Not Proper To Shift Burden On Complainant To Prove NI Act Case Beyond ‘Reasonable Doubt’ When Accused Didn’t Respond To Statutory Notice: Gujarat HC

While allowing a leave to appeal against acquittal in a criminal case under Section 138 of the N.I. Act, the Gujarat High Court said the Magistrate's approach in shifting the burden upon the complainant to prove his case beyond reasonable doubt was not proper “when the accused has chosen not to question the financial capacity of complainant at very first instance by not replying to the statutory notice.”

“The statutory presumption drawn under Section 139 of the N.I. Act continued and it was for the accused to discharge the onus by bringing on record such facts to show the preponderance of probabilities about non-existence of such legal debt between the parties,” Justice Nisha M. Thakore said.

Advocate Anik E. Shaikh, appearing for the Original Complainant, argued that the trial court failed to appreciate the facts of the case and the applicable law on the same.

Shaikh submitted that the complainant had lent an amount of Rs.14,80,000/- to the respondent, who is engaged in the business of event management. While relying on the promissory notes executed by the respondent, Shaikh submitted that the respondents had approached the complainant seeking financial help for running their business, and they had assured him to make good the payment.

He further submitted that despite arriving at a conclusion that the complainant had been able to establish the existence of legal debt between the parties, the Magistrate had erroneously proceeded to call upon the complainant to establish his financial capacity and had dismissed the complaint.

Shaikh relied upon the decision of the apex court in the case of M/s. Kalamani Tex & Anr. Vs P. Balasubramanian and contended that once the signature on the disputed cheque was not contradicted by the accused, the statutory presumption was available in favor of the complainant. In such circumstances, the trial court had failed to appreciate that the reverse onus clause had become operative, and the obligation had shifted upon the accused to discharge the presumption imposed upon him, he said.

Issuing bailable warrant against the accused, Justice Thakore directed the Registry to call for record and proceedings from the concerned court forthwith. “Appeal is expedited,” the bench said.

Case Title: YOGENDRAKUMAR DINDAYAL DHOOT Versus MANISH KISAN BINANI R/CRIMINAL MISC.APPLICATION NO. 6567 of 2023

Case Citation: 2023 Livelaw (Guj) 90

Appearance:MR ANIK E SHAIKH(10873) for the Applicant(s) No. 1MR SATYAJIT SEN(731) for the Applicant(s) No. 1

for the Respondent(s) No. 1MS. C.M. SHAH, APP for the Respondent(s) No. 3

Case Title: YOGENDRAKUMAR DINDAYAL DHOOT Versus MANISH KISAN BINANI R/CRIMINAL MISC.APPLICATION NO. 6567 of 2023

Appearance:MR ANIK E SHAIKH(10873) for the Applicant(s) No. 1MR SATYAJIT SEN(731) for the Applicant(s) No. 1

for the Respondent(s) No. 1MS. C.M. SHAH, APP for the Respondent(s) No. 3

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