PATEL KANUBHAI RAMDAS vs STATE OF GUJARAT
- Court
- Gujarat High Court
R/SCR.A/4524/2024 CAV JUDGMENT DATED: 04/05/2026
Reserved On : 22/04/2026
Pronounced On : 04/05/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4524 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE M. R. MENGDEY Sd/-
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Approved for Reporting Yes No
✔
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PATEL KANUBHAI RAMDAS
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR JIGAR G GADHAVI(5613) for the Applicant(s) No. 1
MR SANJAY S BRAHMBHATT(13526) for the Respondent(s) No. 2
MR VISHAL S BRAHMBHATT(13935) for the Respondent(s) No. 2
MR. MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE M. R. MENGDEY
CAV JUDGMENT
1. By filing the present petition under Article 226 and 227 of
the Constitution of India read with Section 482 of the
Criminal Procedure Code, 1973, the petitioner has prayed
for the following reliefs:-
(A) Your Lordships may be pleased to issue a writ of
mandamus and/or writ of certiorari and / or any other
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writ, order or direction in the nature of mandamus and
or certiorari quashing and setting aside the order
passed by the Court of learned Sessions Judge,
Mahesana dated 19.02.2024 passed in Criminal
Revision Application No.100 of 2023.
(B) Pending admission, hearing and final disposal of the
present petition this Hon’ble Court may be pleased to
stay the further proceedings arising out of the order
passed by the Court of Learned Sessions Judge,
Mahesana dated 19.02.2024 passed in Criminal
Revision Application No.100 of 2023.
2. Rule. Learned Additional Public Prosecutor and learned
advocate Mr. S. S. Brahmbhatt waives service of notice of
rule for and on behalf of the respondent State and
respondent no.2, respectively.
3. The facts and circumstances giving rise to filing the
present petition are such that the petitioner herein has
lodged a complaint against Respondent no.2 herein for the
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881 before the Court of learned Judicial
Magistrate, Mehsana which has been registered as
Criminal Case No.2577 of 2020. During the course of trial
for the said offence after the evidence of the complainant
was over, the statement under Section 313 of the Criminal
Procedure Code, 1973 was recorded. Thereafter,
Respondent no.2 herein submitted an application before
the learned trial Court vide Exh-54 invoking the provisions
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of Section 311(A) of Criminal Procedure Code, 1973 and
prayed that the disputed cheques i.e. Exh-14 to 18 and
documents on record vide Exh-45 to 47 be sent for
examination to the handwriting expert. The learned trial
Court dismissed the said application vide order dated
23.12.2023.
4. Being aggrieved and dissatisfied with the said order,
Respondent no.2 preferred Criminal Revision Application
No.100 of 2023 before the learned Sessions Court,
Mehsana. The learned Sessions Court vide impugned order
allowed the said Revision Application and directed that the
cheques and documents referred to herein above be sent to
the handwriting expert. It is against this order that the
petitioner has approached this Court by filing the present
petition.
5. Learned advocate Shri Jigar Gadhvi appearing for the
petitioner submitted that Respondent no.2 herein has
submitted an application vide Exh-54 before the learned
trial Court by invoking the provisions under Section 311(A)
of the Cr.P.C. He submitted that the provision of Section
311(A) would come into play only when the person whose
specimen handwriting or signature is sought to be
collected has been arrested at some point of time in
connection with the proceedings in question. By submitting
an application vide Exh-54, Respondent no.2 has sought
the handwriting of the son of the petitioner to be collected
and sent to the handwriting expert for examination along
with the documents referred herein above. It is an admitted
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position that the son of the petitioner has not been
arrested as an accused in connection with the present
offence and therefore, the provision of Section 311(A) would
not be attracted to the facts of the present case. He further
submitted that it is the case of Respondent no.2 herein
that the details in the disputed cheques have been filled up
by the son of the petitioner. However, it is a settled law
that once the signed cheque has been handed over to the
complainant, other details on the cheque can be filled up
by anybody. He further submitted that the trial is at the
stage of evidence of defence and if Respondent no.2 is
desirous of examining the son of the petitioner as a defence
witness, he can do so and during his examination
questions can be put to him with regard to the writings on
the disputed cheque. Therefore, the question of sending the
disputed cheques to the handwriting expert for
examination does not arise at this stage. He therefore
submitted to allow the present petition and quash and set
aside the order impugned in the present petition.
5.1 Learned advocate appearing for the petitioner has sought
to rely upon the following judgments in support of his
submissions:-
B. C. Radhakrishnan & Ors. Vs. Saju
Thuruthikunnen & Anr reported in (2013) SCC
OnLine Ker 24224
Sandeep Kaur and another Vs. Union Territory
Chandigarh
6. Learned advocate Shri S. S. Brahmbhatt appearing for
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Respondent no.2 has opposed the present petition inter-
alia contending that the details on the disputed cheque
given by Respondent no.2 had been filled up by the son of
the present petitioner. The amount payable by Respondent
no.2 to the petitioner has already been paid and necessary
documents in that regard are forming part of the record
before the learned trial Court and therefore, there was no
amount due to be paid by Respondent no.2 to the
petitioner. The petitioner has misused the cheques and for
the said purpose, the other details on the cheques have
been filled up by the son of the petitioner and therefore,
the disputed cheques as well as the other documents are
required to be sent to the FSL for examination of the
handwriting for rebuttal of the presumption under Section
139 of the Negotiable Instruments Act, 1881. He further
submitted that even if the arguments of the petitioner with
regard to the provisions of Section 311(A) of the Cr.P.C. not
being attracted is accepted, mere invocation of a wrong
provision of law would not preclude Respondent no.2 from
seeking the relief in question. He further submitted that
the learned Sessions Court has taken all these aspects into
consideration while passing the impugned judgment and
order. He therefore submitted to dismiss the present
petition.
6.1 Learned advocate has sought to rely upon the following
judgments in support of his submissions:-
Collector of Central Excise, Calcutta Vs. Pradhyumna
Steel Ltd.
Mrs. Kalyani Baskar Vs. Mrs. M. S. Sampoornam
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7. This Court has also heard learned Additional Public
Prosecutor appearing for the respondent State.
8. Heard learned advocates appearing for the respective
parties.
9. The petitioner herein has lodged a complaint for the offence
punishable under the provisions of Section 138 of the
Negotiable Instruments Act, 1881 against Respondent no.2
before the learned Court at Mehsana wherein it is
contended by the petitioner that he is into the business of
finance and investment. Since the respondent was in need
of money, he had approached the petitioner and had asked
him to pay the amount of Rs.10 lakhs. The petitioner
herein had paid the amount of Rs.10 lakhs to Respondent
no.2 through various cheques. Respondent no.2 had
promised repayment of amount during the period of 1.5
years. After the period of 1.5 years was over, upon being
asked to repay the said amount, Respondent no.2 herein
had drawn five different cheques in favour of the petitioner
for the amount of Rs.2 lakhs each. When the petitioner
deposited those cheques in his account, they were
dishonored with an endorsement “fund insufficient” .
Respondent no.2 therefore had directed the petitioner to
redeposit the cheques after some time. Therefore, the
petitioner again deposited those cheques in his bank
account and those cheques were again dishonored with the
same endorsement. The Notice in this regard was issued by
the petitioner to Respondent no.2 on 04.07.2020 which
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was duly served upon him on 06.07.2020 and thereafter,
since Respondent no.2 did not pay the amount of disputed
cheques, the complaint was lodged by the petitioner
against him.
10. From the material available on record, it is clear that
Respondent no.2 has not disputed his signature on the
disputed cheques. Once the signature on the disputed
cheques is not disputed by the accused, the presumption
under Section 139 of the Negotiable Instruments Act, 1881
would start operating against him. It is pertinent to note at
this stage that the notice issued by the petitioner to
Respondent no.2 prior to lodging of the complaint, does not
appear to have been replied to by him nor there is anything
on record to indicate that at any stage during the course of
trial, Respondent no.2 has disputed his signature on the
cheques in question. Upon perusal of the application vide
Exh-54, which was given by Respondent no.2 before the
learned trial Court, it appears that he accepts that the
signature on the dispute cheques is his. It is stated in the
application that after the cheques in question were
dishonored, the petitioner herein had got executed an
agreement vide Exh-45 qua the property belonging to
Respondent no.2 towards full and final settlement of the
account on 06.07.2020. Thereafter, on 10.06.2021 when
Respondent no.2 had repaid the entire amount to the
petitioner, another agreement vide Exh-47 was executed
by the petitioner in favour of Respondent no.2. These
facts indicate that Respondent no.2 is not disputing his
signature on the cheques in question. It is the case on
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the part of Respondent no.2 that since the entire cheque
amount had been repaid by him to the petitioner, there
was no legally enforceable debt due from Respondent no.2
to the petitioner. It is further the case of Respondent no.2
that the cheques in question had been misused by the
petitioner and though he was not liable to pay any amount
to the petitioner, the son of the petitioner had filled in the
other details on the cheques in his handwriting and
therefore, the application vide Exh-54 was submitted
before the learned trial Court for sending the disputed
cheques as well as the other documents for examination by
the handwriting experts.
11. The question therefore raised before this Court is to
determine whether Respondent no.2 can be permitted to
engage the handwriting expert to determine handwriting on
the disputed cheques. Presumption under Section 139 of
the Negotiable Instruments Act, 1881 is rebuttable
presumption and as stated hereinabove, once Respondent
no.2 has handed over the cheques signed by him to the
petitioner, in the absence of any dispute regarding the
signature on those cheques, presumption shall start
operating against Respondent no.2 and he would be
required to rebut the said position by leading cogent
evidence.
12. This issue was raised before the Hon’ble Supreme Court in
the case of Oriental Bank of Commerce Vs. Prabodh Kumar
Tiwari reported in (2024) 12 SCC 165 , the Hon’ble Apex
Court in its judgment has observed as under:-
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“ 13 . In Bir Singh v. Mukesh Kumar, after discussing the
settled line of precedent of this Court on this issue, a
two-Judge Bench held: (SCC pp. 208-209, 33-34 & 36)
"33. A meaningful reading of the provisions of
the Negotiable Instruments Act including, in
particular, Sections 20, 87 and 139, makes it
amply clear that a person who signs a cheque
and makes it over to the payee remains liable
unless he adduces evidence to rebut the
presumption that the cheque had been issued
for payment of a debt or in discharge of a
liability. It is immaterial that the cheque may
have been filled in by any person other than the
drawer, if the cheque is duly signed by the
drawer. If the cheque is otherwise valid, the
penal provisions of Section 138 would be
attracted.
34. If a signed blank cheque is voluntarily
presented to a payee, towards some payment,
the payee may fill up the amount and other
particulars. This in itself would not invalidate the
cheque. The onus would still be on the accused
to prove that the cheque was not in discharge of
a debt or liability by adducing evidence.
36. Even a blank cheque leaf, voluntarily signed
and handed over by the accused, which is
towards some payment, would attract
presumption under Section 139 of the
Negotiable Instruments Act, in the absence of
any cogent evidence to show that the cheque
was not issued in discharge of a debt."
The above view was recently reiterated by a three-
Judge Bench of this Court in Kalamani Tex v. P.
Balasubramanian.
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14. A drawer who signs a cheque and hands it over to the
payee, is presumed to be liable unless the drawer
adduces evidence to rebut the presumption that the
cheque has been issued towards payment of a debt or
in discharge of a liability. The presumption arises
under Section 139.
15. In ANSS Rajashekar v. Augustus Jeba Ananth, a two-
Judge Bench of this Court, of which one of us (D.Y.
Chandrachud, J.) was a part, reiterated the decision of
the three-Judge Bench of this Court in Rangappa v. Sri
Mohan.
"12. Section 139 of the Act mandates that it shall be
presumed, unless the contrary is proved, that the
holder of a cheque received it, in discharge, in whole
or in part, of a debt, or liability. The expression "unless
the contrary is proved indicates that the presumption
under Section 139 of the Act is rebuttable. Terming
this as an example of a "reverse onus clause" the
three-Judge Bench of this Court in Rangappa held that
in determining whether the presumption has been
rebutted, the test of proportionality must guide the
determination. The standard of proof for rebuttal of the
presumption under Section 139 of the Act is guided by
a preponderance of probabilities. This Court held thus:
(SCC р. 454, para 28) A
“28. In the absence of compelling justifications,
reverse onus clauses usually impose an
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evidentiary burden and not a persuasive burden.
Keeping this in view, it is a settled position that
when an accused has to rebut the presumption
under Section 139, the standard of proof for
doing so is that of "preponderance of
probabilities". Therefore, if the accused is able
to raise a probable defence which creates
doubts about the existence of a legally
enforceable debt or liability, the prosecution can
fail. As clarified in the citations, the accused can
rely on the materials submitted by the
complainant in order to raise such a defence and
it is conceivable that in some cases the accused
may not need to adduce evidence of his/her
own.""
16. For such a determination, the fact that the details in
the cheque have been filled up not by the drawer, but
by some other person would be immaterial. The
presumption which arises on the signing of the cheque
cannot be rebutted merely by the report of a
handwriting expert. Even if the details in the cheque
have not been filled up by drawer but by another
person, this is not relevant to the defence whether
cheque was issued towards payment of a debt or in
discharge of a liability.”
13. In view of the aforesaid observations of the Hon’ble
Supreme Court even if the argument that the details in the
disputed cheques had been filled in by the son of the
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petitioner is accepted at its face value, that by itself, would
not absolve Respondent no.2 of the presumption under
Section 139 of the NI Act.
14. Learned Sessions Court in the impugned judgment and
order has observed that vide documents at Exhs 45 to 47,
the amount of the disputed cheques has already been
repaid by Respondent no.2 to the petitioners and for that
aspect, it is necessary to send the cheques in question for
examination. The reasoning given by the learned Sessions
Court appears to be erroneous, as it is the duty of
Respondent no.2 to rebut the presumption under Section
139 of the Negotiable Instruments Act, 1881 by leading
cogent and reliable evidence, and for the said purpose, in
view of the observations of the Hon’ble Supreme Court
referred to herein above, Respondent no.2 cannot take
recourse to opinion of the handwriting expert as regards
the handwriting on the disputed cheques.
15. The applicability of Section 311(A) of the Cr.P.C. is also the
subject matter of challenge. The bare perusal of the
provisions makes it clear that it would operate only when a
person whose handwriting specimen is to be obtained, was
arrested in connection with that particular offence. The son
of the petitioner is not arraigned as an accused in the
present case. Therefore, there is no question of his arrest.
Therefore, this provision will have no application. It argued
on behalf of the respondent that mere mention of a wrong
provision would not preclude him from seeking the remedy.
In view of discussion made hereinabove, respondent no.2
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cannot claim the cheques to be sent for examination.
16. Having regard to this aspect, the petition deserves
consideration and the same is hereby allowed. The order
passed by the learned Sessions Court in Criminal Revision
Application No.100 of 2023 on 19.02.2024 is hereby
quashed and set aside.
17. Rule made absolute to the aforesaid extent.
Sd/-
(M. R. MENGDEY, J)
NABILA
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