of such inferior
court. The object of the provision is to set right a patent defect or an
error of jurisdiction of law. There has to be well-founded error which is
to be determined on the merits of individual case. It is also well
settled that while considering the same, the Revisional Court does not
dwell at length upon the facts and evidence of the case to reverse
those findings. It is a settled legal proposition that if the Courts below
have recorded the finding of fact, the question of re-appreciation of
evidence by the Court does not arise unless it is found to be totally
perverse.

[6.0] It is needless to say that the offence under Section 138 of the NI
Act is quasi criminal in character and is also compoundable one and the
punishment under the NI Act is not a means of seeking retribution but
is a more means to ensure payment of money and to promote
credibility of cheques as a trustworthy substitute for cash payment. In
view of above, considering the longstanding dispute since the year
2002 and since the present application is filed in the year 2012, this
Court in order to provide one opportunity, put it to the learned
advocate for the applicant – accused to inquire from the applicant if
he wants to settle the dispute by making payment of outstanding
amount to the respondent No.2 – complainant, to which the learned
advocate for the applicant, as stated hereinabove, has submitted that
applicant – accused is not in his contact and thus, it appears that this


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       R/CR.RA/77/2012                                                        JUDGMENT DATED: 20/04/2026




Court could not see any possibility of settlement at the hands of the
applicant – accused.

[7.0] In wake of aforesaid conspectus, present revision application
fails and stands dismissed. Rule is hereby discharged. Interim relief
granted earlier stands vacated forthwith. The applicant – accused to
forthwith surrender before the learned trial Court to serve the
remaining sentence, if any.


                                                                                     Sd/-
                                                                   (HASMUKH D. SUTHAR, J.)

Ajay
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: AJAY CHANDRAN MENON(HC00939), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 20/04/2026 14:46:49




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